Injured - The FindLaw Accident, Injury and Tort Law Blog

August 2009 Archives

The manufacturer of a popular aluminum water bottle is under fire this week for not having disclosed that many of its bottles were manufactured with a lining made from the chemical bisphenol-A, or BPA.

Used to harden plastics and commonly found as a liner in cans and bottles, BPA has health risks both known and unknown, which have caused many consumers to step back from the use of plastic bottles to store food and beverages. Legislative bans on BPA-containing food containers have been gaining momentum.

Enter the lined aluminum bottle. Shiny, metallic, sleek, and (allegedly) totally plastic-free, the bottles have gained credibility as both environmentally friendly -- no more single-use disposable water bottles -- and health conscious -- no BPA worries. Swiss bottle manufacturer SIGG in particular gained significant market share, with its metal bottles retailing for upwards of $20 each at upscale stores like Whole Foods.

Will Alli Lawsuits Be Next?

The magical, side-effect-free weight loss pill has for years been one of the elusive goals of pharmaceutical research. Now it appears that one more contender will have to undergo scrutiny of its safety record.

The FDA indicated Monday that it will investigate the possibility that the weight loss drug orlistat, sold as prescription Xenical and over the counter as alli (yes, lowercase "a," which we'll assume is some kind of savvy marketing tactic), is causing liver damage in some patients.

The FDA says it has received 32 complaints in the last ten years asserting that liver damage or failure resulted from patients taking alli or its prescription counterpart, and that it will look into whether the drug may be a cause. The complaints are summarized in a so-called "Early Communication," a "risk communication tool" that the FDA uses to let consumers know that it will be reviewing the safety of a drug.

One of the drugs' manufacturers, GlaxoSmithKline PLC, was quick to respond, emphasizing that no cause and effect relationship is yet known to exist, and that neither the government nor the manufacturers believe that consumers need to stop taking alli or Xenical just yet.

Are we on the verge of a wave of alli lawsuits?

Should we start feeling bad for Google? The search giant (and blog-hosting service) has found itself caught in the middle of a nasty fight this week between an anonymous blogger and the woman who wanted to sue that blogger for defaming her.

First, model Liskula Cohen won a court order requiring Google to turn over information identifying an anonymous blogger, who Cohen alleged had defamed her using Google's Blogger service. The unmasked blogger, Rosemary Port, immediately found herself an unwilling center of of attention; the confluence of (semi-) celebrity, juicy gossip, and crumbling internet anonymity, with Google in the middle of it all, made the story irresistible to just about everyone.

Cohen dropped her defamation suit immediately after learning Port's name; but Rosemary Port reacted by promising to sue Google for revealing her identity.
The collapse of the I-35W bridge over the Mississippi River in Minneapolis, Minnesota, continues to prompt blame and lawsuits. First the state of Minnesota reached a settlement with bridge victims in May 2008, in which victims and their families received shares of a $38 million compensation fund, in exchange for their agreement not to bring legal action against the state.

Then, with their state claims settled, numerous victims of the MN bridge collapse moved on to seeking compensation from contractors who had advised the state or worked on the bridge. Much of that legal action is still ongoing.

And this month has brought action between the state and its contractors.

Model Liskula Cohen was victorious this week in her efforts to get Google to turn over the IP address and email address of an anonymous blogger who allegedly defamed her. She celebrated, according to the New York Post, by forgiving her attacker (one Rosemary Port, who was apparently retaliating against Cohen for some nasty things Cohen allegedly told Port's boyfriend), and dropping a $3 million lawsuit against her.

Perhaps Liskula Cohen was feeling generous, but do the rest of us have to worry about the "anonymous" things we post on the internet? Are you on the verge of being outed, and sued, by the next person who doesn't like what you have to say?

Probably not, as long as you don't run into anyone with really deep pockets and nothing better to do than sue you, and as long as you stick to expressing opinions.

A New York appellate court last week ended a lawsuit by a woman who was injured in a skydiving accident several years back. The suit was remarkable for its plaintiff's apparent lack of perspective: the injured woman sought compensation for two broken fingers, which were sustained during her instructor's successful efforts to save both of their lives when their main chute failed to deploy. Is this a case of shocking ingratitude, or is there something more going on?

We're going with "shocking ingratitude." According to facts laid out in a lower-court opinion, in 2003 Lisa Nutley celebrated her birthday by going skydiving for the first time. First-timers always jump "tandem," meaning that they are strapped to an experienced instructor who directs the jump and controls the parachute.

But Nutley's jump went sour, as the worst fear of the beginning skydiver came true: the main chute failed to open. Her instructor, though, worked to deploy a reserve chute and, after an undoubtedly terrifying interval of freefall, the two landed safely.
In a perfect bookend to Wednesday's Ashley Greene nude-photo story, today brings the tale of another woman, this time not a celebrity or public figure, whose nude photos have been released to the web. This time, there's no copyright claim being made; instead, the alleged victim, Jessica Voth, is going after the photographer, wielding a couple of serious tort claims.

Chicagoan Jessica Voth has filed suit against her ex-boyfriend Miles Marsh, claiming "invasion of privacy" and intentional infliction of emotional distress. Voth claims that Marsh, having convinced her to pose for nude photos while they were dating, posted those photos online after they broke up, to a website that apparently does nothing but solicit "naked ex-girlfriend" photos from its users.

Swine Flu Lawsuit On The Way

The family of a New York City teacher who died of the H1N1 flu, or "swine flu," in May has begun a legal action against the city, but despite what's being reported by some sources, the action is not a lawsuit -- yet. It's a "notice of claim," and it's a reminder that getting compensated by the government for injuries often requires a very different process from a private suit.

Mitchell Wiener, a teacher at Intermediate School 238 in Hollis, Queens, contracted swine flu in May, becoming one of the very first cases seen in New York City, and died shortly thereafter in a hospital. His family asserts in their claim that the city was negligent in failing to properly warn Wiener of his potential exposure to the virus, and in acting too slowly to prevent the flu from spreading. So far, this describes a fairly standard wrongful-death suit based on a claim of negligence.
Pittsburgh Steelers quarterback Ben Roethlisberger is facing a civil lawsuit from a Harrah's hotel employee in Nevada, who alleges that in July 2008 he lured her into his room at the hotel and then sexually assaulted her. Attorneys for Roethlisberger have responded to the suit with strong denials of any wrongdoing, but several obvious questions arise out of the story so far:

1. Will there be criminal charges? In an assault case, sexual or otherwise, the civil and criminal processes operate separately, and it's not always the case that both a civil suit and criminal charges will result.

A criminal case would be brought by a prosecutor, usually after investigation by police to gather evidence about whether a crime was committed. The acts described by the plaintiff in Roethlisberger's case would, if proven, probably support criminal charges.
Another day, another nude-photo scandal involving a Hollywood starlet. This time, it's Ashley Greene of the megahit move "Twilight," and she's made it interesting by bringing her lawyers, and a whole stack of cease-and-desist letters, to the party.

The photos, whose origin has not been definitively stated, made their internet debut when gossip blogger Perez Hilton got hold of the Ashley Greene photos and posted them (umm, no, you won't find the pictures on the other end of this link). As will happen with such things, the photos quickly made their way all over the web. But today, Hilton, along with many others who had posted the pics, replaced them with an update: Greene's attorneys had requested their removal. Can they do that?
Twenty-four people got the ride of their life at the Great America amusement park in Santa Clara, California yesterday, as they were stuck several stories up in the air by a stalled roller coaster. Called the "Invertigo," the coaster apparently stalled while being lifted to its high point, where it would have released riders on a twisting, 50-MPH, multiple-inversion ride through its metal loops.
As reported in the San Jose Mercury News, though, instead of that thrill ride, the riders were treated to waiting in ninety-plus-degree heat for hours while firefighters from two cities raised buckets to lower them one by one from their seats.The firefighters reported no injuries, and the riders all apparently remained calm throughout their ordeal. But at least one, 14-year-old Dennis Espinoza, admitted that the experience was frightening and suggested that the stranded riders "thought [they] were going to die." So, does thinking you are about to die give rise to a viable lawsuit?
Soon-to-be-merged pharmaceutical giants Merck and Schering-Plough agreed this week to settle a number of class-action lawsuits over their cholesterol-lowering drugs Vytorin and Zetia. The companies will spend a total of $41.5 million to settle the Vytorin and Zetia lawsuits, which accuse the drugs of being unsafe and ineffective.

Zetia lowers cholesterol by blocking the digestive system from absorbing the cholesterol in food. Vytorin combines Zetia with the statin Zocor, which lowers cholesterol levels by blocking the production of an enzyme that the body uses in making its own cholesterol. The theory behind Vytorin was that attacking cholesterol on two fronts, so to speak, would be more effective in lowering cholesterol levels and preventing heart disease.

But the 2008 publication of a study by Merck and Schering-Plough cast doubt on the drugs' efficacy. The "ENHANCE" study showed that the combination drug Vytorin was actually slightly worse than Zocor alone at preventing heart disease. The companies' two-year delay in releasing these results fueled the criticism, and the lawsuits.

Distracted Driving Summit Announced

With distracted driving in the news more and more frequently, the Obama administration is planning to take action. Transportation Secretary Ray LaHood announced this week that his department will convene a September summit devoted to the problem of distracted driving.

LaHood promised to bring together "senior transportation officials, elected officials, safety advocates, law enforcement representatives and academics" in Washington next month to discuss the problems raised by "text messaging and other distractions behind the wheel" and to explore possible solutions. The goal will be to come up with "concrete steps" that can be taken to reduce the distracted-driving problem.

"Distracted driving," in this context, is pretty clearly code for "texting while driving." The press release for the event focuses heavily on the dangers of texting; several major accidents caused by texting get a mention, while no other potentially distracting activities are specifically named. The newly-launched home page for the summit also seems focused on the texting wihle driving question.
An Illinois woman is suing a medical school and an anatomical-donation organization over claims that they lost her husband's body after he donated it for scientific study, according to the Chicago Tribune.

According to Margaret Hejna, her husband James Hejna arranged for his body to be donated to science upon his death, and in 2003, the Anatomical Gift Association of Illinois received his remains. Body-donation programs are an important component of medical research and education, being particularly relied upon in the training of new doctors. The AGA ultimately delivered the remains to Midwestern University's school of osteopathic medicine, for study by medical students.

Expecting that it would be up to two years before the remains were cremated and returned, Hejna waited until 2006 to begin inquiring after their whereabouts. The suit alleges that what followed was a series of delays and non-answers by AGA, and then Midwestern, culminating in their pointing to each other as the source of the problem.
A high school student in Mississippi is suing her cheer coach, principal, and school district, alleging that the coach violated her civil rights by accessing her Facebook account and subsequently banning her from team activities.

Pearl High School student Mandi Jackson says that the cheer coach, Tommie Hill, demanded Facebook login information from all of the girls on her cheer squad back in September of 2007. Hill's subsequent review of Mandi Jackson's inbox revealed a series of private messages between her and another cheer squad member that were "riddled with profanity." Jackson's suit claims that the coach responded by sharing the messages with other teachers and the school principal; publicly humiliating and reprimanding her; and sidelining her from competition. The suit alleges multiple violations of Jackson's constitutional rights, including her "right to privacy" and her First Amendment right to free speech.