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Summer Road Trips: Are your tires safe?

road trip

Summer is here and it is time to plan the family vacation.  When we learn to drive a car, we learn basic vehicle safety.  We are told to check the oil, kick the tires and make sure our fluid levels are steady.  But what about what we cannot easily see?  A vehicle’s tires have been considered to be at the top of the list for safety features in a vehicle.  They help the vehicle maintain steering, stability, traction and, yes, even braking systems.  However, tires can and do fail.  Whether it is from a nail you picked up somewhere along your travels or from abrupt tire failure, this can cause a driver to lose control of the vehicle with devastating consequences, especially at high speeds or on the interstate.  Tire defects can include inadequate tire design, poor manufacturing standards, insufficient tire bonding, use of old adhesives, improper cooking temperatures or even contamination during production, caused by moisture, sawdust, grease or rust.  When a tire fails, you may experience anything from tread separation to a tire blowout.  Tread separation occurs when a tire’s belts rip apart from each other.  A blowout can be caused by a puncture or cut to the sidewall of a tire or by a defective rim that cuts into the sidewall or causes the bead to break, ultimately slipping the tire off the rim.  Low air pressure can also cause a blowout.

There are warning signs, however.  If your vehicle experiences unusual shaking when you are driving, an unusual thumping or vibration, sudden pulling of the vehicle to one side (often referred to as “radial pulling”), or you notice uneven or excessive tread wear; you should have your tires checked.  You should adhere to your vehicle’s maintenance schedule for rotating, aligning and balancing your tires and between maintenance check to ensure your tires are properly inflated and not losing air pressure.  A common way to check your tire treat is by placing a penny between the tread grooves in the tire with Abraham Lincoln’s image facing upside down and forward.  If Lincoln’s hair is partially visible, it is time to replace your tires.  If his entire head is visible, you have lost most of your traction and should have your tires replaced immediately.

Unfortunately, a recent report by ABC News revealed that many recalled tires remain on the road today due to a badly flawed governmental recall system.  When you replace a tire, take note of the tire’s Department of Transportation (DOT) Tire Identification Number (TIN), imprinted on the sidewall of the tire.  The first 7 or 8 digits disclose information regarding the tire size and the manufacturer; while the last four digits reveal the week and year it was made.  You can also search for tire recalls on Safercar.gov.  The National Highway Traffic Safety Administration also provides an avenue to sign up for updates on tire recalls on their website or by following the agency on Twitter or Facebook.

Driving on safe tires means you can keep yourself and your entire family safe while in your vehicle.  With a few minor precautions, you can make that summer family road trip safer and more enjoyable.

Injured at Work: Do I have more than one claim?

 

hurt at work

It is Monday morning and you report to your job as a file clerk in a major corporation.  You go to the filing cabinet to get a file and trip over a drawer that was left open again, despite numerous complaints to management about the number of times this has happened and the danger it presents.  You have tripped over this drawer before, which is often left open because the file cabinet doesn’t close correctly and is due to be replaced.  You and other co-workers have put in requisition forms to your supervisor to replace the cabinet, but the budget is tight this year and the company has not replaced it.  Usually you just stub your toe or stumble and catch yourself, but today you actually fall and break your ankle and twist your back while falling.  What are your rights?  Who will pay your medical bills?  Who will pay your salary while you are off work?

In Nebraska, your only option against your employer is workers’ compensation under the Exclusive Remedy Doctrine.   Plock v. Crossroads Joint Venture, 239 Neb. 211, 475 N.W.2d 105 (1991).  Despite the fact that your employer failed to replace the filing cabinet and/or disregarded your complaints and didn’t make any changes in procedure, you will not have a lawsuit against your employer outside of workers’ compensation.  There is no claim for an intentional tort against your employer in the State of Nebraska.  The exclusive remedy doctrine provides a “give-and-take” remedy for addressing work-related injuries in which the employee relinquishes the right to sue an employer in civil court in exchange for specific and guaranteed benefits under the Nebraska Workers’ Compensation Act, regardless of fault.  Benefits usually include payment of medical treatment under a specified fee schedule, as well as “indemnity” payments to help compensate the worker for lost wages.

If you are injured at work, workers’ compensation will generally cover your injuries, with certain limited exceptions such as if your employer has entered into an express contract with a third-party to indemnify the third-party for the loss.    Union Pacific Railroad Co. v. Kaiser Ag. Chem. Co., 229 Neb. 160 (1988).   Railroads are governed by the Federal Employers’ Liability Act  of 1908 (FELA), rather than workers’ compensation, which falls under a different set of guidelines.  Even though workers’ compensation is your exclusive remedy for the negligence of your employer, you may have other claims.  Should your injuries be the fault of a third party, you may be able to seek compensation from the third party.  In this case, the workers’ compensation carrier may still pay your bills, however they are entitled to recovery of their payments from any settlement with the negligent party.  The employer is, however, protected from the third-party defendant’s attempts to seek contribution against an injured employee’s employer or co-workers.

If an employer subject to the Nebraska Workers’ Compensation Act fails to carry workers’ compensation insurance or an acceptable alternative, it loses the protection of the exclusive remedy.  In this situation, an employee can choose whether to accept the guaranteed benefits under the Nebraska Workers’ Compensation Act or to pursue a civil action directly against the employer.  Neb. Rev. Stat. § 48-145(3).   The employer’s non-compliance with the law operates as a Waiver of Exclusive Remedy.

So now that you know who will pay for your injuries, what is your responsibility as an injured employee?  First, you must timely give notice of your injury to your employer.  The law says this must be done “as soon as practicable” in writing, describing the details of your injury including the time, date, place and cause of the injury.  This notice is not necessary if your employer has “actual” notice of the injury, such as if the employer is present at the time of the injury.  Thompson v. Monfort of Colo, Inc., 221 Neb. 83, 375 N.W.2d 601 (1985).  Once your employer is notified of the injury, it is their responsibility to file a First Report of Injury with the Nebraska Workers’ Compensation Court and open a claim.

It is important to note that your claim must be filed within two years of the date of your accident or two years from the last payment for compensation of medical or indemnity (wages).  Neb. Rev. Stat. § 48-137.  If you or a loved one has suffered an injury at work, you should have your claim evaluated by an attorney who handles workers’ compensation and is familiar with the specifications of the Nebraska Workers’ Compensation Act.

Androgel: Is it worth the cardiovascular risk?

pill lawsuits

Low testosterone is a fairly common problem for many men after the age of thirty. As a man begins to lose testosterone, he can experience a number of serious health problems such as depression, a decreased libido, erections which are less pleasurable, low energy levels and decreased endurance. Testosterone gels or testosterone supplements are often a remedy to low testosterone, however physicians also prescribe prescription medications to alleviate symptoms. One such drug, Androgel, has recently been found to increase the risk of testosterone stroke and testosterone heart attack. Although Androgel warns of potential side effects in its literature and on its label, inclusive of high blood pressure, blood clots in the legs and other “serious problems” for persons with heart, kidney or liver disease, the actual risk of this drug includes testosterone death.

In November of 2013, the Journal of the American Medical Association published an article linking Androgel with testosterone death as well as other serious side effects. Prescriptions for low testosterone rose from 208 million in 2008 to over 432 million (including refills) in 2013. In 2011, testosterone therapy was a $1.6 billion business. Although the drug did enjoy some success in improving men’s sexual function, bone density, strength and lean muscle mass, as well as lowering cholesterol and insulin resistance, men who used the drug were found to be thirty percent more likely to suffer a heart attack or stroke or die within a three-year period than men with low hormone levels who didn’t take supplements in the 2013 Journal of American Medical Association study. The men in this study averaged 60 years of age and most had other health problems.   In contrast, most studies funded by pharmaceutical companies concluded no increased risk of cardiovascular problems associated with testosterone drugs.

Whether you believe the Journal of American Medical Association study or the pharmaceutical company studies, five Androgel lawsuits have been filed in the Illinois federal court against the manufacturers AbbVie Inc., and Abbott Laboratories, Inc., claiming the actual risk of serious side effects associated with the drug were not disclosed and concealed by the manufacturers. One plaintiff claims he suffered a heart attack, as well as other physical and emotional damages after taking the drug. The five lawsuits were filed only days after the Food and Drug Administration (FDA) disclosed an investigation regarding the cardiovascular risks of the drug in an alert on January 31, 2014.

If you or a loved one has suffered a heart attack or stroke after taking the drug Androgel, please contact an attorney who handles mass tort claims to have your claim evaluated.

Food and Grill Safety Tips

grilling

Summer is here and with it comes the beginning of summer picnics, parties and sporting events.  When grilling, be aware that your children can be very fascinated with not only the food on the grill, but the fire as well.  Never leave your grill unattended and ensure that the gas has been completely turned off once you have finished grilling.

Food poisoning is another danger of the family picnic.  Remember that foods made with mayonnaise are at the biggest risk of food poisoning.  Do not allow these foods to sit out in the hot summer sun.  Keep your cooler well stocked with ice and keep your cold items stocked in the ice in order to avoid harmful bacteria.  Thaw your meat and poultry completely before grilling so it will cook evenly.  When possible, thaw your meat in the refrigerator.  Never reuse marinade that has come into contact with raw meat.

While grilling, take meat and poultry out only immediately before placing it on the grill and check the temperature with a meat thermometer, inserted directly into the center of the meat at the least cooked part.  Food must reach a temperature of 140 degrees before it is safe to eat.   Avoid cross-contamination of meat and vegetables by using separate cutting boards, tongs, knifes and spatulas for the meat and the vegetables.  Always use a clean plate when removing food from the grill.

Enjoy your Summer weekend activities and picnics, but remember these food handling safety tips to keep your family safe and happy.

Pradaxa: Do the risks outweigh the benefits?

pill lawsuitsStroke is the third leading cause of death in the United States and the leading cause of long term disability.  Pradaxa was approved in October of 2010 in an effort to provide a safer alternative to oral warfarin, injectable low molecular weight heparin or asprin, which was the least effective treatment.  Warfarin was the leading therapy, however it carried significant bleeding risks.  It also took several weeks to adjust the dose for patients and required monthly blood tests to assure the dosage remained steady.  Warfarin also had a number of drug interactions, making it particularly dangerous.

Pradaxa, however, has far fewer drug interactions, though it does have a similar bleeding risk as Warfarin.  Pradaxa has a lower incidence of cerebral hemorrhage, but a slightly higher risk of gastrointenstinal bleeding.  Pradaxa, however, is significantly more expensive than Warfarin.  On the surface, it may appear that Pradaxa is a safe or safer alternative to Warfarin, however, Pradaxa has significant risks as well.

Pradaxa has now been prescribed to millions of patients with atrial fibrillation in over 70 countries in order to prevent blood clots.  Unfortunately, thousands of these patients have been injured or killed by uncontrollable bleeding while taking Pradaxa.  Although this drug is still being marketed by Boehringer Ingelheim, a federal judge recently ruled that injured patients can file lawsuits against Pradaxa for their injuries.

In December of 2011, the FDA announced a formal investigation into the safety of this drug after receiving 3,781 side effects and 542 deaths in one year, the most of any medication that year.  These cases are consolidated into a special federal Multi-District Litigation court in Illinois under MDL No. 2385, IN RE: Pradaxa Product Liability Litigation, Southern District of Illinois.  The most significant part of this lawsuit is the failure to warn patients that there is no reversal agent to stop bleeding with Pradaxa as there is with Coumadin or Warfarin.  Once Pradaxa causes bleeding, there is little doctors can do to stop it.

In September of 2012, the University of Pecs in Hungary released a study suggesting that the risks of Pradaxa may outweigh the benefits and those taking the drug after an acute heart condition were three times as likely to have a bleeding event.  Pradaxa lawsuits are filed individually and not as part of a class action, which is more advantageous to patients.  The MDL process is complicated, however, so if you have a claim, ensure you are working with an attorney who has experience fighting large drug companies and working with mass torts.

 

Poisoning in the Home . . . Preventing the Unthinkable

It has happened to every parent.  You are spending time with your toddler.  You look away for a split second and they are gone.  We can be the most conscientious of caregivers and yet, children still find a way to get into things not meant for them.  Sometimes it is candy, sometimes it is paperwork, but what about the times when what they dig into is dangerous, or worse, poison?  We know we cannot watch them every second of every day so prevention becomes the crucial tool most likely to avoid poisoning in the home.  In order to avoid poison, you have to first know what it looks like.  Yes, it may look like drain cleaner to us, but it is the same color as Kool-Aid to them.  It looks like medicine when mom takes it, but it is poison for their little bodies.  What about the poison you cannot see?  Carbon Monoxide poisoning is fatal, but you cannot see it, smell it or feel it.  In fact, many people die from the poison before ever experiencing any symptoms.

Household Chemicals:

Household cleaners should always be stored in their original bottles or containers and be secured in an area small children cannot reach.  You can child-proof you home with safety latches, grips, outlet covers and slide locks.  Remember that babies and toddlers will put almost anything in their mouths, so it is our job to ensure that they are not exposed to chemicals or sharp corners or other dangers.  KidSafe has a child proofing checklist which assists us in making sure we have covered each room and the dangers that exist.  Adults can also poison themselves with cleaners by mixing products together.  Bleach and ammonia can be a toxic combination.   Always wear protective clothing if you spray pesticides or chemicals, including gloves, long sleeves, long pants, socks and shoes.  Ventilate the room when painting or using strong chemicals.

Medications

Poisoning does not just affect children, however.  Adults are poisoned by misuse or abuse of prescription drugs, or from simply not watching the expiration dates and consuming toxic medications.  There are several safety precautions you can use to avoid an accidental overdose or taking a medication that has become toxic.  First, never take any medications that are not prescribed to you by a healthcare professional and limit your use to the dosage you are prescribed.  Just because a medication worked for Grandma doesn’t mean it is healthy for you or your toddler.  Make sure you keep vitamins and herbals in a separate place from prescription drugs and keep both in a place that can only be reached by those who dispense the medication or are supposed to be taking it.  Always keep your medication in its original container and turn on a light when you take medication to be sure you know what you are taking.  Dispose of unused, unneeded or expired prescription drugs properly and if you don’t know how you should be disposing of them, contact your pharmacist.  Always monitor the medication use of your children, teenagers and the elderly.  If necessary, keep narcotics in a lockbox for security.  Remember that medications kept in a purse, backpack, coat or on an open counter are a temptation to a small child and easily accessible.

Carbon Monoxide

According to the Center for Disease Control (CDC), carbon monoxide poisoning kills more than 400 Americans a year unintentionally, sends 20,000 to the emergency room and hospitalizes 4,000.  People and animals are subject to poisoning.  Prevention includes having your heating system, water heater and any other gas appliance serviced by a qualified technician each year, as well as ensuring you have a battery-operated or battery back-up Carbon Monoxide detector in your home.  Batteries should be changed when you update the time on your clocks each spring and fall.  Look for gas equipment that carries the seal of a national testing agency, such as the CSA Group.   Make sure your appliances that are gas are vented and never leave gas stoves or fireplaces running when you will not be home.

What if . . . . ?

No matter how much we try to prevent it, poisoning does happen.  So what do you do?  Remain calm and call 9-1-1 or the Poison Control Center at 1-800-222-1222.  Be prepared to tell emergency responders the victim’s age and weight, time of exposure and address where the poisoning occurred.  If possible, have the container or bottle containing the poison available and follow the instructions of emergency personnel or the Poison Control Center in rendering first aid until first responders arrive.

FDA Recommends Strict Changes Affecting Transvaginal Mesh Litigation

Last month a Dallas jury ordered Johnson & Johnson ordered to pay $1.2 million in compensatory damages to a woman injured by a transvaginal mesh (TVM) implant.  As a result of a defective design in the product, the Plaintiff suffered severe injuries when the mesh “bladder sling” eroded inside of her.  This verdict is the first mesh case which deals with a “bladder sling” product, rather than a pelvic organ prolapse product.  Many patients with transvaginal mesh slings have been forced to undergo additional surgeries to correct problems with their implants.  Although there have been many problems with the mechanically cut TVT-O mesh, it is still being used along with other products such as the TVT-Secur and TVT-Abrevo.  The Dallas verdict is expected to set a precedent for future transvaginal mesh cases.

Last week, a WFAA-TV report on transvaginal mesh, a plastic mesh product used to treat stress urinary incontinence and pelvic prolapse, was released disclosing details of the Dallas verdict.  The Federal Drug Administration (FDA) has been aware of problems with trans-vaginal mesh products since 2008, when they first released a “Public Health Notification” after receiving “over 1,000” reports of “adverse events” regarding surgical mesh devices.  In 2011, the FDA sent out another warning, alleging “serious complications associated with surgical mesh” “are not rare” and that mesh “may expose patients to greater risk” than traditional procedures.

Since then, women across the country have formed organizations and online support groups trying to get mesh removed from the market.  This week, we heard from the FDA again, when it called for stricter safety rules for transvaginal mesh after receiving literally thousands of reports of serious and sometimes permanent complications from the product.  There are approximately 60,000 transvaginal mesh cases pending against several companies nationwide.  Although some cases include reports of bleeding and infection, other cases include reports of pain and urinary incontinence.  The FDA’s proposed changes include reclassifying transvaginal mesh as a “high-risk” medical device.  Additionally, the FDA wants to require manufacturers to prove the products are safe before releasing them to market.

The FDA released a press release issued by the U.S. Food and Drug Administration this week identifying clear risks of the products and proposing steps to address the risks in order to provide more “safe and effective products”.  According to Dr. William Maisel, deputy director of science and chief scientist at the FDA’s Center for Devices and Radiological Health, if the proposals are finalized, manufacturers will be required to provide premarket clinical data to demonstrate a “reasonable assurance of safety and effectiveness for surgical mesh used to treat transvaginal POP repair”.  These changes come after years of work by Joleen Chambers, a patient advocate who started the Failed Implant Device Alliance.  This proposal does not include surgical mesh treatments for hernia repair.

The FDA will allow public comment on the proposal over the next ninety days.  This is a very positive development for women who have suffered injuries as a result of transvaginal mesh complications.  If you or a loved one has been affected by transvaginal mesh or bladder sling complications, please contact an attorney who handles these types of mass tort claims.

 

Nebraska and Iowa Address Distracted Driving Accident Prevention Awareness

As April draws to a close, we remind our clients, friends and family to avoid distracted driving by keeping your mind and hands on your driving.  April is designated as the month dedicated to prevention of Distracted Driving, including texting, changing the radio station, talking on your phone, playing with your iPad or iPod, or any other activity which distracts you from your driving.  As attorneys who practice personal injury, this issue hits close to home.  Every day we see traumatic accidents all over the nation caused by distracted driving.  This is an issue that draws attention in our schools, our work, our homes, and our legislature.

Nebraska has addressed the issue of distracted driving by making texting while driving and failure to wear seatbelt infractions secondary offenses.  This means that you cannot be ticketed for either offense unless you are stopped by law enforcement for another reason.  The current law on texting and driving was passed by the unicameral in 2010 and was amended so the $200.00 fine could only be issued as a secondary offense.  Unfortunately, this led to only 234 citations in 2011 and 2012, hardly an effective argument for deterring cell phone usage while driving.  The most likely reason for this low number of convictions is the fact that it is only a secondary offense.

However, in this latest legislative session, Senator John Harms of Scottsbluff introduced the Nebraska Roadway Safety Act, LB807, a bill aimed at making our roads safer, including a provision which would have made texting while driving a primary offense.   Wearing a seatbelt would also be a primary offense.  The bill also proposes no cell phone use by bus drivers while a bus is in motion unless communicating with dispatch.  At the end of the legislative session, this bill was indefinitely postponed.

Meanwhile, Iowa is also making deterring distracted driving a priority.  In late March, the Iowa Senate voted 27-22 in favor of an appropriations bill setting aside $200,000.00 to be used in an educational campaign regarding the risks of distracted driving.  This bill will now go to the Iowa House, where legislation to specifically crack down on the problem of texting and driving has stalled.  There has been a dispute as to which department’s budget will provide funding for the appropriations bill.

Texting and driving is still a crucial part of improving roadway safety and accident prevention.  Although texting and driving is often the distraction that is focused on in legislation and in the public, other activities which can move your attention away from the task of operating your motor vehicle safely should be avoided or delayed until you can perform the task safely.

Plaintiffs Recover Damages from Actos and TVM Manufacturers

The first two weeks of April brought large verdicts for two plaintiffs injured by dangerous drugs.  Takeda Pharmaceutical Co., and its partner Eli Lilly & Co. have been ordered to pay a combined total of $9 billion in punitive damages after determining their product, Actos, which was originally manufactured for treatment of diabetes, knew about the cancer risks of the drug.  The punitive damage award was in addition to the $1.5 million in special damages to the Plaintiff, who had developed bladder cancer after taking Actos.  This was the first federal trial in the multidistrict litigation dealing with Actos claims and was awarded by a federal jury in Lafayette, LA.  Takeda’s shares in Tokyo tumbled 8.4 percent after the verdict.  Takeda and Lilly are expected to appeal the verdict, according to their representatives.

Although compensatory damages are meant to compensate a Plaintiff for actual damages, and punitive damages are designed to punish and deter bad behavior, the two types of damages must bear some relationship to one another, according to a U.S. Supreme Court ruling.  The Court could rule that the $9 billion in punitive damages is excessive and unconstitutional, which has traditionally happened with verdicts that demonstrate punitive damages over nine times those of compensatory damages.  The Louisiana jury was presented with the financial information regarding the defendants when determining the amount of the punitive damages, which demonstrated each defendant was worth tens of billions of dollars.  Large punitive damages are often a sign that a jury wishes to make an impact on the defendants according to legal experts.

In a separate trial in a Dallas state court, Johnson & Johnson was ordered to pay $1.2 million in compensatory damages to a woman injured by a transvaginal mesh (TVM) implant.  As a result of a defective design in the product, the Plaintiff suffered severe injuries when the mesh “bladder sling” eroded inside of her.  This verdict is the first mesh case which deals with a “bladder sling” product, rather than a pelvic organ prolapse product.  Many patients with transvaginal mesh slings have been forced to undergo additional surgeries to correct problems with their implants.  Although there have been many problems with the mechanically cut TVT-O mesh, it is still being used along with other products such as the TVT-Secur and TVT-Abrevo.  The Dallas verdict is expected to set a precedent for future transvaginal mesh cases.

The Actos and TVM verdicts are big wins for those injured by defective drugs and medical products as they set a tone for future verdicts.  If you have suffered injuries as a result of a defective drug, contact an attorney well-versed in handling mass tort litigation.

Federal Law to Require New Cars to Include BackUp Cameras by 2018

A new rule requiring backup cameras in all new cars, SUVs, minivans and pickups weighing less than 10,000 pounds by May of 2018 has been announced by the National Highway Traffic Safety Administration.  All new cars, SUVs and minivans, as well as some new small trucks and buses, will be required to include backup cameras, a measure which is expected to reduce the nearly 210 backover deaths each year.  It is estimated that rear facing camera, including those automakers already offer, could save between 59 and 69 deaths a year, many of which were children.  Automakers will be allowed to “remove side –view mirrors and replace them with cameras that may expand side vision while increasing fuel efficiency”.  In February, the National Highway Traffic Safety Administration decided to require vehicle to vehicle communication systems in all new cars and trucks, however an exact date for implementation of this technology has not been set.