The Western District of Kentucky has ordered portions of a pharmaceutical injury case to trial. In Vanden Bosch v. Bayer Healthcare Pharmaceuticals, Inc., two women filed a lawsuit against the drug manufacturer Bayer over health consequences they allegedly sustained after the women used the Mirena contraceptive product. According to the complaint, a Florida woman suffered a chronic health condition following the use of the device after it was implanted into her body in Kentucky. Additionally, a Kentucky woman purportedly became pregnant despite her use of the contraceptive product. Her child allegedly suffered an abnormal chromosome disorder as a result of her exposure to Mirena.
In response to the lawsuit, Bayer filed a Rule 12(b)(6) motion asking the federal court to dismiss the case. When such a motion is filed, the defendant in a civil lawsuit is essentially stating that, even if everything a plaintiff alleged in his or her lawsuit were true, the plaintiff did not assert sufficient information to show that he or she is entitled to a legal remedy. After determining that Kentucky law applied to the case, the federal court addressed Bayer’s motion to dismiss the lawsuit. Since Kentucky has a one-year statute of limitations for products liability claims, and the Florida woman filed her lawsuit more than one year after her purported injury, the Western District of Kentucky dismissed the woman’s negligence and other products liability causes of action against the drug company. The federal court also dismissed many of the Kentucky woman’s claims against Bayer because pregnancy “is not a legally cognizable injury” in the state.
Next, the Western District of Kentucky dismissed the plaintiffs’ breach of implied warranty claims because there was no “privity of contract” between the parties. Bayer argued that the plaintiffs’ breach of express warranty and Kentucky Consumer Protection Act claims should be dismissed as well, since the women did not purchase Mirena directly from the drug company, but the court disagreed. The federal court stated that the plaintiffs’ express breach of warranty claims required further evidence and should be fleshed out at trial. Also, Kentucky case law provides an exception to the Consumer Protection Act’s privity requirement when a manufacturer makes “valid express warranties for the benefit of consumers.” According to the federal court, the exception applied to the plaintiffs’ case. Read More
The Supreme Court of Kentucky has issued an opinion related to the potential liability of an employer for the negligent acts of a worker. In MV Transportation, Inc. v. Allgeier, a wheelchair-bound bus passenger was seriously hurt on a cold day when she attempted to disembark from a Louisville para-transit bus after the bus driver negligently operated a wheelchair lift. When the woman attempted to roll onto the lift, her wheelchair tipped over, and she became suspended mid-air in her chair by a safety harness. After the lift lowered, the bus driver apparently unhooked the safety strap, and the woman fell to the ground. As a result, both of the woman’s legs were broken.
Instead of calling an ambulance, the bus driver allegedly contacted the bus service dispatcher per the organization’s protocol. The dispatcher in turn apparently notified two of the bus driver’s supervisors about the incident but also failed to contact emergency crews. Despite the freezing temperatures outside, both supervisors purportedly went to the scene of the injury accident before notifying emergency services. About 22 minutes after the incident occurred, an ambulance was summoned by the bus company. Since the bus company employees allegedly downplayed the extent of the woman’s injuries, emergency vehicles did not treat the situation as time-sensitive and responded to the accident scene nearly 20 minutes later. Although the two supervisors apparently took photos of the injured woman as she lay on the ground, law enforcement officers were not summoned to the accident scene. Following the incident, the woman received medical care in a hospital and a rehabilitation facility for a period of 225 days. She also allegedly relied on others for all of her needs following the accident.
About one year after the bus incident, the wheelchair-bound woman filed a lawsuit against the bus company seeking damages for the bus driver’s negligence using the doctrine of respondeat superior. In Kentucky and elsewhere, this doctrine allows an employer to be held vicariously responsible for the negligent acts of a worker if the acts were performed during the course of the worker’s employment. The woman also sought compensation from the bus company for its negligent hiring, training, retaining, and supervision of the bus driver. Finally, the woman asked the court to award her punitive damages to punish the bus company for its allegedly egregious behavior. Read More
In an unpublished 2013 case, a couple sued a window screen manufacturer and the owners of an apartment building. Their toddler fell through an open window and died. A Kentucky trial court dismissed their claims, and the couple appealed. The issue in the case was whether a manufacturer of the screen that was in the open window owed the family the duty to warn or design its screens such that the child's fall would be prevented.
The child who died was in a fourth-floor apartment in which his grandmother lived. The window was open, but the screen was in place. The window sill was 7 inches above the floor.
The screen did not have any warnings on it. Other screens in the building did have a label that warned parents that their child should not be near the open window. The toddler's parents brought a wrongful death action against defendants including the window manufacturer and owners and managers of the apartment building. Read More
In a 2013 unpublished appellate case, a woman’s estate appealed after the circuit court granted summary judgment on some of the estate’s claims and directed the verdict on the remaining wrongful death claims. The case arose from the death of Cheryl Powers from chronic obstructive pulmonary disease (COPD). Before dying, Powers called 911. A dispatcher took the call. Powers couldn’t speak clearly, but she tried to give her address before the call was disconnected. The dispatcher called the number back, but it went to the woman’s voice mail. The dispatcher called the police dispatcher instead of an ambulance and explained that she thought the woman had given a particular address.
The dispatcher replayed the 911 call and called the police dispatcher again, saying that she thought that the woman had said “Vista Apartments.” The police dispatcher sent an officer to the first address, but the first address did not exist. The police dispatcher told the officer there was no additional information and thereby “cleared” the 911 call. Therefore, no emergency services responded to the woman’s 911 call, and she died. On the following morning, the woman’s boyfriend found her dead in the hallway. Read More
In a recent case, a decedent's parents appealed the court's grant of summary judgment in favor of police officers, the police department and the City. The plaintiffs were the parents of a man who was killed in 2009 in a head-on collision with a car that was driving dangerously.
Before the collision, several people called 911 to report the dangerous driver. Because of the calls, the police department asked its officers to look out for a green sedan. When the officers responded to the call they encountered a red pickup truck on Ky. 39 and were pointed towards the highway. They thought this meant the green sedan was up ahead. The red pickup pulled up and told one of the officers that the green sedan was stopped on Ky. 39 not far away.
As one of the officers drove south on the highway, he saw the green sedan at the end of a driveway on the left side of the road. Traffic stopped him from seeing license plate numbers, but he saw that the driver of the sedan looked lifeless and he was worried it was a medical emergency. Read More
