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Posts tagged "products liability attorney"

Coin Sized Button Battery Child Swallowing Danger: Parents Beware!

Button Batteries also known as coin cell batteries create a serious swallowing danger for children.  Unlike a coin, rock or small toy, if a button battery is swallowed by a small child it does not just pass through the body, instead it can cause serious and life threatening burns. Saliva immediately triggers an electrical current that causes a chemical reaction that can severely burn the esophagus in as little as two hours.  Once the burning reaction begins, it can continue even after the battery is removed. Coin battery in child's throat Coin battery in child's throat As batteries get smaller and are found inside remote controls, calculators, birthday cards and other small devices, these coin sized button batteries can be swallowed by children and stuck in the children's throats.  These devices sometimes are not designed correctly and the batteries can be too easily removed by children and then swallowed.  Severe burns, hemorrhaging and even death can result. Youtube: Joe Tunstall discusses the dangers of these batteries In 2010 alone, there were more than 3,400 swallowing cases reported in the U.S., according to Dr. Toby Litovitz, of the National Capital Poison Center. After ingestion of a button battery, the symptoms resemble those of the flu, including vomiting, fever, cough and lack of appetite. Data compiled from the National Poison Data System and the National Battery Ingestion Hotline, as well as a review of more than 8,600 swallowing cases and an analysis of recent medical literature, collectively explained how such accidents happen. In nearly 62 percent of cases, children under 6 are swallowing batteries they obtained directly from a consumer product. Nearly 30 percent find the batteries loose, while just over 8 percent get them from battery packaging. The danger of these coin sized batteries, both alkaline and lithium, is serious and the knowledge of the danger needs to be shared with the parents of all young children. The Battery Controlled is a campaign supported by Energizer, in partnership with Safe Kids Worldwide, to alert parents and other caregivers to the hidden danger of swallowing coin lithium button batteries. Visit their informational website at Battery Controlled or at safe kids button battery ingestion. If your child is injured due to ingestion of a coin sized button battery contact our office to discuss.  O'Malley Tunstall, PLLC or 800 - 755- 1987.

Cross Examination in an automobile collision or personal injury trial

Learning to do a cross examination is like learning to do anything else; you must practice, make mistakes and then learn from those mistakes to correct and hone your craft. If you ask a practicing trial lawyer, most will agree that learning to do a good direct examination that appears like a conversation, elicits the necessary information and does not result in constant objections is more difficult to master than a laser cross examination, however, even when you muddle through a direct, rarely can you do significant harm to your case like a poor cross examination. Below find the rules I keep posted in my trial cheat notebook. 1. Laser focus your cross examination. 2. Lead the witness, cross examination is not a direct examination. 3. Always complete your question with a yes or no answer only. 4. Follow your own order. 5. Start with eliciting helpful information for your case. 6. Don't overreach. Cross Examination is not a direct examination where you attempt to obtain information by asking open ended questions that allows a witness to answer in sentence or paragraph form. A good cross examination is a laser focused examination of what a witness has already testified to that allows you to question, exacerbate or challenge already given testimony. The work mistake I have seen over the years by adverse counsel in their cross examinations of my clients involve forgetting the point of cross examination and turning their examination into a deposition of my client. Cross examination is not the time to learn information nor is it a time to obtain information about my client that you did not already know. The old adage "Never ask a question at trial you don't know the answer to" is imperative when you are attempting to question a hostile witness. If you ask an open ended question whereby you are attempting to elicit information, you give that person an opportunity to spin and frame their answer in such a way that negatively impacts upon your case, i.e. you are no longer doing your job. Cross examination, when done correctly, does not have to go on forever. In fact, if you look at the rules I use for my own cross examination, you will see I attempt to remind myself at every stage not to over embellish my cross examination. I have seen an expert derailed in a few short questions and seen trials turn with a one sentence cross. The second biggest mistake I have seen in cross examinations is to forget how to frame your questions. If you are representing someone in a courtroom than you have some advance notice of the facts of your case. The only real exceptions to this rule are prosecutors in criminal district court who have the unenviable task of framing their cross examination while an officer whispers the true facts of the case in their ear. That exception aside, we are paid to prepare our cases in advance of the hearing or trial. For cross examination that involves becoming familiar with all the facts of the case, pouring over each witnesses testimony or potential testimony if not prior deposition was given and then framing every question for that witnesses in such a way that they; a. give positive information that helps our case first, b. that we shape our other questions in such a way they can only give a yes or no answer, but the question itself suggests the answer or facts. For adverse witnesses you must lead them in the direction of the answer you want them to reach by the way you ask the question. You may interject your own beliefs, thoughts and especially interpretations of the facts as you ask your questions. You must always keep in mind your audience. In front of a judge in a bench trial I have a lot more latitude with cross but I don't need to exhaust a subject or emphasize a point the way I like to do with a jury. Often in a short cross examination I may pause after asking an important question for upwards of fifteen or twenty seconds while I look at either the witness or the jury. Fifteen or twenty seconds can seem an eternity, but not long enough to get a judge to make you move on. In an automobile collision case where a young twenty-two or three year old witness was testifying that his mother had the green light my cross was two questions. First, Mr. Taylor isn't it true that you were sitting in the backseat immediately behind the passenger seat as you approached the intersection. Second, I'm sorry you broke your arm from the impact of this collision; I'm assuming a good young man like you would never have made a claim against your own mother, you didn't did you. In that case I really never cared what Mr. Taylor had said about the light being green or red. He was in the backseat and I found it a little ridiculous the defense lawyer was allowing him to testify at all. There were several other witnesses that had already testified my client had the green light. The issue for that case was that there had not been enough impact to cause my client's back injuries. In fact, the pictures of the damage to my client's vehicle were less than impressive. Therefore, I simply wanted to use his testimony to bolster my client's claim that it was a significant impact despite the low visible damage between the vehicles. Getting in that he broke his arm without even having that the main focus of the question was a bonus. Second, in a very anti-lawsuit county, I wanted the jury to understand the son had made a claim for his own damages which had been paid by his own mother's insurance company. This was a gift from the other attorney to put this young man on the stand; I had to take advantage of it without looking like a jerk. Always make sure your questions on cross end with only a yes or no answer. It does you no good to frame your question in such a way that helps you only to leave the door open for a witness to be able to explain away the answer. Yes, a very well prepared witness can always answer with, yes or no and then explain, but rarely does that help them and instead it appears they are trying to talk their way out of the answer rather than giving a good answer. The old lawyer saying is three hours of preparation for every hour of trial is never as true as in cross examination. Spend your cross examination time drafting numerous statements you want the adverse witnesses to say and then turn them into questions. Isn't it true that... is an easy way to ask just about anything. Then don't forget to narrow down your list of questions into a few narrow but powerful statements. Cross is still a laser being used as a paintbrush. You're cutting away the previous testimony to get to the heart of your issue with the witness and leaving a visual image in the jurors' minds. The visual image you want the jury to remember about a witness often does not follow in the same order as direct. You should never start by apologizing to the jury or the witnesses for skipping around, just do it. If you follow the same order as the direct examination you make it easy for the jury but you don't paint the visual image you wanted to paint, instead your helping to paint the other sides visual. Start by eliciting anything helpful. Why, well if I attack you first are you more likely or unlikely to help me? You also should never forget the idea of primacy and recency. I like to start cross by pulling out any fact that could help support my client's version of events and finish with the most helpful negative statements about the witness. This is not set in stone. If the witness has made big points you may need to take those points, those swords used against your client and break them over your knee one at a time without regard for pulling any positive information from the witness, or finishing with an obvious point the witness must agree with that makes their previous point look ridiculous. Don't forget, cross examination is your friend, use it as a tool. You pick the order of questions that best helps your client's position. It is also okay to jump back and forth between two or more unrelated points if you can get concessions or admissions from the witnesses on those points. Learning when to stop a cross examination and when to just not cross examine a witness at all is all about experience. If there is nothing you can gain, no positive point to make or concession your sure to draw out, sometimes it is better not to ask anything. In a civil case often the defense not asking any questions of a lay witness is more powerful than asking if they are friends and if the witness will do anything for their friend. Those questions just aren't helpful as the jury can put themselves in the position of the person testifying for a friend and would be annoyed by the implication the witnesses would lie for a friend. This does not mean you simply don't cross a tough witness. Often young attorneys will not cross a witness if they are unsure how to handle the witnesses and it appears to the jury that the attorney is admitting or consciously agreeing with the testimony. Even if you ask one question and make a point, even a little point, it makes since to ask that question if the witnesses hurt you. Less is often more in cross examination. Don't overreach and try to make the knockout blow in one sentence. The witnesses may not agree that it was a hard impact that could have injured someone, but they may agree with you that several people complained of pain at the scene, that the vehicle was pushed sideways by the impact, that the suddenness of the impact scared them, and that the plaintiff was very nice at the scene. Cross examination can also be the death of a thousand small cuts. I have seen good attorneys cut apart a witness and never go head to head with them. Instead they took individual statements they have made and by getting the witnesses to agree to these statements, that on a whole make them look ridiculous, accomplish more than they could have by attacking them directly. After conducting hundreds of cross examinations in trials and hearings, one resource still stands out; The Art of Cross-Examination by Francis L. Wellman. This book sets out the true art that is involved in examine a witness. I believe this book is now on the fourth edition and it gives a look into the human mind and the way humans interact that explains why attacking someone head on is so difficult. I cannot recommend this book enough. After reading the original book, recommended by my senior partner when I first began practicing law, the idea of attacking a witness through small, organized statements that they must agree with without taking the witnesses statements head on first began to make sense. I have always kept the information learned in this book in the back of my mind as I prepared for more and more cross examinations. One example in the book discusses multiple witnesses to the same incident each having slightly different perspective and thus each remembering the incident differently. You cannot change what someone believes they saw, but you can certainly get them to agree to enough facts so that the jury understands how those similar facts make your client's version of events more credible. The book also talks about the honest vs. dishonest witness. It is almost impossible to truly cross examine the dishonest witness as they will not agree with the facts that are obvious and will continue to push their viewpoint rather than the truth. Remember cross examination should not be about taking a sledge hammer to concrete, but instead like using a laser to cut a distinct line through marble.

North Carolina tainted steroid Fungal Meningitis Outbreak

Our attorneys are looking into the recent multi-state outbreak of fungal meningitis from tainted shots provided by the New England Compounding Center (NECC). The NECC has voluntarily expanded its recall to include all products currently in circulation that were compounded at and distributed from its facility in Framingham, Massachusetts. In North Carolina, three clinics have been identified as definitely receiving the recalled product: • High Point Surgery Center - High Point, North Carolina • Surgical Center of Wilson - Wilson, North Carolina • North Carolina Orthopaedic Clinic - Durham, North Carolina The FDA is currently looking into all products associated with NECC which could include up to 33 facilities in NC. The Centers for Disease Control and Prevention (CDC) has issued a Health Advisory (link), which contains updated information and guidance regarding the multi-state outbreak of meningitis and stroke associated with potentially contaminated steroid medication. As of October 26th the FDA announced serious concerns with the safety of the "clean room" of NECC and concerns about contamination going forward. FDA press release. As of 10/9/12, 13,000 people have been exposed to the steroid medication. 119 cases have been identified in 10 states, resulting in 11 deaths associated with this multi-state outbreak of fungal meningitis. In North Carolina there have been two (2) cases reported to date. Au of 10/23/2012 the associated press was reporting 308 cases with 23 deaths in 17 different states. If you have had an epidural steroid injection at one of the above facilities and have questions regarding your health, please see your doctor as recommended by the CDC. The CDC advises that "Patients have had symptoms generally starting from 1 to 4 weeks after their injection. Not all patients who received the medicine will become sick. Symptoms that should prompt patients to seek medical care include: fever, new or worsening headache, neck stiffness, sensitivity to light, new weakness or numbness, increasing pain, redness or swelling of the injection site." Our experienced drug recall attorneys would be glad to discuss your potential claim with you from our Eastern NC or Raleigh offices or contact us through our website: O'Malley Tunstall.

PI: Injured and now my Hospital wants to sue me rather than take my health insurance.

Often people first call our office out of concern over payment for large medical expenses as a result of an automobile collision that was not their fault.  The law in North Carolina after the passage of HB542 and SB 586 has changed and only a portion of any bill, that amount that is neccessary to satisfy a medical bill, is admissible to prove evidence of medical expenses. Rule 414 Evidence of medical expenses. Evidence offered to prove past medical expenses shall be limited to evidence of the amounts actually paid to satisfy the bills that have been satisfied, regardless of the source of payment, and evidence of the amounts actually necessary to satisfy the bills that have been incurred but not yet satisfied. In the real world, many clients debate whether or not to use their health insurance to pay their medical bills after an injury.  They don't want to use the insurance because it was not their fault, they are afraid of higher premiums and don't want to have the hassle of filing the insurance.  Often, many hospitals take that decision away from the patient by refusing to bill the health insurance regardless of whether the patient would like it billed or whether the patient has already paid for health insurance that should pay the bill. Many insurance companies, such as Medicare, are secondary payors.  That means they pay only if no one else pays.  However, even Medicare states that when a bill is left over 120 days it shall become primary and pay.  In these situations, insurance such as Medicare of the State Health Plan is entitled to obtain reimbursement for all the bills paid by them by the third party at the end of the case. Regardless of the reimbursement provisions (called subrogation) many hosptials take the decision away from the injured party and refuse to bill the person's health insurance hoping for a greater recovery from the at fault party in the collision.  However, the hospital doesn't take the risk of the patient recovering the amount from the at fault person's insurance, instead they often make claims against and sue the patient for the unpaid bill, even though they could have accepted the insurance. The Charlotte Observer has recently written a series of articles on these not-for-profit hospitals suing uninsured persons for their unpaid medical expenses.  Articles.  Another article by the Charlotte Observer even references a veteran with tri-care insurance whom they sued because they could not properly bill the insurance.  Article 2.  In another article Duke University failed to properly code an insurance bill and hired a collection agency to hound and call repediatly a couple who had proper insurance.  Article 3. Forbes Magazine has chosen to call this the Tort-Reform for Hospitals.  In their article they describe that not-for-profit hospitals are obtaining significant benefit from directly suing their patients rather than working with the insurance companies or using low paying health insurance such as Medicaid. Our clients, and many other persons injured through no fault of their own  should worry.  Just because you have been financially stable and smart, it will not prevent  

Medical Device problems continue for patients without judicial oversight

The New Englad Journal of Medicine, one of the most widely read medical journals, had two interesting artilces 1 and 2 this week on heart device failures even after Food and Drug Administration (FDA) approval.  The first  article is particularly troubling as the Supreme Court ruled that a plaintiff may not sue under state law to challenge the safety or effectiveness of a medical device to which the FDA has given "premarket approval."  Riegel v. Medtronic, Inc., 2008 WL 440744 (Feb. 20, 2008).   The premarket approval type of FDA approval--which reflects the agency's determination that the product is reasonably safe and effective for human use--establishes certain federal requirements that preempt state law remedies, including common-law claims for strict products liability, breach of warranty, and negligent design.  This decision, when it first came out in 2008, represented a significant victory for medical device manufacturers, protecting them from the risk of state court damage awards for devices that have been duly approved by the FDA. In the article, Riata and Riata ST implantable cardioverter-defibrillator (ICD) leads (St. Jude Medical), which are implanted in approximately 79,000 patients in the United States were discussed as having failure such that the leads came out of their protective coating and were only noticable upon x-ray or after study following an adverse event. The scary implication of the article is that the drug device manufactorer has little to no incentive to monitor the adverse effects post FDA approval.  In fact, the postmarketing surveillance system put in effect by the FDA is without backbone or ability to fully protect patients. As the Medtronic Sprint Fidelis lead involving 268,000 patients who received leads that had the potential to fracture, have finally been resolved via litigation, it seems that once again only through litigation will the drug device manufacturer have to protect its patients who are the most vulnerable... only the Supreme Court in Riegel v. Medtronic has hampered the ability of the attorneys who can get justice from protecting those in need.  Its time to recognize that our American system of government with the proper checks and balances, which includes an active judiciary, be given its proper due as the best system of government in the world and our Supreme Court should take into consideration that self regulation by an industry without proper judicial oversight is merely a pipedream.

Pradaxa: Drug for atrial fibrillation high incident of blood clots or strokes

Pradaxa is an anti-coagulant, or blood thinner, used to prevent blood clots and strokes in people suffering from an irregular heart beat known as atrial fibrillation. With atrial fibrillation, patients have a higher risk of forming blood clots which can travel through the body and cause strokes. Pradaxa is used to lower the chance of blood clots forming.
Pradaxa is manufactured by German drugmaker Boehringer and just received FDA approval last year.  Unfortunately, severe problems with the drug are already being reported as Pradaxa is proving to cause excessive internal bleeding.  The FDA is currently investigating Pradaxa.

Supreme Court: No Liability for Generic Medication Manufacturers

Recent calls into my office have sparked my thoughts back to the non sequitur that is the recent decisions of our U.S. Supreme Court with regard to which injured plaintiffs may recover from drug manufacturer.

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