Wrongful Death

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.

Dangerous and Defective Product Update; Safety Advocates Demand Recall of ’93-’04 Jeep Grand Cherokee

June 15, 2011 | Benjamin S. Persons, IV

If you are the owner of one of the 3 million Jeep Grand Cherokees made between 1993 and 2004 there may be cause for concern. The consumer watchdog group, The Center For Auto Safety, is pushing the U.S. Government for a recall of a poorly protected fuel tank that is causing fire in some rear-end crashes in the Jeep Grand Cherokee. The National Highway Traffic Administration (NHTSA) acknowledges that there have been 44 Grand Cherokee Crashes and 55 deaths since 1992 where fire was listed as the most harmful factor.

The problem stems from the placement of the fuel tank in the 1993 – 2004 Jeep Grand Cherokee. The tank, which is made of plastic, is positioned below the rear bumper and behind the rear axle, which provides very little protection to the tank in the case of a rear end collision. Paul Sheridan, a former safety manager at Chrysler, says that the “design of the tank if a fundamental safety defect. No Question about it.” Sheridan explains that when one of these Jeep’s is hit from behind that another vehicle could easily slide under the rear bumper of the Jeep and tear the tank open. This creates a situation where gas covers the interior of the Jeep creating a potential disaster if there is any sort of spark.

New Dog Bite Laws for the City of College Park

June 7, 2011 | Benjamin S. Persons, IV

As dog bites have become more and more of a problem throughout metro Atlanta, one community has decided to try and combat the problem. City officials in College Park are now requiring dog owners of breeds deemed “potentially dangerous” to register with the city and pay an yearly fee of $25.00. The dogs must be registered whether they have bitten someone or not. The breeds include:

-German Shepard
-Rottweiler
-Doberman
-Staffordshire Bull Terrier
-American Staffordshire Terrier
-Pit Bull
-American Pit Bull Terrier
Dogs not included in this list that have bitten someone in the past without provocation must also be registered with the city. If owners do not abide by the new rules they will face fines.

Fatal Cobb County Tractor Trailer Crash Kills Infant

February 15, 2011 | Benjamin S. Persons, IV

Interstate 75 was the scene of another fatal tractor-trailer crash this past Saturday night. WSBTV reported traffic was stopped on I-75 because of construction, when a tractor-trailer driven by Henry Lipps crashed into multiple cars. At least four adults were seriously injured and a 6 month old baby was killed. Mr. Lipps was charged with second degree vehicular homicide (a misdemeanor) and following too closely.

According to Cobb County Police, the 18-wheeler never hit his brakes before impact. At this point it is obviously too early to tell why Mr. Lipps did not brake. Even professional drivers can get distracted and make mistakes. However, often in collisions like this, driver fatigue is a factor. Experienced Georgia trucking lawyers will tell you the unfortunate truth is some trucking companies pressure their drivers into violating The Federal Motor Carriers Requirements limiting hours of service. Law enforcement in Cobb County takes all trucking fatalities very seriously and there will certainly be a thorough investigation. If it is determined that Federal Regulations were being violated by the driver and/or the trucking company, for the sake of the impacted families, I hope the driver and trucking company will be held accountable.

Allstate Agrees to $10 Million Dollar Settlement Over Claims Handling Policies

October 28, 2010 | Benjamin S. Persons, IV

The National Association of Insurance Commissioners’ eighteen month investigation of Allstate’s claims handling practices ended this month with Allstate agreeing to pay a $10 million dollar settlement. The primary focus of the investigation and settlement relates to Allstate’s use of a claims handling software called Colossus. Allstate has agreed to make several changes to it’s claims handling policies. However as a injury claim lawyer, I still advise caution when dealing with giant insurance companies like Allstate.

Their are many types of insurance claims where hiring a lawyer is typically not necessary, such as clear liability property damage claims. When dealing with a company like Allstate, whether you hire a lawyer or not, it’s always a good idea to at least consult with a lawyer. Most personal injury lawyers provide free consultations and information gathered from a lawyer consultation can be an invaluable resource for determining whether you are being treated fairly by an insurance company.

Washington Family Seeks Homeowner’s Insurance Policy Proceeds Following Fatal Dog Bite

September 13, 2010 | Benjamin S. Persons, IV

A Washington State man’s family has filed a wrongful death suit following a fatal dog bite. Kenneth Bock was bitten on the hand by a dog and suffered what seemed to be a minor bite. The following day Mr. Bock developed leg pain and went to the hospital where he was diagnosed with Capnocytophaga canimorsus sepsis. Capnocytophaga canimorus is a gram negative bacterium commonly found in the mouths of dogs and sepsis is a condition where infection overwhelms the blood stream and attacks the entire body. Within ten days of his bite Mr. Bock died.

Most States have a variation of the “first bite” rule for dealing with an owner’s responsibility of animal attacks. Under the traditional “first bite” rule, a dog owner gets a free pass the first time his dog bites someone. However, when the dog bites again the owner will be held responsible. The concept is, once your dog bites someone you gain knowledge of it’s “dangerous propensity.” Where I practice, Georgia, you can be held responsible in one of two ways 1) when you have knowledge of your dog’s “dangerous propensity” or 2) when you are in violation of a leash law. In the Bock case, the family’s lawsuit alleges the dog’s veterinary records show the dog had bitten before and that the dog was unleashed when he bit the victim.

According to the Seattle Times, the insurance company refused to pay the full limits of the homeowner’s policy so the family filed suit. This is not uncommon. Even with wrongful death claims, insurance companies usually offer very little to settle these cases prior to suit being filed. Most insurance companies want to wait and see if the victim’s family has a wrongful death attorney that is prepared to take the case to a jury trial before they will begin to offer a reasonable settlement value. From my experience, most of these cases settle once the evidence is developed proving liability, the cause of death, and the economic and non-economic value of the victim’s life.

Inflatable Slides and Moon Bounces Pose Serious Injury Risk to Children

September 10, 2010 | Benjamin S. Persons, IV

A huge focus of my blog deals child safety issues, because in addition to being a personal injury lawyer, I’m a father of three. Like most parents my number one goal is keeping my children safe. Recently I’ve discovered moon bounces and inflatable slides can pose a serious injury risk. More and more I’m hearing about deaths and serious head injuries from incidents on inflatables, or as my kids call them “jumpy jumps.” Naturally I’m worried and want to read more to find out how these incidents happen.

I started with last year’s report by the U.S. Consumer Consumer Product Safety Commission on the estimated number of injuries and deaths associated with inflatable amusements from 2003 – 2007. According to the study, approximately 6,000 people are injured every year from the use of inflatables. Most of the incidents involved moon bounces (91%) and the most common injuries were fractures (29%). Of course what scared me the most were the reported deaths. How did they happen? From the report and other sources I found numerous death reports.

Video – “A World Without Lawyers.” A Look At Civil Justice

September 2, 2010 | Benjamin S. Persons, IV

A World Without Lawyers – Amazing videos are here

City of Atlanta Agrees to Pay a $4.9 Million Dollar Settlement to the Family of Kathryn Johnson for her Wrongful Death

August 19, 2010 | Benjamin S. Persons, IV

The city of Atlanta has reached a settlement to pay $4.9 million dollars for the wrongful death claims of Kathryn Johnston. The tragic death of Ms. Johnston had a huge impact on our community and hopefully the resolution of this case can bring some closure to the family and the city. Mayor Kasim Reen said the resolution of the case is an important healing step for the police department and the city.

Kathryn Johnston was killed in 2006 following a botched drug raid on her house. Using information from a confidential informant, the Atlanta police officers executed a no-knock warrant and kicked in Ms. Johnson’s door. The officers shot and killed the 92 year old woman and then planted drugs in her home.

Three former city of Atlanta officers pled guilty to charges of conspiracy to violate civil rights resulting in death and were sentenced in 2009. Multiple other officers pled guilty to various offenses and were either fired or reprimanded for violations of department policy.

Hit and Run Driver Responsible for Fatal Lawrenceville Crash Receives 40 Year Prison Sentence

August 19, 2010 | Benjamin S. Persons, IV

Hit and run driver, Cody Rhoden, pled guilty to 4 counts of vehicular homicide in Gwinnett County this week. Following his plea, the judge sentenced him to 40 years in prison with an additional 30 years of probation. According to prosecutors, Mr. Rhoden caused one of the deadliest car crashes in Gwinnett County history killing 4 people and seriously injuring several others.

According to witness statements, he was zooming through traffic at speeds exceeding 100 miles per hour and had consumed up to five 16 oz beers at an Atlanta Braves game prior to driving home that night. Police say he ditched his Acura after the collision and turned himself in the following day.

The damage this man caused with his reckless driving is truly unimaginable. One of the crash survivors, Latavius Finley, testified at the plea hearing “I’m lost. My first born died in my arms. My fiancee died in my arms. My little brother died after responding to me on the highway. My life has not been the same.” Although nothing can mend the harms suffered by the grieving families, hopefully Mr. Rhoden’s conviction can help bring closure to the victims’ families.