Illinois Injury Lawyer Blog

During this New Years and holiday season, Illinois Secretary of State Jesse White is urging Illinois citizens to be safe and designate a sober driver. Jesse White stated: “Let’s ring in the New Year responsibly. Please don’t drink and drive and remember to buckle your safety belt – it’s your best defense against a drunk driver. If your celebrations for 2011 include drinking, designate a sober driver or use public transportations.”

As our readers are aware, drunken driving is a leading cause of Chicago motor vehicle accidents and personal injuries. According to the Illinois Department of Transportation (IDOT), there were six crash fatalities in 2009 during the New Year’s holiday. Of those six crash fatalities, three of them were alcohol-related. This is 50% and the extremely disappointing part of that statistic is that these alcohol-related personal injuries are preventable! During the same period in 2008, there were 10 crash fatalities, three of which were alcohol-related. No guess was made as to the increase in percentage of alcohol-related crash fatalities from 2008 to 2009. Illinois Secretary of State Police will be on patrol during the holiday weekend to keep the roads safe. The police will be conducting DUI and seatbelt patrols with the Illinois State police and IDOT.

Continue reading "Illinois Secretary of State urges people to designate sober drivers for NYE" »

One of the popular Christmas presents for you this year, especially with Chicago winters, may be a pair of warm pajamas. But, be careful – one of the biggest issues with product liability is adult sleepwear flammability. And it has been for a while – so much so that in 1953, Congress created the Flammable Fabrics Act as a means of setting standards for the flammability of clothing textiles. The Act’s intent was to create a procedure for testing and determining if clothing was at risk for igniting when exposed to open flame or optimal heat, especially when worn. Almost twenty years later, in 1972, Congress created the Consumer Product Safety Commission (CPSC), which then oversaw the flammability standards. While the CPSC published and evaluated the Flammable Fabrics Act, the majority of the new language involved children’s clothing and it only mentioned very little about adult sleepwear.

The Act’s scant mentions of adult sleepwear flammability leave out a significant portion of individuals subject to potential product liability. Simple household activities can lead to clothing catching fire, especially among individuals who regularly cook. Sleepwear, which is often loose fitting, can be exposed to intense heat or flame from stovetops and ovens. And because of the lack of adequate standards for safety, adult sleepwear is commonly made from flammable materials. So, please, in order to avoid burn injuries, practice caution when working around the house near hot items or fireplaces.

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The U.S. Food and Drug Administration (FDA) urged a change to the product labeling for Januvia, an oral Type 2 diabetes drug, over a year ago regarding various Januvia side effects. Many are arguing that the FDA was slow to urge this change regarding the drug side effects, given reports of adverse reactions that had been coming in since Januvia had been approved. On the other hand, Public Citizen had posted Januvia to its Worstpills.org website in June 2007, advising that Januvia should not be used until seven years after its introduction on the market – no earlier than 2014.

In October 2006, Januvia was approved by the FDA and the adverse reactions began rolling in shortly thereafter with the FDA receiving reports of pancreatitis with Januvia starting the very month that the drug was approved. Of 88 reports of pancreatitis reported from October 2006 to February 2009, 19 patients suffered the onset of pancreatitis within a mere 30 days of starting the Januvia drug. Public Citizen noted that even in clinical studies, trial participants were found to experience an increased level of creatinine in their bodies, which is often an early indicator of kidney problems. Anyone considering a Januvia product liability lawsuit may consider the lag time between October 2006 – when the first negative side effect reports were received by the FDA – and September 2009 – when the agency revised the drug’s warning label. This time should have spent to prevent further suffering by those who take Januvia.

Public Citizen is a well-established and trustworthy consumer advocate group, who has an enviable track record of raising concerns about potentially problematic drugs and remains ahead of the curve.

Visit Public Citizen for more information on their early warning against Januvia.

Our city mourned when two Chicago firefighters were killed on Wednesday when the roof of an abandoned Chicago building collapsed on them. Documents uncovered now show that the deadly fire in the abandoned building was a wrongful death accident waiting to happen. Chicago city building inspectors had filed a lawsuit against the owners of the building three years ago after finding multiple violations, including rotting trusses and holes in the roof. Inspectors discovered fourteen building code violations, deeming the structure unsafe and unstable.

Now, the findings sure to get the most attention now are the faulty roof that collapsed during the fire, causing two firefighter deaths early this week. Count seven of the Chicago lawsuit says that there were holes in the roof, which was rotting and leaky. Count 9 demands the building owners restore the roof’s load-bearing capacity after inspectors found that the trusses in the roof and wooden support beams were rotted and vented. Last year, the building owners entered into a consent decree saying that they would either repair the violations or sell the property by November 1, 2010, but the building department said they did neither.

Chicago firefighters approach a fire like the one burning Wednesday morning very cautiously. The abandoned building was built with what is called a bow truss roof, which are prone to collapse during fire. They are instructed not to enter a burning bow truss roof building with an exception. If firefighters believe someone could be inside the building, they conduct a search and rescue operation. And, people in the neighborhood had told firefighters that homeless sometimes used the abandoned building for shelter.

All of Chicago will be keeping the firefighters in our thoughts as more information comes available about the deadly fire. To read more about the deadly Chicago fire, visit Fox Chicago.

The Los Angeles Times recently reported that a Sacramento mother and the Center for Science in the Public Interest filed a product liability lawsuit against McDonald’s Corporation. In the product liability lawsuit, the plaintiffs allege that McDonald’s practice of giving toys with children’s meals is deceptive to children. The group has threatened to sue the McDonald’s company since last summer, repeatedly arguing that the Happy Meals toys constitute a method of circumventing parental control and teach children unhealthy eating. The product liability complaint, which was filed in San Francisco Superior Court, also accuses the company of false advertising. The Los Angeles Times explains that the product liability lawsuit alleges that McDonald’s exploits very young California children and harms their health by advertising unhealthy Happy Meals with toys directly to them.

The plaintiffs are arguing that by advertising that Happy Meals include toys, McDonald’s has helped create and exacerbate a super-sized health crisis in California. The nonprofit group seeks class-action status on behalf of all of the state’s children under 8 years of age who have seen the marketing for the company’s packaged children’s meals since December 2006. The Los Angeles Times added that as the debate over Happy Meals and childhood obesity raged, McDonald’s consistently pointed out that parents can choose apple slices instead of French fries for their children and order milk instead of soda. One issue that the product liability lawsuit is raising is whether people alone are responsible for exercising their free will when making nutritional choices.

Read more about the McDonald’s product liability lawsuit at the Los Angeles Times.

The National Law Journal recently addressed the widespread critical response to the American Tort Reform Association’s annual survey of so-called “judicial hellholes.” This year, Philadelphia ranked number 1 in the corporate-sponsored group’s annual survey set to be released soon. The survey is conducted by the American Tort Reform Association, a group in Washington fully backed by business groups, and pushes for – often divisive and prohibitive – changes to the tort system. The American Association for Justice spokesman dismissed the annual ranking, stating “Despite all the chemical companies and polluters behind this front group, it appears that the American Tort Reform Association is going green – recycling the same junk report that has been debunked and ridiculed year after year. It’s an early holiday token of thanks to its drug, tobacco, and insurance industry funders and a ploy for these corporations to continue their negligent behavior and avoid any accountability.” The statement continued that the effort is funded by negligent corporations and industries to undermine the civil justice system and prevent American workers and consumers from getting justice.

Illinois made an appearance in this year’s “judicial hellholes” list – of course to no surprise of Illinois personal injury lawyers or Illinois medical malpractice lawyers. Illinois has a long history of being a target for so-called “tort reform.” If you recall, Illinois Supreme Court Justice Kilbride was recently a target of a corporate-funded attack on his judicial retention. Despite widespread support from legal groups, judicial associations, and the fraternal order of police, corporate-funded out-of-state tort reform pushers sought to unseat Justice Kilbride through nasty attack advertisements. What did he do to deserve this unwanted attention? He simply sided with the majority of the Illinois Supreme Court in striking down an unconstitutional “cap” on compensation for victims of Illinois medical malpractice. Luckily, their corporate money failed to deter the retention election for Justice Kilbride in Illinois. However, other states and other judges should hold their ground and be vigilant as corporate-backed groups will likely try to continue to unseat judges they view as opposed to jury award limits.

To read more about the so-called judicial hellhole list, visit the National Law Journal.

A foreign pharmaceutical company has recently agreed to pay $203.5 million to resolve criminal and civil product liability complaints that it improperly marketed the antiseizure medicine Zonegran for weight loss and mood stabilization, according to the Ne w York Times. The Justice Department announced additionally that another drug maker agreed to pay $11 million to resolve a civil case for off-label marketing of Zonegran after it bought rights to the drug from the other company in 2004. The cases rose from a 2004 whistle-blower filing by a Massachusetts psychiatrist who said he had been courted by the pharmaceutical company, sent to a conference, and asked to prescribe the drug for weight loss. The company promoted the drug for uses including mood stabilization, bipolar disorder, migraine headaches, weight loss, and seizures in children. According to the Justice Department, the off-label marketing efforts targeted non-epilepsy prescribers and the company paid illegal kickbacks to physicians in an effort to persuade them to prescribe the drug for off-label uses. This settlement is part of the government’s emphasis on combating health care fraud. One of the most powerful tools at the government’s disposal is the False Claims Act, which the Justice Department has used to recover more than $5 billion since January 2009 in cases involving fraud against federal health care programs.

Experts have also reported that the False Claims Act can root out nursing home abuse, fraud, and neglect. By law, nursing homes cannot receive funding from public health care programs like Medicare or Medicaid unless the facility cares for its residents in a manner respecting the quality of life of each resident. A key provision in the False Claims Act allows persons with knowledge of fraudulent claims being submitted to federal programs to bring a lawsuit against the facility on behalf of the government. Another provision allows whistleblowers to earn between 15 and 30 percent of money recovered by defendants.

More information about the large product liability settlement is available at The New York Times.

To read more about the False Claims Act used against nursing home abuse, read our former blog post.

The Associated Press is reporting that the Food and Drug Administration (“FDA”) is cracking down on manufacturers of certain weight loss, body building, and sexual supplements that contain potentially dangerous ingredients. The FDA said last week that some manufacturers are deceptively labeling products to hide that they contain ingredients known to cause adverse health effects. Further, other supplements contain ingredients that should only be available by prescription. Dietary supplements can slip through regulatory cracks because, unlike drugs, they do not have to be approved by the FDA before they are marketed. Such “slipping through the cracks” is dangerous! Some of the weight-loss supplements contained the active ingredient in the recalled diet drug Meridia, which was pulled off of the market a couple of months ago due to heart risks.

Continue reading "FDA targets tainted supplements manufacturers" »

A report by the American Association for Justice (AAJ) reported that 95% of the toys in the United States now come from abroad and many of them would not receive a thumbs up for safety from Santa! For example, once Chinese manufacturers were taken to task on the lead issue, they replaced lead with cadmium! Cadmium is number SEVEN on the top 10 list of cancer-causing materials. Noteworthy considering our country’s importations of toys from China, toy-related injuries have increased 54% over the last decade!

Be on the lookout for hidden dangers. A lot of these toys contain tiny magnets; if they come out of the toys and are ingested, they can cause incredible problems with the intestinal tract. If two or more magnets are digested, they can attract each other in the digestive tract, causing pinched, blocked, or twisted intestines. Additionally, scrutinize foreign products like toy jewelry, which can contain lead, lead plant, or other cancer-linked elements, such as the always-popular-in-China cadmium! Between 2005 and 2007, studies showed that more than 20% of toy jewelry contained unsafe levels of lead. Defective toys can be available on the shelves for years. A Public Citizen analysis found that companies waited more than two years on average to inform the Consumer Product Safety Commission about defects. Then, the agency took more than 200 days to inform the public. The federal government is so overwhelmed and understaffed, the lawyer organizations are helping out by forcing these manufacturers to deal with it!

Read more about safety issues for foreign toys at American Association for Justice.

A voluntary product recall that was all over the news from DePuy Orthopedics, a subsidiary of Johnson & Johnson, involved two of its DePuy hip replacement implants. Its website states that data received by the company shows that more people than expected who received the ASR Hip System experienced pain or other problems. The two recalled hip replacement systems are the ASR XL Acetabular System and the DePuy ASR Hip Resurfacing System.

Continue reading "DePuy hip replacement lawsuits coming" »

The parents of an asthmatic girl have filed a wrongful death lawsuit against haunted house operator Halloween Productions, Inc. According to the wrongful death lawsuit filed by father Durand Tyler, artificial fog and sickly scents were to blame for his daughter’s breathing problems and eventual wrongful death. The wrongful death lawsuit claims that by the time the wrongful death victim reached a hospital, her brain had been deprived of oxygen for at least seven minutes. The wrongful death victim’s mother had previously filed a personal injury lawsuit in April. The newest lawsuit was filed to financially protect both parents who face at least 1 million in medical bills.

The wrongful death lawsuit also alleges that the business failed to provide a safe environment for its customers suffering from respiratory ailments and failed to adequately and timely monitor the chemical in the air. Halloween Productions presented replied that the allegations are false and declined further comment because of the ongoing legal dispute. The site also stated that warning signs were clearly in place at the attraction advising against entry if one is pregnant, claustrophobic, prone to seizures, heart problems, or respiratory problems.

Continue reading "Haunted house faces wrongful death lawsuit" »

The Food and Drug Administration (FDA) has issued a product warning to a company that manufactures a popular teeth straightener about its failure to report information about patient side effects. The popular teeth straightener, the Invisalign system, is made by Align Technology Inc., who acknowledged this week having received a November warning letter from the FDA after an inspection this summer. The letter accused the company of failing to comply with federal requirements to report serious product side effects associated with medical devices. The letter cited some patient complaints about allergic reactions to the Invisalign trays, including swollen lips and mouth ulcers. The company’s general counsel says that the company is working to resolve the issues.

Products liability is an area of personal injury law that focuses on dangerous and defective products. “Products” include a wide range of categories, like the Invisalign system above. The “products” also include items such as medical devices, machinery and tools, medicine and drugs, food and tobacco, toxic chemicals and substances, firearms, autos and other motor vehicles, automobile accessories, household products and appliances, toys and recreational equipment, and clothing and apparel.

Continue reading "Invisalign maker gets FDA warning on side effects" »

The United States Consumer Product Safety Commission (CPSC) recently approved a Final Rule that will establish a publicly accessible consumer product safety complaint database. Manufacturers will no longer control the flow of information about their products; consumers will now be able to report their own complaints and research others via a web interface for the first time since the commission’s creation. The web interface is expected by spring. The CPSC vote was 3-2. The vote represents a huge victory for consumers and supporters of open government against unsafe products. It will provide the public access to critical product safety information that the CPSC was previously required to keep behind closed doors.

Continue reading "Product safety takes a big step forward" »

An interesting Chicago Daily Law Bulletin article addressed a recent First District Appellate Court affirmation regarding a denied motion to transfer an Illinois medical malpractice lawsuit. Justice Robert E. Gordon explained in the opinion that the interest in deciding controversies locally may not be as strong in a medical malpractice lawsuit as in other litigation because the jury pool in DuPage County may include people familiar with the physicians and hospitals in their small county. As a result, it could be more difficult to find 12 fair and impartial people in DuPage County compared with Cook County.

Additionally, Justice Gordon reasoned that the unfairness of imposing trial expense is really not a consideration when the two county court locations are a mere 32 miles apart. While the burden of jury duty on residents of a forum that has little connection to the litigation is always a consideration, the fact that the jury pool in DuPage County may include people more familiar with the medical providers makes that forum less of a consideration. Justice Gordon further expressed that the court dockets of both counties are similarly congested and the administrative difficulties of adding the case to either docket could have little or no effect. The distance between the two courthouses – 32 miles – was discussed explaining why the convenience of the parties should not be significant.

In affirming the denial of the defendant’s request to transfer the Illinois medical malpractice case, the First District Appellate Court highlighted Illinois Supreme Court jurisprudence. Justice Gordon also noted that the Illinois Supreme Court has held that the plaintiff has a substantial interest in choosing the forum where his rights will be vindicated and the plaintiff’s forum choice should rarely be disturbed unless the other factors strongly favor transfer.

Read more about the Appellate Court opinion at Chicago Daily Law Bulletin.

The American Association for Justice reported that unforeseen hazards continue to be present in toys despite recently improved safety standards, demonstrated the necessity for a strong civil justice system that protects children who may be personally injured from such toys. The strong civil justice system must also hold negligent manufacturers accountable. For years, corporations have knowingly shipped unsafe toys with hidden dangers like small parts, loose magnets, asbestos, and other toxic chemicals until outrage from parents and civil actions forced regulators or manufacturers to act. As toys have become more sophisticated, so too have the risks associated with them. As American Association for Justice President reported, protecting our children requires vigilance from everyone. Regulators, parents, manufacturers, and the civil justice system all play a part in keeping dangerous toys off store shelves.

Our Chicago injury attorneys want to highlight recent product recalls that may affect children on your holiday gift lists. Rocking Horse Depot’s small, medium, and large rocking horses with bridles have been recalled because the reins on the rocking horse are long enough to form a loop around a child’s head and neck, posing a strangulation hazard to young children. Additionally, Big Ideas Marketing has issued a product recall to the horse-on-a-stick toys sold at Love’s Travel and Country stores due to a strangulation hazard. Also concerning is that Munchkin, Inc. has issued a product recall for bathtub toys due to a risk of injury. The intake valve on the bottom of the submarine toy can such up loose skin, posing a laceration hazard to children.

Keep up to date on product recalls by visiting the Consumer Product Safety Commission website.

A recent Illinois Bar Journal article regarding New Ethics Rules by Donald E. Weihl looks into the new version of Rule 3.7 and provides explanations for Chicago-area and all Illinois attorneys. Though the new version of Rule 3.7 does not change the law, it expresses more clearly the circumstances under which lawyers must refute a case because they might be called to the witness stand. The old rule read: “(a) a lawyer shall not accept or continue employment in contemplated or pending litigation if the lawyer knows or reasonably should know that the lawyer will be called as a witness…” The new rule reads: “A lawyer shall not act as an advocate at a trial in which the lawyer is likely to be a necessary witness.” The new rule expressly applies to trial situations whereas the old rule was unclear. The new wording implies that the attorney may take new business or continue old business as long as he or she does not act as an advocate in court proceedings.

Nothing in the Illinois Professional Conduct Rule 3.7 prevents an attorney who may not act as an advocate at a trial from participating in other phases of litigation. The comments in the new rules also make it crystal clear that the purpose of the rule is to avoid prejudice. As long as the attorney does not act as an advocate or have a conflict of interest, the attorney can be retained or continue an existing engagement. The guidance following the new version of the rule in the comments provides an in-depth analysis and makes extensive research into the meaning of the rule unnecessary for Illinois attorneys.

More information for Illinois attorneys is available in the November 2010 issue of the Illinois Bar Journal.