Indiana Injury Lawyers Blog

Chinese drywall under fire for health issues

2010-02-23T19:24:39Z

Drywall manufactured in China started appearing as a major player in the home building and renovation business, predominately in the Southeastern U.S., following the hurricane season of 2001.

By 2006, and continuing today, thousands of consumer complaints had been lodged against the builders, retailers, and one primary manufacturer of Chinese drywall because of alleged negative health effects of that drywall, as well as alleged corrosive effects of emissions on copper and other household materials. The situation created enough of a crisis that selling drywall manufactured in China was banned in 2009, and product liability lawsuits are pending.

The Consumer Product Safety Council currently estimates the number of formal filed complaints with them and state agencies to be around 5,000, concentrated primarily in Florida (almost 60%), Louisiana (21%) and a few other southern states. Other sources estimate the number of homes affected in the six figures, although true counts are difficult. The CPSC's investigation is the most expensive in the agency's history.

]]> Although the drywall is still being tested, most preliminary reports pin the problem on emissions of either strontium sulfide or hydrogen sulfide, both of which are corrosive agents and have serious adverse health effects on human beings. The manufacturer primarily blamed for the toxic drywall throughout the south is a German company called the Knauf Group, which reportedly has at least three subsidiaries who manufacture drywall in China.

Chinese drywall has been the subject of at least two large lawsuits - one class action suit in Florida, and a big one in Louisiana that has been brought by the Louisiana Attorney General. A consortium of 14 insurance companies are also under suit for allegedly failing to pay claims for this product.

It is too soon into the litigation and testing process to talk about collectability, but some ideas are being advanced - if, of course, the liability issues are settled. Nevertheless, hearings are underway to try to settle at least one large claim. Last year, a Chinese-controlled gypsum company (the base product of drywall) failed to respond to a Florida-based lawsuit and had a default judgment taken against it. Hearings are now on to determine where to go from there, as there exists no established legal recourse for collecting a judgment from a foreign company not beholden to US law. There has also been discussion of a U.S. government-based fund to handle the claims, though no official course of action has been decided.

And the kicker? Some of the testing involved U.S.-manufactured drywall as well, and some of the U.S. product also gave off sulfurous emissions. A study designed to measure the longer-term effects of decades of corrosion is not expected to be completed until June of this year, so full resolution to these claims may be a long time coming.

Truck Accidents in Indiana

2010-01-06T20:58:39Z

Accidents involving semi trucks can involve legal issues which are quite different from traffic accidents which involve small vehicles and private individuals.

Indianapolis in particular, nicknamed the "Crossroads of America", is a major hub for cross-country freeway traffic, with trucks heading north, south, east, west and all points of the compass on Interstates 65, 69, 70 and 74. In 2006 there were well over 1,600 injuries caused by truck crashes in Indiana, including 140 fatalities.

Injuries and the subsequent recovery periods from truck accidents involving small vehicles can also be far more serious than small vehicle accidents for a number of reasons, primarily from the fact that a loaded semi can weigh up to 40 tons. Also, such accidents often occur at a high rate of speed, trucks and semi tractor-trailers are harder to control in bad weather and they have large blind spots. Any and all of these factors can lead to serious accidents.

An accident between a large truck and a passenger car is more likely to inflict serious damage such as brain and spinal cord injuries. Such injuries can be extremely costly to the victim and involve extensive recovery and rehabilitation. Currently federal insurance regulations require a far higher level of coverage for an interstate commercial vehicle than state regulations require for passenger cars.

]]> One of the underlying reasons for the number of crashes involving trucks can be traced to the fact that truckers often drive while they are drowsy. According to the National Highway Traffic Safety Administration, truck drivers are 4.5 times more likely than the average driver to get into a drowsiness-related accident. Drivers are required to limit their time on the road according to federal regulations, but the records they keep are simply handwritten logs which can be easily fudged. When truck drivers are paid by the mile it creates a financial incentive for them to drive as far as they can as fast as they can.

An Indianapolis attorney with experience in dealing specifically with large truck accidents is aware of the issues and regulations involved and knows what facts to look for in order to determine whether the driver and the carrier complied with the law. If it is discovered that there was a failure to comply or a willful disregard of regulations, recoverable damages could be considerably more. Section 390.11 of the Federal Motor Carrier Safety Regulations (FMCSR) stipulates that a duty or prohibition imposed upon a driver must likewise be observed by the carrier. The carrier is liable for negligence on the part of a truck driver if the truck is under lease to the carrier. Commercial transportation insurance policies usually have far higher policy limits than individual policies, generally a $1 million minimum.

Contact Wilson Kehoe & Winingham

Indiana Supreme Court affirms rebuttable presumption for 7- to 14-year olds

2009-12-09T15:36:12Z

Indiana wrongful death attorneys were pleased to hear of a unanimous ruling in favor of the plaintiff on November 30th in the case of Clay City Consolidated School Corp. v. Ronna Timberman and John Pipes II. With the recent ruling the Indiana State Supreme Court affirmed a lower court's ruling in favor of the family of a boy who died during basketball practice.

Kodi Pipes had recently blacked out during practice and was not cleared by the doctor to participate. Kodi later participated in a running drill in which he collapsed and died. The family filed suit against Clay City schools alleging that the school was negligent under the Indiana Child Wrongful Death statute.

The trial court's verdict found in favor of the plaintiff and awarded the Pipes family damages. The Indiana Court of Appeals later reversed the trial court's ruling in the case and ordered a new trial, ruling that the trial court had erred by instructing the jury that Indiana law recognized a rebuttable presumption of law for 7- to 14-year olds. The rebuttable presumption in this case was that a minor between the ages of 7 to 14 years old cannot legally be held accountable for negligence, though this presumption can be challenged under certain circumstances. Had the jury found the boy negligent, the affirmative defense of contributory negligence would have barred any chance for recovery. In this case it is fortunate that the Indiana Supreme Court reaffirmed that Indiana does indeed recognize a rebuttable presumption for minors of this age and reversed the appellate court's ruling.

Under Indiana law contributory negligence can serve as a complete bar to recovery in a tort claims act case. If a defendant is a medical provider or government institution (as in this case), a finding of contributory negligence on the part of the plaintiff could prevent any and all recovery of damages. However, because the Supreme Court affirmed the rebuttable presumption for a minor, Kodi was found free of negligence. The appellate court ruling was overturned and the original trial court's ruling was affirmed, allowing the Pipes family to recover damages.

Birth control drugs Yasmin, Yaz and Ocella associated with serious side effects including death

2009-09-30T18:06:17Z

Yasmin and YAZ are two varieties of combination type birth control pills (BCP) produced by Bayer Healthcare. Yasmin was approved for sale in the US by the FDA in 2001 while YAZ was approved in 2006. Both YAZ and Yasmin contain 3 mg of drospirenone, a progestin, which is combined with 30 mcg of ethinyl estradiol in Yasmin and 20 mcg of this estrogen in YAZ. The estrogen component of these BCPs has been in common use since the 1970s. Drospirenone is a relatively new fourth generation progestin which has been shown to have an anti mineralocorticoid effect. This effect leads to diuresis, (increased urination) while retaining potassium which can lead to elevated serum potassium levels (hyperkalemia). It is suspected that this progestin is the cause of a notable increase in certain adverse effects which include death, arrhythmias, venous and arterial blood clots, gallbladder disease, pancreatitis, liver or kidney failure, dehydration and hypertension. The serious cardiovascular side effect are markedly increased in those who smoke and with advancing age particularly beyond age 35.

The FDA sent a warning letter to Bayer in August 2008 demanding a campaign to correct misleading direct to consumer marketing which had been promoting the use of YAZ for conditions other than those for which it had obtained FDA approval. YAZ had been approved for birth control, for women who suffered from premenstrual dysphoric disorder PMDD (a markedly depressed mood, anxiety or tension affective lability and persistent anger or irritability) and for the treatment of moderate acne vulgaris in women who also desire pregnancy prevention. The advertising in question seemed to give the message that YAZ was indicated for PMS ( a much milder constellation of symptoms than PMDD) and all severities of acne rather than the specific approved indications. The FDA also sent a warning letter to correct misleading advertising to Berlex labs, the original producer of Yasmin in 2003. Bayer acquired the rights to market Yasmin in 2006. In February of 2009 Bayer settled with the FDA and the attorneys general of 27 states to mount a $20,000,000 campaign to correct the misconceptions it had created. The corrective ads ran from February through late July 0f 2009. During the period of ads labeled misleading by the FDA, YAZ sales nearly tripled from the 262 million in 2007 sales.

]]> Ocella is a generic BCP produced by Barr, a maker of many generic drugs, which was approved for sale in 2008 has the same chemical compositions as Yasmin. Likewise, it is believed to have the same side effect profile.

Between 2004 and late 2008 over 50 deaths have been reported to the FDA in users of YAZ or Yasmin. These deaths have usually been due to arrhythmia, intracardiac clots, pulmonary embolism (venous blood clots passing through the heart and into the lungs), and stroke. The have been reported in women under the age of 50 and as young as 17. Many of these fatalities have been noted to have elevated blood potassium which may be the cause for some of the fatal cardiac rhythm disturbances.

YAZ is the best selling BCP in the US with an 18% market share and sales of 616 million dollars in 2008. Yasmin has sales of 382 million in 2008 accounting for an 11% market share. These two drugs alone account for nearly a third of all BCPs sold in the US.

Wilson Kehoe & Winingham are preparing to accept clients who have been seriously injured from the use of these drugs. Our firm had great success representing persons who had been seriously injured by the use of two recalled drugs, Baycol and Vioxx in the past few years and we anticipate we will discover a number of persons who were seriously injured from the use of YAZ, Yasmin or Ocella.

The Pros and Cons of Structured Settlements

2009-08-11T14:19:59Z

In Indiana personal injury law large personal injury jury awards and settlement amounts for cases such as brain injuries, spinal cord injuries or medical malpractice are often paid in part by means of a structured settlement. The way structured settlements work can vary, but usually, the paying party purchases an annuity from an insurance company and the injured party receives payments over a period of years. The total amount of the structured settlement is general far more than what the injured party would receive with a straight cash settlement.

This arrangement can have both advantages and disadvantages, and the person receiving the payments has to carefully consider whether or not to accept a structured settlement.

The primary advantage and disadvantage of receiving a lump sum payment are really the same: liquidity. Someone suddenly has a whole lot of cash. Like with winning the lottery, this may or may not be a good situation depending on the level of responsibility and financial knowledge of the person who controls the money. Statistics seem to indicate that most people spend through their lump sum settlements in a far shorter time than they would have received their annuity payments.

The primary advantage of a structured settlement, besides the limitations on profligacy, is the tax-free status of the earnings involved. All PI settlements are tax free, but invest that money, earn interest, and that interest earned is taxable. The interest earned from the annuity of a properly structured settlement is not taxable; it is all considered a part of the settlement.

]]> But there are also disadvantages to a structured settlement. Although this will rarely happen, the future solvency of the paying party has to be taken into consideration. If the paying company goes broke, the victim may be out of luck.

There is also the perception of inflexibility. Once the terms of a structured annuity payment is set, it can be very difficult to change the terms of payment. Also, the fixed payments may not factor in variables like inflation, while they will factor in increased age- risk ratios.

Also, unless the structured payments go into certain qualified funding vehicles, like custodial accounts or trusts, the recipient of the annuity payments may permanently lose the ability to access public funds like Medicaid and Medicare.

All of these decisions should be made with the help of attorneys and accounting staff who have experience in this area. Wilson Kehoe & Winingham has over 30 years of experience dealing in personal injury cases and structured settlements. If you have been injured in an accident and would like a free consultation about your case, please contact us at 1-800-525-8028 or e-mail us at help@wkw.com.

Using Experts to Assess Future Damages in a Personal Injury Case

2009-07-29T14:37:00Z

In determining damages in an Indiana personal injury case, juries can factor in possible lost future earnings and potential future expenses in determining a figure that reflects the actual known damages in a case, as well as probable future damages. Also, those future damages can also be used by negotiating attorneys to help determine an appropriate settlement amount for future pain and suffering.

Determining future damages may involve the use of many expert witnesses, including some of the ones discussed below.

Vocational Experts - These experts can help determine the future earning capacity and work ability of an injured party. They look at various factors of the future work capacity of the claimant, including physical and mental work requirements; national and local labor market trends, changes, and statistics; employment practices and expectations of past or potential employers; and vocational and job skill requirements and transferability issues.

Most of the time, a vocational expert will want to interview the client, and also review tax filings, educational background, personnel files, and other documents to help get a picture of the injured party's future income capacity.

Forensic Economists - These experts apply economic theories to the facts of a case to determine damages, both past and future. Most of them have a graduate degree in economics.

According to the National Association of Forensic Economists, topics within forensic economics include: (1) the analysis of claims involving persons, workers, firms, or markets for evidence concerning damage liability; (2) the calculation of damages in personal and commercial litigation; and, (3) the development and use of generally accepted forensic economic methodologies and principles.

Certified Life Care Planners - A Life Care Planner typically is a nurse who is specially trained and certified in evaluating the costs of the future health care of a personal injury victim. Their evaluation methods work with the basic principles that funds need to be available to address an individual's future medical needs, focusing on the prevention of complications and value-added outcomes.

According to the American Association of Nurse Life Care Planners, the practitioner of this discipline uses knowledge, judgment and skills based on the principles of biological physiological, behavioral, social and the holistic perspective of nursing science in the development of a Life Care Plan.

]]> Wilson Kehoe & Winingham has over 30 years of experience dealing in personal injury cases. If you have been injured in an accident and would like a free consultation concerning your case and possible damages, please contact us at 1-800-525-8028 or e-mail us at help@wkw.com.

Diffuse Axonal Injuries and their Ramifications in Injury Cases

2009-07-17T19:29:03Z

Most attorneys are familiar with the general effects of events like whiplash on a client's back and neck. But there may be other effects of a whiplash occurrence such as rotational injury and even lack of the head impacting with an object which can result in temporary or permanent brain damage.

Although often associated with Shaken Baby Syndrome, Diffuse Axonal Injury (DAI) is a growing area of plaintiff's personal injury law, especially in low impact cases like whiplash following an automobile accident.

DAI occurs when the white matter of the brain, which is composed of nerves called axons, is suddenly and violently shaken, twisted, or torqued in some way. Injury occurs because the unmoving brain lags behind the movement of the skull, causing brain structures to tear at a microscopic level.

Basically, the skull moves violently while the stationary brain stays in place, causing diffuse and sometimes extensive tearing of nerve tissue throughout the brain. This event can also cause brain chemicals to be released, causing additional injury and axonal death radiating outward from the tear. This disturbance in the brain can produce temporary or permanent widespread brain damage, coma, or death.

Most troubling for attorneys is the fact that many of these DAI injuries are not accompanied by a loss of consciousness, skull fracture or intracranial bleeding, thus the difficulty of proof at trial.

Research seems to indicate that DAI actually occurs in two phases: the stretching and tearing of the axons at impact and biochemical changes at the cellular level that may result in edema or swelling that occurs at a later time, perhaps as long as several weeks later.

The actual consequences of DAI - even those resulting in mild or moderate alteration of brain function injury - can be as catastrophic and disabling as any other type of brain injury. A person with this injury can experience a plethora of functional impairments, depending on what parts of the brain were torn in the accident. Usually the person will have changes causing irritation or agitation as a hall mark sign and the higher cognitive functions such as memory, communication, understanding and emotion can be affected globally or individually.

For attorneys, one of the more difficult aspects of a DAI case is that the damage occurs to nerves that are so subtle that the extent of the damage frequently doesn't show up on traditional imaging such as X-Rays, CT's or MRI scans, leaving proof of DAI in the hands of medical experts and in the hands of personal injury attorneys who have experience in this area. Newer imaging studies, while controversial, are gradually being accepted as evidence to demonstrate the presence of DAI. These include SPECT scans, PET scans, Proton Magnetic Resolution Spectroscopic Imaging, and Tensor Magnetic Resonance.

]]> Wilson Kehoe & Winingham is open to consult with the public and attorneys seeking advice or referrals involving this complex area of practice. Our firm has extensive experience in this area of law and retains a physician-attorney and registered nurse on staff. To discuss your case please call us at 1-800-525-8028 or e-mail us at help@wkw.com.

10 Important Things to Do in Case of an Auto Accident

2009-07-15T19:25:51Z

1. Stop immediately! - Indiana law states that if you are driving a vehicle involved in an accident, you must stop at the scene of the accident.

2. Assist the injured & protect the scene - If anyone is injured, immediately make arrangements for a doctor or an ambulance to come to the scene of the accident. However, do not try to move the injured persons. This could result in more injuries. If possible, try to warn oncoming vehicles of the collision to avoid further accidents.

3. Call a police officer immediately so an official accident report can be filed. Unless you are injured, stay at the scene and cooperate with the officer.

4. Do not make comments - Give no statements, oral or written, to anyone except the police officer investigating your accident. Keep your accident notes and information to yourself. Do not admit or sign anything, even if you think you are at fault.

5. Take notes - Keep a diary of all significant details concerning the accident. This physical evidence, including position of cars and length of skid marks, will become useful when the case is ready to move to trial or settlement talks. Make a list of all damaged property in addition to your bodily injuries. Also, take photographs of all damages and injuries. Keep track of all doctor visits, prescriptions, contact with insurance comapnies/adjusters, how you feel from day to day and your lack of capablities since the accident.

6. Record witnesses - Write down the names, addresses and phone numbers of any witnesses who may have important information about the accident.

7. Have a physician examine you as soon as possible. Although you may not be bleeding or in pain right away, the accident can be the cause of serious and costly health problems at a later date.

8. Call your lawyer - Contact your lawyer as soon as possible to assist in handling problems associated with the accident. You should be cautious of any person who offers to adjust your case or tries to hurry you into a settlement.

9. Inform your insurance company - Make a thorough accident report to your automobile insurance company.

10. Pay nothing - Do not make any payments to the other party involved in the accident or promise to make any such payments.

]]> Wilson Kehoe & Winingham has over 30 years of experience dealing in automobile, large truck, aircraft and watercraft accidents. If you have been injured in an accident and would like a free consultation concerning your case and your legal rights, please contact us at 1-800-525-8028 or e-mail us at help@wkw.com.