Posted on November 09, 2018 in Aviation Litigation

By Timothy Tomasik

Investigators determined that Boeing’s 737 Max jet, operated by Lion Air jetliner, experienced erroneous AOA readings causing pilots to battle the jet plunging at approximately 600 miles an hour into the Java Sea. The Federal Aviation Administration plans to order airlines to follow Boeing’s Operations Manual Bulletin (OMB), an advisory on how pilots should handle false readings from an AOA (Angle of Attack) sensor. Tragically, this catastrophe took the lives of 189 passengers and crew on October 29, 2018.

The AOA sensor determines whether the airplane, or its wings, are properly angled against oncoming wind in order to maintain lift and prevent the airplane from falling out of the sky. If the sensor malfunctions, however, the airplane’s control system erroneously reacts to an aerodynamic stall – as if the airplane were falling out of the sky – causing the plane to take corrective measures, such as abruptly diving.

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 Posted on July 05, 2018 in Personal Injury

By Timothy Tomasik

A court has rejected the $72 billion dollar rideshare giant’s most recent attempt to force its riders behind closed doors. In reversing the lower court, the First Circuit ruled that Uber’s mandatory arbitration clause was unenforceable.

In the suit, Uber recognized riders confronted with lengthy sets of terms and conditions rarely, if ever, review the fine print on their iPhones while signing up. Notably, Uber did not argue that any of the Plaintiffs actually saw the arbitration clause which waived their right to a jury trial or even clicked on the "Terms of Service & Privacy Policy" button. Rather, it relied solely on a claim that its presentation of the clause was sufficiently conspicuous to bind the Plaintiffs whether or not they chose to click through the relevant terms and arbitration clause.

Why does this ruling that Uber failed to properly communicate the terms of its arbitration provision matter for riders nationwide? Arbitration clauses prevent victims from going to court and discussing their cases publicly. Instead, riders and drivers are forced into what amounts to a privatized court system where the rules and practices favor businesses over consumers. There, judges and juries have been replaced by arbitrators who receive repeat business from companies like Uber and Lyft. Conversely, class actions provide a means for people to band together to pursue justice when companies engage in widespread violations of the law.

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 Posted on May 17, 2018 in Prescription Drugs

By Lindsay Proskey

Recently, the Seventh Circuit dismissed thousands of claims against Pfizer, the manufacturer of a generic testosterone drug, Depo-T, for inadequately warning consumers that Depo-T increased heart attacks in older men.[1] The consumers' right to relief hinged on Depo-T’s classification as a generic or brand name drug. The Seventh Circuit found the plaintiff’s claims preempted under federal law and barred by Supreme Court precedent, leaving these consumers without recourse. The controlling Supreme Court precedent and outdated FDA rules collectively frustrate state tort laws, impede on consumer rights, prevent injured consumers from judicial relief, and insulate generic drug companies from state product liability law under the guise of preemption.

Federal Preemption

Federal law “preempts” or displaces state law when state and federal law conflict. The doctrine of preemption derives from the Supremacy Clause[2] of the United States Constitution. Upon state ratification, federal law became superior over state law, within the realm of constitutionally delegated authority, thereby granting states the rights and powers “not delegated to the United States.”[3]  Traditionally, states have the power to establish and enforce laws protecting the welfare, safety, and health of the public. Since federal and state governments have both exclusive and concurrent powers, a problem exists when both levels of government regulate the same subject matter. Where preemption applies, federal law trumps state legislatures, courts, administrative agencies, and constitutions. Thus, the Supreme Court accepts the Supremacy Clause as a “basic constitutional command that all conflicting state provisions be without effect.”[4]

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 Posted on May 15, 2018 in Food Poisoning

By Lindsay Proskey 

Recently, the Center for Disease Control and Prevention (“CDC”) warned that 149 individuals across 29 states have been infected with E. coli after consuming contaminated romaine lettuce. Of those infected, 64 people were hospitalized including 17 individuals who developed hemolytic uremic syndrome, a potentially life-threatening kidney failure caused by the abnormal destruction of red blood cells. Tragically, one death has been reported.

What You Need to Know About Shiga Toxin-Producing E. coli

E. coli are bacteria commonly found in the environment, foods, and intestines of people and animals. Although mostly harmless, E. coli can cause illness or death once escaped outside the intestinal tract. Symptoms such as abdominal cramping, bloody diarrhea, fever, or vomiting appear approximately two to eight days after consuming the bacteria. The most common mode of transmission to individuals is through consumption of contaminated foods, such as undercooked meat or through cross-contamination during food preparation. However, unhygienic person-to-person contact can also transmit the bacteria through the oral-fecal route.

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 Posted on May 22, 2017 in Personal Injury

By Timothy Tomasik

Justice Ruth Bader Ginsburg delivered the opinion in Coventry Health Care of Missouri, Inc. v. Nevils, one of the last Neil Gorsuch-less cases before the nation’s highest court. Writing for the majority, the Notorious RBG made it clear that when it comes to states prohibiting insurance companies from claiming the proceeds of personal injury settlements - federal law reigns supreme.

The Nevils case stemmed from a 2006 car accident, in which Jodie Nevils, a former federal employee, was injured. Per Nevil’s employment with the federal government, Nevils was enrolled in and insured under a Federal Employees Health Benefits Act (FEHBA) plan offered by Coventry Health Care of Missouri. Soon after filing suit, Nevils recovered a settlement award against the defendant driver. Nevils v. Group Health Plan, Inc., 418 S. W. 3d 451, 453 (Mo. 2014).

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 Posted on May 17, 2017 in Prescription Drugs

By Timothy Tomasik

If you or a loved one have been recently diagnosed with cancer, there is no doubt that you have a multitude of questions racing through your mind. What sort of treatment options are available? What are side effects of chemotherapy? How will my, or my family member’s body handle the drugs that they are prescribed after treatment? And of course, ultimately will the treatment be successful?

It is no secret that a cancer diagnosis can be one the most frightening and uncertain times for a family. Once diagnosed, patients typically consult with their doctor to determine what chemotherapy options are available to target and destroy cancer cells. Unfortunately, chemotherapy cannot tell the difference between a cancer cell and a healthy cell making temporary hair loss from a common side effect of treatment. While most patients grow their hair back after treatment ends, some chemotherapy drugs are making this loss permanent. Sadly, patients, (especially female breast cancer survivors), are beginning to experience permanent hair loss after using the chemotherapy drug Taxotere ®.

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 Posted on May 11, 2017 in Personal Injury

By Timothy Tomasik

“Can I borrow your car?” is a phrase nearly every car owner has been asked at one time or another. While handing over the keys to a friend in need may seem like the courteous thing to do, it is important to remember that you are trusting the other driver to operate your car safely.  Tragically, this all-too-common courtesy can have drastic and life altering consequences for the owner when the driver borrowing the car is not properly qualified to operate it.

In the automobile context, the law governing owner liability in this scenario is called “negligent entrustment.” Negligent entrustment involves the lending of one person’s car to another when the lender knew or should have known that the borrowing driver was not qualified to use the vehicle.  Under these circumstances, the law imposes a duty not just on the driver borrowing the keys, but also on the owner.  Essentially, when the owner knew or should have known that the driver was not qualified to operate the car, the owner will be liable for the negligent acts of the trustee (driver) resulting in harm to others. Typically, whether the owner “knew” the driver was unqualified hinges on whether the owner was aware of multiple prior traffic offenses or vehicular crashes.

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 Posted on November 14, 2016 in Product Liability

Consumers across the country have been put on high alert after several victims suffered second and third-degree burns from Power Pressure Cooker XL explosions. The tops of the appliances have been malfunctioning and injuring users. Those near the exploded pressure cookers are subjected to scalding steam and hot liquid expelling from the units.

The Power Pressure Cooker XL is manufactured by the TriStar Products, Inc. company, established in New Jersey, and were sold to big-box retailers such as Target, Wal-Mart, and Bed Bath & Beyond. The “as seen on TV” product disclaimer states that the lid of the pressure cooker cannot be removed until after internal pressure has dissipated and it is safe. However, consumers in the states of Georgia, Florida, Texas, and Pennsylvania have suffered wrongdoing.

The Power Pressure Cooker XL explosions have injured a number of people including a woman who received severe burns to her torso and injuries to children ranging from 9-months-old to 14-years-old. The hot liquids and pressure building up in these appliances have the capability to cause severe injuries and long-term health issues when the lids explode.

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 Posted on September 28, 2016 in Personal Injury

By Robert Geimer

Researchers from Michigan State University claim that riding a rollercoaster may help patients pass kidney stones.  According to an article in the current issue of the Journal of the American Osteopathic Association, after learning that a number of patients described passing kidney stones after riding the Big Thunder Mountain Railroad rollercoaster at the Magic Kingdom in Orlando, Florida, researchers constructed an artificial human kidney - complete with kidney stones - and took it for a ride.  They found that in the front seat, a stone was passed in 4 of 24 trials; in the back of the roller coaster, a stone was passed in 23 of 36 trials.  The authors theorize that the motion of the roller coaster helps knock stones loose so they can be passed out of the kidney.  This is research that can safely be described as, ahem, thrilling.

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 Posted on September 21, 2016 in Personal Injury

By Robert Geimer

Devices used to heat and cool patients during heart surgeries have been found to spread Legionella bacteria, the source of so-called Legionnaire’s disease.  According to an article in the Seattle Times, these devices may be designed in a way that does not allow them to be properly cleaned.  If so, the problem would be similar to the one identified with the use of endoscopes that spread deadly CRE bacterial infections at hospitals around the country, including Lutheran General Hospital outside of Chicago. TKK is presently representing patients who were infected in that outbreak.  If you or a loved one have been notified of an infection associated with an operating room heating-cooling device, contact TKK right away for important information.

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