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February 2010 Archives

First Fed Investigation Results on Middletown Explosion

The initial findings of a little known federal agency, the U.S. Chemical Safety Board, were released yesterday regarding the gas explosion in Middletown, Connecticut, on February 7, 2010. According to a comprehensive report by the Hartford Courantthe Chemical Safety Board found 400,000 cubic feet of gas was released into the air in a tight area behind the Kleen Energy building. The congested area likely slowed the dissipation of the gas which was ignited by a still unidentified source.

Theme-Park Suits Rarely See Courtrooms

In the midst of the fatal accident on Wednesday at Orlando SeaWorld, one begs to ask: how often do theme parks get sued? 

The question comes in light of the horrific events on Wednesday, where a SeaWorld employee was dragged into the water by a whale, with children surely watching the scene unfold. The SeaWorld veteran employee was thrashed around violently and pronounced dead by the time officers arrived to help her.

But will the families of the poor, horrified, traumatized children be suing SeaWorld for negligent infliction of emotional distress? 

The truth, according to the Orlando Sentinel, is that most theme-park lawsuits never even go to trial, whether they be for a fatal accident, brain injury or other personal injury.

Widow of Slain IRS Agent Suing Joe Stack's Widow

The widow of the Austin area IRS agent killed last week is suing the widow of the man who killed her husband.  

Valerie Hunter's husband, Vernon Hunter, was killed last week when angry Andrew Joseph Stack III flew his single engine airplane into a government building in Austin, Texas.  The crash left both Joe Stack and Vernon Hunter dead.

Valerie Hunter filed a wrongful death complaint in Travis County court earlier this week against Sheryl Mann Stack, claiming that Mrs. Stack had a duty to "avoid foreseeable risk of injury to others" and that Vernon Hunter was part of the protected class to whom Mrs. Stack owed this duty.

Orlando SeaWorld Whale Attack: Third Kill by Tilikum?

Sources say that the whale in Wednesday's attack at Orlando SeaWorld has been responsible for deaths before. Dawn Brancheau, 40, was killed when the killer whale she worked with dragged her into the water and began thrashing her around. 

Eyewitness accounts were unclear about whether she slipped into the water or whether she was dragged in by the whale. 

Tilikum, the 12,000-pound killer whale that was responsible for Wednesday's fatal accident, was reportedly known to be dangerous by Orlando SeaWorld staff. 

In 1999, the half-naked body of a man was found draped over the whale at Orlando SeaWorld after normal park hours. The man, it turned out, had snuck in to the park to swim with the whales. His family filed a wrongful death lawsuit against the park but subsequently withdrew it. 

In 1991, Tilikum and two female orcas were also responsible for the death of a female trainer in Vancouver, according to CBS News

If park officials knew that Tilikum was a dangerous animal, then did they owe a heightened duty of care to park visitors and to trainers?  Foreseeability is one of the most fundamental concepts in tort law and a fatal accident which was caused by the failure of the park to protect against a foreseeable event could raise issues of tremendous liability for the park.

Killer Whales: Fatal Accident at Orlando SeaWorld

In what some viewers described as a violent attack, an experienced animal trainer was dragged into the pool in a fatal accident at Orlando SeaWorld on Wednesday, as horrified spectators looked on.

The trainer was a veteran animal trainer at Orlando SeaWorld. She had just finished explaining the prospective demonstration to the audience when a whale came up from the water and grabbed her, pulling her into the water. 

According to spectators, the whale was "thrashing her around pretty good." 

Shamu Stadium was evacuated and the Orange County Fire Rescue was brought to the scene.  Unfortunately for the trainer, it was too late, as she was dead when rescue teams arrived.

Toyota Apologizes to Families of Fatal Accident Victims

Toyota has spoken. And they've spoken quite apologetically. But will apologies be enough for the victims of the families left behind in the wake of Toyota's fatal car accidents?

This morning, the head of Toyota Motor Corp. and grandson of the company's namesake, Akio Toyoda, apologized on behalf of Toyota in his testimony before Congress.

He also claimed that he was "absolutely confident" about the fact that there was no design flaw in Toyota's electronic throttle control system. This statement came in light of several concerns and criticisms, pegging the Toyota electronic throttle system as the culprit behind the sudden acceleration. U.S. Transportation Secretary Ray LaHood expressed such concern earlier where he told the House Oversight and Government Reform Committee that the recalled vehicles aren't safe unless they receive the required repairs. He added that it was as yet undetermined whether problems with the Toyota electronic throttle system were to blame. 

Update: Civil Suit Filed over Middletown Explosion

Two of the workers injured in the Kleen Energy Plant blast in Middletown, Connecticut have filed a lawsuit. Plaintiffs Timothy Hilliker of Glastonbury and Harold Thoma of Bolton, Connecticut are suing O&G Industries, Keystone Construction & Maintenance Services and Kleen Energy Systems for negligence connected with the explosion on February 7, 2010 that killed 6 workers and injured as many as 26.

350 Sick on Caribbean Cruise Ship

A recent outbreak of stomach illness on a Caribbean cruise ship is raising questions several questions, namely, what the legal duty of a cruise ship is with regards to medical illness on board.

The ship, a Celebrity Cruise luxury cruise liner and sister line of Royal Caribbean cruise liner, set sail out of Charleston, S.C. on February 15 on an 11 night Caribbean voyage. According to a Celebrity Cruise spokeswoman, the cruise liner had approximately 300 of its 1,800 passengers fall ill, complaining of stomach upset, vomiting and diarrhea.

Norovirus is the suspect, a virus which is common to cruise ships. It's really just the average stomach flu, complete with the cramping and vomiting. According to a research study in the medical journal Clinical Infectious Diseases, there is a direct link between the poor sanitation of cruise ship restrooms and outbreaks of norovirus.

Man Sues Idaho over Violent Sexual Predator Label

If anyone knows that labels hurt it would be Mark Wicklund, who is suing the state of Idaho.

The 56-year-old Boise man was labeled a violent sexual predator in 2001.

Now, Wicklund has filed a $5 million lawsuit against the state, while the Idaho Department of Correction Sex Offender Classification Board remains barred from issuing this label to others going forward, the Associated Press reports.

Senate Report: Grave Concerns over Avandia, FDA

Move over Merck, Americans are about to have a new drug company to worry about. According to CNN, late last week the Senate Finance Committee released a 334 page report, two years in the making, taking both the FDA and GlaxoSmithKline to task for what it found to be an unacceptable risk of heart attack linked to use of the drug Avandia, a medication used to treat diabetes.

FDA: Warning Labels for Advair, Other Asthma Drugs

There is a new warning-label requirement for makers of certain asthma drugs. The U.S. Food and Drug Administration announced last Thursday that it will be requiring manufacturers of long-acting beta antagonists (LABAs) to include a warning in the product labels that these drugs should never be used alone in the treatment of asthma in children or adults.  

This new warning requirement comes in the wake of FDA clinical trials that showed an increased risk of severe worsening of asthma symptoms, which could potentially lead to hospitalization in children as well as in adults. In the worst case scenario, the use of the drug could result in death. 

The FDA calls for the limitation in use of these drugs, and calls for the use of other drugs in combination with these drugs to treat asthma. As the warning label must reflect, the LABA drugs should only be used for the most minimal period necessary.   


Man Sues Shrink For Dating Ex-Wife

A Michigan man is suing his shrink for medical malpractice.

But this isn't the usual malpractice case. It doesn't involve a bad choice of medication or a faulty diagnosis. Rather, the man is suing his psychiatrist for dating his ex-wife.

The patient, Steven Kay, was being treated by Harvey Rosenberg. Kay claims that he was seeing Rosenberg for treatment during his difficult breakup with his ex-wife, whom he claimed he still loved.

The lawsuit, filed in Oakland County Circuit Court, seeks restitution of $87,000 in medical fees paid to Rosenberg, in addition to adequate compensation for all damages sustained.

Kay alleges medical malpractice, stating that Rosenberg began dating Kay's ex-wife while Kay was still a patient. As such, Kay alleges in his complaint, the doctor violated his duty to his patient and breached the applicable standard of psychiatric care by dating the wife of his patient -- especially when the ex-wife was a huge factor in Kay's adverse mental condition.

Warning: Superman Costume Does Not Enable Flight

Manufacturers may be setting themselves up for some heavy lawsuits if they fail to adequately warn. But according to a slideshow of funny warning labels posted on Forbes, some manufacturers are going too far. After all, some risks, although foreseeable, are almost so obvious that they should not require a warning label.

For example, does a Superman costume really need a warning label to tell people that it doesn't cause super-strength or the ability to fly?

While there are the obvious dangers, there are also gray areas; those dangers which might be more foreseeable and perhaps inherently deadly.

Verdict in Accutane Lawsuit: $25M over Lost Colon

A New Jersey court granted Andrew McCarrell, 38, a verdict of $25.16 million against the Swiss drug-maker, Roche Holding AG, for side effects caused by the drug-maker's acne medication, Accutane.

The drug caused McCarrell to lose his colon. Well, more precisely, the drug caused McCarrell to suffer from inflammatory bowel disease, which subsequently led to a colonectomy. Since the colonectomy, McCarrell goes to the bathroom 10 to 20 times a day, suffering from "massive gastrointestinal upset" says his attorney, Michael Hook. 

In what was effectively a products liability case,  Hook said that Roche knew that the medication could cause inflammatory bowel disease but kept this information to itself. As such, McCarrell's suit claimed they failed to issue adequate warning or disclosure to users about the potential side-effects of the drug.

2 Plane Crashes in 2 Days = 2 Investigations

A small plane crashed this morning in Austin, Texas, sending a pillar of black smoke into the air. At least two people are reported injured, as the plane crashed into a government building that housed the IRS. This crash comes at the heels of a similar crash yesterday, in a residential California neighborhood. 

While yesterday's crash, in East Palo Alto, seemed purely an accident, today's crash is suspected as deliberate. 

The National Transportation Safety Board  (NTSB) investigates all airline crashes in the United States. An independent investigatory body, it is not a part of the Department of Transportation and not affiliated with the Federal Aviation Administration

Moving Forward: Lawyers Want Toyota Black Box Data

The Wall Street Journal reports that plaintiffs' lawyers and safety advocates are asking for Toyota black box data access in order to gain some knowledge about what may be causing the sudden acceleration problems in Toyota vehicles that spurred massive recalls. So far, Toyota will only allow black box access if it is asked to do so by court order, a request from law enforcement, or a request from federal regulators such as the NHTSA (National Highway Traffic Safety Administration).

As discussed previously in FindLaw's Injured blog, many Toyota consumers have filed lawsuits against Toyota over sudden acceleration in their vehicles. The sudden acceleration has caused many consumers to crash their vehicles, sometimes with deadly consequences. The black box data stored in these cars has information such as records of vehicle and engine speeds, as well as brake, accelerator and throttle positions.

Wild West: This Time Student Speech was Protected

Here on the wild frontier of the First Amendment, lawyers and judges don't always know what will happen when a student pulls the free speech trigger. As discussed in a prior post on FindLaw's Decided Blog, even courts in the same Circuit can't come to a predictable conclusion. This time it is Florida, where a federal magistrate has ruled that a student's rant against a teacher on Facebook was protected speech and her suspension for it violated her first amendment rights.

Costly Lesson: School Changes Sex Harassment Policy

In what has become a several hundred thousand dollar lesson, the Brockton School District in Massachusetts has learned a revision of its sexual harassment policy, especially as applied to children younger than 7, is necessary. In 2006, a first grade boy touched the girl sitting in front of him inside the waistband of her pants during their class's library session. It was an inappropriate act and the girl told the teacher. However, what followed turned out to be just as inappropriate.

FDA Eyes Risk of Radiation Overdose in Medical Facilities

The Food and Drug Administration (FDA) has announced that it will introduce an initiative that strives to minimize the risk of radiation overdose from medical imaging technologies in medical facilities. In a press release by the FDA, there will be three specific medical imaging technologies that will be monitored in order to reduce radiation exposure: computed tomography (CT), nuclear medicine studies, and fluoroscopy.

The Los Angeles Times reports that the initiative announced by the FDA is part of an effort to address the reports of injuries and the overall exposure to radiation in the lifetime of an average individual. The amount of average exposure has almost doubled since 1980. This overall jump in radiation exposure has reportedly been due partly to CT scans and other medical imaging technologies. According to the Los Angeles Times, medical radiation now may be the cause of more than 50% of the population's total radiation exposure.

Officials Begin Middletown Explosion Investigations

Investigations into the cause of the Kleen Energy plant explosion in Middletown, Connecticut, and the level of worker safety at the plant are beginning, according to a report by the Hartford Courant. Officials currently believe a welder's torch in the vicinity of the natural gas being purged from the underground pipeline could have caused the blast. The purging operation requires that the accumulated gas be vented from buildings and enclosures before combustible elements like a welder's torch can be safety introduced. 

Sudden Acceleration: The Lawsuits Filed Against Toyota

As might be expected, the number of lawsuits over Toyota vehicles has grown sharply. According to a Bloomberg news report, several different groups of plaintiffs have filed at least 29 suits in California, Texas and South Carolina. It is likely that, as the suits advance and others are filed, the U. S. suits will be combined before one court to oversee the pre-trial discovery process. As of this point, there are also at least 10 lawsuits brought by individuals claiming deaths or injuries caused by the sudden acceleration of vehicles.

A Shot in the Dark: Dr., Journalist Sued for Libel

As noted in a prior post, Lancet Cuts Wakefield Study: A Blow To the New McCarthyism?, the prestigious British medical journal The Lancet's removal this week of the study by Dr. Andrew Wakefield, attempting to link the MMR vaccine to autism, has pushed this on-going debate back into the forefront of the news. A recent and yet to be widely reported story about the legal side of the good since/bad science fight has also come to light.

Lancet Cuts Wakefield Study: A Blow To the New McCarthyism?

This week, after a decade as a part of the prestigious British medical journal The Lancet, Dr. Andrew Wakefield's study, the first to attempt to link autism with the MMR (measles, mumps rubella) vaccine, has been withdrawn from that publication. Dr. Richard Horton, editor of The Lancet, has said, "It's the most appalling catalog and litany of some the most terrible behavior in any research and is therefore very clear that it has to be retracted."

Buffalo Crash Prompts Airline Code Sharing Inquiry

According to the Washington Post, on the final day of the hearings investigating the 2009 crash of Continental Connection Flight 3407, the chair of the National Transportation Safety Board, Deborah Hersman, announced further discussion by her staff into the practice of code sharing by airlines. The February 12, 2009 crash near Buffalo, New York, killed 50 people, making it the deadliest U.S. transportation accident in seven years.

Westar Settles Lawsuit Over Air Quality Regulations

The Kansas electric company Westar Energy Inc. recently announced that it has settled a federal lawsuit over air quality regulations in the Clean Air Act. According to Reuters, the company has agreed to spend $500 million dollars to help reduce air pollution from their Kansas coal-fired electric generating plant at the company's Jeffrey Energy Center near St. Marys, Kansas. The money will be spent to install pollution control equipment at its Jeffrey Energy Center, which is aimed at reducing sulfur dioxide and nitrogen oxide emissions by approximately 78,600 tons annually.

The United States Department of Justice (DOJ) has released a public statement about the settlement that says that Westar will pay a $3 million dollar civil penalty fine. The press release also indicates that Westar will spend $6 million dollars on environmental mitigation projects as well.

Study: Distracted Driving Laws Have Not Reduced Crashes

It seems as though laws banning handheld devices and texting while driving are not producing expected results, according to a latest study released.

Findings from the Highway Loss Data Institute show that crash/accident rates did not go down before and after distracted driving laws were enacted in California, New York, Connecticut and Washington, D.C. In fact, the study also found no change in patterns compared with nearby states without such bans.