Texas Injury Lawyers Blog

Published on: March 25, 2013

March is Brain Injury Awareness Month

The Brain Injury Association of America (BIAA) marked Brain Injury Awareness Month this March. The purpose of Brain Injury Awareness Month is to promote early and equal access to care for all individuals suffering from a brain injury and promote brain injury awareness across the United States. It is important to remember that a brain injury can occur anytime, anywhere, and can happen to anyone.

The BIAA defines a traumatic brain injury (TBI) as a “blow, jolt or bump to the head or a penetrating head injury that disrupts the normal function of the brain.” TBIs frequently require expert trauma care, specialized rehabilitation and lifelong disease management.

Statistics and Facts about Brain Injuries

According to the BIAA, approximately 1.7 million Americans sustain a brain injury each year. In fact, TBI is the leading cause of death and disability among children and young adults, and it is the fourth leading cause of death overall. Indeed, in Texas alone, more than 144,000 Texans sustain a TBI each year. In addition, excluding veterans and military service members, more than 5,700 Texans are permanently disabled every year from a TBI, and approximately 440,000 Texans (2% of the state population) live with a disability caused by a TBI. The Center for Disease Control and Prevention (“CDC”) estimates that TBI rates are higher for males than females in every single age group, and children aged 0 to 4, young adults aged 15 to 19, and adults aged 65 years and older sustain more TBIs than other age groups.

Unfortunately, per the Texas Brain Injury Alliance, less than 1 in 20 people with a TBI will receive the rehabilitation they need. At the same time, high incidences of TBIs can be costly for individuals, their families, and the nation as a whole. Specifically, direct medical costs and indirect costs such as lost productivity of TBI totaled an estimated $76.5 billion in the United States in 2000.

While falls are the leading cause of a TBI for individuals 65 and older, transportation-related injuries are the leading cause of traumatic brain injuries among those individuals younger than 64. Notably, more than 50% of all motor vehicle accidents resulting in traumatic brain injuries involve alcohol. It is also worth noting here that these numbers do not take into account the incidence of certain types of brain injuries, such as stroke, infectious disease, aneurysms, seizures, and toxic exposure.

Preventing Traumatic Brain Injuries for High Risk Groups

Each year, one out of three adults ages 65 and over falls. These falls can lead to moderate to severe head trauma. To reduce the chance of falling and suffering a TBI, the CDC recommends that older adults:

• Exercise regularly;
• Ask their doctors to review all of their medicine (both prescription and over-the- counter) to identify medicine that may cause drowsiness and/or dizziness;
• Have their eyes checked at least once a year; and
• Make their homes safer by reducing tripping hazards, adding railings, and increasing light.

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Published on: March 24, 2013

How to Stay Safe this Easter

By Carabin Shaw

Easter can be a time for fun, great food, candy, little toys, and Easter egg hunts. However, certain safety issues arise each Easter. Specifically, from a food safety standpoint, Easter can be the single most dangerous holiday. To help ensure a safe Easter for all Texans this year, follow the safety tips provided below.

Candy & Toy Safety

Easter baskets are a big part of Easter. However, certain gifts inside these baskets may create safety hazards. To prevent choking, the University of Texas at San Antonio Police Department recommends refraining from putting the following candy and food in Easter baskets: (1) hard, round candy; (2) thick and/or sticky candy; (3) candy with nuts; (4) caramel; (5) sour candy; and (6) jaw breakers. Since children’s airways are higher and narrower than an adult’s, these candies can create a choking hazard.

Along those same lines, make sure that all Easter toys and dolls are free of choking hazards before placing them inside any Easter basket. In addition, as the fake grass often used in Easter baskets is not easily digestible, it is important to keep it away from young children. Finally, some children have nut allergies that are very serious, so be sure to check with parents before offering chocolate bunnies or other candies that may contain nuts. To protect those children with peanut allergies, be careful to read the label of contents of any chocolate included in the baskets. Even though many packages read “pure chocolate,” the chocolate may have been in contact with nuts or peanuts during their preparation or packaging.

Egg Safety

Many Easter celebrations involve Easter egg hunts. Although eggs are nutritious and a big part of this holiday celebration, it is important to remember that unbroken, clean, fresh shell eggs may contain Salmonella Enteritidis (SE) bacteria that can cause foodborne illness. In order to ensure that your children remain safe this Easter there are some important safe handling methods to remember when preparing, decorating, cooking or hiding Easter eggs.

First, when purchasing your eggs, always purchase from a refrigerated case. In addition, don’t buy out-of-date eggs and be sure to choose eggs with clean and uncracked shells. Eggs should be refrigerated as soon as possible after purchase. Once you bring your eggs home, they should be kept in their carton and placed in the coldest part of the refrigerator, not in the door. Raw in-shell eggs can be kept in the refrigerator a maximum of three to five weeks.

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Published on: March 14, 2013

Proposed Legislation and Upcoming Texas Supreme Court Decision May Impact Future Asbestos Litigation in Texas

By Carabin Shaw

The severe health effects associated with both occupational and non-occupational asbestos are well documented. However, the fact the asbestos-related diseases do not appear immediately is not as well known. According to the Texas Department of Health, asbestos-related diseases may not develop until 20 to 50 years after exposure.

Unfortunately, recent legislation proposed by a Texas lawmaker and the Texas Supreme Court’s upcoming decision in an asbestos case may make it more difficult for individuals to recover damages after suffering from exposure to asbestos, especially given the fact that the development of asbestos-related diseases often does not occur until many years after exposure.

Texas House Bill 1325 Will Allow for Dismissal of Certain Actions Arising from Exposure to Asbestos and Silica

On February 14, 2013, Texas Rep. Doug Miller filed H.B. 1325 that would allow Texas judges to dismiss thousands of pending asbestos and silica liability cases from Texas state courts. The bill proposes to clear inactive cases from the docket that were filed before the 2005 tort reforms relating to asbestos and silica litigation were enacted in Texas. Those reforms require individuals who alleged that they were harmed by asbestos exposure to submit a report showing that they were in fact diagnosed with malignant asbestos-related cancer or another medical condition as defined by statute. Per statute, the report must also prove that it was exposure to asbestos and/or silica that caused the disease, not other hazards such as smoking. When the law changed in 2005, all pending cases that failed to allege the requisite medical condition were moved to an inactive docket, where many remain today.

The proposed legislation would allow for all of those cases to be dismissed either on a defendant’s motion or by the court if they still do not include a medical report. If the bill passes and is signed by the governor, it will take effect September 1, 2013.

Supreme Court to Address Causation Requirements in Asbestos Case –Georgia-Pacific Corp. v. Bostic

On February 13, 2013, the Texas Supreme Court agreed to review the decision of the Court of Appeals in Georgia-Pacific Corp. v. Bostic. The Supreme Court’s decision in this case will have far reaching effects, essentially determining whether or not plaintiffs who worked primarily in Texas can continue to file asbestos lawsuits in Texas. The Supreme Court’s decision to hear this case is surprising given that they initially declined to hear plaintiff’s appeal.

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Published on: March 13, 2013

Worker Safety at Texas Oil and Gas Companies Remains an Issue

By Carabin Shaw

The 2010 BP Deepwater Horizon Oil Spill, considered one of the worst environmental disasters in U.S. history, stemmed from an oil rig explosion that killed 11 rig workers and injured 17. While this event received a great deal of media attention due to the devastating environmental damage it caused, it is important to remember that the oil and gas industry accounts for hundreds of deaths, explosions, fires, and spills in the United States each year, many of which go largely unnoticed. By 2016, oil and gas production in Texas is expected to reach an all-time high, mainly due to an increase in oil and gas drilling. While increased gas production means an increase in jobs, it also means that more workers are subject to injury.

In fact, according to a 2010 report by the National Wildlife Federation, Texas ranked first in the top states for pipeline accidents, with 523 significant incidents, 15 fatalities and 60 injuries reported from 2000 to 2010 in Texas alone. In South Texas, one in five fatalities investigated by OSHA in the past decade was at an oil and gas company. According to a February 26, 2013 article focusing on Eagle Ford Shale in the San Antonio Express-News:

-11 worker deaths in the Eagle Ford Shale since 2009;
-35 fatality investigations in Texas by the Occupational Safety and Health Administration since 2009; and
-4,100 drilling permits issued in 2012
The article notes that according to OSHA investigations, federal inspectors found safety violations at the site of every fatality and “often concluded that companies had not taken adequate steps to keep their workers safe.” Michael Rivera, area director for OSHA’s Corpus Christi office, which monitors most of the Eagle Ford Shale region south of San Antonio, stated that although he sees many people working hard to keep things safe, there are also those who just don’t and instead take shortcuts to maximize costs.

Notably, injuries and fatalities are not confined to accidents occurring on oil and gas rigs. Although OSHA does not investigate transportation accidents on public roads, the article emphasizes that 40 oil and gas workers in Texas died while traveling to and from work from 2009 to 2011. In addition, a 2013 study published by the Accident Analysis & Prevention Journal, based on data from the U.S. Bureau of Labor Statistics, found that oil and gas workers are 8.5 times more likely to die in a motor vehicle crash while on the job than those in other businesses, possibly due to the long hours worked by oilfield workers and the treacherous roadways these workers must navigate to get to isolated work locations, including Eagle Ford Shale. In fact, according to Kyle Retzer, lead author of the study and a program coordinator with Center for Disease Control and Prevention’s National Institute for Occupational Safety and Health, 202 oil and gas extraction workers died in motor vehicle accidents while on the job between 2003 and 2009.

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Published on: February 23, 2013

Texas Legislators Seeking Statewide Ban on Texting While Driving

By Carabin Shaw

Unlike the majority of the states across the country, texting while driving is not currently illegal in the State of Texas. This is despite evidence showing that looking at a cell phone while driving can lead to dangerous and deadly car accidents. Car accidents are common occurrences, even when a driver is not distracted. However, accidents become even more common in cases where drivers are texting and driving. In fact, according to Distraction.gov, an official U.S. Government website for distracted driving, text messaging creates a crash risk 23 times worse than driving while not distracted. Additionally, according to the Texas Department of Transportation, of the state’s 3,048 traffic fatalities in 2011, distracted driving ranks third on the list of causes.

Unfortunately, the State of Texas lags behind 39 other states and the District of Columbia, and has no official ban on texting while driving. In 2011, State Rep. Tom Craddick, R-Midland, passed a bill called the Alex Brown Memorial Act in honor of 17-year old girl killed in a single-vehicle accident while texting and driving. The bill would have prohibited texting in driving throughout the State of Texas, but Governor Rick Perry, citing that the states should not micromanage people’s behavior, vetoed the bill.

The good news is that state legislators are once again seeking to have some sort of distracted while driving bans established that would hopefully limit drivers from texting behind the wheel. Rep. Craddick is among a half dozen legislators who filed bills for the 2013 Legislative Session seeking a statewide ban on texting while driving. Although the proposed bills vary, all of them look to placing restrictions on the use of handheld wireless communications while driving. The bills are gaining momentum in the Legislature and could pass again. Although Gov. Perry can veto the bill, this time around, there is a chance it could be overridden by a veto. If passed, these laws will most likely not go into effect until 2014.

With the exception of drivers in school zones, novice drivers, and school bus drivers, there is no statewide prohibition on using your cell phone and texting while driving in Texas. Specifically, the following laws are currently in place:

• Drivers under the age of 18 are not allowed to using their cell phone at all while driving –meaning they cannot text, surf the Internet, or place calls.

• Drivers are prohibited from using handheld devices in school crossing zones.

• New drivers with Learners Permits may not use handheld devices during the first six months of driving
• School bus drivers are not allowed to text or use any other form of hands free devices while behind the wheel with passengers ages 17 or under.

In each of these cases, an officer can stop and cite a driver for using a cellphone without a secondary reason for pulling the driver over. Notably, Texas also has a category for cell phone/electronic equipment distraction on police accident report forms.

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Published on: February 21, 2013

Girl Who Suffered Rare Skin Disease and Lost 90% of Her Skin After taking Children’s Motrin Awarded $63 Million by Jury

By Carabin Shaw

Almost ten years after a young girl suffered a life-threatening reaction to the children’s pain reliever, Motrin, that caused her to lose most of her skin and left her legally blind, Johnson & Johnson was ordered to pay $63 million to the girl and her parents.

In 2003, when the then-7-year-old girl from Plymouth, Massachusetts, had a fever, her parents gave her Children’s Motrin. The girl had previously taken Motrin without suffering any side effects. However, this time, instead of her condition improving, she got worse, and ended up in the hospital for months. More specifically, the disease inflamed the girl’s throat, mouth, eyes, esophagus, intestinal tract, respiratory system, and reproductive system, forcing physicians to put her in a coma. Unbeknownst to her parents, ibuprofen, a common painkiller found in Motrin, can cause a rare, and potentially fatal, skin disease known as toxic epidermal necrolysis or “TEN” that eats away at your skin.

The young girl was not only forced to undergo surgery to drill through her skull to relieve some pressure, but she also lost 90% of her skin and is now legally blind. In addition, the girl suffered severe permanent lung and liver damage, and now has only 20% lung capacity. Although she also suffered brain damage, it caused only short-term memory loss.

Following this grueling experience, in 2007, the girl’s parents sued Johnson & Johnson, the maker of Motrin, and its subsidiary, McNeil PPC, Inc., for failing to provide proper warning of the possible side effects. The key issue in the lawsuit was the warning label Johnson & Johnson used for Children’s Motrin, made by McNeil-PPC, Inc. Notably, even though the prescription version of adult Motrin briefly mentions Stevens-Johnson Syndrome, a more common version of TEN, the over-the-counter children’s version of Motrin that was provided to the young girl, contained no such warning at all.

A manufacturer can be sued under one of three theories for injuries caused by a product or drug, including: (1) defective design, (2) defective manufacturing, or (3) defective warning and labeling. Here, the family sued the health care company under the third theory, alleging that the company failed to meet its labeling requirement. When dealing with warning labels, courts can find a product defective because of an inaccurate or inadequate warning label. Importantly, by law, the manufacturer is required to warn consumers of hidden dangers, and instruct users how to use a product in a way that will avoid the dangers.

In this case, the jury agreed that Johnson & Johnson failed to provide adequate warnings about ibuprofen’s potential side effects and awarded the girl, now 16, $50 million, and awarded an additional $6.5 million to each of her parents. With interest, the award totals $109 million.

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Published on: February 11, 2013

NHTSA Statistics Reveal Downward Trend in Traffic Fatalities

By Carabin Shaw

The most recent report from the U.S. Department of Transportation’s National Highway Traffic Safety Administration (NHTSA) revealed astounding statistics. The bad news is that there were 32,367 highway fatalities nationwide in 2011. The good news is that these figures are the lowest they have been for over six decades. The last time they were at that level was in 1949. These numbers continue to dictate a downward trend in the most recent years and a 26% decline in traffic deaths since 2005.

Unfortunately, these glowing statistics are of little comfort to Texas families who have lost loved ones in accidents. As our San Antonio wrongful death lawyers have known, the data confirms that our state accounts for almost 10% of all highway fatalities and 40% of those are alcohol related.

State and national agencies continue with their efforts to educate the public about ways to save lives. Some examples of successful campaigns have been “Buckle Up,” “Click It or Ticket,” “Move Over,” “Don’t Drink & Drive” and “Drive Sober or Get Pulled Over.”

Nationwide, alcohol impaired fatalities declined in 2011 by 2.5%, claiming 9,878 lives compared to 10,136 in 2010. These fatalities involved the operator of a vehicle or motorcycle who had a blood alcohol content (BAC) of .08 or higher. The 9,878 drunk-driving deaths reported in 2011 represented 31% of the overall total.

Texas, New York, South Carolina and Tennessee led the group of 27 states that experienced a decline of 30 or more alcohol-related highway deaths. Colorado, Florida and New Jersey all had increases of 30 or more alcohol-related traffic deaths. Connecticut, North Carolina, Tennessee, Ohio and Michigan led the group of 36 states that marked reductions in the number of overall fatalities.

Some other findings reported were:

• Fatalities declined by 4.6% for occupants of cars, pickups, SUVs and minivans.

• Fatalities increased for occupants of 18-wheelers (20%), cyclists (8.7%), pedestrians (3%) and motorcycle riders (2.1%).

Compared to all the other states, Texas clearly led the pack accounting for nearly 10% of all traffic fatalities reported nationwide. In 2010, Texas reported 3,023 total fatalities. There were 42% (1,270) related to alcohol. In 2011, Texas had a total of 3,016 fatalities, with 40% (1,213) being alcohol-related. Only Hawaii (44%) and North Dakota (44%) had more traffic fatalities related to alcohol than Texas.

These statistics are frightening for every mother and father who fears the worst when their teenagers are out at night and every husband or wife who sees their loved one leave on a road trip.

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Published on: February 11, 2013

Texas Supreme Court Rules that a Manufacturer Satisfies its Duty to Warn by Providing Sufficient Warning to a Doctor: Centocor, Inc. v. Hamilton

By Carabin Shaw

One key product liability issue to watch for in 2013 is reportedly the continued adoption of the learned intermediary doctrine by states. In June 2012, Texas joined 35 other states in holding that a sufficient warning to a treating doctor (the “learned intermediary”) satisfies a manufacturer’s duty to warn in product liability cases involving medicine and medical devices. Adoption of this rule essentially means that pharmaceutical manufacturers are not responsible for conveying drug risks to patients, even when the drug makers advertise their products directly to consumers.

With the Texas Supreme Court’s decision in Centocor, Inc. v. Hamilton, Texas became the largest remaining state where the Supreme Court had not adopted the learned intermediary rule, which requires warnings only to prescribing physicians–not to any health care provider with which the plaintiff may happen to come into contact. Unfortunately for future victims of negligent misbranding, negligent marketing, and fraud in drug/medical device product liability cases, the court all but did away with the direct-to-consumer exception to the rule, making it more difficult for plaintiffs to successfully bring suit against drug manufacturers.

In Centocor, Inc. v. Hamilton, the product at issue was Remicade, a prescription drug manufactured by Centocor, Inc. Patricia Hamilton suffered from Crohn’s disease and sought treatment from her physician, who informed her that her only treatment options were steroids or Remicade intravenous infusions. After her physician informed her of the risks and benefits of each approach, Patricia opted for the Remicade infusions. Following the treatment, Patricia claimed that the Remicade infusions caused her to suffer a serious drug-induced side effect called lupus-like syndrome.

Patricia and Thomas Hamilton brought suit, contending that the informational video shown to Hamilton by her physician in the course of her prescribed treatments provided “inadequate and inappropriate warnings and instruction for use” of its prescription drug Remicade, which made Remicade “defective and unreasonably dangerous.” More specifically, the couple alleged that Centocor’s video over-emphasized the benefits of Remicade and intentionally omitted warnings about the potential side effect of lupus-like syndrome. They argued that the video bypassed the physician-patient relationship and required Centocor to warn Patricia directly of Remicade’s potential risks and side effects, thereby making Centocor liable for Patricia’s injuries.

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Published on: January 28, 2013

Pradaxa May Cause Uncontrollable Internal Bleeding

By Carabin Shaw

Pradaxa was first released into the market in 2010 by German pharmaceutical giant Boehringer-Ingelheim. The drug immediately reached blockbuster status by notching over $1 billion dollars in sales. In its initial stages, Pradaxa was thought to be a next generation drug that would replace the most common drug used to prevent strokes and blood clots, Coumadin, better known as Warfarin.

Coumadin is a blood thinner that has been the primary drug of choice for nearly 60 years to treat atrial fibrillation, or irregular heart rate, and prevent strokes that are associated with atrial fibrillation. One of the disadvantages of Coumadin is that it requires patients to undergo continual blood tests so that dosage adjustments can be made, if necessary.

The optimum dosage will serve to prevent strokes by thinning the blood but not thinning it so much as to cause a bleed. If the dosage is too high and a bleed results, Vitamin K and fresh frozen blood plasma can be given to the patient to reverse the effects and slow the bleeding.

Pradaxa was supposed to be more effective than Coumadin, safer and easier for patients to use. It would also not require the continual blood work regime. Unfortunately, that proved not to be the case. Pradaxa turned out to be a more dangerous substitute for Coumadin.

If a bleed occurs while using Pradaxa, there is no reversal. Simply put, traumatic bleeding cannot be stopped. Often it is even impossible to perform life-saving surgery because excessive bleeding during the procedure might prove to be worse than the initial trauma. Tthe widespread use of Pradaxa is filled with high risk for the patients who use it.

Initially the health risks of using Pradaxa were not provided to the public, specifically that traumatic bleeding cannot be stopped since there is no available reversal agent. This was documented in an issue of the Journal of Neurosurgery in March of 2012, which concluded that once the internal bleeding begins there is not much that can be done to stop it.

The FDA launched an investigation regarding the safety of Pradaxa in December 2011. There was no recall of the drug mandated. However, in September 2012, the Journal for the American Medical Association initiated new demands for a Pradaxa recall, due to the fact that perhaps the FDA overlooked the side effects of internal bleeding as it rushed to approve the drug.

Unfortunately the many patients taking Pradaxa for their atrial fibrillation are exposed to this danger of internal bleeding. The safety of Pradaxa was called into question shortly after usage began in the U.S. Some 542 deaths and 3,781 side effect problems were linked to the drug in 2011.

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Published on: January 22, 2013

Study Says Obese Are 80% More Likely To Die In A Car Crash

By Carabin Shaw

According to a study of data accumulated by the National Highway Traffic Safety Administration (NHTSA), obese drivers have a higher probability of dying in a car crash than those who are of normal weight. In fact, their chances of death in an accident are 80% higher than those who weigh less.

Transport safety researchers Thomas Rice and Motao Zhu related their findings in an online publication of the Emergency Medicine Journal.

Since one out of every three American adults is considered to be obese, this new study is alarming. Interestingly, the study revealed that obese females were at an even higher risk of being a car crash fatality than their male counterparts.

Time will only tell whether this study will invoke changes by automobile manufacturers to make vehicles safer for obese drivers.

The study that covered a 12 year period from 1996 to 2008, examined 57,500 car crashes. The data included all of the deaths that occurred within 30 days of the accidents.

One finding illustrated the fact that obese vehicle occupants in general had a host of other health problems that reduced the probability of surviving a serious injury. The other finding was that seat belts do not properly interact with the human body when one is obese. Simply put, the lower body of an obese driver continues to go forward in a crash while the upper body is held back. This is because the excess padding and abdominal fat cause a delay in the time it takes to tighten against the pelvis.

Obesity was determined by body mass index (BMI). A BMI of 30 and over is considered to be obese. A BMI of 18.5 is considered to be normal.

Some conclusions reached were:

• A driver with a BMI of 30 to 34.9 was 21% more likely to die in a crash than a driver with a normal BMI.

• A driver with a BMI of 35 to 39.9 was 51% more likely to die in a crash than a driver with a normal BMI.

• A driver with a BMI of 40 or higher was 80% more likely to die in a crash than a driver with a normal BMI.

Another finding in the study was that underweight men were more likely to die in a crash than those with a normal BMI. Underweight men were those with a BMI of less than 18.5.

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