Personal Injury

First Personal Injury Lawsuit Following May 2011 FDA Warning Concerning Breast Milk and Infant Formula Thickening Agent

September 14, 2011 | Benjamin S. Persons, IV

A New Mexico couple has filed suit against Georgia companies, Simply Thick, LLC, the owners of SimplyThick, a product used to thicken breast milk and infant formula, and Thermo Pac, LLC, who manufactures and supplies the product in Georgia State Court. The complaint is believed to be the first filed following a warning issued in May of this year by the U.S. Food and Drug Administration that SimplyThick may cause the life-threatening necrotizing entercolotis (NEC). After the May warning, the FDA inspected Simply Thick’s Stone Mountain, Georgia manufacturing plant and found numerous deficiencies. At that point a complete recall was issued for every product manufactured at the Stone Mountain plant. The suit alleges that Simply Thick failed to properly thermally process and test the safety of its product, and as a result the SimplyThick ingested by the couple’s daughter was responsible her developing NEC.

The infant was born prematurely, and after being discharged from the hospital the couple was given samples of SimplyThick with instructions to use it when feeding. The couple says after using the product the baby’s health deteriorated so rapidly from the NEC that she had to be airlifted from a local hospital to a specialty Children’s Hospital in Albuquerque. NEC is a rare disease in infants post-hospital discharge that is normally life-threatening causing inflammation and death of intestinal tissue. NEC has a death rate of 25% and can cause severe impairment in children who survive.

Are Physician’s Assistants More Likely To Commit Medical Malpractice than Doctors?

August 26, 2011 | Benjamin S. Persons, IV

A new study published by the Journal of the American Academy of Physicians Assistants finds that a majority of emergency room doctors do not believe the Physician Assistant’s (PA’s) are not more likely to commit malpractice. The study questioned 1000 members of the American College of Emergency Physicians in 2004 and then again five years later. 72% of doctors disagreed or strongly disagreed that PA’s were more likely to commit malpractice and the number dropped to 68% in 2009. The study also stated that doctors believe increased utilization of PA’s in emergency rooms may improve patient communication, decrease wait times, increase patient satisfaction, and therefore decrease malpractice risk.

Doctors in the study said they felt the most important factors in decreasing the risk of malpractice with PA’s was increased clinical experience, completion of post-graduate residency programs, and appropriate supervision by physician.

As a Georgia Medical Malpractice Attorney I can only hope this study is accurate as both PA’s and nurse practitioners are being used more and more frequently in most areas of health care, and I have seen the horrific consequences that can result from medical malpractice. Over 225,000 people die each year due to medical malpractice, with nearly half of those being in the emergency room, according to the Journal of the American Medical Association. In fact, medical malpractice is the third leading cause of death in the United States after heart disease and cancer.

Are Sketchers “Shape Ups” a Dangerous Injury Causing Product?

August 17, 2011 | Benjamin S. Persons, IV

Several people throughout the country are claiming that one recent fitness technique used to get in shape is actually hazardous. Sketchers, the makers of “Shape Ups,” the shoe which the company claims promotes weight loss, tones muscles, and improves posture without going to the gym are being sued throughout the country. The latest suit by an Illinois woman claims the shoes are a dangerous product because of the shoe’s “elevated and unstable, rocker bottom sole.” The woman claims that she suffered a torn tendon while sightseeing in Washington D.C. when the shoe suddenly “pronated inward and caused her left ankle to roll sideways resulting in excruciating pain.” According to the complaint the injury required surgery to repair.

The same firm representing the Illinois woman has files similar suits in Kentucky and Ohio, and is planning to file in Georgia, Virginia, and Utah. There is also a class action suit pending against Sketchers in the Southern District of California that claims the “Shape Ups” are being fraudulently marketed as having health befits.

Child Safety Update;Trunk Entrapment Deaths on the Rise

July 27, 2011 | Benjamin S. Persons, IV

General Motors is being pushed by safety organizations and trial lawyers to recall its older vehicles and install trunk safety switches. This year alone 20 children have died as a result of being locked inside hot cars with three of those deaths from children being trapped inside car trunks that were manufactured by GM. In Oklahoma this month, an 8 year-old boy died in the trunk of his parents 1998 Chevy Cavalier. Last month there was a similar story when two brothers were trapped in the trunk of their mother’s 2000 Chevrolet Malibu and also died.

The safety organization KidsandCars.org is calling on GM to recall all vehicles with trunks from the 2000 and 2001 model years and retrofit them with internal releases. Beginning in the 2002 model year all cars came equipped with a glow in the dark release handle inside the trunk. This is not the first time that GM has been called on to retrofit cars from the 2000 and 2001 model years with internal trunk releases. KidsandCars.org also tried to persuade GM in the 2009 after the death of a 5-year-old Arkansas boy and his 4-year-old sister in a 2000 Chevrolet Malibu. Janette Fennel of KidsandCars.org says that no one has ever died in the trunk of newer models that have the safety releases.

GM’s response provides little comfort to consumer advocates as they responded by stating that because they make more cars than any other company accidents are bound to happen in vehicles. They go even further by putting the responsibility back on the parents stating they have “worked . . . to alert parents and caregivers to the dangers of leaving children unattended in or around vehicles.” They also stated they have no plans to issue a recall.

Recent Georgia Supreme Court Decision a Victory for Victims of Drunk Drivers

July 19, 2011 | Benjamin S. Persons, IV

The Georgia Supreme Court in Flores et al. v. Exprezit! Stores 98-Georgia, LLC, ruled last week that a convenience store can be sued if it sells alcohol to a visibly intoxicated person who subsequently injures others. The original suit involved a Clinch County convenience store that sold a twelve pack of beer to a visibly intoxicated man, Billy Joe Grundell. About four hours after the purchase, Grundell’s vehicle crossed the center lane of a highway and collided with a van head-on in an accident that took his life as well as five others, including children who were six and three months old. At the time of the accident Grundell’s blood alcohol level was twice the legal limit.

The decision revolved around the interpretation of Georgia’s “Dram Shop Act,” which provides that a person who sells, furnishes, or serves alcohol to an intoxicated person of lawful drinking age shall not be liable for injury, death, or damage that person causes because of their intoxication. However, the act also states that a person who knowingly sells alcohol to a noticeably intoxicated person when they know that person will soon be driving may become liable.

Fulton County Judges’ Crack Down on No Show Jurors

July 7, 2011 | Benjamin S. Persons, IV

Thomas Jefferson wrote, “I consider trial by jury as the only anchor ever yet imagined by man, by which a government can be held to the principles of its constitution.” Jury duty, like voting, is a right and privilege of every citizen. Every day people are empowered to decide important issues that potential impact everyone in our community.

An alarming story came out in the The Atlanta Journal Constitution on Sunday that almost half of jurors summoned for jury duty in Fulton County fail to show. A crackdown has begun on jurors who skip jury duty by the Fulton County courts, but has so far provided little response. Last month, the Superior Court sent out 15,000 letters to no show jurors and warned them of contempt of court charges, $500 fines, and 20-day jail stays if they didn’t reschedule or explain themselves. To date only 48 percent of people receiving the letters have either called or written back.

When jurors do respond the most common reasons given for skipping were: “I never got the summons, “I traveled out of state,” and “I moved.” Regardless of the reason this is a very serious problem that is very costly for Fulton County and ultimately you the taxpayer. Furthermore, it’s important to remember that our entire system of justice comes down to one person: you, the juror. Taking the time to serve as a juror, to listen to all the evidence and to decide honestly and fairly is perhaps the most important duty a private citizen can perform. There is no question that everyone’s time is valuable, and that taking the time to serve as a juror might seem inconvenient, but it is time well spent, as our justice system depends on it. Citizens of this country enjoy freedoms and legal rights many in other countries only dream of. The protection of our rights and liberties is achieved through a strong court system, and serving as a juror is a cornerstone of the system.

Preventing and Reducing Auto Accident Injuries and Deaths, the Goal of Georgia’s New Car Seat Law

July 6, 2011 | Benjamin S. Persons, IV

As of July 1, 2011 any child who has not reached the age of 8 must be restrained in a car or booster seat while riding in any vehicle. In addition, the car seats must be in the back seat, and the seats must be designed for the proper age, weight, and height of the child, as well as meet all U.S. Federal Guidelines.

Motor vehicle accidents are the leading cause of death from children 3 to 14 years old, but when they are properly restrained it greatly reduces the risk of injury against everything from sudden stops to head-on collisions. Children who do not use child passenger seats are three times more likely to be injured than those who are using them. It is also very important to use child seats properly per the manufacturing guidelines as research shows that nearly 75 percent of child safety seats are not properly installed.

The Georgia Office for Highway Safety director Harris Blackwood, calls this new law, “a landmark in child safety.” Blackwood feels that the new law greatly improves the overall safety of 6 and 7 year olds riding in cars in Georgia.

The new law will apply to passenger vehicles, vans, and pickup trucks. It will be a few months before law enforcement will fully enact the law, but the first violation of the car seat law will result in a $50.00 fine, while second and subsequent convictions will result in $100 fines. The first conviction will add one point to a driver’s license, and the second and subsequent violations will add two points. Repeat offenders may also face losing their license all together.

Hot Coffee The Movie; A Documentary About The Enemies of Civil Justice

June 29, 2011 | Benjamin S. Persons, IV

Winston Churchill once said “A lie gets half way around the world before the truth has a chance to get its pants on.” Unfortunately this is the case with the civil justice system. If you are an HBO subscriber, the new documentary “Hot Coffee” is definitely worth taking the time to watch. The documentary, made by Susan Saladoff, takes a look at tort reform in America, and provides a look into the other side of the argument of so called “frivolous,” lawsuits. “Hot Coffee” tells the story of four families who have been left emotionally and financially devastated by caps on punitive damages and mandatory arbitration. It also seeks to dispel the myth that American courts are currently flooded with “frivolous” lawsuits.

One of the main stories of the documentary is the lawsuit of Stella Liebeck, better known as the woman who sued McDonald’s over burns she received from a cup of coffee purchased from the restaurant chain. This is the lawsuit that everyone seems to use when they use the term “frivolous” lawsuit. What the documentary points out is that McDonalds and other corporations used this case by twisting the facts to promote tort reform, claiming that this was a ridiculous lawsuit, and turning Ms. Liebeck into the punch line of jokes all over the country. In reality Ms. Liebeck was a 79-year-old woman who was burned so severely while attempting to put cream and sugar in her cup of coffee that she required skin grafts. When Ms. Liebeck brought the suit she was only attempting to cover the difference in her medical cost and what Medicare was paying. On top of that, McDonalds had already received over 700 complaints of coffee burns that they were keeping at between 180 and 190 degrees Fahrenheit, but these are the details that McDonalds managed to keep out of the media all these years to promote their own interest.

Ms. Saladoff says she made the documentary because she wants people to be empowered to take our justice system back. She believes that the American civil justice system has been hijacked by groups like the U.S. Chamber of Commerce who are only concerned with the economics of big business interest, and have no concern for the public at large. Saladoff has also created a Hot Coffee “Take Action” page, for people feel strongly about her film, where she shows many things you can do to fight against corporate interest trying to take away American’s rights in the civil justice system.

Product Liability Update; Many Stunned by U.S. Supreme Court’s Ruling On Generic Drugs

June 27, 2011 | Benjamin S. Persons, IV

In a 5-4 decision on Thursday, the United States Supreme Court ruled that manufacturers of generic pharmaceutical drugs could not be sued under state law over allegations that they failed to provide adequate label warnings about potential side effects. This ruling should be of a great concern to anyone who uses generic pharmaceuticals.

In the original lawsuit, Gladys Mensing, alleged that taking a generic form of metoclopramide, a common drug used to treat heartburn, gave her a severe neurological movement disorder. None of the generic manufacturers and distributors of metoclopramide made any effort to include warnings on the label for metoclopramide. Manufacturers of the generic metoclopramide, Teva Pharmaceutical Industries, UDL Labratories, and Actavis Inc. argued that federal law barred such a suit becausethe drug is approved by the FDA, (federal law requires generic drugs only to have the same labels as their brand name equivalents). They argued that because government regulations only require them to have the same label on metoclopramide as is on its brand name equivalent, Reglan, that they had no duty to include additional warnings for their generic form of metoclopramide.

The majority of the court, including Justice Clarence Thomas, who wrote the opinion, sided with the pharmaceutical companies. Thomas stated in his opinion that the federal drug regulations applicable to generic drug manufacturers directly conflict with and thus pre-empt state lawsuits. The net effect of this opinion is that it gives generic drug manufacturers zero liability for medication injuries that could have been avoided by an updated warning label.

John Stossel; In Favor of The Civil Justice System Before He Was Against It

June 16, 2011 | Benjamin S. Persons, IV

Mark Twain once wrote “nothing so needs reforming as other people’s habits.” John Stossel recently presented a program on Fox News vilifying the American Civil Justice System and Trial Lawyers and promoting “tort reform”. The Tort Reform movement, led by people like Mr. Stossel, believes we should restrict the constitutional right to trial by jury to honest Americans because of a few isolated incidents of frivolous lawsuits. However, when Mr. Stossel needs to use the civil justice system it’s okay.

Based on what happened in the video below, Mr. Stossel sued wrestler David Schultz and the World Wrestling Federation and settled his case for a healthy sum.
http://www.youtube.com/watch?v=Tbl92RqHVmk