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personal injury

07.24.2014

Breach of Warranty and Fraud Claims Will be Litigated in Kentucky Pharmaceutical Injury Case

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

06.26.2014

Can Window Screen Manufacturer Be Held Liable for Kentucky Toddler’s Fall?

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

06.17.2014

Kentucky Wrongful Death Case Involving a Lack of 911 Response

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

05.22.2014

Superseding Causes in Kentucky Personal Injury Cases

In Kentucky, personal injury cases where negligence is alleged, a plaintiff must establish (1) a duty owed to the plaintiff, (2) breach of the duty, (3) that proximately causes injuries, and (4) actual damages. Negligence, including the element of causation, is never presumed in Kentucky. What happens, however, if some surprising act occurs to cause an accident that is not related to a defendant's otherwise negligent conduct? A "superseding cause" can absolve a defendant if it is extraordinary and independent — that is not arising out of a negligently created condition. In a recent unpublished opinion that illustrates how Kentucky looks at the issue of superseding causes, the Court of Appeals of Kentucky considered a case involving two accidents on opposite sides of an interstate highway. The first accident involved the defendant's car, which she had driven into the median and hit the base of the eastbound bridge under the roadway. The second accident happened when the plaintiffs were driving eastbound. They had come to a total stop in a traffic jam after the defendant's car's accident. A tractor-trailer rear-ended their vehicle, killing a family member and injuring another. The plaintiffs sued the defendant, claiming that her first accident directly and proximately caused their injuries and damages. The defendant moved for summary judgment, arguing that her accident had happened more than a mile away and that the traffic jam was the result of the emergency personnel's response and the negligence of the tractor-trailer driver, not her driving. The defendant argued that both of these events were superseding causes of the plaintiffs' injuries. The trial court agreed, ruling that the first responders had stopped traffic and the  tractor-trailer's negligence were both superseding causes. Read More

05.19.2014

Mutual Mistake in Kentucky Auto Accident Coverage

Insurance policies can be difficult for a layperson to interpret. There are a number of additional principles that govern insurance contracts, which insurers know, but their insured do not always understand. An experienced personal injury attorney can help make sure that you are not tripped up in a personal injury settlement with an insurer due to confusing policy terms or principles of which you may not be aware. In a recent case, the Kentucky Supreme Court reviewed an appellate court's opinion agreeing with the insurance company and against an injured person. In the case, the lower court's grant of summary judgment dismissed a man's claim for underinsured motorist coverage on the grounds that the underinsured motorist coverage was the result of a mutual mistake in making the insurance contract. Mutual mistake is a defense that an insurer may raise to show there is no coverage for an accident. The man argued that the "mutual mistake" defense wasn't available because the insurer failed to present clear and convincing evidence proving it mistakenly issued underinsured motorist coverage. He also argued that the insurer hadn't plead mutual mistake with particularity and therefore it waived the defense. He also claimed the trial court should have permitted him to amend his complaint to include statutory bad faith. Read More