Southern Indiana Personal Injury Lawyer Blog

Articles Posted in Wrongful Death

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The Indiana Supreme Court recently held in Brewer v. PACCAR, Inc. that a component part manufacturer (PACCAR) may have a duty to offer or install necessary safety features under Indiana’s Product Liability Act (IPLA). Because issues of fact existed as to whether the safety features were offered and necessary to make the final product safe, the Court reversed the trial court’s finding that PACCAR owed no duty, as a matter of law, to install safety features that the injury party alleged were necessary.

The IPLA subjects a manufacturer of “a product or a component part of a product,” I.C. § 34-6-2-77, to liability for physical harm caused by a manufacturer placing “into the stream of commerce any product in a defective condition unreasonably dangerous to any user or consumer,” I.C. § 34-20-2-1. A product is defective under the IPLA if it is defectively designed, if it has a manufacturing flaw, or if it lacks adequate warnings about dangers associated with its use.

Rickey Brewer was a construction foreman killed when a semi driver backed up a semi with an integrated PACCAR glider kit, did not see Rickey, and pinned him against a trailer, killing him.  His widow and his estate asserted an IPLA claim against PACCAR. The claim asserted PACCAR’s glider kit was defectively designed because it lacked certain safety features to reduce the danger inherent in its forty-foot blind spot. (If you drive a vehicle with a rear camera and sensors, you can probably attest to the peace of mind and safety such devices add to our everyday life). Here, because a design-defect claim is based in negligence, Brewer would need to be able to prove at trial that (1) PACCAR owed a duty to Rickey; (2) PACCAR breached that duty; and (3) the breach proximately caused an injury to Rickey. The only element at issue in the case was duty—whether PACCAR lacked a duty, as a matter of law, to install certain safety features.

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What are punitive damages?

Punitive damages are a creature of common law and have been allowed for under certain circumstances by Indiana’s legislature under Indiana law. Cheatham v. Pohle, 789 N.E.2d 467, 471 (Ind. 2003); Ind. Code §§ 34-51-3-0.2 to 34-51-3-6. While the purpose of compensatory damages is to make a plaintiff whole and otherwise value a plaintiff’s injury, punitive damages serve to deter and punish wrongful activity and behavior. Cheatham, 789 N.E.2d at 471.

What is the standard for obtaining an award of punitive damages in Indiana?

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Yes, according to the Indiana Supreme Court decision in Myers v. Crouse-Hinds Div. of Cooper Indus., Inc., 53 N.E.3d 1160 (Ind. 2016). In this case, the Court consolidated three appeals involving the constitutionality of the Indiana Product Liability Act statute of repose as applied to plaintiffs who had suffered mesothelioma-related illnesses and in one case death.

What is mesothelioma? Mesothelioma is a rare type of cancer that often develops years after exposure to asbestos, which is a naturally occurring mineral used in a variety of products manufactured for various industries and still found in many old buildings where it has not been removed through abatement. Mesothelioma can take different forms in tissues lining certain of the body’s organs or cavities including pleural mesothelioma (mesothelioma occurring in the pleura aka lining of the lung), peritoneal mesothelioma (mesothelioma occurring in the peritoneum aka lining of the abdominal cavity), and pericardial (mesothelioma occurring in the pericardium aka lining of the heart).

Turning to the decision in Myers, the Court examined Indiana’s Product Liability Act as applied to cases of the mesothelioma-inflicted plaintiffs. Chapter 3 of the Indiana Product Liability Act sets forth the statute of limitations for product liability actions in Indiana. Section 1 of Chapter 3 applies to product liability actions generally and includes a two-year statute of limitations and a ten-year statute of repose. Section 2 of Chapter 3 applies to asbestos-related actions and also includes a two-year statute of limitations. However, Section 2, unlike Section 1, does not include a ten-year statute of repose.

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The Indiana Court of Appeals recently upheld the grant of summary judgment in favor of the estate of a vehicle driver who suffered a heart attack and became unconscious while driving, which resulted in his vehicle speeding up, going off the roadway, and crashing into a nearby house. The vehicle driver died and his passenger, who brought suit against his estate, suffered severe injuries.

In Indiana, a plaintiff must establish three elements to prove negligence on behalf of a defendant: (1) a duty owed to the plaintiff by the defendant; (2) a breach of that duty by failing to comply with the applicable standard of care; and (3) a compensable injury proximately caused by the breach of that duty. Under Indiana law, individuals must conform their conduct to that of a reasonable person under like circumstances. Summary judgment is appropriate when the defendant negates at least one of the elements of the plaintiff’s claim. While the element of breach is usually a question for the jury, where the relevant facts are undisputed and lead only to a single inference or conclusion, the court may determine as a matter of law whether the defendant breached a duty.

The defendant estate in this case claimed it was entitled to summary judgment on the element of breach because the vehicle driver could not be found to have acted unreasonably in causing the collision when he suffered a heart attack and was rendered unconscious. The plaintiff passenger argued that the defendant driver was negligent for driving in the first place given his medical condition. While the vehicle driver had recently suffered a prior heart attack and undergone treatment related to his heart condition, at the time of the collision, he had been cleared to drive by his medical providers. Based upon this evidence, the Court found that the passenger plaintiff failed to create a genuine issue of material fact as to whether the defendant driver’s sudden physical incapacity was reasonably foreseeable, so as to hold him negligent for driving in the first place.

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Legislators in Indiana and Kentucky have enacted laws mandating medical review panels in cases where individuals allege they have been harmed by a healthcare provider’s negligence, commonly known as medical malpractice.  Under legal challenge, Indiana found the legislation constitutional, whereas Kentucky did not.

Long ago, prior to enacting this legislation, Indiana’s and Kentucky’s founders provided as part of their Constitutions that their courts should be “open” and justice administered freely and “without delay.”

Article I, Section 12 of the Indiana Constitution provides:

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The Indiana Court of Appeals recently issued an opinion in Biedron v. Anonymous Physician 1 addressing the applicable statute of limitations in medical malpractice lawsuits in Indiana.

Biedron involved three related medical malpractice claims, which were consolidated for the purposes of the appeal. Proposed complaints for medical malpractice were filed by the plaintiffs with the Indiana Department of Insurance more than two (2) years after the alleged malpractice occurred in each of the cases. The plaintiffs in each of the cases argued that the 2-year occurrence-based statute of limitations, as set forth in the Indiana Medical Malpractice Act, should be tolled under the doctrine of fraudulent concealment. With differing trial court orders on the defendant healthcare providers’ motions for summary judgment on the statute of limitations issue, the Indiana Court of Appeals affirmed in part and reversed in part, finding in favor of the Indiana healthcare providers.

Under the Indiana Medical Malpractice Act, a medical malpractice claim, whether in contract or tort, may not be brought against a healthcare provider based upon professional services or healthcare that was provided, or that should have been provided, unless the claim is filed within two (2) yeas after the date of the alleged act, omission, or neglect, except that a minor less than six (6) years of age has until the minor’s eighth birthday to file. Ind. Code § 34-18-7-1.

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Our lawyers are currently investigating the FDA’s recall of Valsartan in an effort to determine whether a sufficient medico-legal basis will exist to file Valsartan lawsuits for those impacted.  At this point, it is difficult to ascertain whether those who have taken Valsartan products contaminated with NDMA may have been adversely affected by taking the contaminated drug.  The viability of such claims will depend in large part on how long the medication was taken, from whom the medication was sourced, who manufactured the medication, what dose of the medication was taken, and the amount of contaminant contained in the medication.  A Valsartan lawsuit attorney can investigate the facts necessary to form a basis for possible Valsartan litigation.  First and foremost, though, is the need for those taking a contaminated Valsartan medication to consult their physician to determine if they have been taking a contaminated Valsartan product to determine whether a different medication may be indicated.  According to the FDA, Valsartan users should not stop taking the medication until completing a physician consultation.

The biggest concern for Valsartan users appears to be an elevated risk of cancer, although other concerns are possible organ damage or tumors.  Nonetheless, and importantly, at this time, the FDA is warning those taking Valsartan do not stop taking the medication unless and until you have consulted with your prescribing physician.  It is also important to note that not all Valsartan medication was contaminated with NDMA. The FDA has published a list of the recalled and non-recalled medications, which can be found here.  Valsartan lawsuit lawyers will continue to monitor the information being developed by the FDA and companies participating in Valsartan recalls.

According to the FDA, taking the highest Valsartan does (320 mg) from the recalled batches daily for the full four years may increase the risk of cancer to the point one additional case of cancer occurs in the lifetimes of a hypothetical group of 8000 such Valsartan takers.  This may seem like a relatively insignificant risk compared to the risks of developing cancer published by the American Cancer Society.  However, this is additional risk and one additional case of this terrible disease is one too many and may very well warrant a Valsartan law firm to file a product liability or failure to warn lawsuit supported by admissible scientific and epidemiological evidence.

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There is a misconception among some that if a product is destroyed during a fire, that it will be too difficult to prove the product had a defect because no specific mechanism can be pinpointed as the cause and origin of the fire.  However, in spite of manufacturing defendants’ attempts to take advantage of a potential legal Catch-22, Indiana law allows a manufacturing defect in a product to be proven through circumstantial evidence and a process of elimination.  This was explained by a federal court applying Indiana law in Gaskin v. Sharp Electronics.

In Gaskin, the plaintiffs claimed that a 19-inch Sharp television caught fire in Ms. Gaskin’s elderly mother’s room, causing her death.  They alleged that Sharp was strictly liable for placing an unreasonably dangerous and defective product–the television–into the stream of commerce.  Sharp filed a motion for summary judgment claiming the plaintiffs were unable to show a defect in the television after their engineering expert was excluded by the court as unreliable.

The plaintiffs responded to the manufacturer’s motion with evidence from a fire investigator who noted that based on his burn pattern analysis and other evidence examined, the fire originated to the north of the television stand.  And, circuit wiring in the room was examined and eliminated as the cause of the fire.  Although a definitive cause could not be determined,  the investigator opined that the fire had burned upward and outward from the television stand.  He conceded he didn’t know the first thing about televisions, but the television was the only ignition source among many he examined that could not be eliminated.

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The Nursing Home Investigation and Selection Process
. Entrusting a loved one, such as a mother, father, sister or brother, to the care of a nursing home is one of the most difficult decisions many of us will ever make. In spite of a long, thorough investigation into suitable nursing and rest homes and assisted living centers, it is often difficult to get a true feel for the environment when you leave a loved one in the care of strangers. Often times it is not possible to witness the actual care being given so it is important to notice the overall state of care such as cleanliness, the quality and temperature of food items, how medications are delivered, changes in personality of the loved one, and missing personal items. When you arrive at the facility are the staff actually engaged in helping residents or are they out on the front porch in groups smoking, texting and checking social media on their cell phones? Has the rest home, nursing or assisted living facility changed ownership or administration often? Have medical directors changed or are they rarely or never present?What have State nursing home survey inspection findings been for the home?

Keeping Tabs on Conditions and Care

While it is likely impossible to meet the ideal conditions we would like to see for a loved one, some nursing, rest and assisted living homes fall well short of meeting even the most minimum standard of care. Sometimes failure to ensure proper staffing levels means the routine care of a loved one suffers. Pay careful attention to your loved one’s mood changes. Do they seem anxious or concerned when they see particular staff? Are you seeing a lot of different faces and are those faces less friendly than when the stay began? Do you hear yelling or exasperation from staff as you walk by other rooms, administration or the nursing station? Does your loved one exhibit signs of dehydration such as dry eyes, flaky skin or chapped lips? When you arrive, do they have a full or empty drinking cup in their room and within their reach and are they eating or refusing to eat reminiscing about home-cooked meals? Are they losing weight or exhibiting skin changes? Do you notice flies or uncleaned restroom facilities? If they had bedsores or pressure ulcers upon admission, have these gotten better or worse? If they were continent when they started are they now incontinent? Or, if they were incontinent when they started at the facility and were on a scheduled toileting program, has the facility now suggested they are continent to avoid the burden of scheduled toileting? Has your loved one fallen from a wheelchair, bed or been found wandering outside the facility?

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Any kind of vehicle collision can spell disaster for innocent drivers and passengers traveling on the roadways. When the situation involves truck accidents, the results can be even more devastating for innocent victims due to the sheer size and force of tractor-trailer trucks traveling on Indiana highways. Despite the unpredictability of truck accidents, there are common reasons or situations that may make a truck accident more likely.

One reason a truck may lose control and wreck into an innocent victim in a car is that trucks sometimes have an unbalanced load. This can lead to swerving and tipping of a truck. Also, when an accident occurs and tipping over of a load results, that in itself can pose a hazard on the road and may endanger people who were not even involved in the original crash.

Another common reason a truck may crash is driver fatigue. While drivers are only supposed to drive for a certain number of hours, some may be tempted by incentives to go above that amount, putting others at risk. Equipment failure can also lead to truck accidents. This can include faulty brakes or improperly maintained tires.

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