It’s conventional wisdom among trial lawyers and insurance lawyers that few plaintiffs are as sympathetic as a brain-damaged baby. The baby plainly did nothing to contribute to their harm, but has nonetheless been deprived of many of the basic joys of their infancy, childhood, adolescence, and adulthood. It’s thus presumed that, if a jury finds

[Update: Unfortunately, the “Fair Share Act” passed. Stuart Carpey has some details.]

It’s that time of year again. As The Legal Intelligencer and other sources report, Pennsylvania’s joint and several liability laws — which ensure that the economic damage caused by negligent companies falls on insurers and other defendants proven to have

They say you learn something new every day. Here’s what you’re going to learn today:

Over-the-counter Motrin can burn the skin off your face.

Commonly prescribed drugs like the yeast-infection treatment Nystatin and the antibiotic Azithromycin can do the same. All of them, and over a dozen other drugs, can also cause ulcers and lesions to develop on the membranes in your mouth and on your lips, making it impossible to eat.

Take a step back and think of how many of those you took in the last year. Who didn’t take Motrin or some other ibuprofen in the past year?

Who didn’t give it to their kid?

Janet Leland gave Children’s Motrin to her nine year old daughter, Kiley Wolfe, just like her pediatrician told her to, to relieve headache, stomach pains, and a fever. As the District Court for the Eastern District of Pennsylvania described last week:

Despite taking Children’s Motrin, plaintiff’s symptoms did not improve. Instead, she developed a rash on her cheeks. Nonetheless, nurses at plaintiff’s pediatrician’s office advised Leland to continue administering the drug to plaintiff. Leland proceeded to give plaintiff doses of Children’s Motrin until Saturday, June 1, when she noticed blisters on plaintiff’s ears while the family was staying in Boston.

Later that day, Leland took her daughter to Boston Children’s Hospital. Doctors there diagnosed her with Stevens-Johnson Syndrome (‘SJS’) [2] While hospitalized, plaintiff exhibited symptoms of acute Vanishing Bile Duct Syndrome (‘VBDS’). [3] Because of damage to her liver, plaintiff eventually required a liver transplant.

FOOTNOTES

2 SJS is ‘a rare, serious disorder in which your skin and mucous membranes react severely to a medication or infection.’ Mayo Clinic, Stevens-Johnson Syndrome, http://www.mayoclinic.com/health/stevens-johnson-syndrome/DS00940 The disease is ‘sometimes fatal.’ Dorland’s Illustrated Medical Dictionary 1833 (30th ed. 2003).

3 VBDS is a condition where the bile ducts in the liver are destroyed.

Wolfe v. McNeil-PPC, Inc., 2011 U.S. Dist. LEXIS 34714, at *4–5 (E.D. Pa. Mar. 30, 2011).

Continue Reading Failure To Warn Quiz: Do You Know Children’s Motrin Side Effects?

A tragic story:

SIOUX CITY — A Sioux City bank has filed a personal-injury lawsuit on behalf of a Sioux City girl against the maker of a powdered infant formula, claiming the girl got seriously ill from drinking the reconstituted formula days after she was born in 2008.

According to court documents, Security National Bank alleges the girl, Jeanine Kunkel, now nearly 3 years old, contracted neonatal Enterobacter sakazakii meningitis from the Similac formula made by Abbott Laboratories and suffered permanent brain damage. The bank, as the child’s conservator, seeks monetary damages for her care, suffering and fear of future disease.

Her parents say Jeanine changed drastically soon after drinking the powdered formula, which came in a complimentary gift bag when she was discharged from St. Luke’s Regional Medical Center.

In many ways, it seems like an open and shut case. The child was promptly diagnosed with E. sakazakii meningitis. The Centers for Disease Control and Prevention has found E. sakazakii infections through tainted powered infant formula before (as have the Food and Drug Administration and World Health Organization) and apparently doesn’t know of any other way in which infants become infected.

Moreover, her twin wasn’t infected, despite virtually identical conditions except for the formula. He’s fine. She “doesn’t walk, crawl or roll over. She eats through a tube inserted into her stomach, her father said, because her brain isn’t able to command her throat to swallow. A shunt keeps harmful fluid from building up in her brain.” Twins don’t mirror each other’s health care course, but his good health does help rule out, to some extent, the possibility of other causes.

But there’s a hitch in the case:

Surber and Troy Kunkel, Jeanine’s father, admit tests conducted on the can of powdered Similac didn’t show evidence of Enterobacter sakazakii bacteria, but Sioux City attorney Tim Bottaro said they’re confident that’s where the harmful bacteria came from.

FDA labs tested for but did not find the bacterium in the family’s kitchen, the lawsuit says.

The tort of negligence (which underlies most product liability cases) has four elements, duty, breach, causation, and damages. To recover, a plaintiff must prove them all beyond a preponderance of doubt. Even in strict liability (which underlies the rest of tainted product claims) the plaintiff must demonstrate that the defective product in question caused the harm alleged.

So how does the family prove that the infection which caused her brain damage was caused by the formula when the formula sample itself did not test positive for the bacteria?Continue Reading Proving Bacterial Infection Injuries Through Circumstantial Evidence

At some point around ninth grade, we’re essentially taught that “civic duty” is a synonym for “boring,” and that no civic duty is less interesting and more inconvenient than serving on a jury.

Thankfully, not everyone takes that lesson to heart. Most of the jurors on our juries are attentive, as interested as they can be (trial can get boring for the jury, particularly during voir dire of experts and testimony about the authentication of documents), and serious about their jobs.

But there’s a small segment out there Googling around for one of the 906,000 sites for “get out of jury duty.” Apparently not Larry Ellison, however, and not just because his company, Oracle, is suing Google. At the Mercury News:

In almost every way, it’s a routine lawsuit over a slip and fall at a Ford dealership.

Except for one $39.5 billion detail: Larry Ellison, Oracle CEO and Forbes Magazine’s fifth richest person in the world, is one of the 12 jurors.

Since Wednesday, the brash, opinionated tech icon has been in a Redwood City courtroom, hearing the case of Miramontes v. James Ford Inc. Donald and Elisa Miramontes filed a personal injury lawsuit after Elisa took a spill outside the Half Moon Bay Ford dealership in January 2009, when she stepped in diesel fuel that had leaked from inside the service center.

Ellison’s tour of jury duty is estimated to take five days, according to the San Mateo County electronic records system. Opening statements and testimony in the case began Wednesday, a clerk said. Court will be out of session Monday, resuming Tuesday.

How much is a week of Ellison’s time worth? More than $1.3 million. Do the math — his total compensation for last year was estimated at $70 million. That beats the $15 a day the court pays for jury duty, though it’s safe to say Oracle isn’t going to dock his pay.

Of course, it’s a heck of a lot easier for Ellison to fulfill his jury duty than it is for most people. What’s Oracle going to do, fire him? He’ll still get paid those same millions whether he’s on the jury or not.

Continue Reading If Larry Ellison Can Do Jury Duty For A Slip And Fall, So Can You

Lawyers tend to be a negative bunch. Business lawyers tell entrepreneurs why they cannot do what they want to do. Lawyers for big corporations send threats to small businesses to keep them out of competition. Insurance defense lawyers spend hours deposing and cross-examining personal injury plaintiffs so they can claim everyone, including those barely able

 You know what’s cool? Apparently a billion dollars isn’t cool, according to Sean Parker, no matter what Justin Timberlake in The Social Network might have to say about it.Not a personal injury lawyer.

But what is cool is third-party litigation financing. Don’t believe me? Binyamin Appelbaum at the NYTimes and the Center for Public Integrity did a whole

We personal injury lawyers see some recurring fact patterns, particularly for the spinal cord and brain injury cases. The fatigued tractor-trailer driver driving beyond the FMCSR hours. The fully loaded passenger van rollover. The scaffolding collapse at a construction site. Commercial vehicles and equipment drive our modern economy, but they do so with more than enough force to maim or to kill if not used carefully.

But nothing beats alcohol, the “social lubricant,” which can turn even the most mundane situation into a crippling or fatal tragedy. Cars, guns, and bodies of water are inherently dangerous anyway — for any given American, their lifetime odds of dying from one of the three are, respectively, 1-in-100, 1-in-325, and 1-in-9,000 — and the addition of alcohol exponentially increases the likelihood of accidents, shootings, and drownings. A mind-numbing (and soul-numbing) number of our cases involve, in one way or another, the use or abuse of alcohol.

Which brings us to the subject of today’s post:

East Hempfield police said Hershey, a salesman at Imports of Lancaster County, East Petersburg, had taken the Jensens on a test drive when he told Tyler Jensen to pull over so he could show him “how it’s done.” Witnesses estimated Hershey was traveling as fast as 90 mph on the two-lane road when a truck pulled into his path and he swerved and hit an embankment, according to the affidavit filed in the case.

The car rolled several times, ejecting Hershey and the elder Jensen, who sustained severe head injuries and died at the scene.

According to the affidavit filed in the case, Hershey admitted to drinking Bacardi rum prior to the crash. His blood-alcohol level at the time of the accident was .06, below the legal limit of .08, said police. He also tested positive for marijuana.

It’s a horrible story, told in excruciating detail by the article. Hershey is rightfully facing criminal charges, and the car dealership is rightfully facing a civil lawsuit for, among other problems, negligently hiring an individual who “was charged with drunken driving twice in 2002, according to court records,” who before then “pleaded guilty to ‘exceeding the maximum speed limit established by 28 mph,’” and who had separately “pleaded guilty to careless driving and following too closely.” That’s not the person you entrust with the test drives.

Let’s put that aside, and put aside the marijuana, too. (Not least since “tested positive” means he used some amount of marijuana at some point in the recent past, not that he was driving under the influence of marijuana at the time.)

Continue Reading Proving Intoxication In Auto Accident Lawsuits Despite Legal Blood-Alcohol Levels

 William Gillard bought $200,000 in uninsured motorist coverage from AIG Insurance Company. In 1997, he was injured in a car accident, the driver of the other car had no insurance, and so Gillard filed a claim with AIG for his policy limits.

For seven years, the insurance company refused to pay his claim until, on

Big news in yesterday’s Bruesewitz v. Wyeth Supreme Court decision. In short, the Court was asked:

Whether Section 22(b)(1) of the National Childhood Vaccine Injury Act of 1986 ["NCVIA"]— which expressly preempts certain design defect claims against vaccine manufacturers “if the injury or death resulted from side effects that were unavoidable even though the