Marietta Injury Lawyer Blog

Cobb County Jury Returns Record $40 Million Dollar Verdict for Husband’s Wrongful Death and Widow’s Personal Injuries

September 28, 2011 | Benjamin S. Persons, IV

As a Marietta Trucking Lawyer, I’m always interested in significant Cobb County trials involving tractor trailer collisions. On Thursday I watched closing arguments in the case of Theresa Foster v. Landstar Ranger, Inc. et al. The case was filed by a Blakely, Georgia woman seeking to hold a Florida trucking company accountable for a 2007 collision that killed her husband, William Foster, killed a friend, Jay Demont, and caused her serious personal injuries. The evidence presented by the widow’s lawyers was compelling. As I left the Courthouse that evening, I felt fairly confident the jury would return a large eight figure verdict, but then you never know. On Friday the jury reached a verdict, awarding $40 million to Mrs. Foster, thought to be a record in a Georgia wrongful death case.
The driver of the Landstar 18-wheeler, Stephen Collins, ran a stop sign and collided with the Foster’s vehicle on February 11, 2007 while they were on a hunting trip in the southwest Georgia town of Blakely. Mrs. Foster’s lawyers presented evidence that Mr. Collins ignored 10 indications that he was approaching a stop sign, including rumble strips, lights, and signs. At the time of the accident, Collins was transporting a cargo of rubber pellets that caused the weight of his 18-wheeler to be over 77,000 pounds when it crashed into Mr. Foster’s 2002 Ford F-150. Both Foster and Demott were riding in the front seat of the truck, while Mrs. Foster who suffered broken ribs and a fractured vertebra was the lone back seat passenger.

In Georgia, if a trucking company kills someone, they are responsible for the value of that person’s life as well as the lost earning capacity of that person. Mr. Foster was a large wage earner and a successful businessman. Mrs. Foster’s lawyers presented a thorough economic analysis, supported by testimony of expert economists, accountants, and Mr. Foster’s business partners, that Mr. Foster’s lost earning capacity exceeded $43 million dollars. Landstar’s lawyers argued that the number was too high, but failed to present any evidence supporting a different number. From my point of view, it appeared the defense strategy was to sit back and rely on the reputation of Cobb County juries to deliver low verdicts.

At Church on Sunday I was asked a good question. “If a Florida corporation killed a Blakely, Georgia man in Blakely, why did the case get tried in Cobb County?” The answer surprised them, in Georgia cases are tried where the Defendant lives. Corporations “live” wherever they choose to have a registered agent. Ironically, Landstar Ranger, Inc. choose to set up their registered agent in Cobb County, because of our County’s reputation for very low verdicts. They figured if they ever killed anyone with a tractor-trailer they would get to pay less if the case was tried in Cobb County. However, from my experience as a Cobb County Personal Injury Lawyer, this perception is outdated. More often than not, Cobb County juries do the right thing and reach verdicts based on the evidence, whether that means a large or small verdict.

Georgia Child Safety and Product Liability Update – Drop-Side Cribs Outlawed For Causing Numerous Infant Deaths

September 19, 2011 | Benjamin S. Persons, IV

The traditional drop side crib that millions of parents have trusted and relied on to cradle their babies for generations has now been outlawed by the government. After many recalls and the deaths of over 30 infants and young toddlers over the last 10 years, drop side cribs will no longer be a choice for parents when shopping for a crib. The Consumer Product Safety Commission came to a unanimous vote to ban all operations involving the drop side crib in which on side moves up and down, so that a mother or father can easily remove their child. The ban of all operations, involving this crib include: a ban of manufacturing, selling, or reselling in any way. The government has approved a new standard that ensures the safety of all children that need to be in a crib. Cribs will only have fixed sides so children can’t climb out or fall out over the side. The government has also banned all child care institutions, as well as hotels, from using drop side cribs in their establishments.

Drop sides cribs have been criticized for decades for many reasons. These drop side cribs have been known to have malfunctioning hardware, cheaper plastics, and most commonly, assembly problems. Assembly problems have caused numerous instances in which the drop side rail detaches from the crib itself. When this detaching happens, it commonly creates a V-gap between the mattress and side rail. This can cause an infant or toddler to get stuck in this V gap and suffocate causing a needless death. A mother in New York lost her 10 month old son in 1997 when his side rail detached and his neck became trapped between the mattress and side rail. A mother wants to feel a sense of safety when she puts her infant or toddler down to sleep and not have to worry about them possibly suffocating or dying through the night. It is an awful feeling to wake up to your son or daughter trapped and not be able to help them.

Appeals Court Rejects Medical Monitoring for Toxins in 2007 Train Derailment

September 15, 2011 | Benjamin S. Persons, IV

In an interesting decision out of the 6th Circuit, a three-judge panel of the U.S. Circuit Court of Appeals upheld a judgment for CSX Transportation Inc. last week in a case brought by a group of citizens seeking medical monitoring for the small Ohio town of Painesville, after a train derailment in 2007. When the train derailed it was carrying substances that included glycerin, alcohol, ethanol, and butane. All of theses substances are known to be dangerous when inhaled in large quantities, and butane is an extremely volatile substance, and inhaling it can cause, narcosis, asphyxia, and cardiac arrhythmia. After the accident more than 500 families were evacuated in the half-mile area surrounding the site. In addition, some of the 3000 gallons of Ethanol that was spilled leaked into a nearby creek. CSX admitted in court filings that improper track maintenance, including using the wrong size rail as part of a repair, caused the crash.

The residents who brought the suit against CSX were attempting to persuade the court to force CSX to pay for the expense of medically monitoring the area for an extended period of time to assess any risk the spill might be causing to the residents near the site of the derailment. The appeals court said the plaintiffs failed to produce evidence creating a genuine issue. Instead, the court says, that they relied on a conclusory statement by a doctor that, “a reasonable physician would prescribe for the Plaintiff and the putative class a monitoring regime.”

Daniel Bechenel Jr., a lead lawyer in the case, called the derailment an example of railroads putting people in danger and imminent risk by cutting safety precautions and repair standards. Though this may be true, the Appeals Court felt that the overall risk was too small to force CSX to pay for the medical monitoring.

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.

Drug Company Lawyer Caught Bribing Expert Witness in Multi-Million Dollar Litigation

August 23, 2011 | Benjamin S. Persons, IV

A darker side of international business was recently exposed when the Associated Press obtained a recording of a lawyer, Jorge Hernandez Martin, for Baxter International, a leading U.S. drug manufacturer, offering to pay an opposing expert in a lawsuit if he would leave the country on a key court date to undermine the case. Ironically, Baxter International champions itself as a promoter of global anti-corruption efforts. The lawyer in the recording, Jorge Hernandez Marin, told the expert to buy a ticket to New York with his wife and then call and lie to the judge telling him his son had broken a leg in an accident and that would be why the expert could not accept the assignment.

The expert the lawyer was discussing this plan with was Rafael Aspura Alvarez, an expert witness for the company Translog, a trucking company, which is involved in a 25 million dollar suit with a Baxter in Mexico in which the pharmaceutical company alleges that Translog, because of ongoing financial problems, did not meet the terms of their contract by refusing to pick up and deliver critical supplies to kidney disease patients so were therefore forced to find other shippers. Translog counter this contending the contract gave their company exclusive rights to transport Baxter drugs in Mexico therefore it was violated. During the meeting the lawyer also offers him a trip to Las Vegas if he would rather go there rather than New York, and also tells him that he will double whatever the other side is paying him.

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.

Deadbeat Parents Arrested For Failing to Pay Child Support in “Free” Iron Bowl Ticket Sting

August 16, 2011 | Benjamin S. Persons, IV

http://www.youtube.com/watch?v=1A0aq1bO7-8

Lee County Alabama has come up with a fool proof plan to catch and arrest parents who are delinquent on child support payments: offer them free tickets to the Iron Bowl, the annual game between Auburn University and the University of Alabama. According to the Opeika-Auburn News, the Lee County Sheriff’s Office set up a plan called “Operation Iron Snare” where they sent letters out to 140 parents who were delinquent on their child support payments telling them they had won tickets to the Iron Bowl. The letter said that all they had to do was bring photo ID to a specified location to claim the tickets.

The officers went all out decorating the room in balloons with banners on the wall, news cameras, and arresting officer dressed in both Auburn and Alabama gear. Unfortunately when the “winners” were greeted it was with handcuffs rather than tickets.With the plan, coined “Operation Iron Snare,” the department was able to catch about a dozen violators who owed an estimated $270,000 in back child support.

Due to Risk of Liver Failure Johnson and Johnson Reduces the Recommended Daily Dose of Tylenol

July 30, 2011 | Benjamin S. Persons, IV

Johnson and Johnson said Thursday that it is reducing the maximum daily dose of Extra Strength Tylenol to reduce the risk of consumers accidentally overdosing from acetaminophen, which is the active ingredient in Tylenol and a top cause for liver failure. Extra Strength Tylenol is the number one over-the-counter pain medication in the United States with over 50 million Americans using it each week to treat pain, fever, and other conditions associated with cold, flu, and allergy symptoms.

The current dosage of 4000 mg per day or eight pills is being lowered to 3000 mg per day or six pills. Doctors say that acetaminophen is common in many prescription medications as well as over the counter medications and many times people do not realize the amount they are actually taking because of failure to properly read directions on labels.

Another problem according to Dr. Michael Wolf, associate division chief of General Internal Medicine at Northwestern University, is that people don’t feel like they have to stick to the recommended daily dose. Presumably because they feel Tylenol is a safe drug and nothing harmful will happen when they don’t follow the recommended dosage. Though Doctors warn that an overdose can easily cause liver damage, possibly resulting in death. Acetaminophen is the leading cause of liver failure in the United States, with 56,000 Americans going to the hospital each year, with 400 of those cases resulting in death.

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.