Texas Injury Lawyers Blog

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

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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Published on: January 18, 2013

Toyota Settles “Sudden Acceleration” Case In Utah

By Carabin Shaw

The Toyota Motor Company has agreed to settle one of its “sudden accelerator” product liability cases in Utah that killed two people and injured two other family members. The case was set to go to trial in February. Details of the terms of the settlement were not disclosed.

In December, Toyota agreed to settle hundreds of claims in a class action for individuals who declared that they suffered economic losses due to a recall of millions of its cars because of sudden acceleration issues. That settlement was reported to be for more than $1 billion.

However, hundreds of other plaintiffs who are suing for serious personal injuries and wrongful death were not included in that massive deal. Those cases are pending and the Utah case was one of the bellwether cases set to go to trial first. Typically, bellwether cases are large cases based on the same theories of recovery, which judges and lawyers use as guidelines for evaluating cases that follow.

The Utah settlement was reached for an accident that involved Paul Van Alfen, his wife, son and his son’s fiancee, Charlene Jones Lloyd. Their accident occurred on November 5, 2010, on I-80 close to Wendover, Utah. As they were traveling on the interstate, their Toyota Camry suddenly accelerated, went through a stop sign at the bottom of an exit ramp and struck a wall. Skids evidenced Van Alfen’s attempt to stop the vehicle as it left I-80.

The accident resulted in two fatalities, Van Alfen and Lloyd. Van Alfen’s wife and son received injuries.

An investigation conducted by the Utah Highway Patrol revealed that the collision occurred because the accelerator was stuck, causing the Camry to suddenly accelerate.

Other settlements have recently been reported, including one involving a retired Los Angeles police officer and another involving a California Highway Patrol officer. In the latter case, the patrol officer and his entire family were killed near San Diego in 2009 when their Lexus suddenly accelerated, hit speeds of over 120 miles per hour, flipped and burst into flames. Investigation revealed that the accelerator had been mashed down by an improperly sized floor mat.

Toyota issued a statement that the recent settlements should not be an indication of what’s to come for other pending lawsuits. In other words, Toyota is going to pick and choose the weaker cases that they take to trial and settle the larger, stronger headline cases.

The company continues to stand behind the safety and integrity of their cars, while blaming these tragic accidents on driver error, faulty floor mats and faulty accelerator pedals.

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Published on: January 16, 2013

Texas Department of Transportation Blames Distracted Driving For Fatal Crashes

By Carabin Shaw

According to the Texas Department of Transportation, the East Texas rural roads are deadlier than traveling on other major thoroughfares and interstates. This news is released as new crosses are being erected at the scene of yet another fatality near Longview.

Even though the number of fatal crashes has gone down in recent years, over 50% of the fatalities in the surrounding five counties around Longview since 2007 have been one vehicle accidents. This has led the Department of Transportation to conclude that distracted driving is the culprit in these collisions.

Further evidence in support of this conclusion is the fact that only one death occurred in more than 90% of the fatal accidents. In the five county area including Gregg, Rusk, Harrison, Panola and Upshur, there has not been any single accident since 2007 that resulted in more than three fatalities.

Jean Dark, with the Texas Department of Public Safety (TDPS), stated that the reason is simply because most accidents occur on farm-to-market (FM) roads and involve only one car or pickup striking a tree, after leaving the road. This contrasts with multi-vehicle crashes on interstates. She explains that the difference is the tremendous impact that occurs when a vehicle strikes a stationary object such as a tree. It just “doesn’t give like another car would.”

The Department’s data indicated that 54% of all the accidents in the five county Longview area involved a single vehicle leaving the road, striking an object or flipping over. Only 38% of the wrecks involved two vehicles.

Dark said drivers just have to “pay attention to driving,” because if someone isn’t, it “can change your life.” For example, on two-lane FM roads, the oncoming traffic is separated from you by nothing more than a center stripe. You trust the other driver is paying attention and will stay on their side of the road. Unfortunately, sometimes they are distracted and they cross over into your lane.

Accidents resulting in fatalities have been around long before all of the gadgets we now have to distract us, such as cellphones, smartphones, iPads, iPods, headphones and GPS, just to name a few. Nationwide statistics show that distracted driving is one of the major causes of traffic fatalities. The TDPS data indicates that there were over 100,000 vehicles involved in accidents caused by distracted drivers in 2009 and new data is expected to confirm that those figures are continuing to rise.

Many of the crashes are the result of drivers trying to text message while driving. In 2009, the Texas Legislature passed a law which prohibits the use of any type of wireless device in a school zone. Another attempt to get a law passed to ban texting while driving is going to be on the table again during the 2013 legislative session. In 2011, Governor Perry vetoed a texting ban proposal.

Studies have shown that the use of a cellphone and texting while driving are equally, if not more dangerous, than driving while intoxicated.

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Published on: December 27, 2012

93.3 Million Americans Take To The Road Over The Holidays

By Carabin Shaw

According to AAA, one out of every four Americans will hit the road between December 22, 2012 and January 1, 2013. This means that approximately 93.3 million people will take a trip of over 50 miles from their home, as 2012 comes to an end. This is an increase of nearly 2%, up from 91.8 million in 2011.

The majority of the travelers (84 million) will be traveling by automobile, representing approximately 27% of the entire population of the United States. These numbers have remained very consistent for the last decade. There was only one year where the fluctuation was more than 5%.

The year-end season is the least affected time for travel due to high gasoline prices or other economic issues. Robert Darbelnet, the CEO of AAA, says that people will always make it home at this time of the year. AAA is expecting more and more Americans to stuff their stockings with airline tickets and hotel reservations, as economic indicators are trending upward.

With the increased traffic on America’s roadways, the American Trucking Association has gotten involved with the distribution of materials advising motorists to stay out of trucker’s blind spots and avoiding cutting in front of trucks, among other things. It is also advisable to have an emergency kit in your vehicle in case of an accident.

Remember, the driver of an 80,000 pound 18 wheeler traveling at highway speeds cannot stop on a dime. FedEx Freight professional driver Dion Saiz acknowledges that driving during the holidays is challenging. Everyone is anxious to visit their families for one last visit in 2012 or finish up shopping the year-end sales. His best advice to all is to remain focused and be patient.

Another Share the Road Professional Driver, Dennis Martin with UPS Freight, simply advises everyone to “buckle up” and be aware of the weather conditions that you are going to be facing on your trip.

With over 25% of the U.S. population being on the roadways, it is inevitable that accidents are going to occur no matter how cautious motorists and truckers are. Accidents involving a couple of passenger cars are serious enough but collisions between passenger cars and 18 wheelers often have catastrophic results. Simply because of the size difference alone, a passenger car or a pickup truck is no match for an 18 wheeler. Unfortunately, tragic often disabling injuries and even fatalities can result when the two collide.

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Published on: December 21, 2012

West Texas Dust Storm Causes Major Accidents

By Carabin Shaw

The Texas Department of Public Safety (TDPS) reported that a severe dust storm close to Lubbock caused multiple accidents early in the afternoon on Wednesday, December 19, 2012. There were 23 vehicles involved in the chain-reaction pileup injuring some 17 people and killing one.

TDPS Cpl. John Gonzalez said that the visibility was so bad that “you couldn’t see past the hood of your vehicle.” Winds with gusts of 55 miles per hour or so stirred up the sand and dust from dry fields making it impossible to see the stopped vehicles already involved in accidents on the southbound side of I-27. He said that there were a series of collisions that happened simultaneously in “domino fashion”, when drivers’ visibility went to zero.

One man was killed when his SUV rear-ended an 18 wheeler that had been involved in an accident. Some 17 other people were injured in the crashes but none of them were serious or life threatening. The majority of the injured people were taken to the University Medical Center in Lubbock for treatment and then released.

The accidents and the visibility concerns caused the TDPS to close I-27 in either direction for about five miles from Abernathy to New Deal for six hours. Once the interstate was opened to traffic, a TDPS bulletin was released warning of the dangerous driving conditions between Lubbock and Amarillo.

Landowners were being advised to plow their fields so that the loose sand would not blow off so easily during wind storms, after the prolonged drought.

This is the second major interstate pileup in Texas in the last thirty days. The other occurred on Thanksgiving Day just west of Beaumont, Texas. The cause of that massive chain-reaction accident was fog, resulting in near zero visibility at around 9:00 a.m. Some 150 vehicles were involved in that series of accidents that injured more than 100 people and killing two, when their SUV was crushed by an 18 wheeler.

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Published on: December 14, 2012

Texas Tech Study Explains Why Motorists Misjudge Motorcycles

By Carabin Shaw

There was recently an interesting article authored by a parent whose son was injured in a motorcycle accident. The accident occurred in Washington, D.C. when a cab pulled out in front of the son’s motorcycle, failing to yield the right-of-way. The son slid underneath of the cab, which stopped to avoid running him over.

According to the parent, his son received minor injuries and road rash. Why would a cab driver pull out in front of his son? What was the driver thinking? Nothing seemed to matter other than this guy could have killed his son. The cab driver’s answers would do little to temper this parent’s anger.

Unfortunately, the facts and circumstances of this motorcycle accident are all too common. Generally, it is almost always another vehicle failing to yield the right-of-way to a motorcycle versus the other way around. Often motorcycles are challenged when motorists change lanes in front of them or into the side of them. Many motorcyclists suffer serious injuries as a result. Motorcycle accidents invariably result in serious life threatening injuries or death. Riders are simply too exposed and unprotected to sustain an impact with a car or truck without being badly injured or killed.

So, why do other motorists have such a difficult time seeing a motorcycle? The answer might be contained in a Texas Tech University perception study. Perception experts have discovered that drivers misjudge the speed and distance of a motorcycle because of its smaller size.

When a driver sees another vehicle coming, the mind attempts to calculate how far away it is and how fast it is going to avoid a collision. During the process, the mind uses certain depth perception clues to make this determination. Simply put, the mind decides that the bigger the object is, the closer it is. With a motorcycle, this is not always true due to its size.

The conclusion of the study conducted in Lubbock, Texas is that motorists, in general, are causing accidents by pulling out in front of smaller vehicles and motorcycles. The reason is that they perceive these smaller objects are farther away than they actually are.

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Published on: December 3, 2012

Thanksgiving Day Pileup: Deadly Evidence of Accidents At Interstate Speeds

By Carabin Shaw

It was about 8:45 a.m. on Thanksgiving morning, the most traveled day of the year, when one of the most horrific accidents in Texas occurred on Interstate 10 outside of Beaumont. The weather conditions were extremely foggy and cars were apparently slowing down due to the lack of visibility. Deborah Leggio, 60, and her husband Vincent, 64, were killed when their Chevrolet Suburban traveling eastbound was struck from the rear and crushed by an 18 wheeler, which ended up on top of their vehicle. Ultimately, some 140 to 150 vehicles were involved in the pileup.

A veteran police officer for more than 25 years, Jefferson County Sheriff Deputy Rod Carroll, 46, heard an emergency call about the multi-vehicle accident and he responded. Even though Deputy Carroll is a paramedic, he was not prepared for what he was about to witness.

When he arrived at the scene, he stated that the area was so foggy that it was impossible to see more than ten feet in any direction. He reported that there were cars on top of cars, 18 wheelers with massive damage, vehicles in the median and on the side of the interstate with damage and personal articles spread along the roadway.

Deputy Carroll related that the collision scene was over a mile long, with twisted metal making it difficult to determine what type of vehicles were involved. The scene was filled with officers and rescuers, including people who had been involved in the massive pileup, trying to pull victims from their vehicles and give them aid. He said “it was like a Third World Scene”, not knowing what to expect as he walked through the wreckage.

Initially, it is believed that the first collision occurred on the eastbound side of the interstate and westbound collisions followed. Every ambulance in the area was busy transporting some 80 t0 90 individuals to local hospitals. There were 10 to 12 victims who were listed as serious to critical.

The westbound lanes of Interstate 10 were closed for approximately five hours and the eastbound lanes were shut down for over eight hours, while the investigation and cleanup continued.

With most highways in the United States now allowing speeds of 70 to 75 miles per hour, Texas has gone to even a different level. A 41 mile toll road from Austin to San Antonio is going to have an 85 mile per hour speed limit. There is an 80 mile per hour speed limit for some highways in West Texas. The problem is that the higher the posted speed limit, the faster people think that they can drive over the limit without being ticketed. People are now testing their radar detectors and driving at speeds ranging from 85 to 100 miles per hour on interstates.

Unfortunately at speeds like this when something goes badly wrong, such as rain, fog, another accident, a blowout or a distracted driver, the result is going to be massive and more lives will be lost.

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Published on: November 21, 2012

Thanksgiving Traffic Safety   

By Carabin Shaw

Thanksgiving weekend is the most traveled holiday period of the year with almost 90% of those traveling doing so by car.  To lessen your chances of becoming one of the statistic this year, here are a few things to keep in mind:

• Seat Belts: Keep yourself safe and ticket free by wearing a seat belt.

• Speed: Speeding is a common cause of accidents and you run the risk of a speeding ticket.

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