January 27, 2010

Kimberly-Clark Hit with 4.75 Million Dollar Jury Verdict

An Oregon man, Mr. Matthew Beale, has been awarded the sizable sum in a product liability suit against Kimberly-Clark which owns the company, I-Flow Corp. According to the lawsuit, I-Flow encouraged surgeons to insert a "pain pump" which supplies pain medication via a catheter to the affected area.

A jury has found that this pain pump is responsible for destroying the cartilage in Mr. Matthew Beale's right shoulder leaving the thirty-eight year old father of four permanently disabled. The story began in 2004 when Mr. Beale picked up a muscle injury playing football with his kids. He underwent arthroscopic surgery to repair the muscle at which time the surgeon also inserted the pain pump into the shoulder joint where it delivered medicine for several days. Mr. Beale began to recover but after six months found himself in excruciating pain. Mr. Beale now suffers from a condition called chondrolysis which is a severe deterioration of cartilage. Essentially, his shoulder cartilage has been eaten away leaving "bone on bone" friction.

In November, after hearing of many chondrolysis cases, the FDA stated that they have never approved such devices for prolonged infusion of medicine to joints.

This case will set a tough precedent for Kimberly-Clark and I-Flow since they are currently facing hundreds of similar lawsuits from victims suffering from chondrolysis. Attorneys for the plaintiff were successful in proving that I-Flow did not conduct sufficient testing, nor did it warn of the potential dangers.

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January 25, 2010

The Complex State of the Music Industry: Everyone Sue Everyone

The music industry continues to be a hotbed for litigation. It's penchant for controversy is sometimes staggering. What's happening just this week:

A court today reduced the "monstrous and shocking" (Judge Davis' words, not mine) $2 million dollar fine imposed on Jammie Thomas-Rasset for illegally downloading 24 songs on the internet. Now the mother of 4 will only have to come up with a mere $54,000.00 or $2250 per song. Ms. Thomas-Rasset, unable to pay anywhere near 50 thousand, plans to continue her appeal.

Universal Music Group has filed a lawsuit against the website grooveshark. Grooveshark already settled a similar lawsuit with EMI, but now face the wrath of Universal who claims that grooveshark is hosting illegal copies of their songs for the public to hear. Universal claims that grooveshark is paying nothing to provide online access to their songs.

And everyone's favorite target for plagiarism, Coldplay, is being targeted yet again. This time, a rocker named Sammie Lee Smith, is claiming that Coldplay have stolen no less than 3 songs from his catalog. It appears that Mr. Smith has a poorly imagined plan to sue any artist for copyright infringement. He has apparently recorded thousands of songs over the past few decades. Although, the overwhelming majority of these songs have never been released or heard by anyone other than himself, he is quick to point out if any melody or riff sounds like something in his vast catalog. Copyright infringement lawsuits are tough and I am skeptical about this one. Although, Satriani may be onto something with his lawsuit.

Eddie Vedder, of Pearl Jam fame, is also being sued over his cover of the Gordon Peterson song, "Hard Sun". Vedder had the legal license to cover the song which found itself on the Into the Wild soundtrack, but Peterson is claiming Vedder altered the lyrics to his song thereby "eroding the integrity of the composition."into_the_wild_movie_poster.jpg

January 20, 2010

Graco Recalls Over One Million Strollers Because of Possible Amputations

Approximately 1.5 million Graco brand strollers are being recalled after several children's fingertips have been amputated by hinges. The strollers, manufactured in China and available at all major retailers, include Graco's Passage, Alano, and Spree strollers and travel systems.

The children were injured by placing their fingers in the strollers canopy hinge while the canopy was being opened or closed. The reports so far show that five children have had their fingertips severed and another suffered serious cuts to their fingers.

Only a few months ago, MacLaren recalled approximately a million strollers because of a similar danger. Maclaren had received reports of over twelve children suffering fingertip amputations.

As with all product liability cases, plaintiffs who bring suit for the injury caused to their children will need to prove that the design of these strollers was defective. Considering a child's tendency to reach out for objects in their field of vision, it is reasonably foreseeable that a child might have their fingers near these dangerous hinges. This fact, coupled with knowledge of previous similar accidents, support a finding that the strollers were inherently defective and dangerous.

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January 19, 2010

Massachusetts Statute of Limitations for Injuries to Children

As a result of a new case, I had to conduct some research on the tolling (or lack thereof) of the statute of limitations in Massachusetts as it pertains to medical malpractice and children. Rhode Island General Law 9-1-14.1 allows for a tolling of the statute of limitations until the victim turns 18. The plaintiff then has three years from that date in which to file suit.

Massachusetts' law is not as kind as Rhode Island's law. Massachusetts General Law, Chapter 231, Section 60D states:

Notwithstanding the provisions of section seven of chapter two hundred and sixty, any claim by a minor against a health care provider stemming from professional services or health care rendered, whether in contract or tort, based on an alleged act, omission or neglect shall be commenced within three years from the date the cause of action accrues, except that a minor under the full age of six years shall have until his ninth birthday in which the action may be commenced, but in no event shall any such action be commenced more than seven years after occurrence of the act or omission which is the alleged cause of the injury upon which such action is based except where the action is based upon the leaving of a foreign object in the body.

In summary, the statute of limitations does not toll for minors in Massachusetts unless the child victim was under the age of 6 at the time of the negligence. In which case the child has until his ninth birthday in which to bring a lawsuit. In no situation, however, can a lawsuit be brought more than seven years after the occurrence of the negligent act.

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January 14, 2010

Cheese Distributed in Rhode Island Recalled Due to Possible Contamination

While no one has reported illness yet, the H.P. Hood Company is recalling two (2) Heluva Good Cheese products, which were sold and distributed in Rhode Island, due to possible bacterial contamination. The products in question are the eight ounce packages of the company's Port Wine Cold Pack Cheese Food with a sell-by date of 11/15/2010 through 12/15/2010, and the Sharp Cheddar Cold Pack Cheese Food with a sell-by date of 11/15/2010 and 12/15/2010.

The voluntary recall is the result of product sampling performed by the State of Wisconsin in the facility that produces the Heluva Good Cheese products. This sampling raised concerns over the possible contamination with a bacteria that can lead to listeriosis.

Listeriosis is a relatively rare bacterial infection that is most common in newborns, pregnant women, or those with a compromised immune system. In fact, pregnant women can account for nearly 30% of all reported cases. Premature birth, still birth and miscarriage are potential serious complications of the illness.

Symptoms of listeriosis can last for up to ten days and include fever and muscle aches. In more serious cases, listeriosis can lead to meningitis.

Foodborne illness is a very serious problem in America. Each year nearly 325,000 people are hospitalized with food poisoning. Of those, nearly 5000 people die each year. Minor cases of foodborne illness are estimated to be in the tens of millions each year.

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January 10, 2010

Inadequate Chinese Facilities Making Inadequate Generic Drugs

Our country has certainly seen a surge of problems and lawsuits associated with dangerous or defective Chinese made products including tainted fish, drywall, baby formula, and toys. It is now becoming clear that generic drugs manufactured in Chinese factories will result in a string of product liability and wrongful death lawsuits.

The most recent lawsuit to make the news comes from Texas and the family of Lloyd James Robinson. Mr. Robinson died after having an adverse reaction to Heparin he received at a DaVita Dialysis Center. The family has filed suit against both the dialysis center and the manufacturer of the drug. As it pertains to the drug manufacturer, the theory of liability is that the Chinese facility in which the drug is manufactured does not meet US regulations. Reports of adverse reactions to the Heparin injections began in early 2008 and led to a partial and then total recall of Heparin products on the market. Following the recall, the Food and Drug Administration discovered the drugs were contaminated with a "heparin-like molecule," identified as over-sulfated chondroitin sulfate. This contaminant accounted for up to 20 percent of the total mass of the each sample tested.

In order for a product liability case to be successful the plaintiffs must prove either:


  • The product design was defective

  • The product was manufactured in a defective way

  • The unsafe product lacked sufficient warning or direction

While I am unfamiliar with the facts surrounding this case, it appears that the attorneys are targeting option 2 above. Cost cutting measures in Chinese laboratories that do not meet US regulations caused a safe drug, such as Heparin, to become contaminated and, thereby, defective.

January 6, 2010

Wrongful Death Statute Now Allows for Recovery of Punitive Damages

A bill introduced by Representatives Caprio, Petrarca, Silva, Edwards, and Lally has now become law. Rhode Island General Law, Chapter 10-7 "Death by Wrongful Act" now includes the following:

R.I.G.L. 10-7-7.1. Punitive Damages. In an action commenced under section 10-7-5, recovery may be had for punitive damages if such damages would have been recoverable had the decedent survived.

Punitive damages are damages in addition to compensatory damages (medical bills, lost wages, pain and suffering, etc) that are intended to deter the defendant from acting in a certain way. Punitive damages are typically awarded in cases where the defendant's negligence was egregious or his behavior reckless. The most well-known examples have come from lawsuits against the tobacco industry.


Rhode Island joins the growing number of States (now the majority of States) to allow for punitive damages in a wrongful death lawsuit. I want to thank our State Representatives who fought diligently to pass this bill and who continue to look out for the well-being and civil rights of our State citizens.

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January 5, 2010

The New Website for Personal Injury Attorney Joseph Lamy is Live

Former clients familiar with the flash-based website will now find that it has been replaced with a new site. The new website contains significantly more content and information. I will continue to add content to the site in the coming weeks so that visitors can learn about their particular type of injury and the legal process surrounding it.

The new website contains specific pages for:

There is also a great deal of content in my other practice areas of entertainment law and criminal defense.

I am open to comment and opinion, so please let me know your thoughts.

December 29, 2009

Auto Accidents and Pregnant Women

A number of agencies are reporting about a new study regarding the effect of auto accidents on pregnant women. The study gathered data on tissue composition and the dimensions of pregnant women to help design new ways to protect expectant mothers in automobiles. After reading the article, I thought that this was a subject that warrants discussion.

There are no clear statistics regarding the number of fetuses lost each year due to auto accidents but researchers believe that the number is in the thousands. Auto accidents, even relatively minor ones, are very serious for pregnant women. It is imperative that you ALWAYS seek medical attention following an auto accident even if you feel fine.

Some complications that can occur for pregnant women following an auto accident are:


  • pre-term labor (premature birth)

  • hemorrhaging

  • high-risk pregnancy

  • birth defects

  • miscarriage


There is also emotional distress following an accident which can cause injury to both the unborn fetus and the expecting mother. I recommend that any pregnant woman seek immediate medical help following an auto accident, but especially if you notice vaginal bleeding or leaking of fluid, severe abdominal pain, dizziness, persistent vomiting, or any other uncommon symptom since this can be evidence of a much more serious problem with the fetus.

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December 25, 2009

Merry Christmas and Many Thanks!

It was a tough decision to leave Boston and open my own practice here in my hometown, but thanks to my friends, family and great clients this year has been wonderful. To everyone who has helped me along the path, I wish you heartfelt thanks and many wishes for a safe and happy holiday season.

December 21, 2009

Musicians Should Contact an Attorney Before Signing a Recording Contract

Many unknown bands and musicians are so thankful to have the chance at a recording contract that they sign whatever is handed to them without ever speaking to an attorney. I can tell you that this practice frequently leads to problems.

It is in your best interest to have an attorney review your contract
:


  • to advise and educate you as to your rights
  • to explain the obligations and duties of the record label
  • to ensure that you are being fairly compensated, and perhaps negotiate a better deal
  • to ensure that you are not improperly giving away the rights to your music

The results are never good when a contract does not work out as planned and numerous problems can occur:


  • pressures on the band may force you to quit
  • lost income from improperly negotiated royalties
  • tens of thousands of dollars spent in litigation either trying to get out of the contract or forcing the record label to comply with its obligations

It is much better to make a small investment in yourself and hire a lawyer before singing a contract rather than deal with the problems associated with the contracts failure. You work very hard every day in hopes of making it big - don't let a contractual mistake end those dreams.

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December 17, 2009

ATV Accidents

816799_quads.jpgAll-terrain vehicles (ATV's) may be a great way to explore and enjoy the countryside, but they can also be extremely dangerous. Nationwide nearly 1000 people die each year and over 150,000 are seen at emergency rooms. Like motorcycles, ATV accidents often result in very serious injuries such as fractures, head injuries, internal bleeding, etc. This is because ATV drivers and passengers have very little protection.

Rhode Island and Massachusetts have their fair share of ATV related injuries and it is important to understand your rights and options following an ATV accident. Drivers of an ATV can not make a claim if the accident is their own fault, however, there are two common scenarios in which an ATV related accident can result in a successful claim:

  1. The injured party is a passenger on the ATV. Since the driver is likely to be at fault for the accident, the passenger is without negligence and can collect from the insurance company of the driver or the owner of the ATV.
  2. The ATV came into collision with another vehicle (or ATV) on an open road and was not at fault for the accident.

Today, several insurance companies offer coverage for ATV's. If the ATV is not separately insured, then the homeowner's insurance may cover the loss. If there is coverage, damages can be obtained similar to an auto accident:


  • Medical Bills

  • Lost Wages

  • Scarring

  • Pain and Suffering

  • Permanent Injury

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December 15, 2009

Studies Show High Cancer Risk from CT Scans

This story seems to be popping up everywhere after I first heard it on NPR. A study to be released this week in the Archives of Internal Medicine, reports that CT scans are exposing patients to far more radiation than previously believed and in doses that could cause thousands of cancer cases each year.

CT scans, which use computer and X-ray technology to create detailed internal images, have become a very common procedure due to its accessibility and accuracy. In fact, nearly 70 million CT scans were conducted last year alone. It turns out, however, that CT scans expose patients to far greater radiation than conventional X-rays and the benefits of conducting the diagnostic test may be outweighed by the dangers.

The study reviewed approximately 1100 patients undergoing various routine CT scans. The results were startling. First, there is a huge variance in the amount of radiation sustained by each patient. The dose of radiation for a multiphase abdomen-pelvis CT study ranged from 6 to 90 millisieverts, and the average dose was 31 millisieverts. Dr. Andrew Einstein of Columbia University stated that 90 millisieverts, depending on how counted, is equal to "many thousands of chest x-rays." Thousands!

One CT Scan procedure can generate nearly thirty years worth of background radiation to which humans are typically exposed.

What is startling to me about this story is that this information was never discovered sooner. How is it possible that so few recognized the extreme dangers inherent in one of our most common diagnostic tests.

If such an exposure can truly cause cancer, then lawsuits are bound to occur. I am curious to see what information will be uncovered during the discovery phase as to how much was known regarding the danger of these seemingly innocent tests. This may be one to watch.

December 14, 2009

Massachusetts is a "No Fault" State - What Does That Mean?

Rhode Island residents injured in an auto accident in Massachusetts may have been told that Massachusetts is a no-fault State. The next reaction is to ask - What does that mean? This is a question I am asked quite frequently since our lovely State is so small it is not uncommon for Rhode Island drivers to find themselves in a car crash in Massachusetts.

No-fault liability is a program in which injured people collect money (for medical bills and lost wages) directly from their own insurance company regardless of who was at fault. This program is what is commonly referred to as PIP, or personal injury protection. It does not mean that the person who rear-ended you is not at fault for the accident. It is simply a program intended to reduce the number of lawsuits by allowing people to collect money from their own insurance company.

The benefit of a no-fault system is that it allows an at-fault driver to be compensated for his or her injuries. The drawback is that it limits the ability of an injured person, not at fault for the accident, to sue for damages. It should also be noted that PIP does not pay damages for pain and suffering.

An injured person, not at fault for the accident, can still bring a claim against the at-fault driver so long as the injury meets certain thresholds. In other words, if the injury is serious enough (i.e. scarring, fractures, etc) or the medical bills are greater than $2000.00, the injured party meets the injury threshold and can bring a claim against the at-fault driver.

In a nutshell - if you are seriously injured in an auto accident in Massachusetts, the no-fault laws will not seriously affect your claim. If, however, the injury is minor and the treatment minimal, you may be compensated solely by PIP.

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December 12, 2009

The Weakening of Miranda

In my earlier post, discussing the current challenge to Miranda, I mentioned that the original intent and strength of Miranda v. Arizona has since been deteriorated by subsequent Supreme Court decisions. This post gives a chronology of what I believe to be the weakening of Miranda protections through the years.

An early blow to Miranda occurred in Harris v. New York, in which a 5-4 Court ruled that statements secured in violation of Miranda could still be used to impeach a defendant if he or she took the stand in their defense.

The value of Miranda was truly reduced when the Court began to interpret the terms "custody" and "interrogation." Since Miranda protections only apply if the suspect was interrogated in police custody, opponents of the law sought to re-define both interrogation and custody. In Oregon v. Mathiason, a suspect not read his Miranda rights confessed to a burglary after the police asked him to come to the station for questioning. The Court upheld the conviction on the grounds that the suspect was asked to come to the station and was not formally arrested before questioning and, therefore, should have felt free to leave at any time.

Similarly, the USSC took a narrow view of interrogation in a case that arose from our own state of Rhode Island. In Rhode Island v. Innis, the suspect was in the car with police and had asserted his Miranda rights. The suspect overheard the police talking about the missing gun and expressing fear that some children might find the gun and injure themselves. The suspect then told the police where to find the gun, thereby incriminating himself. The Court held that this was neither a ploy to coerce a confession, nor qualified as an "interrogation," and as a result the statement was admissible. Still later, the Court ruled in New York v. Quarles, that Miranda would not apply in instances where the public safety was at risk.

I began discussing Miranda because the USSC is preparing to decide the Powell case in Florida which concerns the proper wording and understanding of Miranda. This is not the first time such a case was heard. In 1989, Duckworth v. Eagan was decided. In this case, the police simply told the suspect that a lawyer would be appointed "if and when you go to court." The suspect's conviction was upheld when the Court held that it was not necessary for Miranda warnings to be read exactly as written in the Miranda decision, thereby opening the door for countless interpretation battles.

While the constitutional protections of Miranda remain, it is clearly not the protective force it was in 1966. Through numerous exceptions and limitations, as outlined above, the USSC has limited the force and scope of the 1966 ruling. It will be interesting to see how this most recent case will affect the future of Miranda warnings.