Texas Injury Lawyers Blog

Published on: January 7, 2014

Texas Military Veteran Sues Medical Device Company After Plate in His Leg Breaks Twice

A Texas military veteran recently brought a lawsuit against a medical device company after the plate in his leg broke for the second time. Sergeant Don Gustafson, a veteran of the Marine Corp and Navy Reserve, sued Zimmer, Inc. in state court in Collin County, claiming that the medical device company created an unsafe product and lied about it. Zimmer, Inc. sells devices ranging from knee to hip devices and generates earnings of $4 billion per year worldwide.

The situation began back in 2007, when Gustafson broke both bones in his lower leg in a motorcycle accident. He had a plate installed to stabilize the leg that was manufactured by Zimmer, Inc. Sometime later, the plate broke and Gustafson was forced to have a new one installed. He contacted the company to let them know what happened, and was allegedly told that there was nothing wrong with the product. Gustafson believed the company’s claims, and so he had the same type of plate installed in his leg. One year later, after suffering pain in that location, Gustafson had an X-ray, which showed that that plate was broken as well.

Gustafson claims that as a result of the plate being broken, he suffered so much damage in his lower leg, his doctors discussed amputating it prior to his third surgery. His complaint came to the attention of the federal Food and Drug Administration (FDA), which requires that companies like Zimmer, Inc. report every device failure within 30 days of it taking place. Gustafson claims that Zimmer, Inc. was not reporting every device failure. Instead, the company allegedly sometimes waited months to report a problem (like Gustafson’s), and its employees operated under the belief that they did not need to report every problem, just the ones reported to them by a physician.

Continue reading →

Published on: December 27, 2013

South Texas Jury Awards $281 million to family of man killed in Eagle Ford Shale Truck Accident

By Carabin Shaw

On December 7, 2013, a jury in South Texas found that Heckmann Water Resources Inc., an oil patch supplier near San Antonio, Texas, negligently failed to maintain a tractor-trailer truck that caused the death of Carlos Aguilar. The lawsuit stems from a May 2012 accident in which Aguilar, a U.S. Army veteran, husband, and father of seven, was doing work at the Eagle Ford Shale oilfield when a drive shaft broke off from under a Heckmann tractor-trailer traveling at 67 mph. The 20-pound part crashed through the windshield of the pickup truck that Aguilar was riding in, killing him.

Aguilar’s family filed suit against Heckmann and one if its employees, alleging that Heckmann failed to properly maintain the tractor-trailer. The jury ultimately found the company negligent and awarded Aguilar’s family (his parents, wife, and seven children) $281 million, which included $181 in compensatory damages and $100 million in punitive damages against Heckmann. The jury did not find Heckmann’s employee negligent. Heckmann’s Scottsdale, Arizona-based parent company, Nuverra Environmental Solutions, plans to appeal the decision. The verdict is one of the largest verdicts in Texas history.

Texas is by far the largest producer of crude oil and natural gas in the United States. In addition, the Eagle Shale Ford area continues to grow. There are currently 265 oil rigs operating in Eagle Ford Shale, compared to only 158 operating rigs in 2010. This means more oilfield workers and likely more accidents both at the oilfield rig and in and around the area involving trucks transporting supplies. In fact, according to the Texas Department of Transportation, the largest recent jumps in fatal traffic accidents are those involving commercial vehicles.

Continue reading →

Published on: December 20, 2013

Multi-Million Dollar Verdicts Awarded in Two Separate Topamax Birth Defect Lawsuits – Gurley v. Ortho-McNeil-Janssen Pharmaceutical and Czimmer v. Ortho-McNeil Janssen Pharmaceutical

By Carabin Shaw

On November 18, 2013, a Philadelphia jury awarded over $10 million to a family whose son was born with a cleft palate and other birth defects after being exposed to the drug Topamax during his mother’s pregnancy. More specifically, in Gurley, et al. v. Ortho-McNeil Janssen Pharmaceutical, Haley Powell was prescribed Topamax for treatment of epilepsy and migraines. More than a year after she began taking the drug, she became pregnant and continued to take it throughout her pregnancy after being told by doctors that the drug was safe.

After their son, now five years old, was born with birth defects that will require at least five surgeries before turning age 21, the South Carolina couple sued the drug manufacturer, Janssen Pharmaceuticals, Inc. (formerly Ortho-McNeil-Janssen Pharmaceutical) in a Pennsylvania state court. The couple alleged that the company failed to warn the Powells doctor that Topamax taken during pregnancy could cause birth defects, despite the company allegedly being aware of the serious risks as early as 1997. Even though the judge threw out most of plaintiffs’ claims against the drug manufacturer, including strict liability-design defect, negligent design, gross negligence and express breach of warranty, and also barred a bid for punitive damages, the jury ultimately found that Janssen negligently failed to warn the patient and the doctor of the risks associated with Topamax when used by patients during pregnancy and awarded the family over $10 million in damages.

The Gurley case was the second of approximately 134 cases pending in Philadelphia relating to Topamax tried in court. Notably, it is also the second largest verdict in recent months against Janssen Pharmaceuticals, Inc., a subsidiary of Johnson and Johnson. In October 2013, a Philadelphia jury in Czimmer v. Janssen Pharmaceuticals, Inc. issued a $4.02 million verdict in favor of April Czimmer, a Virginia woman who took Topamax from August 2006 through February 2007 to treat migraines. Czimmer subsequently gave birth to a boy born with a cleft lip in September 2007. She alleged that she would not have taken the drug for more than six months had she known the risks associated with it. The jury ultimately found that Janssen was negligent when it failed to warn healthcare providers of the extent of the risk of birth defects from Topamax, and awarded approximately $562,000 in future health care costs to Czimmer’s son and an estimated $3.4 million for pain and suffering.

Continue reading →

Published on: December 13, 2013

Comparative Negligence in Drunk Driving Accidents in Texas

By Carabin Shaw

On December 16, 2011, Sarah Patton filed suit against the Texas Department of Transportation in Jefferson County District Court on behalf of the estate of Pamela Freeman, who was killed in a car accident (Case No. B191-484). The complaint alleged that the Texas Department of Transportation acted negligently by allowing water to accumulate on the roadway because of inadequate drainage. According to the lawsuit, on February 12, 2011, Freeman was exiting Interstate 10 when her vehicle hydroplaned, causing her to leave the roadway and strike a sign and light pole. The accident eventually led to her death several months later.
Patton later amended her complaint, naming both Toyota and APAC-Texas as defendants, and alleging that a design flaw and water left on the road from construction work carried out caused the crash. On October 3, 2013, APAC-Texas filed a motion for summary judgment, arguing that Freeman’s BAC exceeded the legal limit at the time of accident. The motion also contended that investigating officers at the scene of the accident confirmed that there was no water left on the road from construction and, instead, the accident had resulted from Freeman’s speeding. Based on these facts, APAC argued that it should be dismissed from the case since there was no evidence to support Patton’s claim that APAC was negligent when performing construction work on the road in question. Then, on November 2, 2013, Toyota followed APAC’s lead and asserted that Patton’s amended complaint failed to allege or identify the specific product defect theories or any defective components on Freeman’s vehicle. Ultimately, on November 6, 2013, Patton filed a notice stating that she non-suited all her claims against all defendants, meaning that she released all of the defendants from liability.

As mentioned previously on this blog, unfortunately, in 2012 Texas had the largest increased in fatalities of any state in the country, with an 11% increase in overall traffic fatalities and a 6.6% increase in drunk driving deaths. More specifically, according to the Texas Department of Transportation, there were 1,099 people killed in motor vehicle traffic crashes where a driver was under the influence of alcohol, which accounts for 32.3% of the total number of people killed in motor vehicle crashes. At the same time, there were only five fatalities where defective vehicle products were a contributing factor, and no reported fatalities due to standing water on the road.

Continue reading →

Published on: December 6, 2013

The National Highway Traffic Safety Administration Issues Updated Safety Ratings and Releases 2012 Traffic Fatality Statistics Revealing Texas as State With Highest Increase in Traffic Fatalities

By Carabin Shaw

Traffic Fatalities Increased in 2012

The U.S. Department of Transportation’s National Highway Safety Administration (NHTSA) recently released its 2012 Fatality Analysis Reporting data. Unfortunately, after six consecutive years of declining fatalities on U.S. highways, the data indicates that highway crashes and deaths increased in 2012. Specifically, fatalities increased to 33,561 in 2012, which is 1,082, (or 3.3%) more fatalities than in 2011. In addition, the number of injured persons increased by 145,000 from 2011. Almost three-quarters of the fatalities occurred in the first three months of 2012, and most of those individuals involved in the fatalities were motorcyclists and pedestrians. For the first half of 2013, early estimates on crash fatalities reveal a decrease in deaths for the same time period in 2012.

Notably, the increase in crashes and resulting injuries and fatalities does not appear to be associated with one particular issue, and crashes for some traditional risk factors, including young drivers, actually fell in 2012. Other notable statistics include:

• There were 10 times as many unhelmeted motorcyclist fatalities in states, such as Texas, without universal helmet laws (1,858 unhelmeted fatalities) as in states with universal helmet laws (178 unhelmeted fatalities). These states were nearly equivalent in total resident populations.

• Though fatalities from alcohol-impaired driving increased from 2011 to 2012, fatalities from crashes involving young drivers (16- to 20-year olds) and alcohol decreased by 15%.

• For the past decade, males have consistently made up about 70% of motor vehicle fatalities.

• There was a 3.7% increase in the number of people killed in crashes involving large trucks, and 61% of large-truck occupants killed in 2012 died in single-vehicle crashes.

Overall, while 13 states experienced decreases in overall traffic fatalities and eighteen states experienced decreases in drunk driving deaths, Texas was not part of either group. In fact, Texas had the largest increase in fatalities of any state, with an 11% increase in overall traffic fatalities and 6.6% increase in drunk driving deaths.

Continue reading →

Published on: November 27, 2013

California Jury Awards $150 Million to 13-Year-Old Girl in Wrongful Death Trucking Accident Case – Asam v. Ortiz and Bhandal Bros. Trucking

By Carabin Shaw

In early November 2013, a Los Angeles Superior Court jury awarded over $150 million in damages to a 13-year-old year girl who witnessed three members of her family burn to death following a car accident on a Southern California freeway. This verdict could be one of the largest of its kind.
In this case, back in November 2009, the Asam family was traveling from California to Oregon for the Thanksgiving holiday when their SUV rear-ended a semi-trailer truck parked on the shoulder of a California freeway. The plaintiff (then 9-years-old) and her 11-year old brother managed to escape from their family’s SUV after it struck and got caught under a semi-trailer truck parked on the shoulder of the freeway. However, they witnesses the deaths of their parents and brother, who were burned alive when their family’s trapped SUV caught fire.
The lawsuit alleged that the driver of the truck, Rudolph Ortiz, pulled his truck over to the side of the road to sleep. In doing, he failed to use the emergency signals and ignored written warnings that stopping on the shoulder was allowed only in emergencies. Attorneys for the defendants argued that Ortiz stopped to take medication for a severe headache, which constituted an emergency. Defendants also alleged that the law was not broken as the semi-trailer truck was parked on the dirt road to the right of the shoulder. Finally, defendants alleged that plaintiff’s father was also negligent for attempting to stop the family’s SUV on the shoulder after the SUV allegedly struck debris on the freeway.

Continue reading →

Published on: November 24, 2013

Workers’ Compensation Update Part 2: No Bad Faith in Workers’ Compensation Context – Hopper v. Argonaut Insurance Company

By Carabin Shaw

Two recent Texas court decisions, including the October 18, 2013, decision in Hopper v. Argonaut Insurance Company, Inc., have established that there is no common law bad faith in Texas regarding workers’ compensation claims. First, last year, in Texas Mut. Ins. Co. v. Ruttiger, the Texas Supreme Court, finding that the reforms to the Texas workers’ compensation statutes in the 1990’s provided for adequate safeguards, abolished the common-law duty of good faith and fair dealing.

In Ruttiger, Texas Mutual disputed plaintiff Timothy Ruttiger’s claims for a workplace injury because his employers reported that the injury occurred at a non work-related softball game. Though the insurance carrier eventually agreed to pay workers’ compensation benefits, Ruttiger filed suit alleging both common law and statutory bad faith causes of action because his claim was initially denied. Initially, the trial court found that Texas Mutual’s insurance adjuster acted in bad faith when it believed the employer instead of the employee, Ruttiger. However, the Texas Supreme Court disagreed and held that an injured employee could not assert a common-law claim for breach of duty of good faith and fair dealing against a workers’ compensation insurance carrier. Notably, at the time, the court did not go as far as to hold that the Texas Workers’ Compensation Act was the exclusive remedy for all work-related injuries, meaning that following that decision, workers could still bring a bad faith claim against a workers’ compensation insurer under the Texas Insurance Code Section 541.061 for a misrepresentation of the policy.

More recently, however, in Hopper v. Argonaut Insurance Company, a decision by the Court of Appeals of Texas all but eliminated a claimant’s ability to bring a bad-faith claim of any kind. In Hopper, Mr. Hopper sustained a wrist injury on the job and received workers’ compensation benefits. Several years later, he died of a drug overdose of the pain medication he was prescribed following his injury. After the deceased’s family sought workers’ compensation death benefits, the workers’ compensation insurer denied the claim for two years, challenging whether Mr. Hopper’s death was work-related and his family’s status to bring the claim.

Continue reading →

Published on: November 17, 2013

Texas Workers’ Compensation Law Update

By Carabin Shaw

An August 2013 court decision by a federal appeals court brings attention to the impacts of Texas being one of two states in the country that allows companies to opt out of the state’s workers’ compensation system. In the case, Mary A, Ernewayn v. Home Depot U.S.A., Inc., Mary A. Ernewayn, a Home Depot employee in Texas filed sued against Home Depot in Texas state court, alleging that the company was negligent. Ernewayn claimed she suffered neck and back injuries while operating a lumber cart in a Home Depot store. Home Depot sought to remove the case to federal court based on the fact that the company had opted out of the Texas workers’ compensation system.

In August 2013, however, a federal appeals court panel denied the company’s request to defend itself from a workers’ compensation claim in federal court. More specifically, the federal court affirmed the lower court’s finding that even though Home Depot did not subscribe to the Texas state workers’ compensation system, the state’s workers’ compensation law still limited the number of common law defenses the company could assert.

The Opt-Out System in Texas

Most states require employers to carry a workers’ compensation insurance policy to cover any costs such as lost income or medical bills should an employee become injured while at work. This means that, in most states, if someone is injured on the job, he/she can file a claim. If the claim is approved, the employee is entitled to payment of his/her medical bills and compensation to cover lost wages and disability.

Continue reading →

Published on: November 11, 2013

New Traffic Laws in Effect in Texas

By Carabin Shaw

As of September 1, 2013, several new traffic and driving laws went into effect in Texas. It is important for all Texans to become acquainted with the new laws, as individuals who break these laws may face fines, or even prison time. Fortunately, although the laws became effective September 1, 2013, Texas Department of Public Safety troopers are offering a grace period for most of the laws until January 1, 2014 to make sure everyone is aware of the new and amended laws.

The Texas Department of Transportation believes the new laws will provide added protection for people on Texas roadways. According to the Texas Department of Transportation, the fatality rate on Texas roadways in 2012 was 1.41 deaths per hundred million vehicle miles traveled -a 9.3% increase from 2011. In addition, the State of Texas also recently experienced an increase in the number of motor vehicle traffic fatalities. Specifically, the 2012 death toll of 3,399 was an increase of 10.82% from the 3,067 deaths in 2011.

Some new laws for which Texans should be aware include the following:

• Cell Phones in School Zones (HB 347): While Texas already prohibits cell phone use behind the wheel in school zones unless the vehicle is stopped or a hands-free device is being used, the new law expands the limitation to include all school property, including parking lots and drop off lanes. Violators of the law will be assessed fines up to $200. Notably, cell phone use is only restricted during the time a reduced speed limit is in effect, generally, directly before and directly after the school day.

Continue reading →

Published on: October 27, 2013

Outbreak of Salmonella Infections Across the U.S., including Texas, Linked to Foster Farms Chicken

By Carabin Shaw

According to the U.S. Centers for Disease Control and Prevention (CDC), as of October 17, 2013, a total of 338 individuals from 20 states and Puerto Rico have been infected with seven outbreak strains of Salmonella Heidelberg linked to Foster Farm’s Chicken. Forty percent of those infected have been hospitalized, with approximately 75 percent of the victims residing in California. Nine ill persons have been identified in Texas. Salmonella Heidelberg is the country’s third most common strain of Salmonella, which can result in foodborne illness if not destroyed by proper cooking and safe handling. Notably, this is not the first time in recent months that the CDC has reported an outbreak strain of Salmonella Heidelberg. In July 2013, the CDC reported that 134 individuals had been infected with the same strain also linked to Foster Farm’s chicken.

Earlier this month, officials from the U.S. Department of Agriculture’s Food Safety and Inspection Service (USDA-FSIS) issued a public health alert due to concerns that illness caused by Salmonella Heidelberg was associated with chicken products produced at three Foster Farm’s facilities in California. The U.S. Department of Agriculture (USDA) thereafter threatened to shut down these facilities, citing a risk to public health. While Foster Farms has not initiated a recall, the company is complying with the USDA’s requests to mitigate issues at the facilities tied to the outbreak. The investigation by the USDA-FSIS is ongoing.

How to know if you’ve been infected

The symptoms of the illness caused by Salmonella include high fever, diarrhea and abdominal cramping. While most of all persons infected with Salmonella develop diarrhea, fever, and abdominal cramps (usually within 12 to 72 hours after infection) that require little medical treatment, if any, some elderly individuals, infants, and those with impaired immune systems can suffer severe illnesses or death. The outbreak strains involved in these cases are resistant to several commonly described antibiotics, which means there may be an increased risk of hospitalization or possible treatment failure in infected individuals.

Continue reading →

Texas Injury Lawyer Blog