Illinois Injury and Mass Tort Lawyer Blog

Published on: April 26, 2017

Numerous Food Safety Recalls in April Raise Consumer Awareness About the Dangers of Food Contamination

There have been several food contamination and food safety-related items in the news lately, including the shocking story of two Florida individuals who found a dead bat in their pre-washed salad mix package. The company that produced the product, Fresh Express, initiated a recall of packaged salads that may also be affected and began conducting tests on the package to determine if the salad mix was contaminated. According to one report, the bat was so decomposed that testing officials were unable to verify whether the bat carried rabies. This places consumers at serious risk for contracting harmful and dangerous diseases, including food-borne pathogens like salmonella and listeria. Both of these pathogens can lead to serious health consequences that often require hospitalization.

Next, Conagra Brands announced a recall of its Chili Kits after determining that the kits may contain salmonella, another harmful pathogen. For individuals with weakened immune systems like the elderly, pregnant women, and children, salmonella can have devastating consequences and even lead to death in some situations. To date, there have been no reports of salmonella-related illnesses associated with consumption of the chili kits, but the company is urging purchasers to refrain from consuming affected units.

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Published on: April 24, 2017

Exploding E-Cigarettes Can Lead to Severe Burn Injuries and Other Dangerous Outcomes

By Moll Law Group

E-cigarettes have emerged as a popular alternative to traditional cigarettes. Created by a pharmacist in China, they offer a less toxic method for ingesting nicotine, compared to traditional cigarettes. A liquid solution containing propylene glycol, water, flavoring, and nicotine is heated, producing the vapor.

Although the companies that manufacture e-cigarettes and the many available accessories claim that they are a safe alternative to smoking, the U.S. Food and Drug Administration has yet to back that claim. In fact, the federal agency has proposed banning the sale of e-cigarettes to minors and is in the process of requiring companies that make these products to place warning labels on them. Additionally, the Centers for Disease Control have stated that there should be more regulations limiting the sale and advertising of these products to minors.

Beyond the health implications, there are concerns regarding whether the devices are safe. A recent article described one incident in which an individual was using an e-cigarette when the battery inside it exploded, causing him to suffer third-degree burns. Although the incident occurred over one year ago, the individual is still experiencing damaging effects and requires daily treatments and care.

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Published on: April 21, 2017

Beach Umbrellas Can Pose a Serious Danger in Strong Winds

By Moll Law Group

Beach umbrellas can be a great way to avoid getting a sunburn at the beach. But on a windy day, they can also pose a significant danger. A strong wind can turn an umbrella into a dangerous object, with the potential to cause serious injuries. In addition to beach umbrellas possibly being lifted out of the sand, umbrellas can also come out of outdoor dining tables or even outdoor store displays.

Lawsuits against individuals or business owners based on an umbrella injury generally allege that the defendant was negligent in properly securing the umbrella. Even the government is a potential defendant in beach umbrella cases. If the incident occurs on a public beach, for example, the government may be responsible, particularly if the lifeguard was aware of the potential hazard caused by the wind but failed to minimize the danger.

In order to prove negligence, a plaintiff must show that the defendant owed a duty to the plaintiff to protect them against an unreasonable risk of harm, the defendant breached that duty, and an injury occurred that was proximately caused by the breach. The plaintiff has the burden to prove all four elements in a negligence claim. This means that the plaintiff has to present evidence that would allow a rational juror to reasonably conclude each of the elements of the claim is met.

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Published on: April 19, 2017

Nursing Home Lawsuits Often Require Expert Testimony

By Moll Law Group

Although lawsuits against nursing homes may be brought for a variety of reasons, these lawsuits often require experts. Experts can help explain the standard of care the home was required to follow or the cause of a resident’s injuries. As in any negligence claim, in a claim alleging the negligence of a nursing home facility, a plaintiff must establish that the defendant owed a duty to the plaintiff, the defendant breached that duty, the breach caused the plaintiff an injury, and the plaintiff sustained damages.

In nursing home lawsuits, once the plaintiff establishes that the nursing home owed a duty to the resident, the next question is whether the defendant’s conduct fell below the standard of care required under the circumstances. For example, a nursing home is normally expected to keep residents properly bathed and fed and to provide them with their medications. To prove that the staff was negligent, the staff’s conduct must have fallen below the relevant standard of care. Many nursing home residents are sick and elderly, and many residents die in nursing homes—thus, the fact that a resident died in the home’s care is insufficient. In order to succeed in a nursing home lawsuit, a plaintiff must show that the nursing home failed to properly care for the resident in order for the home to be held responsible. Accordingly, generally, expert testimony is required to establish the standard of care and to show that the nursing home’s conduct fell below the expected standard.

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Published on: April 17, 2017

Plaintiff Barred from Pursuing Nursing Home Claim in Court Because Deceased Wife Signed Arbitration Agreement

By Moll Law Group

In a recent case, a state supreme court had to decide whether an arbitration agreement, governed by the Federal Arbitration Act and entered into by a nursing home patient and her power of attorney, was enforceable against her husband after he brought a wrongful death action. The man brought a lawsuit against a nursing home after his wife died at the home, alleging that the home was negligent in the care of his wife and that this negligent treatment caused her death. The nursing home responded by arguing that the case had to be resolved through arbitration, and the trial court agreed. The plaintiff appealed, claiming that he could not be bound to his wife’s arbitration agreement as a wrongful death beneficiary.

At the time the wife was admitted to the nursing home, she had executed a power of attorney in favor of her husband. Her husband then signed an arbitration agreement, stating that claims subject to arbitration included any claims arising out of her stay at the home. The agreement also stated that it applied to the patient and the nursing home, as well as the parties’ successors, assigns, and intended and incidental beneficiaries. It also stated that it applied to “any parent, spouse, child, executor, administrator, heir, or survivor entitled to bring a wrongful death claim.”

Considering the language in the contract and other similar cases, the court found the arbitration agreement did bind the woman’s beneficiary. Thus, the agreement required him to resolve the claim through arbitration, and he could not bring the claim in court.

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Published on: April 14, 2017

Understanding CAFA’s ‘Amount in Controversy’ Requirements

By Moll Law Group

When it comes to medical device and pharmaceutical lawsuits, the class action lawsuit is very common. In a class action lawsuit, one plaintiff or a group of plaintiffs files a lawsuit on behalf of a class of people who have similar legal and factual allegations. In general, there are four requirements that the plaintiffs must satisfy before a court will certify the matter as a class action. First, the class must be so numerous that it is not practical to join all of the prospective plaintiffs in one lawsuit. Next, there must be common questions of fact and law among the class members. Third, the claims or defenses that the representative plaintiffs intend to assert must be typical of the class members. And finally, the representative plaintiffs must advance the class interests fairly and with adequate protection.

There have been many laws and court opinions that define the basic rules and requirements for class action lawsuits. One of them is the federal Class Action Fairness Act (CAFA), which expanded subject matter jurisdiction for federal class action cases. A federal court may assert jurisdiction over a class action lawsuit when the amount in controversy exceeds $5,000,000 and when the class consists of at least 100 members, among other requirements.

In 2015, the Ninth Circuit Court of Appeals decided an important case that had broad implications for class action lawsuits. In that case, the plaintiff was an employee who brought a lawsuit in state court, asserting a number of workplace violations and wage requirement violations. Overall, the plaintiff asserted 10 causes of action, but only nine of them included class claims.

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Published on: April 12, 2017

After Daughter’s Overdose, Mother’s Case Against Doctor Dismissed for Failure to File Required Affidavit

By Moll Law Group

In a recent case, a mother sued her daughter’s doctor after her daughter overdosed on a combination of prescription and non-prescription pills. The daughter died on May 18, 2013 after she took a lethal combination of pills. On May 15, 2015, the mother filed the claim against her daughter’s doctor, alleging that the doctor negligently prescribed her daughter a combination of opiates and sedatives, causing her death. The claim was filed three days before the claim’s two-year statute of limitations expired.

The doctor argued that the complaint should be dismissed because the woman failed to file a certificate of merit along with the complaint. State law requires plaintiffs in medical malpractice claims to file a certificate of merit at the time the complaint is filed. The certificate of merit has to state that the attorney or the plaintiff certifies that the person has consulted with a qualified health care provider, and the health care provider described the standard of care required, indicated that it was reasonably likely that the plaintiff would be able to show the defendant failed to meet that standard, and indicated that it was reasonably likely that the plaintiff would be able to show that the defendant’s failure to meet the standard caused the plaintiff’s injury. Since the mother did not file the certificate of merit at the time she filed the complaint, the mother subsequently filed a motion to amend the complaint to add a certificate of merit. However, the trial court rejected her motion and dismissed the case.

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Published on: April 10, 2017

FDA Announces Recall of EpiPen Products

By Moll Law Group

There are countless allergy sufferers in the United States. For many of these people, having an allergy to certain foods or insects is a relatively minor health aspect. But for others, being exposed to an allergen can result in death. Some common examples of severe allergies include bee stings, seafood, and peanuts. Recently, the manufacturer of the anti-allergy medicinal medication EpiPen initiated a recall after learning that some of the units may not work as intended, placing patients and other individuals who rely on the device in serious jeopardy. The device contains epinephrine, a chemical that counteracts the effects of a severe allergic reaction in the body.

Meridian Medical Technologies, the manufacturer of EpiPen and EpiPen Jr, recently expanded this recall to include South America, Europe, and Asia. The recall covers 13 lots of the devices, which are auto-injector pens that are used to help treat severe allergic reactions in emergency situations. The recall notice states that the covered lots may suffer from a defect that prevents the pen from activating.

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Published on: April 7, 2017

Lawsuit Filed Regarding SoyNut Butter Spread E. Coli Contamination Amid Voluntary Recall

By Moll Law Group

Food safety is one of the most popular topics in the headlines these days. Whether it is major foodborne illness outbreaks at popular national chain restaurants or contaminated food products on store shelves, consumers face serious risks when food providers and manufacturers fail to take reasonable precautions and to use due care.

Recently, a couple in California filed a lawsuit against the maker of SoyNut Butter, IM Healthy, alleging that one of the spouses suffered serious injuries as a result of consuming SoyNut Butter that was contaminated with E. coli O157:H7. The complaint alleges that as a result of the contamination the wife required hospitalization and extensive medical treatment. The complaint also states that she purchased the product at a popular retail store in California.

The outbreak associated with the soy nut butter spread was first identified by the Maryland Department of Health and Mental Hygiene after a resident of that state who became ill stated that they had consumed SoyNut Butter shortly beforehand. The Centers for Disease Control and the U.S. Food and Drug Administration, in addition to a number of local health departments, have launched investigations into the outbreak. Recently, IM Healthy initiated a recall for the product and stated that the voluntary recall applied to its Original Creamy SoyNut Butter product that bears a Best By date of August 30, 2018 or August 31, 2018. The company also stated in the recall announcement that the recall was due in part to the FDA’s notice that it was investigating a potential link between the product and cases of E. coli-related illness.

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Published on: April 5, 2017

FDA Reports Link Between Breast Implants and Cancer

By Moll Law Group

Breast implants are very common and have been used as a cosmetic modification for several decades. According to some reports, breast implants are the second-most common cosmetic operation that women seek out. The most common procedure is liposuction. In 2015 alone, more than 300,000 breast augmentation procedures were performed. There are many different types of breast implants that are approved in the U.S., including saline-filled or silicone gel-filled implants.

Recently, the United States Food and Drug Administration reported that breast implants may be linked to a rare type of cancer. In the same report, the FDA stated that at least nine incidences of this cancer have been linked to breast implants.

The cancer at issue is referred to as anaplastic large cell lymphoma, or ALCL. It is a type of non-Hodgkin’s lymphoma that the FDA first began investigating in 2011. The FDA is now examining 359 reports that purport to identify a link with both saline and silicone solutions in breast implants. So far, studies indicate that the cancer typically develops 10 years after the implants were inserted and usually develops close to the area where the implant was inserted. There are some reported instances in which the cancer spread, however. Some of the most common initial symptoms reported associated with the cancer include pain and swelling at the site.

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