South Carolina Personal Injury Law Blog

Pay Discrimination Ruling Expected to Have Broad Ramifications

According to experts, the U.S. Supreme Court's ruling this week in Ledbetter v. Goodyear Tire & Rubber, limiting the ability of employees to pursue pay discrimination claims against their employers, may have broad ramifications for employment discrimination lawsuits of all kinds.

The 5-4 ruling generally excludes the right for employees to sue for pay discrimination unless they file charges within 180 days of a specific event, like a boss giving a worker a smaller raise because of her sex.  Establishing a pattern of discrimination over several years will no longer be possible.

Some legal experts said the ruling would put pressure on workers to file discrimination claims within 180 days even when they are still seeking more conclusive evidence that they were discriminated against.

Source:  "Experts Say Decision on Pay Reorders Legal Landscape" by Steven Greenhouse, published in The New York Times.

Defenses to Products Liability Claims

The following defenses are frequently used in products liability cases:

Product Misuse

A person injured by an allegedly defective product may not be able to recover damages if it is shown that he or she misused the product, or used it in a manner other than that which is expected. Products are generally designed to be used a certain way and serve a specific function. A manufacturer of a product is not liable if an individual is injured while using a product in a way other than the way it is supposed to be used.

The key question is whether the misuse was foreseeable to the manufacturer, since manufacturers of products are required to recognize that some type of misuse by users of their products is expected, and thus the products are required to be designed to avoid foreseeable misuse. The defense of misuse is essentially a defense based on causation (and comparative negligence in non-strict liability negligence cases).

For example, a toaster oven is used to heat food, not warm mittens. If you use a toaster to warm mittens, and it subsequently causes a fire or causes serious burns to your hands, you cannot sue the manufacturer for a defective product because you didn't use the toaster the way it was meant to be used, or in a manner which would be foreseeable to the manufacturer.

Product Alteration

If you substantially alter a product after you purchase it and the product then causes you physical injury, you generally cannot sue the manufacturer alleging that the product was defective.

For example, if you purchase a power saw that has a safety guard covering the blade to prevent injury to your fingers, and you remove the guard because you feel it makes the saw more difficult to use, if you continue to use the saw and cut one of your fingers off, the manufacturer would not be liable.

Control of the Defendant

In order to recover for injuries caused by a product, it must be shown that the product was defective at the time it left the control of the party against whom a claim is made. As such, in the case of a manufacturer, the product must have been defective at the time it was sold and delivered to a wholesaler. In the case of a wholesaler, that time would be when the product is sold and delivered to a retailer. With a retailer, that time would be when the product is sold and delivered to a consumer.

In most design defect cases, the product is alleged to be defective at all times, since the theory is that a fundamental design flaw renders the product unreasonably dangerous- regardless of who�s hands it is in. Needless to say, if the condition of a product changes so as to render the product unreasonably dangerous after the product has left the control of a particular party in the chain of commerce, that party cannot be held liable for damages caused by the product, unless the change was reasonably foreseeable within the scope of the intended use of the product.

At Stevens - MacPhail, P.A., we strive to obtain fair and just compensation for our clients' injuries.  Using our experience and the extensive resources available to us, we focus on achieving the best possible recovery for our clients.  In all matters involving personal injury it is essential that measures be taken promptly to preserve evidence, investigate the accident in question, and to file a lawsuit prior to the deadline imposed by the statute of limitations.

If you or a loved one has been injured, you can call Stevens - MacPhail, P.A. at (800) 897-8856 or (864) 598-9172 or e-mail us to schedule a meeting.  The initial consultation is free of charge, and if we agree to accept your case, we work on a contingent fee basis, which means we get paid for our services only if there is a monetary award or recovery of funds.  Don’t delay! You may have a valid claim and be entitled to compensation for your injuries, but a lawsuit must be filed before the statute of limitations expires.

Children Affected by Chemotherapy Errors in Majority of Cases

A new study has found that the vast majority of potentially harmful errors in pediatric chemotherapy are not spotted until they have, in some way, affected the child. According to the research conducted by a member of the Johns Hopkins School of Medicine, healthcare workers failed to identify errors in dosage or administration of drugs 85 percent of the time. Errors in the prescription of medication accounted for only 10 percent of cases. 

Source:  "Most Errors in Pediatric Chemo Make It to Patients" by Jeffrey Perkel, published in The Washington Post.

Doctor Requires Patients to Promise Not to Sue

Before gynecologist Ruth J. Schulze will see her patients, she requires them to sign a contract promising never to sue her for malpractice. The veteran physician in Ridgewood, N.J., requires the contract as a condition of treatment. Dr. Schulze sees it as the only way to control the rising malpractice premiums that she believes have put some of her brethren out of business.

As you might expect, patient advocates and legal experts are troubled by the idea of asking patients to sacrifice their legal rights — and they worry the practice could spread. By signing the contract, patients forfeit their right to a jury trial and agree to limits on pain and suffering awards and punitive damages. The contract blames patient lawsuits for ‘ever-escalating’ malpractice insurance rates.

Source:  "Contract Care: Patients Promise Not to Sue for Malpractice, Before the Exam" by Mary Jo Layton,  published in The Herald.

OxyContin Manufacturer and Executives Plead Guilty to Criminal Charges

The company that makes the painkiller OxyContin and three of its current and former executives recently plead guilty in federal court to criminal charges that it misled doctors and patients when it claimed that the drug was less likely to be abused than traditional narcotics.

The company, Purdue Pharma, agreed to pay $600 million in fines and other payments to resolve the criminal charge of ‘misbranding’ the product.  This is one of the largest amounts ever paid by a drug company in such a case. The three executives, including its president and its top lawyer, also plead guilty to misdemeanor charges of misbranding the drug. Together, they agreed to pay $34.5 million in fines.

Source:  "Narcotic Maker Guilty of Deceit Over Marketing" by Barry Meier, published in The New York Times.

Ethics Complaint Filed Against Judge Over His $65M Suit Against Dry Cleaners

Washington, D.C., administrative law judge Roy Pearson Jr. isn't making many new friends with his $65 million lawsuit against a local dry cleaner for losing a pair of his pants. The American Association for Justice (formerly the Association of Trial Lawyers of America) filed an ethics complaint against Pearson last week with the D.C. Bar.

This isn't the first time Pearson has filed tons of documents and demanded payment in a court case. In 2005, the Virginia Court of Appeals denied Pearson's appeal seeking at least $10,000 in spousal support in his divorce from Rhonda VanLowe, legal counsel for Rolls-Royce North America. Pearson wanted VanLowe to help support him because he was receiving unemployment benefits in 2003 before he was appointed as an administrative law judge in 2005.

Source:  "Ethics Complaint Filed Against Judge Over His $65M Suit Against Dry Cleaners" by Brendan Smith, published at Law.com.

Retiree Class Action Suit Against Caterpillar Continues

A U.S. District Court judge ruled last week that a class action lawsuit filed by retirees or their surviving spouses can proceed against heavy equipment manufacturer Caterpillar. In the lawsuit, plaintiffs allege that the company agreed to provide free lifetime health benefits but has since charged a portion of the premiums to the plaintiffs. Caterpillar had filed for dismissal of the case on jurisdictional and procedural grounds.

Source:  "Retirees' Suit Against Caterpillar Can Proceed" published at Reuters.

Doctors Face 50 Years in Prison for Surgery Scam

Three California doctors were arrested for recruiting patients to undergo needless surgeries in order to defraud insurance companies. Prosecutors claim the doctors performed over 1,000 procedures on 940 patients in exchange for cash or cosmetic surgery while billing insurance companies an estimated $30 million. The doctors face 47 felony counts for conspiracy, insurance fraud and other charges and could face 50 year in prison if convicted. 

Source:  "3 Doctors Held in Health Insurance Scam" by Christine Hanley, published in the LA Times.

Smallpox Vaccine Caused Illness in Soldier’s Son

According to a government report and attending physicians, a two-year-old boy almost died after contracting a viral infection as a result of exposure to the smallpox vaccine his father received before being deployed to Iraq. The infection, eczema vaccinatum, caused the boy to suffer kidney failure and lose most of his skin.

According to experts, because the father had eczema during childhood and the son too suffered from the skin condition, the vaccination should have never been given due to the risk for side effects and infection. Military regulations require those receiving vaccinations to be asked about history of such conditions in themselves and their families. 

Source:  "Soldier’s Smallpox Inoculation Sickens Son" by John Schwartz, published in The New York Times.

Man Exonerated After Wrongful Conviction Awarded $5 Million

A Connecticut man was awarded $5 million from the state after serving 18 years for wrongful conviction of rape. Members of the state legislature voted unanimously Wednesday to give James Tillman $5 million, following his 2006 exoneration and release. The $5 million settlement was reached in an agreement to halt possible lawsuits against the police and state by Tillman.  DNA tests, pushed for by The Innocence Project, a New York-based legal group, helped overturn the conviction. 

Source:  "Wrongly Jailed U.S. Man Gets $5 Million" by Av Harris, published by Reuters.