Tennessee Injury Lawyer Blog

When we take our families to amusement parks and themed parks like Disney, we expect that the experience will not only be fun and enjoyable but also safe for the ones we love. However, the incident with the incident involving a toddler and an alligator ended in tragedy and may have been preventable.  So now what will Disney do?  What legal rights does this family have to get answers for their horrible loss?

According to reports, the toddler was wading in the shallows of the Seven Seas Lagoon at Disney’s Grand Floridian Resort and Spa around 9:00 p.m. on Tuesday when an alligator grabbed him and pulled him under the water. His father, Matt Graves, rushed into the water and sustained lacerations on his hand in an attempt to fight off the alligator. He then summoned a lifeguard from a nearby pool, who was also unable to rescue the boy. After a 16-hour search, the boy’s deceased body was discovered fully intact – just 15 yards from where he was taken.

Disney, like any hotel operator has a duty to keep their guest safe.  A duty to warn the guest of any known dangers.  We all feel that places like Disney are so secure it is very understandable how a family from outside the area would be oblivious to the dangers lurking in that lake. It appears there were signs that read “no swimming” posted in the area but no signage warning of alligators, a Disney spokesperson confirmed to PEOPLE. Orange County Sheriff, Jerry Demings say that, “The boy was splashing in about 6 inches to one foot of water at the time of the attack. I believe what this 2-year-old was doing was perhaps what any 2-year-old would be doing.”

Most of us drive vehicles to and from work and to take our kids where they need to go each day. This means we need our vehicles to be safe and reliable for our loved ones and families. Unfortunately, sometimes vehicles have faulty parts such as tires, door locks, brakes, air bags and more. This is when we have to put our trust into companies and manufacturers to tell us when there is a recall on these items so that we can make sure our families stay as safe as possible. However, what happens when the system that issues recalls for things like defective tires also fails. Then we have a big problem because our safety is at risk.

Investigators from the National Transportation Safety Board and Dr. Rob Molloy, acting director of the NTSB’s Office of Highway Safety, “The federal recall system that is supposed to keep potentially dangerous car tires off the road is “completely broken.” The investigators said that while each year tire problems cause 33,000 accidents and kill 500-plus motorists, only one in five defective tires is being taken out of service via recalls. More than half of recalled tires remain in use.

As the Tennessee grows, tragic accidents between cars and people have dramatically risen.  In fact, there have been one hundred and twenty pedestrians and bicyclists killed as of December 29, 2015.  Six  other pedestrians died in Nashville in November and December raising alarm among advocates and a new round of questions about why some people continue to be injured or killed on infamously dangerous streets, like Harding Place.  Mary-Pat Teague, chairwoman of Metro’s Bike and Pedestrian Advisory Committee was surprised by the high numbers and stated that, “A couple of these recent fatalities, people were crossing the street mid-block, out of a crosswalk , always very dangerous  but they were crossing because that’s where the bus stop was.”

Nashville’s Bike and Pedestrian Advisory Committee or BPAC and the on-profit Walk Bike Nashville, has been considering a move toward a “Vision Zero,” program that strives for zero fatalities. Teague stated that he program, as adopted in other cities, typically includes an education campaign about safe crossings, an analysis of speed limits in known danger areas, and engineering changes that try to anticipate driver errors. Mary-Pat Teague also went on to say that the “Police are doing everything they can to investigate and look at these issues, but they need help with policy changes, I believe.” Metro continues to examine crosswalks and police enforcement while the Tennessee Highway Patrol is also making pedestrian safety a priority in 2016. Lt. Bill Miller said he worries about distraction and not just for drivers. He asks, “Is there something that we can do to better educate the public as to the dangers that are involved with walking and being distracted at the same time?” Miller also went on to state that, “It’s an urgent challenge because 10 percent of roadway fatalities now involve people outside of vehicles. We are, unfortunately, being hit very hard with non-motorized and pedestrian fatalities. That is going to be one of our primary areas of focus in 2016.”

To help combat the epidemic of elder abuse, on March 30th of 2016, the Department of Justice  made an announcement about the formal launch of 10 regional Elder Justice Task Forces designed to identify nursing homes and other long-term care  facilities that provide “grossly substandard care” to residents. This is similar to a team previously launched by the Department of Justice known as the Medicare Fraud Strike Force and Health Care Fraud Prevention & Enforcement Action Team or HEAT initiative, the newly created Elder Justice Task Forces will focus on coordination and information sharing among federal, state and local enforcement agencies to combat suspected cases of physical abuse and financial fraud of the elderly.

Every task force in this new Elder Justice Task Force  will consist of representatives from the U.S. Attorneys’ Offices, state Medicaid Fraud Control Units, state and local prosecutors’ offices, the Department of Health and Human Services, state Adult Protective Services agencies, Long-Term Care Ombudsman programs and other law enforcement officials. These task forces will also have a national footprint with locations in the following districts: Northern District of California, Northern District of Georgia, District of Kansas, Western District of Kentucky, Northern District of Iowa, District of Maryland, Southern District of Ohio, Eastern District of Pennsylvania, Middle District of Tennessee and the Western District of Washington.

These new Elder Justice Task forces mean that there is increased interest and attention being focused on the Long Term Care industry, maybe due in part to the Centers for Medicare and Medicaid Services’ proposed rule, last summer, to overhaul requirements for participation by Long Term Care facilities in federal health care programs.

Gloria Ristesund used Johnson & Johnson’s talc powder products on her genitals for years and she was later diagnosed with ovarian cancer as a result. She had to have a hysterectomy and several other surgeries because of the cancer. The cancer is now in remission. Ristesund was awarded awarded $5 million in compensatory damages and $50 million in punitive damages for Johnson & Johnson’s failure to properly warn consumers about the cancer risks associated with talc powder.

J&J spokeswoman Carol Goodrich stated that the verdict contradicted 30 years of research supporting the safety of cosmetic talc. The company intends to appeal and will keep defending its products’ safety.  This is however, the second trial loss for Johnson & Johnson over their talc powder products. The company is facing one thousand two hundred lawsuits that allege the company failed to properly warn people about these cancer risks.

Virgil Hood handled paints and paint thinners manufactured by E.I. DuPont de Nemours daily while working as a painter between 1973 and 1996 for Timpte Trailers, a manufacturer of semi-trailers. He also worked for Continental Airlines. Hood was diagnosed with myelodysplastic syndromes also known as acute myeloid leukemia in 2012. The lawsuit states that he received chemotherapy treatments and after having a bone marrow transplant, he experienced “horrific complications” that included his having pneumonia three times as well as temporary blindness and significant weight loss. The lawsuit also stated that, Hood was battling graft-versus-host disease, in which his body and the new bone marrow are literally attacking one another and experiencing side effects caused by the drugs he took to prevent his body from rejecting the new bone marrow. Although he still worked while undergoing chemotherapy treatments, he had to retire after the transplant.

During the trial, evidence showed that DuPont, the manufacturer of the paints that Hood worked with, that from 1938, DuPont knew that benzene exposure causes bone marrow disease and by 1954, DuPont had warned others to remove benzene from paints. By the late 1960s, it was well established that benzene causes leukemia. Hood representation stated that, “DuPont chose not to take the benzene out of its products or to warn workers like Mr. Hood about the hazards. Instead in 1975 DuPont marched one of its executives before OSHA to deceive the government about cancer hazards of its paint products.”

Another member of Hood’s legal representation during the trial, stated that, “When DuPont learned that the government was considering a safety standard, it thought only of costs to its business. Rather than simply place a cancer warning on its paints, DuPont’s expert presented shoddy test results to OSHA that were nowhere near real-world conditions. DuPont’s whitewashed testing was designed to create the appearance that workers exposed to benzene levels 5 to 10 times above the proposed standard would still be safe.”

Truck drivers are required by federal law to pass health tests before they drive, but many of these drivers keep certain medical conditions and problems a secret which could mean that they should not be on the road because it could be dangerous and lead to accidents. In one recent case, Ruthie Allen was one of thirty-five passengers that was injured when a Greyhound bus drove off an interstate. The driver allegedly blacked out. Allen stated that, “I started yelling at the driver but I didn’t get a response. The bus started to tumble. I looked down and I saw the bone in my thigh protruding through my clothing.”

The bus accident is still under investigation, however, according to the accident report the driver, Dwayne Garrett – told police he was drinking coffee, started coughing and lost consciousness. However, no coughing is heard on the dash camera video. A few weeks before the accident occurred, a Department of Transportation medical examiner suspected Garrett might have sleep apnea , a breathing condition that disrupts sleep and leads to fatigue. If untreated, it disqualifies a driver from operating a commercial vehicle like a bus. Garrett got a ninety day waiver and was told to get tested. When Garrett was questioned about what the doctor said, Garrett said that, “He claimed that I had one of the markers for sleep apnea, which was he could not see the back of my throat.”

According to reports, Garrett saw his his personal physician, Dr. Robert Kunkel, also a Department of Transportation examiner. He acknowledged the Department of Transportation’s suspicion about sleep apnea, but Kunkel claims Garret failed to disclose some key symptoms and a referral to get a sleep test, which he says prevented further evaluation. A court-ordered sleep test ultimately diagnosed Garrett with sleep apnea. He is now disqualified from driving commercially.

When we go to the doctor and get medication for an illness or medical condition, we expect these medications to be safe and to help us feel better. Unfortunately, sometimes medications have dangerous side effects that can cause more problems and even end up making us worse than before we received the medication.   According to a recent lawsuit filed on December 15th of 2015, the plaintiff claims that they did not know about the seriousness and particulars of the dangerous side effects of Invokana when she was prescribed the medication. She began taking the medication in December of 2014, when it had been on the market for about a year. She claims that soon after taking the medication, she developed diabetic ketoacidosis, alleged to be a serious, life-threatening condition about which the health care community has become increasingly aware as an emerging Invokana side effect among the many adverse events of Invokana.

The plaintiff, while alleging that she did not previously know about the seriousness of the Invokana side effects, has also claimed that Janssen, a unit of pharmaceutical giant Johnson & Johnson, failed to properly warn consumers about the possible risks and drawbacks of Invokana. The lawsuit claims that the Johnson &Johnson company failed to properly study and vet the type 2 diabetes drug before bringing it to market in 2013.

The lawsuit’s final claim is that Janssen improperly promoted Invokana off label for treatment of type 1 diabetes, as well as for the treatment of hypertension. Doctors have always carried the blessing of the US Food and Drug Administration  in prescribing drugs for indications not necessarily approved by the FDA. The thinking being that doctors have the capacity to study and understand the formulation of drugs, and thus are in a position to undertake a medical judgment call on behalf of their patients. The FDA, in this way, defers to the doctor. However, it is illegal for pharmaceuticals and manufacturers to market a drug off label, for uses and indications not specifically approved by the FDA.

 Recently, a jury made a dramatic ruling in favor of five individual plaintiffs after a long consolidated trial about the defective Pinnacle Hip Implants manufactured by DePuy Orthopaedics and Johnson & Johnson have been awarded $502 million. In this case, DePuy Orthopaedics and Johnson & Johnson was found liable  for hiding flaws in its Pinnacle line of metal on metal artificial hips that caused the devices to fail prematurely and left them facing revision surgeries and pain. The jury found that the hips sold by J&J’s DePuy unit under the Pinnacle brand name were defective and company officials knew about the flaws but failed to warn patients and doctors of the risks.

The jury found that DePuy took a number of short cuts getting the Pinnacle hip implants on the market, in part due to the 510(k) approval process, which only requires a device be substantially equivalent to devices already in use. The company did not seek premarket approval, and so avoided the Food and   Drug Administration’s requirement to determine if a device is safe or effective. There were no Pinnacle hip clinical trials to see if it even worked, or if it was safe to use.

The Food and Drug Administration released new guidance for metal-on-metal hip replacements in January 2013, indicating that doctors should only use the design if other artificial hip implants are not appropriate. The agency also determined that future metal-on-metal hip designs will be required to undergo extensive human clinical trials before they will be approved.

The Tennessee Supreme Court issued a recent opinion clarifying what law can be used to prove negligence on behalf of a nursing home. The decision came as a result of a case brought by on behalf of a nursing home resident, Martha S. French. Specifically, the daughter of Ms. French brought a wrongful death case against the Stratford House nursing home claiming ordinary negligence and negligence per se. The lawsuit led to the filing of a motion for partial summary judgment, dismissing the negligence per se and Tennessee Adult Protection Act claims in addition to the claim for punitive damages. The Court of Appeals affirmed in part, but vacated the order dismissing the punitive damages claim. The administrator of the estate appealed.

According to this case, Martha French was fifty-four years old when she suffered her second stroke and was admitted to Highland Manor Nursing Home in 2000. After three years, Ms. French’s daughter arranged for her to be transferred to Stratford House, a long-term care facility in Chattanooga, TN. When she was admitted to the nursing home, French did not have any pressure sores. The nursing home’s care plan recognized that French had limited mobility which made her a risk for developing pressure sores. The care plan stated that French should be turned and repositioned frequently by nursing home staff, kept clean and dry after incontinence, and provided adequate hydration and nutrition.

While she was at Stratford House, French’s condition worsened. Then, on July 23, 2003, Ms. French’s daughter again moved her mother, this time to Erlanger Medical Center. Ms. French had a low-grade fever and low blood pressure. Doctors at Erlanger tried to increase her blood pressure as well as treat a urinary tract infection and a number of infected pressure ulcers. Despite these efforts, Ms. French developed pulmonary swelling and required help breathing. Ms. French died on July 26, 2003 from sepsis. French’s estate determined that she suffered from decubitus ulcers that were so severe that the kidney became necrotic and infected. These injuries became septic and led to her death. The estate alleged that Stratford Home failed to provide the medical treatment and ordinary care that Ms. French’s condition required.

Contact Information