Birmingham Injury Blog

The Baltimore Injury Lawyer Blog has posted an article about filing injury claims against amusement parks.

Injuries are quite common at amusement parks due to high speeds an sharp movements that make rides like roller coasters so fun. However, "most amusement operators vigorously defend injury claims" and try to make it look like the injury was because of the park guest's negligence.

For example:

I once defended an injury suit against a park made by a rider who alleged that he had broken his tailbone when he skidded across the stop pool on a water ride and collided with the pool wall. Over the prior few years, four other people had the same problem. Common sense would tell us that the landing pool was simply too small. Unfortunately, it was also the most expensive proposed fix. So the park tried a few stop-gap measures, but folks kept getting hurt. I don't know if they ever just extended the pool. I do know that all of the riders who filed suits faced defenses like the ones outlined above.

When considering making a ride injury claim, expect to be taken to trial and meet with a liability expert as soon as possible.

Familiarize yourself with any state regulations and reporting requirements. Subpoena the inspection file from the regulatory authorities. Fight during discovery to make sure you know of any prior problems with the ride at issue. Get copies of any instructions or signage. Act quickly to pin down witnesses

The Maryland Injury Lawyer Blog has posted an article about the amount of zinc contained in denture creams that can prove to be dangerous.

Zinc isn't hazardous when consumed or absorbed in normal doses... about 40 milligrams a day is average. People who use some brands of denture cream, such as Fixodent and Poligrip, on a daily basis can be exposed to as much as 300 milligrams a day, which leads to a host of medical problems. The zinc is absorbed through the gums, which after daily exposure for a long period of time, can lead to a copper deficiency and progress to anemia.

It can also reduce the function of the immune system. Among the more serious effects are paralysis and nerve damage. Symptoms can include numbness or tingling, and lack of balance. One plaintiff claiming injuries from denture cream, a man from east Texas, can barely walk, and only with support.

There have been eleven lawsuits (so far) against Glaxo Smith Kline and Proctor and Gamble...the companies that produce Poligrip and Fixodent. The suits claim that the companies didn't adequately warn consumers about the possibility of zinc toxicity associated with their products.

The denture cream lawyers generally allege that the denture cream manufacturers failed to appropriately warn consumers about the risks of zinc toxicity. One defense is predictable—the plaintiffs did not use the product in accordance with the instructions. However, that defense lawyers' common argument - blame the victim - ignores the fact that a large portion of the denture-wearing population (34 million Americans) have somewhat ill-fitting dentures...Those people were never warned of the dangers of using denture cream beyond the instructions. From a consumer standpoint, a product that goes in your mouth must be safe to use. Who among us would think of a problem like zinc toxicity from denture cream?

Zinc toxicity can result in permanent and significant injuries, but reducing intake of the mineral may help.

The Baltimore Injury Lawyer Blog has posted an article about protecting consumers from pharmaceutical negligence.

The article uses the example of Diana Levine, a woman who lost an arm because of the medication Phenergan. A jury awarded her $6 million in damages even though the drug company had the case appealed all the way to the Supreme Court. They argued that the FDA approved warning label should have released them from liability. The jury didn't agree.

Levine's case shows...

the many levels on which the civil justice system can be a positive force for change. First, Ms. Levine was able to secure compensation for her injury. Second, Wyeth has the opportunity to change the drug labeling to protect consumers from similar occurrences. Finally, this protects consumers as a group by ensuring that drug manufacturers can not merely do the bare minimum required by the FDA and escape liability for the foreseeable consequences of negligent acts.

Melinda Parks alerted us through twitter that GM has recalled vehicles due to a fire risk.

Here is a list of the vehicles:

The GM recall applies to the following vehicles, all of which have 3.8 liter V-6 engines: Buick Regal (1997-2003 models); Chevrolet Lumina (1998-2003 models), Monte Carlo (1998-2003 models) and Impala (1998-2003 models); Oldsmobile Intrigue (1998-99 models); and Pontiac Grand Prix (1997-2003 models).

If you have one of these vehicles then according to the article at Findlaw this is what will happen:

The recall is expected to begin in May, when owners of affected vehicles will be notified and dealers will begin making a free repair -- installation of new spark plug wire retainers -- that should remedy the problem. In the meantime, vehicle owners can contact Chevrolet at 1-800-630-2438, Oldsmobile at 1-800-630-6537, and Pontiac at 1-800-620-7668, or visit the GM website: http:www.gmownercenter.com.

Be safe and we'll keep you posted as we learn more.

ps - speaking of twitter - you can follow us on twitter.

One thing that is often surprising to our clients when they have been injured in a car wreck or truck wreck is that the health insurance company (BlueCross BlueShield, United, etc.) which has paid for medical treatment often has the right to recover the amount of money that it spent on medical treatment. This right is called a "subrogation" right, which means that the health insurance company can “stand in the shoes” of the injured person and recover its money from the wrongdoer.

When a health insurance company pays medical bills, it normally does not pay dollar-for-dollar but instead pays a percentage. It is that lesser percentage (for example $200.00 on a $1000.00 bill) that must be reimbursed. Normally, the health insurance company will negotiate with the injured person and will reduce the amount that it claims as subrogation by the amount of the attorney’s fee being paid by the injured person to his or her attorney. This makes sense as the injured person has hired an attorney to create a “pool” of money from which the health insurance company is reaching into and drawing from. So the health insurance company should have to pay its share of the attorney’s fee to create that. This has the effect of lowering the amount that the injured person must pay back to the health insurance company.

The law changed a number of years ago so that the Jury can now hear that the injured person has health insurance and how much the health insurance company actually paid. We will address this in a separate blog post, but we did want to alert you to this fact and to be watching for this blog post from us.

If you have been injured in a car wreck or truck wreck and would like to talk to us, we are always happy to schedule a free consultation with you.

Yesterday the United States Supreme Court ruled against an injured man and in favor of a medical device manufacture in an 8-1 ruling. The basis of the ruling was that the Food & Drug Administration (FDA) had approved the device so that consumers are not allowed to sue under state law claiming that the device was defective or that the warning was inadequate.

The excellent Washington Post article by Robert Barnes summarizes the case:

The court ruled 8 to 1 against the estate of a New York man who was seriously injured when a balloon catheter manufactured by Medtronic burst during an angioplasty in 1996. Charles Riegel, who died three years ago, and his wife sued under New York law, alleging that the device's design was faulty and its labeling deficient.

Justice Antonin Scalia, writing for the majority, said federal law preempts the imposition of liability under state laws for devices that have undergone the Food and Drug Administration's pre-market approval process, the most rigorous of the FDA's testing procedures.

Justice Ruth Bader Ginsburg was the lone dissenter. Congress did not intend the preemption clause, Ginsburg wrote, "to effect a radical curtailment of state common-law suits seeking compensation for injuries caused by defectively designed or labeled medical devices."

The Washington Post article notes the basis for the majority's opinion (authored by Scalia) is

Allowing juries to award damages when something goes wrong, Scalia wrote, would be unfair. A jury "sees only the cost of a more dangerous design, and is not concerned with its benefits; the patients who reaped those benefits are not represented in court," Scalia wrote. Patients "would suffer without new medical devices if juries were allowed to apply the tort law of 50 states to all innovations."

We are pleasantly surprised at the reaction among congress -

"The Supreme Court's decision strips consumers of the rights they've had for decades," said Rep. Henry A. Waxman of California, the chairman of the House Committee on Oversight and Government Reform. "This isn't what Congress intended, and we'll pass legislation as quickly as possible to fix this nonsensical situation."

The whole issue of federal preemption of state law is very active one that we will continue to watch as the more the courts find preemption the more state law claims are swept away without normally any federal claim being put in its place to compensate injured citizens of Alabama and other states.