Illinois Injury and Mass Tort Lawyer Blog

Published on: June 9, 2016

Court Holds Plaintiff May Sue Bar, Even Without Personal Knowledge of Incident

In a case that was decided earlier this year, a man was killed after he became intoxicated at a restaurant and got into a car accident. The man was driving 79 miles per hour in a 30-miles-per-hour zone when he crashed his car. After the accident, the man’s family brought suit against the restaurant, alleging that the restaurant engaged in negligent, willful, wanton, and reckless conduct by selling and serving alcohol to the man, and that their conduct caused his death. That evening, the man had been at the restaurant from about 2 PM until almost 9 PM. Witnesses observed him being loud and slurring his words. He bought 12 drinks at the restaurant that day.

The plaintiff, a representative of the man’s estate, filed a complaint and an affidavit, as required by the state’s law. The affidavit had to describe the facts upon which the case was based, and the plaintiff based it on information gathered in the investigation. The defendants argued that the affidavit was insufficient because it was not based on personal knowledge. The plaintiff, the administrator of the man’s estate, was not present at any time during the incident. However, the court found that the plaintiff’s affidavit was based upon “information and belief” from information gathered from witness statements, a police report, and a toxicology report—and that this knowledge was sufficient.

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Published on: June 8, 2016

Pharmaceutical Companies May Be Held Liable for Failure to Warn Mothers of Potential Birth Defects

By Moll Law Group

Court Upholds $3 Million Verdict for Failing to Warn of Birth Defects

According to one news source, a court of appeals recently upheld a $3 million verdict against a subsidiary of Johnson & Johnson after a baby was born with severe birth injuries as a result of medication taken during the mother’s pregnancy. The baby’s parents brought a claim against the company, and the jury found the company liable for failing to warn the mother’s doctors of the risk of birth injuries if she took Topamax during her first trimester.

The mother took Topamax, a drug prescribed to help prevent seizures and migraine headaches. While she was pregnant, she took the drug to treat migraines—but she did not know of the dangerous effects it could have on her baby. Research has shown that 3.8 percent of children exposed to Topamax in utero during the first trimester have oral birth defects. In particular, cleft lip and cleft palate are known risks.

The couple’s daughter was born with a bilateral cleft palate and lip. The girl has had to undergo over 14 procedures, including surgeries, to treat the birth defects. She has also suffered hearing loss, speech difficulties, and bullying because of her speech and appearance. The parents were awarded $1.5 million for future health care expenses, and their daughter was awarded $1.5 million in non-economic damages.

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Published on: June 2, 2016

California Proposes Update to Prop 65 Toxic Chemical Product Warning Label

By Moll Law Group

California’s Office of Environmental Health Hazard Assessment has released a new set of revisions to its proposed overhaul of the state’s Prop 65 product labeling law. This effort is the first significant modification to the label, which must be appended to certain products and product shelf spaces, in several decades. The new warning label has been under development since 2013.

According to Prop 65, manufacturers must label products that contain a significant level of toxic chemicals deemed to pose health hazards to consumers, particularly cancer. Similarly, retailers must include a notice on shelving next to these products, further alerting consumers about the potential risks. As a result, manufacturers and product sellers doing business in California must conduct thorough tests and investigations into the chemicals that are present in their products.

OEHHA administers Prop 65 in California and maintains a list of the toxic chemicals that will require a manufacturer to include a warning. The list also provides the minimum levels at which a label will be required. In some cases, a trace amount of a toxic chemical present in a product will not require a label. There are a wide variety of chemicals on the list, including both naturally occurring and synthetic ingredients.

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Published on: June 1, 2016

Failure to Report Abuse May Provide Separate Avenue for Recovery

By Moll Law Group

Normally, the only people liable for an abused elder’s injuries are those who engaged in the abuse or were responsible for his or her care. However, a recent case found that even those who were not responsible for the patient’s care but failed to report suspected abuse could still be held liable.

In 2009, an elderly woman died in an adult family home from morphine intoxication. Her death was ruled a homicide, and her estate brought a claim against several people who took part in taking care of her. In addition, they sued two nurses who were not involved in her care but failed to report the suspected abuse.

Evidently, two of the home’s nurses were alleged to have observed signs of abuse and physical assault, which should have been reported to the Department of Social and Health Services and to the police. One of the nurses heard a thud in the patient’s room and saw the patient lying on the floor. She was told by the patient’s caregiver that she “falls a lot” and that she would call the home’s owner. The other nurse was told by another person that the patient’s caregiver was giving her morphine, which she had not been prescribed.

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Published on: May 31, 2016

Braun Medical Pays $7.8 Million for Contaminated Saline Syringes

By Moll Law Group

Pennsylvania- and Germany-based company B. Braun Medical has agreed to pay nearly $8 million after being accused of selling saline syringes fraught with contamination. Braun purchased the syringes from Am2Pat, a manufacturing company, even though it had acquired information prior to the purchase indicating that the syringes suffered from manufacturing issues at the plant in North Carolina where they were produced. Two months after Braun purchased the syringes, it initiated a recall based on information indicating that the radiation sterilization process used caused the saline to develop particulates.

Following the recall, Am2Pat stated that it had not provided correct information to Braun before the sale of the syringes. According to this information, the manufacturing company had installed new equipment at its plant without first ensuring that the equipment was in good working order following the move. Despite this provision of information, Braun started purchasing saline syringes from Am2Pat again and did not conduct its own independent inspection of the manufacturing facility prior to doing so.

Roughly one month later, the syringes were found to contain a dangerous bacteria called Serratia marcescens. Patients in New York, Texas, California, and Nebraska reported experiencing illness and contamination as a result of using the syringes. A second recall of this batch of syringes was also initiated.

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Published on: May 30, 2016

Evidence of an Employee’s Poor Job Performance in Previous Job Could Pose Problem for Employer

By Moll Law Group

Employers can be held liable for their employees’ actions under the theory of respondeat superior. This theory generally holds that an employer is vicariously liable for the acts of its employees. In addition, employers can also be held liable for negligent hiring, retention, or entrustment involving their employees.

Negligent Hiring

A claim based on negligent hiring is based on the fact that an employer negligently hired or retained an employee. A lawsuit resulting from negligent hiring can arise if an employer hires an employee whom the employer knew or should have known was not fit for the position. That is, the employee was placed in a job that would likely have posed a danger to others. An employer must take reasonable efforts to investigate a potential employee. This depends on the facts and circumstances of each case, but an example might be an employer that hires an individual who has been convicted several times of violent crimes for an armed security guard position.

A negligent hiring claim may be successful even if the act committed by the employee is outside the scope of the employment, which is one aspect that distinguishes it from a general negligence claim. This is because the focus is on whether or not the hiring or retention of the employee was negligent. However, there still must be a causal connection between the employer’s negligence and the injuries that occurred.

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Published on: May 28, 2016

U.S. Supreme Court Issues Key Opinion for Class Action Lawsuits

By Moll Law Group

The United States Supreme Court recently handed down an opinion that may have broad implications for class action lawsuits. In Spokeo, Inc. v. Robins, the defendant maintained a search engine that allowed users to search specifically for people through its database. Employers could use the site to gain information about job applicants before deciding whether to hire them. The plaintiff discovered that the profile Spokeo provided for him contained numerous mistakes and other improper information. He brought a federal class action lawsuit against Spokeo, stating that it did not comply with the federal Fair Credit Reporting Act.

The lower court dismissed the lawsuit, stating that he had not adequately pleaded that he had suffered an actual injury as a result of the incorrect information in his profile. According to federal pleading standards, a plaintiff must establish that he or she has suffered a cognizable injury before being deemed entitled to compensation. This is known as the injury in fact requirement.

On appeal to the Ninth Circuit, the court reversed, finding that the plaintiff and other class members had an interest in how Spokeo handled their credit information. This was sufficient to establish an injury in fact, the court concluded.

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Published on: May 27, 2016

Doctor Must Inform Patient that Worsened Condition May Occur After Back Surgery

By Moll Law Group

In a recent case, a plaintiff filed a medical malpractice claim, alleging that the defendant negligently failed to obtain informed consent. The plaintiff suffered a lower back injury and subsequently underwent a lumbar spine surgery. Prior to the surgery, the plaintiff and the doctor talked about the risks and consequences involved in the surgery. According to the plaintiff, the doctor told him that the surgery had a 99% chance of success, that he would not have any more pain, and that he would recover in three days. The doctor denied having made these statements. The plaintiff also signed a consent form before surgery. The form he signed included an acknowledgement that he had been informed of significant risks, and it listed several potential consequences. It also stated that no result or cure had been promised.

After the surgery, the plaintiff’s lower back pain increased, and he also experienced additional symptoms, including numbness and shaking in his leg, as well as mental health issues. He also found out after the surgery from another doctor that the success rate of the surgery he underwent was actually 50% or less. He then sued his doctor for failure to obtain informed consent because he did not understand the potential consequences.

Under the state’s law, the plaintiff had to show that the risks that he suffered, particularly a worsened condition and increased pain, were material risks of the procedure. The defendant argued that the plaintiff failed to provide an expert on the issue of materiality, but the court found that an expert was not required. The treating doctor in this case testified that he discusses the risks with every patient because patients can experience further pain after this surgery. Thus, the doctor’s own statements indicated that increased pain and a worsened condition were material risks. For that reason, the court allowed the case to continue.

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Published on: May 26, 2016

FDA Imposes Stricter Regulations for E-Cigarettes and Other Tobacco Products

By Moll Law Group

The U.S. Food and Drug Administration is taking new steps to tighten the regulations on e-cigarette products, which have recently become popular based on claims that they pose less of a health risk to users than traditional tobacco products. According to the federal agency, e-cigarettes, as well as pipe tobacco, cigars, and hookah tobacco, will now be regulated according to the existing rules for smokeless tobacco, cigarettes, and roll-your-own smoking products. The new regulations will take effect 90 days from the date the new rule was enacted, which is August 3, 2016.

Under the new rules, tobacco companies will be required to submit information about their e-cigarette and tobacco products to the agency for pre-approval, including a list of the ingredients included in the product. They will also need to apply certain warnings on the products’ packaging and advertisements before they can begin marketing the products.

E-cigarettes consist of a handheld electronic device that vaporizes nicotine fluid held within a compartment in the device. It is also commonly referred to as vaping. E-cigarettes have been especially popular among the younger crowd.

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Published on: May 25, 2016

Medical Errors Thought to Be Third-Leading Cause of Death in United States

By Moll Law Group

Everyone has heard stories about a doctor operating on the wrong leg or giving someone the wrong dosage of a drug. These are just some examples of medical errors that occur every day in this country. Those types of mistakes can be the basis for a medical malpractice claim.

Medical Errors May Be Third-Leading Cause of Death in United States

Doctors have known for a long time that medical errors are prevalent. However, it is not a popular topic of discussion in the medical community, and no one knew how often they actually occurred. A recent study looked into the issue and found that medical errors might now be the third-leading cause of death in the United States.

The study estimated that if medical errors were accurately documented, they would account for 251,000 deaths per year. That comes out to 700 deaths per day, or about 9.5% of all deaths annually in the United States. This would put medical errors below only heart disease and cancer, and account for more deaths than those resulting from respiratory disease, accidents, and stroke.

The prevalence of medical errors had not been apparent for a long time because of the way deaths are recorded. The Centers for Disease Control uses a coding system that does not record common medical errors like communication breakdowns and diagnostic errors. The coding system counts only the “underlying cause of death,” which is the condition that led the person to seek medical treatment. However, the growing awareness in the medical community pushed researchers to find out more. Researchers noted that some errors result from careless medical providers, but others result from communication breakdowns, which can occur when a patient gets transferred from one facility to another.

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