This is an Advertisement

Articles Tagged with lawsuit

Published on:

Say the words “slip and fall” and “grocery store,” and a mental image of a shopper sliding across the produce section on a banana peel inevitably comes to mind. It’s so cliché that it’s almost humorous – unless you are a person who broke a bone or herniated a disc in a fall.

The fact is that there are many serious injuries in grocery stores in Kentucky and across the nation each year, many of which could have been avoided had the store fulfilled its duty of care to the customer.

Continue reading

Published on:

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

file0001532482557 morguefile drummerboyA Missouri jury found in favor of a woman who developed ovarian cancer after long-term use of talcum powder in her genital area, awarding her $70 million in damages in late October.

This is the third large verdict against Johnson and Johnson in 2016, with two other juries handing out $55 million and $72 million verdicts to women or their families who were affected by ovarian cancer after the women’s long-term use of talcum powder products. Johnson and Johnson is the maker of Johnson’s Baby Powder and Shower to Shower, both products containing talc that have been used by women in the genital area for decades. The public recently learned that Johnson and Johnson and other companies knew of this product’s link to ovarian cancer, but continued to market the product as safe for such use.

Continue reading

Published on:

Depending upon the law of the state in which a person dies, it may be possible for his or her survivors to file a wrongful death lawsuit, a survival action, or both. Typically, state law also dictates who has the right to file suit, the appropriate lawsuit(s), the types of damages that may be sought, and how the proceeds will be divided among the various interested parties.

Difficulties sometimes arise in identifying the proper party to bring the suit. When this happens, it is up to the trial court judge to apply the law to the particular facts of the case. If any litigant is dissatisfied with the judge’s ruling, he or she may seek relief in the court of appeals, or thereafter the state supreme court.

Continue reading

Published on:

If you drive or ride in an automobile, there’s a pretty good chance that you will be involved in an accident at some point in your life. If and when this happens, it pays to seek legal counsel early in the process, even if the negligent driver’s insurance company seems cooperative. This is because the legal process can be complex. This Tennessee injury accident case shows why it is important to have a qualified attorney involved in your lawsuit as soon as possible.

Unexpected issues such as the timeliness of service of process or the determination of whether a negligent driver is covered under a vehicle owner’s insurance policy can pop up even in a seemingly simple car accident case in which fault is clear.

Continue reading

Published on:

Most drivers carry at least some uninsured/underinsured motorist protection, but many do not understand the difficulties that may arise when it comes time to make a claim under this coverage. Unfortunately, simply having an accident with an uninsured or underinsured motorist does not automatically result in a payout by the insurance company, even when the insured’s injuries are catastrophic or fatal.

Instead, the insured person (or his or her family, in the event of a wrongful death), must negotiate a settlement with the insurance company or proceed to trial against the uninsured person and obtain a verdict. Even then, the insurance company has a right to appeal the verdict on the grounds that it was improper or excessive. This is exactly what happened in the recent Tennessee case of Monypeny v. Kheiv.

Continue reading

Published on:

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.

Continue reading

Published on:

In Waltenburg v. St. Jude Medical, Inc., a man received an implantable cardioverter defibrillator (“ICD”) that was manufactured by St. Jude Medical, Inc. The electrical ICD device was inserted into the man’s body through a vein and then attached to his heart in an effort to correct irregular heart rhythms. Not long after the device was implanted into the man’s chest, he apparently began experiencing unexpected and unnecessary electrical shocks. Several years later, the man’s physicians reportedly told him that the ICD device implanted into his body was faulty, but it was too risky to remove it. The man filed a products liability lawsuit seeking damages for physical injury and emotional distress from the manufacturer of the ICD in the Western District of Kentucky.

In his complaint, the man claimed the medical device manufacturer was strictly liable for the allegedly defective ICD. He also claimed the company manufactured the product in a negligent fashion, negligently failed to warn him about the product defect, and alternately should be held accountable through the doctrine of negligence per se. A negligence per se cause of action normally arises when someone is injured after another party violates a law that was designed to protect the public or a specific class of individuals from the type of harm that the injured person sustained. In general, negligence per se is easier to prove than other types of negligence because the reasonableness of an at-fault actor’s conduct is not at issue.

The medical device manufacturer countered by alleging the man’s claims were preempted by the Medical Device Amendments (“MDA”) to the federal Food, Drug, and Cosmetic Act and argued the lawsuit should be dismissed because the man failed to state a claim on which relief may be granted. Preemption occurs when a state law conflicts with a federal law in such a way that the purpose of the federal law is thwarted. According to the Supremacy Clause of the United States Constitution, federal law controls in such cases.

Continue reading

Published on:

In a recent Kentucky Supreme Court case, a medical malpractice suit was filed by a couple against a doctor and his practice. The doctor had performed a thyroidectomy on the wife. She started experiencing breathing difficulties the night of the surgery. She was placed on a ventilator for four days and stayed in the hospital a total of 12 days. Post-surgery, she had trouble breathing and talking. She consulted with an otolaryngologist. He diagnosed her with right vocal cord paralysis. The couple filed a medical negligence lawsuit in connection with the thyroidectomy.

During discovery, the doctor asked whether other physicians had stated that he deviated from good medical practice. The plaintiffs’ response stated that a surgeon had verified there was a departure from the appropriate standard of care to cut or otherwise alter the vocal cord. The response cited various treating physicians. The doctor filed a motion to set the case for trial. The judge set a schedule requiring the couple to disclose expert witnesses on a particular date. The order by the judge did not contain a specific deadline for disclosure of expert witnesses. It did require quick and efficient witness disclosure.

Three years after the suit was filed the doctor moved for summary judgment. He argued they had failed to identify a surgeon who would testify he deviated from the standard of care. The plaintiffs filed a motion to reschedule the trial and to get an extension of time to list experts. They argued that summary judgment was not appropriate because evidence in the depositions raised genuine issues of material fact. The woman’s medical records showed he was being treated for hypothyroidism, or an underactive thyroid before the surgery. She consulted with an internist because she was short of breath and had palpitations. An ultrasound showed she had an enlarged right lobe of thyroid with a small lesion. She was referred to the defendant doctor to see whether removal of the gland was appropriate. She consulted with him once before the surgery and signed a consent form in connection with it. The form explained she had a “thyroid storm.” The internal medicine doctor said a thyroid storm is an emergency condition. The appropriate treatment is hospitalization and consultation with an endocrinologist. Surgery is not appropriate. Continue reading

Published on:

In an unpublished 2013 case, a couple sued a window screen manufacturer and the owners of an apartment building. Their toddler fell through an open window and died. A Kentucky trial court dismissed their claims, and the couple appealed. The issue in the case was whether a manufacturer of the screen that was in the open window owed the family the duty to warn or design its screens such that the child’s fall would be prevented.

The child who died was in a fourth-floor apartment in which his grandmother lived. The window was open, but the screen was in place. The window sill was 7 inches above the floor.

The screen did not have any warnings on it. Other screens in the building did have a label that warned parents that their child should not be near the open window. The toddler’s parents brought a wrongful death action against defendants including the window manufacturer and owners and managers of the apartment building. Continue reading