product liability attorney in mobile, alabama

Common Challenges in a Product Liability Case

A product liability lawsuit can be filed when any product that you use fails to live up to its promises and as a result causes an injury. That can include a defective drug, a piece of machinery that fails and injures the user, a car part that fails and injures, or a medical device that harms rather than treats the patient.

As product liability lawyers, it is our job to prove to the court that the product is defective in its design, its manufacturing, and/or that the company failed to warn of its dangers to users.

We will also need to prove that the company breached its promises and that the defective product was the cause of your injuries.

Manufacturers have a responsibility to compensate you when they fail in this regard.  Alabama laws state that you can file a product liability action to protect your rights and seek compensation, but there are limits and challenges.

Product Liability Case Challenges

Statute of Limitations –The state of Alabama gives us two years within which to file a product liability injury or death lawsuit and one year for any actions against the original seller. If you decide to seek the help of an attorney outside of the two years when you knew there was an injury or a death, you can be barred from filing your claim.

This provides a challenge to your case if, for example, you were exposed to a harmful substance and you only became aware of the injury six months later.  

This is a good reason why you should consider consulting with an experienced product liability law firm that understands the laws and various time frame restrictions, so you do not miss the window within which to file your case.

Limits on Damages – Alabama law limits damages in some product liability cases under the state’s pure contributory negligence standard.  If you shared in the fault of your harm, if you were not following instructions on a machine at work, if you were texting while driving and the brakes failed, the defendant will argue you are partially at fault for your own injury and should not be allowed to recover compensation.  

Accidents Will Happen
– In Alabama there is a requirement that manufacturers must provide a Duty to Warn and a Duty of Safe Design.  That does not mean that any product must be 100% accident-proof.  When a product fails, it does not necessarily mean it is defective and that is one of our challenges in a product liability lawsuit.

That places the burden to warn about all of the potential dangers squarely on the manufacturer.  Were the warnings adequate and reasonable? Were the instructions clear as to how to use the product? Was the company responsible to the user in all ways, or were they negligent or reckless in their duty to protect their consumers’ safety?

We might also face a challenge when the learned intermediary, the end user of a product such as a doctor, did not read the instructions.  That makes it difficult to claim a warning failure since the instructions made no difference in that instance.

Proving Liability – On your behalf we must prove there was negligence, a breach of warranty and strict liability.  Under Alabama’s extended manufacturer’s liability doctrine, our challenge will be to show the product reached the user without alteration and that the injury you suffered was due strictly to the product’s inherent defects. 

Under design defect, part of our challenge is to show the manufacturer had an option to choose a safer alternative design. Under manufacturing defect, we must prove that even though the product was safely used, there was an unintended flaw that made it an unsafe product. 

Punitive Damages– Under Alabama Code Title 6, punitive damages will only be awarded in certain limited circumstances. One such instance is if there is a wrongful death filing where there is clear and convincing evidence the defendant knew that the product could hurt or kill and engaged in a reckless, wanton, and malicious way.

Experienced Product Liability Lawyers

When it comes to proving your case in court or negotiating with the other side, you will want to have an experience Alabama attorney on your side that is knowledgeable, aggressive, and will advocate for your best interests. 

Burns, Cunningham and Mackey understands the complications and challenges of product liability law. We will fight for you to prove to a jury or insurance company why compensation is deserved in your case and that the corporation failed in its promise to deliver a safe product.  

We can protect your rights and strongly urge you not to deal directly with the insurance representative for the other side.

Call us in our Mobile office at 1-800-574-4332 so we can discuss your options and how best to proceed.

Will the Medical/Hospital Community Address the 250,000 Deaths by Medical Errors?

I am certain others have written about the report from Johns Hopkins that medical errors cause more than 250,000 deaths every year in the United States, enough to make them the nation’s third-leading cause of death. But why are they the third leading cause of death? Why do medical mistakes come in third in causing deaths in the US – after heart disease and cancer?

The report is disconcerting because it appears that hospitals do not actually record deaths using the term “medical error.” Is that for the obvious reason that they do not want to admit medical error on a death certificate or any other kind of report? Or is it because using the present system of codes for generating bills and collecting insurance premiums and billing is more important? That is where the results of the Johns Hopkins study were gleaned from — a reporting system used to generate bills and collect insurance premiums.

In another article, it is reported from a study by the US Department of Health and Human Services’ National Practitioner Data Bank, which covers all 50 states and the District of Columbia, that states have different and often widely varied disciplinary actions against doctors. . That article references that patients assume oversight of doctors is well-regulated in all states, that all doctors are held to the same ethical standards and disciplined appropriately when needed. But that is not the case.

While the study about hospital errors does not blame bad doctors, are both issues related? There seems to be more interest by consumer groups to have these issues looked into.

Martin Makary, professor of surgery at Johns Hopkins University School of Medicine suggests in the article that the US Centers for Disease Control and Prevention should adopt updated criteria for classifying deaths on death certificates. He is quoted in the article as saying “Incidence rates for deaths directly attributable to medical care gone awry haven’t been recognized in any standardized method for collecting national statistics,”

The researchers performed their calculations based on eight years of US medical death rate data. This study was published in the journal BMJ, on May 3, 2016. In it researchers examined four separate studies that analyzed medical death rate data from 2000 to 2008, including one by the Department of Health and Human Services’ Office of the Inspector General and the Agency for Healthcare Research and Quality. They extrapolated that based on a total of 35,416,020 hospitalizations, 251,454 deaths stemmed from a medical error, which the researchers say now translates to 9.5 percent of all deaths each year in the United States. According to the Center for Disease Control, in 2013, 611,105 people died of heart disease, 584,881 died of cancer and 149,205 died of chronic respiratory disease—the top three causes of death in the United States. This study puts medical errors behind cancer but ahead of respiratory disease. The article says non-medical causes of death like accidents are not numerous enough to crack the top three. That means you are more likely to die due to a hospital error than in a car wreck. You are more likely to die while being treated by trained medical personnel at a hospital than by texting drivers! WOW!

The researchers believe that most errors represent systemic problems, including poorly coordinated care, fragmented insurance networks, the absence or underuse of safety nets, and other protocols, in addition to unwarranted variation in physician practice patterns that lack accountability. That is so even though we have all sorts of rules and regulations designed to make your hospital stay safer. The Joint Commission(JCAHO) Standards and the National Patient Safety Goals (NPSG) as well numerous state rules and regulations are there for the medical profession to follow and to protect you. I hate to imagine where we would be without them.

Dr, Makary in the article summarizes by telling us that unwarranted variation is endemic in health care. He admonishes that there is a need to develop consensus protocols that streamline the delivery of medicine and reduce variability which can improve quality and lower costs in health care. He also advocates more research on preventing medical errors from occurring is needed to address the problem.

Does the medical profession and hospitals agree with Dr. Makary’s conclusion? I hope so. As a trial attorney who regularly reviews medical records and who tries medical cases, I see the sad results of medical errors. No one wants to be a statistic in future research. No one wants to believe it can happen to them. Someone needs to do the research and get proposals that will lessen the likelihood of these errors. Hopefully, the Johns Hopkins study will be the impetus for further research and action.

Replacing Gas Pipes Reduces Leaks, Lessens Explosion Risk

Billions of dollars have been spent on pipeline replacement programs over the last decade to prevent invisible gas leaks from aging or damaged pipelines, and it is having a dramatically positive impact on leaks, according to a newly released study in the journal Environmental Science and Technology.

“There hasn’t before been a solid example of the efficacy of pipeline replacement programs,” said Rob Jackson, an author of the paper and environmental scientist at Stanford University.

“The costs of leaky pipes, estimated at $2 billion per year, as well as the greenhouse gas contributes to global warming and smog, Jackson said. And, the leaks can lead to deadly explosions in some cases.”

Using cars equipped with methane-detecting instruments, researchers drove an estimated 1,600 miles of Manhattan, NY, Cincinnati, OH and Durham, NC. The contrast in leaks across these cities was largely different. In New York, where it could take 50 years or more to upgrade piping, researchers found more than 1,000 gas leaks still plaguing the city.

While in Durham and Cincinnati, scientists found 132 and 351 gas leaks, respectively, where utilities are executing aggressive replacement plans.

Gas leak incidents have decreased across the U.S. as mains are upgraded, but in 2014, 65 gas pipeline leaks resulted in 18 fatalities, 93 injuries and $73 million in property damage, said researchers. Among those figures was a gas explosion in East Harlem, New York, that killed eight people and injured 48 more.

Scientists first began their research in 2011 mapping leaks in Boston and Washington, D.C. where they found similar leaks-per-mile to what they found in New York. Other cities are decades from fully replacing old pipes. Baltimore for instance, is slated to finish by the year 2155, if the current pace continues, according to researchers.

Gas Leaks Can Lead to Explosions

We teamed up with another firm on a case that settled for more than $9,000,000 in favor of a utility worker who sustained total body surface burns to 66% of his body in an explosion when a natural gas main line pipe deteriorated and allowed natural gas to leak and migrate to an underground vault. Government and company regulations required the underground vault to be secured from migrating gas and toxins. But, despite these regulations, inadequate sealing allowed natural gas to build up in the vault. When the worker entered the manhole to work on cables, the natural gas exploded, severely burning him and causing his serious injuries. Responsibility for the explosion was denied by the defendants. But expert discovery and thorough facts resulted in denial of the defendants’ motion for summary judgement.

Over the course of the litigation, which spanned 4 years, the client underwent more than 75 surgical procedures and spent months in a regional burn center near the site of the accident before being transferred to a unit in his home state of Tennessee. His sheer dedication and determination to return to his regular life, coupled with his occupational therapist’s persistence and motivation, is a true inspiration to his medical providers and also his lawyers. He is currently living independently and doing well.

Cataracts, Macular degeneration and St. John’s wort

St. John’s wort is a herb sold over the counter most commonly taken for depression.

Recent investigation suggests an association between St. John’s wort and the onset of premature cataracts and possibly macular degeneration.

If you have either condition and have been taking St. John’s wort you should contact your attorney and investigate further.