Two-Month Fire at Texas Wood Pellet Plant Leads to Lawsuits

For more than two months, a smoldering fire in wood pellet silos engulfed the South Texas town of Port Arthur. According to a new lawsuit filed by residents of a nearby neighborhood, the conditions during those two months were dire: "The smoke filled plaintiffs' homes. The smoke saturated not only the homes, but also their cars, clothing and other personal belongings. Plaintiffs could not sleep due to smoke and its smell entering their bedrooms."

The suit claims German Pellets Texas was negligent in both preventing and putting out the fire at its plant, and that smoke from the fire has caused serious health problems for residents.

Problematic Pellet Plant

Wood pellets are biofuels, made up of industrial wood waste from logging like bark, wood chips, and sawdust, and can be burned as fuel in commercial or residential heating. As such, the pellets create an implicit fire risk. According to the lawsuit, the German Pellets facility in Port Arthur, while only being open a few years, was the focus of repeated investigations, warnings, and fines from the Occupational Safety and Health Administration and the Texas Commission on Environmental Quality based on hazardous working conditions and air quality issues in and around the facility.

Additionally, a former maintenance employee claims the company's safety practices were questionable, that he was fired after filing an OSHA complaint, and that the silo fires were "bound to happen." And the family of another employee is suing after he was killed removing pellets from one of the silos just last week.

Fire Liability

Beyond the company's checkered safety record leading up to the fire, the residents' lawsuit claims the firm hired to put out the smoldering silo fires "prioritized protecting German Pellets' property over preventing harm to adjacent neighborhoods," allowing the fire to burn much longer than it should have. And that time mattered to neighbors, who have suffered from severe breathing problems, according to the suit, including asthma, sinus infections, pneumonia, and chronic obstructive pulmonary disease, causing some to be hospitalized.

The suit, filed by more than thirty Jefferson County, Texas residents is seeking over $1 million in damages for negligence, gross negligence, nuisance, and trespass.

Related Resources:

• Find Premises Liability Lawyers Near You (FindLaw's Lawyer Directory)
• Refinery Fire at Washington Tesoro Plant Kills 4 (FindLaw's Injured)
• Utah Refinery Explosion Ignites Safety Questions (FindLaw's Injured)
• Can You Get Fired for Filing a Worker's Compensation Claim? (FindLaw's Injured)

from Injured http://blogs.findlaw.com/injured/2017/10/two-month-fire-at-texas-wood-pellet-plant-leads-to-lawsuits.html

Off-Label Drug Use and the First Amendment

When we go to doctors for treatment and medication, we want to believe the medications are safe. And when we hear the phrase "FDA-approved," we generally believe the drug or medication has undergone extensive testing and that the FDA wouldn't approve a drug -- and a doctor wouldn't prescribe it -- if it weren't safe.

But what a doctor will prescribe medication for and what the FDA has tested a drug for may not always match up. Here's what you need to know about off-label drug prescription and use.

Off-Label on the Wrong Side of the Law

When a drug is approved by the Food and Drug Administration, it is generally for a specific purpose. But drug manufacturers will sometimes push doctors to prescribe the drug for other purposes, to increase sales. For instance, the FDA approved the use of a drug called Zofran to help cancer patients undergoing chemotherapy battle their nausea. But drug maker GlaxoSmithKline has been accused of marketing Zofran to pregnant women as an aid for morning sickness, without FDA approval. Zofran was never tested or approved for this purpose in human patients, and it turns out that it can cause birth defects.

The FDA calls this kind of prescription and use of a drug "off-label" drug use. And while healthcare providers are permitted to prescribe a drug for an unapproved use (in situations where there might not be an approved drug to treat a disease or medical condition or if a patient has tried all approved treatments without seeing any benefits), drug companies have been prohibited from promoting off-label uses of a drug to healthcare providers. In fact, GSK pleaded guilty to off-label promotion of Zofran and other drugs in 2012 and agreed to pay $3 billion in fines. But those days may be changing.

Is Promotional Speech Free Speech?

In a recent case, a sales rep for a pharmaceutical company had his conviction for off-label promotion overturned, after a court found that "the government prosecuted Caronia for mere off-label promotion" that, unlike what GSK was charged with, was not proven to be false or misleading. The U.S. Second Circuit Court of Appeals determined that federal law does not prohibit "the truthful off-label promotion of FDA-approved prescription drugs," so as long as drug companies do not lie to or mislead healthcare providers, such promotion is protected commercial speech under the First Amendment.

This may mean doctors will be prescribing more drugs for off-label purposes, and it may be up to patients to determine whether the benefits of off-label drug use outweigh the risks.

If you've been injured by a drug that was prescribed for an unapproved use, contact an experienced injury attorney in your area.

Related Resources:

• Find Products Liability Lawyers Near You (FindLaw's Lawyer Directory)
• Lawsuits: Morning Sickness Drug Zofran Causes Birth Defects (FindLaw's Injured)
• Risperdal Side Effects Prompt a New Wave of Lawsuits (FindLaw's Injured)
• The Pill for Acne: 2 NC Teens Die from Yasmin ,Yaz (FindLaw's Injured)

from Injured http://blogs.findlaw.com/injured/2017/10/off-label-drug-use-and-the-first-amendment.html

Scary, but Safe: Top 3 Tips to Avoid Halloween Injuries

The things that make Halloween fun are the same things that make it frightening: out at night, among scary costumes and spooky decorations. We certainly want to be a little scared on Halloween, and it can be a fine line between scary and safe.

So here are three ways to keep the frightening fun this Halloween, keep the scary stuff safe, and avoid injuries that can ruin a good All Hallows' Eve.

1. 5 Most Dangerous Halloween Costumes

The first step to safety is picking the right costume, or, at least not picking the wrong one. If you were asking me, a giant foam Chiquita banana costume is clearly the most dangerous, but the experts put together a more comprehensive list. Hint: avoid "invisibility suits" that also make you invisible to cars and leave the capes at home.

2. 3 Most Common Ways to Get Injured on Halloween

Avoid the dangerous costumes, and avoid these dangerous situations as well. With so many kids and parents on the streets, everyone, especially drivers, needs to be extra cautious on the roads. And while the prop may make the costume, make sure those wielding a sword, cane, stick, or toy gun are careful. Finally, you might to keep the costumes clear of open flames like candles and jack o' lanterns -- they're often more flammable than you think.

3. Top 10 Ways to Prevent Trick-or-Treat Injuries

Kids want to go off on their own, but need adult supervision. Darkened houses are spookier, but a trip and fall accident waiting to happen. And the scariest decorations aren't always the safest. It can be a hard balance having fun trick or treating on Halloween and having a safe night. And those staying in and hosting trick or treaters often need to be just as careful.

Related Resources:

• Find Personal Injury Lawyers Near You (FindLaw's Lawyer Directory)
• Haunted House Injury Lawsuit Settles for $125K (FindLaw's Injured)
• Freaky Halloween Storm Blamed for 11 Deaths (FindLaw's Injured)
• Candy Safety Tips for Trick-or-Treating (FindLaw's Injured)

from Injured http://blogs.findlaw.com/injured/2017/10/scary-but-safe-top-3-tips-to-avoid-halloween-injuries.html

Falsely Accused, Wrongly Jailed Mississippi Woman Can Sue County

On April 26, 2012, Jessica Jauch was pulled over in Choctaw County, Mississippi and arrested on an outstanding felony warrant for selling a controlled substance. For the next 96 days she sat in jail, without access to an attorney or a judge.

The charges underlying that warrant turned out to be false, so Jauch filed a civil rights lawsuit against Choctaw County and Sheriff Cloyd Halford. While a lower court dismissed her claims based on the grand jury's indictment, the 5th U.S. Circuit Court of Appeals reinstated the suit, ruling that Jauch had been denied "basic procedural due process" by the county and Sheriff Halford in being held so long.

Incontrovertible Innocence

Jauch's indictment was based on video surveillance that allegedly showed her selling Xanax to an undercover police informant. When her attorney finally got a copy of the video, it showed Jauch borrowing $40 from the informant, a friend, and the assistant district attorney decided to dismiss the drug charge.

Jauch's lawsuit involves the 96 days she was detained in the meantime, all without access to an attorney or a hearing before a judge. When Jauch asked jail officials about a bail and probable cause hearing, she was told she had to wait because Mississippi district judges often go from county to county throughout the year to hear cases, and the circuit court in Choctaw County was not in session when Jauch was arrested. And it wouldn't be for another three months.

Postponed Procedural Rights

"A procedure calling for extended pre-trial detention without any sort of hearing is alien to our law," Circuit Judge Thomas Reavley wrote, allowing Jauch's lawsuit to proceed. "Heaping these consequences on an accused and blithely waiting months before affording the defendant access to the justice system is patently unfair in a society where guilt is not presumed," Reavley added, asserting indefinite pre-trial detention without an arraignment or court appearance offended "fundamental principles of justice."

Jauch's lawsuit can now proceed to a jury.

Related Resources:

• Find Civil Rights Lawyers Near You (FindLaw's Lawyer Directory)
• DWI Suspect 'Forgotten' in Jail for 2 Years Gets $22M (FindLaw's Injured)
• Wrongful Imprisonment: 2 Potential Ways to Sue (FindLaw's Injured)
• Suing a Private Prison for Injury or Abuse (FindLaw's Injured)

from Injured http://blogs.findlaw.com/injured/2017/10/falsely-accused-wrongly-jailed-mississippi-woman-can-sue-county.html

Lawsuit: Downed Power Lines Caused California Fires

To date, investigators have yet to determine the cause of a series of fires that destroyed over 5,000 structures and killed over 40 people in northern California's wine country. But one Santa Rosa couple thinks they know the culprit: Pacific Gas & Electric Company.

Wayne and Jennifer Harvell are suing PG&E, claiming the company failed to properly maintain the areas around some of its power lines, allowing vegetation to come into contact with electrical equipment and sparking fires that the state insurance commissioner estimates caused over $1 billion in damage.

Fire Danger

PG&E, according to the lawsuit, was "aware that fire danger was at an extraordinarily high level, particularly given the increased vegetation arising from the 2017 winter rains." That increased vegetation turned to tinder during subsequent drought-like conditions, and PG&E was allegedly "negligent in that they failed to properly repair, and inspect the subject lines, equipment and adjacent vegetation and negligently failed to properly trim, prune, remove, and/or otherwise maintain vegetation near the electrical equipment so as to secure safety to the public in general."

The Sacramento Bee reported at least ten 911 calls in Sonoma County claiming downed PG&E transformers and power lines "sparking and arcing" in the early hours of the fires. The Harvells' lawsuit claims the same high winds that contributed to the rapid devastation from the fires caused "power lines and/or other electrical equipment [to come into] contact with vegetation and caused the Wine Country Fires, which burned in excess of 220,000 acres, including property owned or occupied by these plaintiffs.

Fire Damage

Although the Harvells are just two of thousands of victims of the fires, they did not file their complaint as a class action, and are seeking damages for the replacement or repair of their home, lost wages, and past and future medical expenses along with legal fees. PG&E, which reportedly carries some $800 million in liability insurance for potential losses, told Courthouse News it was "focused on supporting firefighting efforts to contain the fires and protect life and property."

"Once it is safe to do so, restoring power and gas service safely and as quickly as possible will be our priority," PG&E spokeswoman Angela Lombardi wrote. "We aren't going to speculate about any of the causes of the fires and will cooperate with the reviews by any relevant regulator or agency."

Related Resources:

• Find Personal Injury Lawyers Near You (FindLaw's Lawyer Directory)
• Santa Rosa Couple Claims PG&E Negligence Led to Wildfire (The Mercury News)
• When to Sue for Loss or Damages From Wildfire (FindLaw's Injured)
• Top Insurance Tips After Fire Damage (FindLaw's Law and Daily Life)

from Injured http://blogs.findlaw.com/injured/2017/10/lawsuit-downed-power-lines-caused-california-fires.html

$72M Verdict Against Johnson and Johnson Overturned on Appeal

While jury after jury has been awarding plaintiffs hundreds of millions of dollars in lawsuits against Johnson & Johnson for the cancer-causing risks in their talc and baby powder products, the company's attorneys have consistently defended "the safety of Johnson's Baby Powder" and asserted they believe the verdicts will be overturned on appeal. This week, J&J got one of those verdicts reversed, but not on the basis of the safety of its products.

The Missouri Court of Appeals for the Eastern District overturned a $72 million verdict in favor of the family of an Alabama woman who died from ovarian cancer, saying the case should never have been tried in St. Louis.

St. Louis and the Supreme Court

Jacqueline Fox's family was awarded $72 million in February 2016, after her death from ovarian cancer was linked to use of the company's talc-based products. Fox did not reside in Missouri, but hers was one of dozens that were joined with in-state residents to expedite litigation, although cases resulting in a verdict have all been tried individually.

Over a year later, in June 2017, the Supreme Court frowned on such out-of-state plaintiffs, ruling that courts may only exercise jurisdiction over a claim if there is an "affiliation between the forum and the underlying controversy, principally, [an] activity or an occurrence that takes place in the forum State." This means that state courts may only hear claims by non-residents if they were injured in that particular state or the defendant company is based in that state.

Retroactive Ruling

Johnson & Johnson relied on that ruling to appeal Fox's verdict, a three-judge Missouri appellate panel agreed. While not addressing the underlying merits of the Fox family's claims, Judge Lisa Van Amburg applied the Supreme Court's determination: "The fact that resident plaintiffs sustained similar injuries does not support specific jurisdiction as to non-resident claims." Because Fox should've never been in court in St. Louis in the first place, trial court's judgment was reversed and vacated.

Ted Meadows, a lawyer for the plaintiffs, released a statement saying the ruling "represents a denial of justice for the Fox family," adding the family was considering an appeal.

Related Resources:

• Find Personal Injury Lawyers Near You (FindLaw's Lawyer Directory)
• Johnson & Johnson Wins Reversal of $72 Million Verdict Over Talc Cancer Risks (Reuters)
• Talcum Powder May Increase Ovarian Cancer Risk in African American Women (FindLaw's Injured)
• Can Using Talcum and Baby Powder Really Cause Cancer? (FindLaw's Injured)

from Injured http://blogs.findlaw.com/injured/2017/10/72m-verdict-against-johnson-and-johnson-overturned-on-appeal.html

Top 7 Car Accident Lawsuit Questions

When most of us think of negligence and injury, the classic example is the simple car accident. We all owe a duty to drive carefully, someone breached that duty by driving irresponsibly or ignoring a traffic sign or signal, this causes a crash, and someone else is injured. Perhaps negligence and car accidents are so closely linked because so many lawsuits follow accidents.

But as seemingly familiar as so many people are with accidents and the personal injury lawsuits that follow, we still have questions. Here are seven of the most common car accident lawsuit questions, and where to find the answers:

1. Car Accident Investigations: How Do They Work?

Investigations are the first thing that happens after a car accident, whether you realize it or not. And gathering as much information as soon as possible after the accident can have a big impact on any lawsuits that may follow.

2. How Long After a Car Accident Can You Sue?

After an accident, you may not even be sure you need to sue, much less if you want to or can. But there are statutes of limitation that can bar lawsuits if you wait too long.

3. Who Do I Sue in an Accident With Multiple Cars?

Liability in a simple fender bender can be pretty easy to figure out. But who's liable in a multi-car pileup?

4. Car Accident Claims: What Are General Damages?

Just as there are limits on when and whom you can sue after a car accident, there are limits to what compensation you might be entitled to, if you win your lawsuit.

5. How Much Can a Passenger Recover After a Car Accident?

Far too often, passengers suffer the worst injuries in car crashes. But are they entitled to the same amount in damages? What if they were in the car that was at fault?

6. Car Accident Death: What Are Your Rights?

Basic negligence lawsuits can easily become wrongful death lawsuits when the destructive power of automobiles comes into play. Find out the difference here, and how that could affect your rights.

7. Car Accident Claims: Do I Need My Own Lawyer?

The vast majority of car accident claims are handled by insurance companies. But insurers are notoriously stingy, and those settlements don't always cover the full cost of injuries or damage. And some insurance companies will look for reimbursement from liable parties. Make sure you're protected.

Related Resources:

• Find Car Accident Lawyers Near You (FindLaw's Legal Directory)
• Top 7 Car Accident Liability Questions (FindLaw's Injured)
• Proving You're Not at Fault in a Car Accident (FindLaw's Injured)
• After a Car Accident: What You Need for an Insurance Claim (FindLaw's Injured)

from Injured http://blogs.findlaw.com/injured/2017/10/top-7-car-accident-lawsuit-questions.html