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Articles Posted in Product Liability

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The burden of proof is initially on the plaintiff in a personal injury lawsuit. In order to prevail, he or she must prove each of the four elements of negligence (duty, breach of duty, causation, and damages) by a preponderance of the evidence. This is usually done through a combination of expert witnesses and lay testimony.

For instance, in many car accident cases, the basic facts of the crash may be explained by lay witnesses (“I saw the blue car run the red light and hit the side of the white van”). Evidence regarding certain damages, such as injuries and the reasonableness and necessity of medical expenses, requires testimony from an expert witness such as a physician.

In the middle of these extremes are cases in which expert witness testimony would prove helpful but is not strictly required in order for a case to go forward. Sometimes, the parties disagree as to whether such testimony is an actual requirement under the circumstances, and the court must make a decision.

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By Kyle Roby, Attorney and Partner
English, Lucas, Priest and Owsley, LLP

The reported cases decided by the appellate courts sometimes come in batches of cases involving similar issues. Since a criminal case questioning the applicability of the death penalty, for example, involves an entirely different set of issues, research, and analysis than does a tort case arguing about liability in a medical malpractice lawsuit, there is judicial economy when the courts decide similar cases during the same time period.

Lately, it seems the courts have been faced with a number of cases involving whether or not a given situation is covered under a particular insurance policy. In the recent case of Auto-Owners Insurance Company v. Holland, the Court of Appeals of Tennessee at Nashville was called upon to decide whether a commercial general liability insurance policy provided coverage in an accident in which a child was injured by the gate of a trailer that an insured used to transport lawn care equipment.

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When a consumer is injured because of a dangerous product, the consumer has a right to pursue financial compensation for his or her injuries via a product liability lawsuit. There are several types of theories that may be used in product liability cases, depending upon the circumstances.

These types of theories include strict product liability, design defect, manufacturing defect, failure to warn, and breach of warranty. Design defects typically affect an entire line of products that were manufactured according to an inherently dangerous design. Manufacturing defects, on the other hand, may involve only a few products that were the subjects of a flaw in the construction or production process.

Damages available in a product liability case may include past and future medical expenses, pain and suffering, and lost wages. In some cases, there is also the possibility of punitive damages in cases of particularly egregious conduct by the manufacturer.

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By Jessica Surber, Attorney
English, Lucas, Priest and Owsley, LLP

When a person is injured because of a defective or unreasonably dangerous product, he or she may be entitled to damages such as payment of medical expenses, reimbursement of lost wages, and compensation for pain and suffering.

Although it is the exception rather than the rule, there is also the possibility of punitive damages in some cases. In order to qualify for a punitive damages award, a plaintiff must show particularly egregious conduct on the part of the defendant (typically, the manufacturer, distributor, or retail seller of the product).

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Bair Hugger

By Jessica Surber
Attorney, English, Lucas, Priest and Owsley, LLP

In the late 1980s, Dr. Scott Augustine, an anesthesiologist, invented what he thought would be a very helpful device for patients and doctors: a forced air warming blanket. The blanket is a single-use device that covers patients during and after surgery. It is hollow and filled with warm, forced air. The technology has become widely used throughout hospitals all over the country, and at least initially, was hailed as a way to help patients heal faster and bleed less during and after surgery.

Since he invented this technology, Dr. Augustine stepped away from Arizant, the company that manufactures the device. The Bair Hugger forced air warming blanket is manufactured and marketed by 3M and its subsidiary, Arizant. 3M purchased Arizant in 2010.

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In Babich-Zacharias v. Bayer Healthcare Pharmaceuticals, Inc., a woman filed a product liability lawsuit against a pharmaceutical company in the U.S. District Court for the Western District of Kentucky after she allegedly suffered a number of adverse health effects from using the company’s intrauterine contraceptive device (“IUD”). According to her complaint, the woman developed idiopathic intracranial hypertension as a result of her use of the device that was designed to stay in the body for up to five years. If not properly treated, the condition can result in severe headaches and temporary blindness.

The woman claimed the patient pamphlet provided to her when the IUD was inserted failed to warn her of the link between her condition and use of the product. Despite this, the woman admitted the information stated further research regarding the medical product was needed. The woman also claimed that the medical device manufacturer failed to conduct sufficient clinical testing and intentionally concealed known risks associated with use of the device from patients and medical professionals in the company’s marketing products.

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In Simmerman v. Ace Bayou Corp., the parents of a three-year-old sued several parties following the death of their child, who became trapped in a beanbag chair. The parents filed a product liability action against the manufacturer of the allegedly defective chair, the department store where they purchased the item, and the manager of the store in Fayette County Circuit Court. In response to the lawsuit, the defendants removed the case to the U.S. District Court for the Eastern District of Kentucky in Lexington based upon diversity of citizenship. In general, a defendant may remove a case to federal court as long as the defendants are from different states than the plaintiff and the amount in controversy exceeds $75,000.

Next, the parents filed a motion to remand the case back to Fayette County Circuit Court. Although the store manager was a resident of Kentucky, the remaining corporate defendants have main corporate headquarters in other states. According to the plaintiffs, the Kentucky manager destroyed diversity and required the case to be tried in state court. The store manager, however, countered that she was fraudulently joined in the case solely to defeat federal diversity jurisdiction.

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Legal News GavelStryker is the maker of the Rejuvenate modular hip system. Many people who have had the Stryker modular hip system implanted have had it removed and replaced, and many of those have sued Stryker to seek compensation for injuries caused by the faulty hip system.

These cases have been making their way through courts and have been combined into several large cases. Cases are pending in state courts in New Jersey, Florida and several other states, and in federal court in Minnesota. To pay those injured by the hip system, Stryker established a compensation fund of $1.45 billion. That amount could grow as cases continue to mount against Stryker. More than 8,000 people have sued Stryker seeking compensation for injuries – but time is running out.

Those who are interested in obtaining a settlement from this fund have limited time to seek compensation, and need to consult with an attorney right away. The settlement date is November 3, 2014, so patients need to show that revision surgery occurred prior to that date to participate in the compensation fund.

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The U.S. District Court for the Eastern District of Kentucky recently ruled in favor of a medical device manufacturer in a products liability case in which the plaintiff did not participate in written discovery. In Johnson v. Zimmer Holdings, Inc., a man had four medical devices implanted into his body when he underwent hip surgery in 2010. Unfortunately, the man’s hip dislocated at least six times between 2010 and 2012. About two years after his initial surgery, the man underwent a second procedure to replace three of the four medical products. Following the second surgery, the man filed a products liability lawsuit in a Kentucky federal court against the manufacturer of the medical devices that were initially implanted into his body. According to his complaint, the man experienced pain, suffering, emotional distress, and unnecessary surgery as a result of the medical device manufacturer’s defective products.

Pursuant to the Eastern District of Kentucky’s scheduling order, the parties entered into the discovery stage of the lawsuit. This is a pre-trial phase of a case in which each party is entitled to request certain relevant information from the opposing side. Discovery may include depositions, interrogatory and document requests, and more. Although the medical device manufacturer served the allegedly harmed man with written discovery requests, he failed to submit any discovery requests prior to the deadline that was imposed by the court. As a result, the medical device manufacturer filed a motion for summary judgment in the case.

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airbag2On Monday, the National Highway Traffic Safety Administration released a report indicating that motorists who drive vehicles with airbags made by Takata could be in grave danger. The airbags are designed to inflate and protect motorists in the event of an injury, but instead, they can explode, causing the death of the driver. In at least four instances, motorists have been killed in accidents in which their airbag exploded, covering them in shrapnel. Others have been severely injured. The problems are so dangerous the NHTSA is asking people not to carry passengers in the front seats of the recalled vehicles – but you may not even want to drive these vehicles after reading about these problems.

Most of the vehicles are older models, some going back to 2001. Motorists should check their vehicles as soon as possible. The NHTSA recall affects about 4.7 million vehicles throughout the U.S., though safety experts have put the number at 12 million world wide. The recall includes vehicles made by  Toyota, Honda, Nissan, Mazda, BMW and General Motors. If you are unsure if your car has been affected by the recall, you can enter the Vehicle Identification Number (VIN) on your registration paperwork and enter it at this web site to check: http://www.safercar.gov/. All drivers nationally can use this, including drivers in Kentucky and Tennessee who are concerned with this product recall.

You can read the full report and find specifics on the recall here.

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