Texas Injury Lawyers Blog

Published on: September 12, 2013

After Influx of Recent Cases of Brain-Eating Amoeba Reported, CDC Expands Access to Experimental New Drug

On September 7, 2013, a child (believed to be a 4-year old boy from Mississippi) died after contracting a rare, but deadly, brain-eating infection while visiting Louisiana. The boy may have come into contact with the waterborne brain-eating amoeba, known doctors as scientist as Naegleria fowleri, while playing on a plastic toy water slide at a home in St. Bernard’s Parish, Louisiana. According to the Louisiana Department of Health and Hospitals, water samples taken from the home the child was visiting tested positive for amoeba.

Unfortunately, this was not the only story of a child becoming infected with the brain-eating amoeba reported recently. On August 3, 2013, a 12-year old South Florida boy was knee-boarding in ditch water in Glades County, Florida when he contracted primary amebic meningoencephalitis (PAM), the infection caused by the Naegleria fowleri amoeba, through his nose. Although antibiotics successfully fought off the infection, the boy suffered extensive brain damage, which left him on life support. The boy passed away on August 27, 2013. Finally, in July 2013, a 12-year old became ill after contracting the brain-eating parasite at a waterpark in Arkansas. However, she is one of the few individuals who managed to survive the infection after being treating with the experimental drug miltefosine, and was released from the hospital on September 11, 2013.

Despite the recent occurrences of infections, officials from the Center for Disease Control and Prevention (CDC) report that only 128 people have been infected with PAM from 1962 to 2012. Of these 128 people, only two people in North America survived. In the future, this survival rate may increase as the CDC recently expanded doctors’ access to the experimental new drug, miltefosine, to treat deadly viruses, including PAM. Although used to treat another parasitic infection called leishmaniasis, and sometimes breast cancer, the drug was previously only used in emergency situations with permission from the FDA to treat PAM.

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Published on: August 18, 2013

The Summer of 2013 Has Not Been Kind to Airplane Safety

By Carabin Shaw

Although air travel is typically one of the safest ways to travel, when accidents happen they are often deadly. According to the Aviation Safety Network, 2012 was the safest for the airline industry, with only 23 deadly accidents and 475 fatalities worldwide. However, 2013 may not prove to be as safe. On August 14, 2013, the pilot and co-pilot of a large UPS cargo plane were killed when the plane crashed and burst into flames during its approach to the airport Birmingham, Alabama. Response teams with the U.S. National Transportation Safety Board (NTSB) were immediately called to the scene. According to the NTSB, a flight recorder revealed that the pilots received warnings about their rate of descent just seconds before impact.

At the time of the crash, the plane was being flown by the captain, who had 8,600 hours of flight experience, including 3,200 hours in an A300, the type of plane involved in the crash. Notably, the pilots were attempting a landing on Runway 18, which can be a tricky runway, even for the most experienced pilots. Due to the fact that there is a large hill and trees at one end of the runway, the runway lacks the electronics for a full instrument landing, which forces pilots to make judgments about altitude on a shorter runway. In addition, fatigue could have also played a role in the accident. Preliminary information indicates that the pilots began working at 9:30 p.m. in Rockford, Illinois the night before the crash. At the time of the crash shortly before 5:00 a.m. local time, the pilots were completing their third flight of the night.

This crash comes in the wake of several other plane crashes in the United States over the past several months. On July 6, 2013, three people were killed, and 180 injured when Asiana Airline Flight 214 clipped the seawall on the runway at San Francisco International Airport. Notably, one of three individuals killed survived the plane crash only to be run over by a rescue vehicle in the aftermath of the crash. On August 12, 2013, Asiana Airlines revealed that it is paying $10,000 to each of the passengers aboard Flight 214, exclusive of medical compensation. Even those individuals who were not injured can receive the money, and those passengers who collect money can still file lawsuits against the airline.

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Published on: August 17, 2013

Texas A&M Construction Accident Highlights Dangers faced by Construction Workers in Texas

By Carabin Shaw

Construction projects can be dangerous and can be the result of faulty machinery, inexperience, lack of safety measures, and weather, among other factors. Notably, the construction industry in Texas not only employs nearly 600,000 Texans, but it also contributes $9.2 billion in wages. Unfortunately, construction workers face some of the most deadly working conditions in the country. According to the Bureau of Labor Statistics, 715 construction-related deaths were recorded in the U.S. in 2010, and 138 of these deaths occurred in Texas.

In June 2013, four workers were hurt, three critically, after a barn frame collapsed at a Texas A&M University equestrian complex that was under construction. According to a Texas A&M spokesman, the collapse took place on university property about a mile from the main campus. The National Weather Service reported that conditions at the time of the collapse were cloudy with temperatures in the mid-80s and winds gusting just above 10 mph, indicating that weather was likely not a factor.

This accident is just one of many accidents involving construction workers taking place across Texas. According to the Houston Chronicle, Texas leads the nation in the rate of construction worker fatalities. Although federal and state regulations provide some protections to construction workers and their families, there is still more that can be done. Even though workers injured on the job are supposed to recover lost income via workers’ compensation, in at least 60% of work-related fatalities in Texas, no benefits from workers’ compensation are paid. In fact, according to data from the Texas Department of Insurance, this number is even higher for construction workers. Additionally, Texas is currently the only state in the United States that does not require workers’ compensation for private employers.

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Published on: August 17, 2013

The U.S. Department of Transportation Eliminates Truck Safety Inspection Report Requirement, While Enhancing Other Federal Safety Rules

By Carabin Shaw

On August 1, 2013, the U.S. Department of Transportation (“USDOT”) Secretary Anthony Foxx announced a proposal to eliminate the daily paperwork requirement for professional truck drivers. The move, which follows on the heels of the Federal Motor Carrier Safety Administration’s (FMCSA) elimination of a similar requirement for truck drivers operating intermodal equipment trailers used for transporting containerized cargo shipments in June 2012, is expected to save the industry an estimated $1.7 billion annually.

Currently, federal regulations require commercial truck drivers to conduct both pre-and post-trip equipment inspections. In addition, drivers must also file Driver Vehicle Inspection Reports (DVIRs) after each inspection, regardless of whether or not an issue requiring repairs is identified. According to the news release issued by the USDOT, under the proposed change, though commercial truck drivers would be required to continue conducting pre- and post- trip inspections, the truck drivers will no longer need to file DVIRs if their daily inspections do not yield any defects. Therefore, government officials, including Secretary Foxx, note that the proposal is a “win-win” because it simultaneously reduces the paperwork burden, saves the industry billions of dollars, and maintains the USDOT’s commitment to safety.

While the trucking industry is pleased with the elimination of the safety inspection report requirement, the industry is not as pleased with other recent changes. More specifically, on July 1, 2013,the FMCSA’s Hours of Service Final Rule took full effect. The new regulation is designed to improve public safety by reducing truck driver fatigue. Notably, only commercial motor vehicle (CMV) drivers are required to follow this new final rule. Generally, a CMV is a vehicle that is used as part of a business and is involved in interstate commerce and fits at least one of several other factors relating to gross vehicle weight, the transportation of passengers, and/or the transportation of hazardous materials.

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Published on: August 16, 2013

Taylor Farms de Mexico Ceases Shipments of all Salad Mixes to the U.S. in Response to Recent Cyclospora Outbreak

By Carabin Shaw

On August 12, 2013, Taylor Farms de Mexico officially informed the U.S. Food and Drug Administration (“FDA”) that it had voluntarily suspended shipment of all salad mixes, including iceberg lettuce, romaine lettuce, green leaf lettuce, red cabbage, green cabbage, and carrots from its operations in Mexico to the United States, as of August 9, 2013. Taylor Farms de Mexico will not resume shipments or production of these products from its operations in Mexico until it receives FDA approval. In the meantime, officials from the FDA and Taylor Farms will conduct an environment assessment of the Taylor Farms processing facility in Mexico to determine the probable cause of the outbreak.

Taylor Farms de Mexico is a division of the California-based produce supplier Taylor Farms whose greens go to various restaurant chains, including Olive Garden and Red Lobster. Notably, it is believed that these products have not been sold directly to consumers. According to NBC News, Taylor Farms de Mexico is responsible for shipping salad mixes tainted with parasites that have sickened hundreds of individuals in Nebraska and Iowa. At this point, the FDA and Center for Disease Control (“CDC”) are still investigating whether Taylor Farms’ bagged salad is also tied to the cyclospora outbreak that sickened more than 535 individuals nationwide in 18 states, including Texas, over the past several months. In fact, as of August 12, 2013, there were 215 cyclospora outbreak cases reported in Texas alone. Unfortunately, unlike the outbreaks in Nebraska and Iowa for which health officials have traced the source of the outbreak, authorities in Texas have failed to find a common source for the sickness thus far.

According to the FDA, cyclospora is a parasite too small to be seen without a microscope that causes an intestinal infection called cyclosporiasis. The cyclospora parasite is acquired by the ingestion of food or water contaminated with the cyclospora parasite. Since cyclospora needs days, and sometimes even weeks, after being passed in a bowel movement to become infectious for another person, it is unlikely that it will be passed to individuals that have not directly ingested the parasite. Symptoms include watery diarrhea, fatigue, loss of appetite, abdominal cramps and fever.

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Published on: July 29, 2013

Texas Firefighters and Their Risk of Asbestos Exposure

By Carabin Shaw

Asbestos is the commercial name given to a variety of six naturally-occurring fibrous minerals. Because these minerals possess high tensile strength, flexibility, and resistance to heat, electricity and chemicals, asbestos was used in many buildings and other structures throughout the 1900s. After discovering that asbestos was a carcinogen, the U.S. government began to ban the use of asbestos in products. Unfortunately, even though asbestos has been banned for most uses since the 1980s, many buildings still contain asbestos.

According to the National Institute for Occupational Health and Safety (NIOSH), more than seventy-five occupational groups are known to have exposed workers to asbestos. Yet, when people think of asbestos exposure, they usually think of individuals involved in the fields of construction, mining, drilling or mechanics, while often overlooking the risk exposure presents to firefighters. However, considering that firefighters and other first responders are often required to enter old structures that are either on the verge of collapsing or on fire, every time a firefighting operation involves a fire in a home or building that contains asbestos, there is a high probability that potentially deadly fibers will be released into the air.

Indeed, throughout the 20th century, asbestos was used in thousands of construction, commercial and household products, including, but not limited to, fire retardant coatings, insulation, pipes, drywall, flooring, roofing and sealants. In 2010, the NIOSH and the U.S. Fire Administration launched a multi-year study to examine whether fire fighters have a higher risk of cancer, including mesothelioma, due to job exposures from smoke, soot, and other contaminates, like asbestos. Although results will not be communicated to firefighters and the public until 2014, the existence of the study emphasizes the concerns of excessive rates of cancer among the 1.1 million volunteer and career fighters in the United States.

In addition to being exposed to asbestos products in building materials, firefighters are also exposed to asbestos through their protective clothing and even at fire stations. Since firefighters have to withstand high levels of heat, their clothes were made to also withstand high heat. As a result, from the 1930s to the 1970s firefighter helmets, pants and boots were made with asbestos. Even today, some firefighter clothing contains small quantities of asbestos. Similarly, dust from firefighter gear can build up in the fire station posing yet another risk for asbestos exposure among firefighters.

Notably, Texas is among the states with the highest employment of firefighters. At the same time, according to the Texas Department of Health Services, asbestos is present in over half of the state’s public buildings. Luckily, Texas has various programs in place to help protect against the risk of asbestos exposure. The Texas Department of Health Services’ Asbestos Program provides direct services to prevent occupational and environmental diseases through the identification, evaluation and control of asbestos health hazards. Additionally, The Texas Asbestos Health Protection Rules (TAHPR) requires that a person be appropriately licensed or registered to engage in asbestos abatement or any asbestos-related activity.

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Published on: July 25, 2013

Legal Update on Transvaginal Mesh Cases Nationwide

By Carabin Shaw

Transvaginal mesh devices are designed to treat pelvic organ prolapse (POP) and stress urinary incontinence (SUI). According to the Food and Drug Administration (FDA), in 2010, of the 300,000 women who had surgery for POP, 1 in 3 used transvaginal mesh devices. At the same time, of the 260,000 women who underwent surgery for SUI in 2010, 80% involved transvaginal mesh.

Unfortunately, many women have suffered an array of injuries as a result of the use of these devices. More specifically, there are more than 3,600 cases against transvaginal mesh manufacturer CR Bard, Inc.’s Avaulta alone in the United States. Notably, Bard is not the only transvaginal mesh company being sued. Other companies named as defendants in suits nationwide include American Medical Systems, Johnson & Johnson, and Boston Scientific Corp. In total, one judge has been assigned to manage nearly 23,000 cases involving these companies, among others. In these cases, women allege that erosion of the mesh products caused intense pain, infection, organ damage, made sexual intercourse painful and caused women to have to undergo additional surgical procedures to remove the mesh products.

Many of these cases have been consolidated in the Multidistrict Litigation Court in U.S. District Court in the Southern District of West Virginia. One such of these cases is Cisson v. Bard, Inc. In Cisson, the plaintiff alleges that Bard executives ignored warnings from the company that manufactured the plastic placed in the devices that the plastic should not be permanently implanted in people. The Cisson trial, however, which began in early July 2013, was declared a mistrial after only two days of trial after a witness disobeyed the court’s order and testified about the devices’ marketing.

Meanwhile, according to Reuters, in June 2013, Endo Health Solutions, which owns American Medical Systems, Inc., agreed to pay more than $54.5 million to settle thousands of lawsuits in North America alleging its vaginal-mesh implants eroded and caused women pain. In addition, two women have received sizable verdicts after suing mesh manufacturers for their injuries. First, in July 2012, a California woman and her husband who sued C.R. Bard were awarded $5.5 million by a jury after she was forced to undergo nine revision surgeries. Next, in February 2013, a New Jersey woman won $11.1 million in her lawsuit against Johnson & Johnson’s Ethicon brand over its vaginal mesh product. In that case, the plaintiff underwent eleven surgeries.

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Published on: July 17, 2013

Mutual Pharmaceutical Co. Inc. v. Bartlett. -U.S. Supreme Court Decision Shields Generic Drug Manufacturers from Liability in Product Defect Cases

By Carabin Shaw

According to the U.S. Food and Drug Administration’s (“FDA”) Center for Drug Evaluation and Research, a generic drug is a drug product that is comparable to brand/reference listed drug product in dosage form, strength, route of administration, quality and performance characteristics, and intended use. Although generic drugs are generally cheaper, since the FDA requires that the warning labels of generic drugs be identical to their brand-name counterparts, generic drugs have essentially been granted immunity to civil action resulting from the use of their drugs.

Unfortunately for consumers of generic drugs, a recent U.S. Supreme Court decision furthered strengthened this generic drug manufacturers’ immunity, finding that design defect law claims in state courts based on the adequacy of a drug’s warning are pre-empted by federal law. As explained below, the ruling not only creates an inconsistency in product defect law, but it also all but ensures that generic drug makers will not be held accountable for product defects, marking a victory for both drug industry and the FDA.

In Mutual Pharmaceutical Co. Inc. v. Bartlett, Ms. Bartlett suffered a severe reaction to the generic pain reliever drug, sulindac, made by Mutual Pharmaceutical Co. Inc. (“Mutual”). Even though Ms. Bartlett’s doctor prescribed her the brand name of the non-steroidal anti-inflammatory drug (NSAID), Clinoril, for shoulder pain, her pharmacist dispensed the generic form of the pain reliever instead. The drug caused her to develop toxic epidermal necrolysis (TENS), which led to 60 to 65% of her skin to either burning off or becoming an open sore. The condition left Bartlett disfigured, disabled and nearly blind.

Bartlett thereafter filed suit against Mutual in federal court in New Hampshire alleging that the generic drug, sulindac, had a design that made it dangerous for use. Like Texas law, New Hampshire law imposes a duty on manufacturers to ensure that the drugs they market are not unreasonably unsafe. A drug’s safety is evaluated in part by the adequacy of its warnings. Notably, at the time that Bartlett was prescribed the drug, sulindac’s label did not specifically refer to TENS or Stevens-Johnson Syndrome, another form of TENS.

The New Hampshire state court agreed with Bartlett, finding the generic drug was unreasonably dangerous and awarded Bartlett $21 million in damages. The Court of Appeals for the First Circuit affirmed. Nonetheless, focusing on the fact that Bartlett was provided the generic version of the drug, the U.S. Supreme Court held that the Federal Food, Drug and Cosmetic Act preempts state-law design defect claims against manufacturers of generic drugs. As a result, the U.S. Supreme Court reversed the decision of the Court of Appeals. If, however, Bartlett had been dispensed the brand name version of the drug, she would have had a cause of action against the brand name drug manufacturer, and would have been able to recover damages for her injuries.

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Published on: July 11, 2013

Summer is the Deadliest Time of Year for Teen Drivers in Texas and Nationwide

By Carabin Shaw

The risk of car accidents increases immensely during the summer months. Specifically, most car accidents occur during the period from Memorial Day to Labor Day. While July Fourth is historically the deadliest day on the roads, August is historically the deadliest month of the year for car crashes across the country. In addition, according to historical data tracked by the National Highway Traffic Safety Administration (NHTSA) from 1986 to 2002, Saturday and Friday are still the two deadliest days to drive, and rush hour from 3:00 – 6:00 pm remains the deadliest time to drive. Not surprisingly, the same held true as of 2010 as well.

More recently, research by Driving-Tests.org, an online learning site for new drivers, revealed that summer remains the deadliest time to be on the road. More than 27% of annual traffic fatalities occur during July, August and September. One possible reason for the increased number of fatalities in the summer may be due to the fact that according to AAA, teen driving increases by 44% during the summer months. Indeed, per the NHTSA, motor vehicle crashes are the leading cause of death for teens in the United States, accounting for over 35% of all fatalities for 15 to 20 year olds. While this statistic may not be all that surprising, the fact that driving while intoxicated is not the leading the cause of death for crashes involving teens might indeed be. Instead, over 75% of serious car crashes involving teens are due to “critical errors.”

Unfortunately for Texans, according to the NHTSA’s FARS Data, in 2011, Texas was the most dangerous state for drivers in the U.S. with over 3,000 traffic-related fatalities. Moreover, according to the Texas Department of Transportation, as is the case in the rest of the country, July and August were the two deadliest months for car crashes in 2012.

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Published on: June 25, 2013

Are You Complying With State and Federal Laws When it Comes to Water Safety and Keeping Kids Safe this Summer?

By Carabin Shaw

The start of summer means more time spent in and around swimming pools and lakes, which can mean more accidents and drowning deaths, especially for children.

According to the Texas Department of Family and Protective Services (DFPS), as of June 11, 2013 there were 27 reported child-drowning deaths in Texas in 2013. The latest reported incident occurred June 15, 2013, when a four-year old drowned in the pool at an apartment building in Lewisville, Texas. Unfortunately, this was the second such incident in less than a week — a three-year old drowned in North Texas on June 13th in a pool at a private residence. On a positive note, the number of drowning deaths in Texas may be down from last year. The DFPS reported a total 74 drowning deaths last year, with a combined 30 deaths in June and July. Notably, 37 of these fatalities occurred in swimming pools, and children ages 2 and younger accounted for over 50% of the total fatalities.

Some safety tips from DFPS to prevent fatalities similar to the ones described above include:

1. Never leave children alone around water — this includes swimming pools, wading pools, drainage ditches, creeks, ponds, and lakes.

2. Keep an eye on children who are swimming or playing in water. They need an adult or certified lifeguard watching them at all times.

3. Make sure access to swimming pools is secure. Use fences (self-closing and latching), and water surface alarms.

4. Store water toys away from the water when not in use so they don’t attract small children.

5. Don’t assume young children will use good judgment and caution around water.

In addition, if you are a business or property owner, it is important to determine whether or not your pool or spa is considered “public” or “semi-public” pursuant to the San Antonio City Code. All public and semi-public swimming pools and spas are regulated by the City of San Antonio. According to the City Code, a semi-public swimming pool is: (1) Any privately owned swimming pool or spa that is open to the general public for a fee, or (2) any swimming or wading pool, spa or sauna, serving a private club, motel, hotel, apartment building, school, child care facility, recreational or physical fitness facility, institution, home owner’s association, or other similar activity or structure, the use of which is limited to members, residents, students, or clients and their guests. All public and semi-public swimming pools or spas located within the City of San Antonio must have a pool license.

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