Articles Posted in Product Defect

chinese-text-1-1314353-1024x768Res Judicata, also known as claim preclusion, is a Latin term that literally means “for a matter judged.” In the legal system, res judicata is a doctrine that prohibits a second lawsuit from being filed for a matter that has already been judged or decided on the merits. Once parties to a lawsuit have had the opportunity to be heard by the court and the court rules on the claims asserted in the lawsuit, those parties are generally not ever again allowed to bring a lawsuit against the same parties for the same claims that arose from the same transaction or occurrence.

Res judicata prohibited a Mandeville, Louisiana man, George Cepriano, Jr., from being allowed to file a lawsuit against Lowe’s Home Center (Lowe’s).  But, Mr. Cepriano, never personally filed the first lawsuit against Lowe’s. Mr. Cepriano’s lawsuit against Lowe’s was not barred solely due to res judicata, but due to an already adjudged class action lawsuit of which Mr. Cepriano was a class member.  A class action lawsuit permits one or more people to bring a lawsuit on behalf of all class members. A class action ruling results in a res judicata blanket application for all members of the class.

Mr. Cepriano’s journey to the Louisiana First Circuit Court of Appeal began after he bought a newly built home in Mandeville, Louisiana. About two years later, while trying to sell the home to a potential buyer, Mr. Cepriano learned the home was manufactured with defective Chinese-made drywall.  Mr. Cepriano filed a lawsuit against Diamond Investments of Louisiana, L.L.C., the property seller, and B Square Builders, L.L.C., the contractor/builder, and Lowe’s.

pregnant-1-1431161-683x1024While having a child and starting a family is something that many couples look forward to in their lives, pregnancy can be very painful and burdensome on the mother. There are many drugs that can help prevent the negative side effects of pregnancy, like nausea and morning sickness, however, those drugs can sometimes do more harm than good. Nothing is worse than going through a difficult pregnancy, and then having a child born prematurely with birth defects because of drugs that were supposed to help.

One case on appeal from the Eastern District of Louisiana involves such a situation. Lindsey Whitener (“Ms. Whitener”) had a son who was born both prematurely and with birth defects after she was prescribed metoclopramide in order to treat her nausea and morning sickness that she frequently experienced during her nine months of pregnancy. Ms. Whitener and her husband filed a lawsuit against a number of different pharmaceutical companies, and their main argument was that these companies had promoted the use of the drug to treat morning sickness, which was an “off-label” use. An off-label use means that a drug is prescribed for uses that are not approved by the FDA. The District Court dismissed the claims brought forth by the Whiteners because they failed to show that the defendants promoted these off-label activities. The Whiteners appealed the decision of the District Court, and the case went before the United States Court of Appeals for the Fifth Circuit.

Ms. Whitener began experiencing morning sickness very early on in her pregnancy and was prescribed the metoclopramide shortly after she began to complain of the sickness to her doctor. Metoclopramide is a generic version of the drug Reglan, and Reglan does not list morning sickness as an FDA approved the use. In 2010, the Whiteners sued PLIVA, Inc., Barr Laboratories, Inc., Teva Pharmaceutical Industries, Ltd., Alaven Pharmaceutical L.L.C., Meda Pharmaceuticals, Inc., and Schwarz Pharma, Inc. PLIVA, Barr, and Teva manufactured metoclopramide; and Alaven, Meda, and Schwarz manufactured Reglan. The Whiteners first claimed that the defendants had failed to warn them about the dangers of using metoclopramide during a pregnancy. Some of the defendants however relied on the Supreme Court decision from PLIVA, Inc. v. Mensing which held that, “because federal law requires generic drug labels to be the same at all times as corresponding brand-name drug labels, state-law inadequate warning claims based on a generic drug manufacturer’s failure to provide a more adequate label are preempted.” HPLIVA, Inc. v. Mensing, 131 S. Ct. 2567, 2577-78 (2011). Essentially, this means that when the state and federal drug laws conflict, the federal drug laws will preempt or replace the state law. Ms. Whitener’s state law claim that the defendants had failed to warn them about the dangers of the drug conflicted with the federal law and the District Court thus held that the state law claim was preempted.

dumbbell-1306867-1024x683When a products-related injury occurs, multiple parties may be at fault. In litigating personal injury claims, among the most important legal questions, are whom may the plaintiff recover from, if anyone, and under what theory of liability. The following case provides a good discussion of some typical theories of liability involved in products-related injury cases.

In 2013, Russell Maricle was involved in a serious car accident that resulted in him needing to use a wheelchair. Mr. Maricle’s bad fortune continued after the accident one day as he rolled up a wheelchair ramp. The fabric on the back of his wheelchair ripped causing Mr. Maricle to fall out of his chair and re-injure his neck. Mr. Maricle rented his wheelchair from Axis Medical and Fitness Equipment, L.L.C. (Axis) in Alexandria, Louisiana. The wheelchair was manufactured by Dalton Medical Corporation and Dalton Instrument Corporation (Dalton).

Mr. Maricle filed a lawsuit against Dalton and Axis, alleging that the wheelchair produced by Dalton was defective and that Axis was negligent in failing to inspect it before renting it to him. These are two separate legal theories. Mr. Maricle’s claim against Dalton is a products liability claim. The Louisiana Products Liability Act (LPLA) sets out the exclusive products liability theories against manufacturers caused by their products. La. R.S. 9:2800.52. Under the LPLA, a manufacturer of a product is liable for damages foreseeably caused by a defect in the product which renders it unreasonably dangerous. The damage suffered by the claimant must arise from “reasonably anticipated use” of the product by the claimant or someone else. A product can be considered unreasonably dangerous for purposes of liability in four ways: (1) construction or composition; (2) design; (3) inadequate warning; or (4) nonconformity to an express warrantee.

drugs-1442720We live in an age in which modern medicine can do wonders for people suffering from various illnesses and conditions. These drugs are designed to provide patients with the ability to live healthy and fulfilling lives. However, there are always side effects to consider when taking any drug. Each patient should discuss these possibilities with their doctor and make an educated decision whether to take the drugs or not. Even after this “due diligence” there can still be unintended consequences from certain drugs. Through no fault of their own, after having weighed the decision and exploring all of their options, patients may find themselves in much worse condition than what they were in before taking the drug. In cases such as these, a good products liability attorney is essential to securing the relief you’re entitled to.

This particular case is set in Shreveport, Louisiana. GlaxoSmithKline (GSK), the defendant, is a drug company who manufactures and markets Paxil, a selective serotonin reuptake inhibitor, or SSRI, used to treat depression. The plaintiff, Cinda McLaughlin, began taking Paxil in 2003 for depression. In June of 2010, Cinda had two valves replaced in her heart. Her doctor alleged that her heart valves showed damage that was caused by exposure to increased levels of serotonin. Cinda took Paxil and its generic equivalent, Paroxetine, for years prior to her heart surgery. These were the only drugs that she took that could account for the higher serotonin levels.

Shortly after Cinda’s surgery, she met with an attorney to discuss her options. Her attorney then met with her doctor regarding product liability issues.  The doctor said he had no knowledge that Paxil caused abnormalities of the valve, but he did not dismiss altogether that it was a possibility. Their meeting concluded with the doctor promising to document any evidence that could have shown Cinda’s drug induced valve failure.

revolving-glass-door-1213987
We have all had that moment in a revolving door when the door seems to be moving just a bit too fast. You do your best to keep up but the back of the door knocks into your foot.  No harm, no foul when you get a little bump on your foot. But what if an entire glass pane fell off the door and pinned you into the other side of the door. I would expect you would be pretty upset and you would want to figure out who is responsible for your injuries.  Is it the hotel, the door manufacturer, the installer of the door? The following case out of New Orleans sheds some light on who might be responsible when a revolving door almost turned into a death trap for one unfortunate man.

In 2004 while working as a courier Huey Madison had deliveries to make at the Inter-Continental hotel in New Orleans, Louisiana. Huey alleged while exiting the revolving door of the Hotel the door panels collapsed and pinned him between the glass causing him injuries. Huey filed a lawsuit claiming damages resulting from the hotel’s failure to properly install, monitor, and repair the revolving door. Intercontinental answered Huey’s lawsuit, denying all claims while also asserting a third-party demand against Carolina Door, claiming Carolina Door had total control over the inspection and repairing of the door in question. Huey subsequently filed an amended petition with Carolina Door listed as a direct defendant.

Both the Intercontinental Hotel and Carolina Doors sought to escape liability by filing motions stating each were solely responsible for Huey’s injuries. These motions are called summary judgments and are standardly filed in cases such as this.  If the party who files a summary judgment motion can demonstrate that there are no facts in dispute and according to the law they are not responsible they can evade responsibility. In response to those motions, Huey filed a memo in opposition and attached the affidavit of an expert witness in the field of construction. Huey argued the expert affidavit provided facts in dispute that would defeat defendants’ motion for summary judgment. Carolina Door subsequently filed a motion to strike Huey’s expert affidavit, arguing the introduction of an expert witness was too late and violated court orders. At the hearing on the motions for summary judgment and motion to strike, the trial court held Huey failed to produce factual support concerning negligence by Carolina Door, and thus granted Carolina Door’s motion for summary judgment. The trial court also denied Carolina Door’s motion to strike without much explanation.

old-rusty-ladder-1426340-770x1024In a recent personal injury case, the plaintiff, Angela Lawrence, from Ouachita, Louisiana, sued her 76 year old grandmother Dorothy Dell Sanders and Allstate Insurance Company, for injuries sustained when Ms. Lawrence fell from the top of a ladder after cleaning her grandmother’s roof. Ms. Lawrence was no stranger to the task her grandmother asked her to complete. From the age of 15 until the time of the accident, Ms. Lawrence had performed the task of going up a ladder and cleaning her grandmother’s roof approximately 20-24 times. Although on the day of the accident, the circumstances changed. The usual ladder that Ms. Lawrence normally used was stolen, so Ms. Lawrence elected to use an older, shorter ladder than usual. Ms. Lawrence did not tell her grandmother that she did not want to use this replacement ladder and elected to clean the roof even though her grandmother, Ms. Sanders, was not insistent that the job be completed immediately.

After her fall Ms. Lawrence filed a lawsuit against her grandmother and her homeowners’s insurance company.  In that lawsuit Ms. Lawrence claimed that the ladder was defective and that her grandmother, Ms. Sanders, was negligent in letting Ms. Lawrence use a defective ladder. As the claimant in the lawsuit, Ms. Lawrence not only needed to allege the injuries caused to her by the defendants, she must also prove her injuries were the fault of the defendants. Ms. Lawrence’s only evidence was her own deposition, her statement to the court about what happened.

Ms. Lawrence alleged that she was injured due to the dangerous and defective condition of the ladder, which caused her to fall and sustain injuries to her wrist, neck and back.  Ms. Lawrence testified that she thought the ladder fell by “someone not holding it” but did not ask for her aunt or grandmother to hold the ladder for her. After the accident, AllState conducted an investigation and determined that the ladder was not damaged. As it stood, it was Ms. Lawrence’s word that the ladder was defective against AllState’s investigation, and Ms. Lawrence’s words alone were not enough for the case to withstand a filing for a summary judgment by the Defendants.  

build-4-1213636-768x1024Some forms of business entities protect their members from certain liabilities and legal actions that might be taken against them. One of these forms is a limited liability company. The Louisiana Third Circuit Court of Appeals recently decided that the protection afforded under this form of company was enough to protect the defendant from going forward to full trial.

In a case out of Allen Parish, the Louisiana Court of Appeals for the Third Circuit affirmed the District Court’s order for summary judgment. Granting summary judgment is a decision by the court “designed to secure the just, speedy, and inexpensive determination of every action” allowed under the Code (La.Code Civ.P. art. 966). If a party to a case makes a motion for summary judgment the court can decide whether the case should go forward for a full trial on the merits of the case. If, given the material facts of the case, the court can determine that there is no genuine issue and the party moving for summary judgment is entitled to the judgement as a matter of law, the motion should be granted.

The plaintiffs, filed their action against Strong Built International, LLC, Ken Killen who was sole member/manager of Strong Built, and various other entities. The Plaintiffs claim that their father died from injuries resulting from a deer stand falling when the straps failed and they are seeking damages under the Louisiana Products Liability Act.

drugs-ii-1505930Xarelto was produced and marketed by Bayer and Johnson & Johnson as a one-a-day prescription blood-thinner primarily for the treatment of Atrial Fibrillation. Its purpose is to prevent the occurrence of patients receiving strokes. Since Xarelto’s FDA approval in 2011, many patients have been harmed by the administration of this drug. If you or a loved one have taken Xarelto and suffered any adverse side effects, you may have a substantial claim for damages. Here are five things you need to know before moving forward:

  1. There are currently thousands of lawsuits being filed in Louisiana Federal Court that will determine whether Bayer and Johnson & Johnson acted negligently in conducting trials before releasing Xarelto to the market. There are over five thousand cases consolidated under action MDL – 2592. The deadline for filing under this action was May 20, 2016, but patients of Xarelto may still file under this bundled claim if they pay standard filing fee. Early trial cases are to begin as early as August 2016.

2. The most dangerous side effect from taking Xarelto is irregular bleeding. Other side effects include infections associated with knee or hip surgery, bleeding in the brain, swelling of the lower limbs, and difficulty breathing. If you have experienced any of these symptoms while taking Xarelto, you may be able to recover for medical costs, lost wages, pain and suffering, as well as other related claims.

pills-tablets-2-1524560-850x1024When a person is harmed or comes across what that person sees as an injustice, that  person may feel that the only way out is through the courts.  However, someone seeking help in the courts must be sure that the problem is one that a court can help.  An injunction is a method by which someone can ask a court to order a person or company to either do something or stop doing something.  Usually it is required in Louisiana that the party requesting an injunction be at risk of irreparable harm or harm that cannot be undone by the payment of money.  This does not apply, though, if the action to be stopped is illegal to begin with.  

The First Circuit Court of Appeals recently reaffirmed the requirements for obtaining strong means of relief such as injunctions or class actions.  Ms. Jean Cooper purchased some over-the-counter allergy medicine at a CVS pharmacy in Washington Parish, Louisiana.  Upon discovering that the medication she purchased had already expired, she sued CVS as a company on the basis that the court should prevent the stores from selling expired medication because it could cause health risks. She asked the court for an injunction on behalf of herself, and a class action injunction on behalf of others that may have purchased the expired medications. CVS argued in return that she had not actually been harmed by the expired product and that she was not in risk at harm because she had not used the medication and later declared she would no longer purchase medications in CVS stores.

From these facts, CVS argued that there was no irreparable injury. In response, Ms. Cooper claimed that she did not need to prove injury since federal law prohibited the selling of expired drugs.  She pointed to 21 U.S.C.A 331, the provision of the Food, Drug, and Cosmetic Act that makes it illegal to sell “adulterated” medications.  An adulterated medication is one which has been produced in such a way that it might be harmful.  See 21 U.S.C.A. Section 35l(a)(2)(B).  She claimed that although this law concerned the manufacturing process, a memo that had been written by the FDA in 1995 extended this definition to stores that sell expired medications.  She also presented evidence that another person had found expired medications and baby formula for sale at 63 different CVS locations. This was meant to prove irreparable injury under the idea that all of the CVS stores were selling expired medications.

A few months after being in a car wreck, the unthinkable happens, and as a result of the accident, your loved one passes away. As you are mourning the loss, you also have to start thinking about your legal options that stem from the crash and the possible avenues you have as a “survivor” of your loved one in order to receive some damages from the liable person. While this seems somewhat callous to talk about, especially in light of the pain you are already in from losing someone close to you, it is necessary to begin thinking about this somewhat quickly if you are going to actually be able to bring a survival action.

First, though, what exactly is a survival action? In simple terms, a survival action is an action for damages (an award of money) for injuries incurred by the deceased right before dying. You can think of a survival action as a lawsuit for injuries incurred that the actual deceased would have been able to bring had he or she not passed away. Since the decedent is not able to bring the suit himself or herself, the decedent’s estate has to bring the suit. This is typically a child or other close relative. (States will specify exactly which family members are allowed to bring a survival action in that state.)

Along with deeming who can bring a survival action, states also specify during what timeframe individuals are allowed to bring such a lawsuit. This is not because the state or the courts do not want individuals to be able to recover, but rather because a timeframe has to be set so that the liable individual does not have an indefinite period of time during which to worry about the possibility of a lawsuit.