Derryberry Zips Wade Lawhorn, PLLC successfully negotiated a substantial confidential settlement in the high six figures for our female client who was involved in a violent rear end wreck with a large oil field service truck in Corpus Christi, Texas. The oil field service company hired a 23 year old employee and allowed him to permissively operate a company truck without performing any background check on him or providing him any driver training. A simple check of his driving record would have revealed a prior conviction for driving while intoxicated less than two (2) years prior to the company hiring him. The young employee violently slammed into the back of our client’s vehicle as a result of being distracted while driving the truck. Additionally, his cell phone records contained information indicating he was likely on the phone at the time of the violent wreck. This violent wreck caused our client to sustain significant injuries and and also resulted in her vehicle being declared a total loss. Our client sustained injuries, including a broken arm, injuries to her thighs, mild traumatic brain injury and herniated disks in her neck for which her treating neurosurgeon recommended surgery. She had not had the surgery at the time the case was resolved in July, 2015.
On May 18, 2014, plaintiff Lisa M. Brewer (“Brewer”),52, was driving a 2005 Chevrolet 1500 pickup north on State Highway 80 in Luling, Texas. Gerardo Sandoval (“Sandoval”) was southbound in a 2007 Freightliner owned by Downing Transportation Inc. Sandoval suddenly and unexpectedly attempted a left turn in front of Brewer, and the vehicles collided. Sandoval was cited for failing to yield the right of way in connection with the wreck. Brewer was not issued any citations.
Sandoval’s employer was Downing Transportation, Inc. (“Downing”) and he was driving the truck in the course and scope of his employment for Downing or its subsidiary, G&D Trucking Inc.(“G&D”).
Brewer sued Sandoval for failure to yield the right of way and making an unsafe left turn. She sued Downing and G&D on a theory of respondeat superior because Sandoval was employed by one or both of the Defendants and was driving the truck in the course and scope of his employment.
The electronic control module (ECM) download from Brewer’s vehicle showed that she was traveling at an appropriate speed at the time of the wreck. The Defendants did not contest that the wreck was Sandoval’s fault.
Ms. Brewer’s injuries included herniated discs at C5-6, C6-7, L4-5 and L5-S1. Ms. Brewer also sustained injuries to her head, arm and shoulder. Ms. Brewer was transported by ambulance to Brackenridge Hospital in Austin, Texas where she underwent extensive testing and treatment on the date of the wreck.
Ms. Brewer underwent conservative treatment for her injuries, including attempting physical therapy. However, the physical therapy caused her pain and her pain management doctor ordered her to stop it. She underwent a series of epidural steroid injections (“ESIs”) and follow up MRIs of her cervical and lumbar spine were performed at Brio MRI in San Antonio. Her pain management doctor, Dr. Gutierrez, then referred her for a surgical consult with noted neurosurgeon Karl Swann, M.D. in San Antonio. Dr. Swann recommended she undergo an anterior cervical discectomy and cage interbody fusion with allograft and anterior plating at C5-6 and C6-7. This surgery was performed by Dr. Swann on May 13, 2015.
Ultimately, at the request of Defendants, an informal settlement conference was held at Defendants’ attorneys’ office in San Antonio, Texas and the case was resolved.
Boston Scientific Loses First Federal Trial Over Mesh
Jurors in federal court in Miami deliberated about four hours yesterday before finding Boston Scientific officials defectively designed their Pinnacle pelvic-organ implants and failed to properly warn doctors and their patients about the device’s risks, Joseph Osborne, a lawyer for one of the women, said in an interview.
The verdict is the first in a federal case against Boston Scientific over the Pinnacle inserts and the first to combine more than one plaintiff’s claims.
“Boston Scientific better start giving serious consideration to doing a global settlement of these vaginal mesh cases,” Carl Tobias, who teaches product-liability law at the University of Richmondin Virginia, said in a phone interview. “This verdict reinforces the substantial liability they are facing and it’s growing with each verdict.”
Jurors awarded Amal Eghnayem, Osborne’s client, more than $6.7 million. The panel also awarded Margarita Dotres and Mania Nunez, two other women who got Pinnacle implants, more than $6.7 million each. Juana Betancourt, the final woman in the group, was awarded more than $6.5 million, Osborne said. The panel awarded only compensatory damages, he added.
Kelly Leadem, a Boston Scientific spokeswoman, said the company disagreed with the jury’s findings that the Pinnacle inserts suffered from design flaws and that company officials didn’t warn about the implants’ risks.
“We believe we have strong grounds to overturn the verdict on post-trial motions and on appeal,” she said in an e-mailed statement.
“The evidence we presented showed that the company completely mishandled this product, and I think the jury’s damage award reflects that,” Osborne said.
The women’s lawyers argued yesterday that Boston Scientific officials ignored internal calls for more testing of the pelvic-organ implant and hurried the device along to counter competitors’ products.
In September, a state court jury in Texas ordered Boston Scientific to pay $73 million in damages to a woman who blamed one of its incontinence implants for her constant pain. That verdict was cut to $34.6 million by the trial judge. The company has won other cases that have gone to trial in state court in Massachusetts.
The Natick, Massachusetts-based company, the second-largest maker of heart-rhythm devices, faces more than 23,000 suits over its vaginal implants in U.S. state and federal courts, as well as in Canadian and U.K. courts, according to filings with the U.S. Securities and Exchange Commission. Boston Scientific pulled Pinnacle from the U.S. market in 2011.
Many of the cases against Boston Scientific have been consolidated before U.S. District Judge Joseph Goodwin in Charleston, West Virginia. Others have been filed in state courts in Delaware,New Jersey, Missouri, Texas and California.
Goodwin, who’s overseeing all the vaginal-mesh suits filed in federal courts against Boston Scientific, presided over the trial of the four women’s claims.
Women contend the inserts are made of substandard materials and often erode once they are implanted, causing pain and organ damage, and making sex uncomfortable.
The women’s lawyers presented evidence showing the mesh used in the Pinnacle insert hadn’t been approved for use within the human body by the company that made it.
Boston Scientific’s lawyer told jurors in the Miami case the mesh used in the inserts has been relied upon for years by doctors and engineers properly designed the devices.
“There’s no such thing as a risk-free surgery,” Hildy Sastre, one of the company’s lawyers, told jurors. “Because somebody develops a complication, which they’ve been clearly warned of, that doesn’t mean there’s a defect with the product.”
Boston Scientific is expected to face closing arguments Nov. 17 in another multi-plaintiff trial in federal court in West Virginia.
The Florida case is Eghnayem v. Boston Scientific Corp., 14-cv-24061, U.S. District Court, Southern District of Florida (Miami).
To contact the reporter on this story: Jef Feeley in Wilmington, Delaware at firstname.lastname@example.org
On May 21, 2011, seventeen year old Martin Blea, Jr. entered the business premises of The Pussycat Lounge, an after-hours BYOB establishment located in Odessa, Texas. The Pussycat Lounge was located less than a half mile from an adult cabaret known as Jaguars Gold Club. The Pussycat Lounge and Jaguars Gold Club essentially had the same owners and operators on May 21, 2011 and in the years leading up to May 21, 2011, such that the owners and operators of The Pussycat Lounge knew that dangerous and violent people were in the area and frequently visited The Pussycat Lounge
Martin Blea, Jr. went to The Pussycat Lounge with his older sister, among other individuals. At some point, his sister went to the restroom. As she was returning from the ladies’ room, a man, who was unknown to the sister (and has never been fully identified) but who had previously been seen conversing with a man named Steve Uresti and other patrons of the Pussycat Lounge, approached the sister and grabbed her in a sexually provocative manner. When the sister rejected these advances, the unidentified man punched the sister in the face and knocked her to the ground. The man then jumped on top of her. Martin Blea, Jr. was dancing on the dance floor at this time and saw his sister in distress. He went to pull the unidentified man off of his sister and a fight broke out. While Martin Blea, Jr. was attempting to aid his sister, Steve Uresti pulled out a 9 millimeter handgun and fired several shots into the air. Mr. Uresti then fired several more shots, one of which hit Martin Blea, Jr. in the face and killed him. Mr. Uresti’s gun had made its way into The Pussycat Lounge despite the fact that a policy was in place where patrons entering the premises were required to be screened with a hand held metal detector wand and patted down as part of an effort to keep dangerous weapons out of the club..
After being shot, Martin Blea, Jr. fell to the floor of The Pussycat Lounge where he struggled to breathe until the paramedics arrived. An ambulance transported Martin Blea, Jr. to a hospital in Odessa, Texas, where he was pronounced dead from his gunshot wound. On November 29, 2012, a jury in Ector County, Texas, convicted Steve Uresti of manslaughter in connection with the death of Martin Blea, Jr. and sentenced him to 20 years of confinement in the Texas Department of Corrections.
The parents of Martin Blea, Jr. retained DZWL to investigate the viability of, and potentially prosecute a wrongful death and survival action against persons determined to be potentially civilly liable for the death of Martin Blea, Jr. Our clients asserted that the owners/operators of The Pussycat Lounge controlled the security and safety of The Pussycat Lounge on May 21, 2011, and owed a duty to protect people visiting the club, such as Martin Blea, Jr., from the criminal acts of third parties if they knew or had reason to know of an unreasonable and foreseeable risk of harm to people visiting the club.. In that regard, the evidence revealed that the owners/operators knew or should have known that in the approximately three-year period immediately prior to May 21, 2011: a) the Odessa Police Department had been repeatedly called to the Jaguars Gold Club, a stone’s throw from The Pussycat Lounge, for numerous and repetitive instances of violent criminal conduct at Jaguars Gold Club involving, among other things, armed robbery, assault, gunshot victims and shots fired; b) the Ector County Sheriff’s Office had been repeatedly called to the premises of The Pussycat Lounge (as well as the business previously operated at those premises which was also owned and/or operated by the same persons) for numerous and repetitive instances of violent criminal conduct at those premises, involving, among other things, assault, aggravated assault, assault with bodily injury, aggravated assault with a deadly weapon, deadly conduct, robbery and a subject with a gun; and, c) the Ector County Sheriff’s Office had been repeatedly called to the Jaguar’s Gold Club for numerous and repetitive instances of violent criminal conduct at Jaguar’s Gold Club involving, among other things, assault, aggravated assault with a deadly weapon, aggravated assault, sexual assault, robbery, aggravated robbery, shots fired, deadly conduct, stab victim, man with a gun and prohibited weapon. Therefore, our clients asserted that the owners/operators of The Pussycat Lounge knew or should have known of the risk that persons in the immediate vicinity of The Pussycat Lounge who visited the Defendants’ two business establishments in that locale might foreseeably injure other people visiting the The Pussycat Lounge, such as Martin Blea, Jr., and Defendants had a duty to protect persons, such as Martin Blea, Jr., from the imminent, probable and foreseeable harm posed by other patrons of Defendants’ establishments. Our clients asserted that their son died as a result of Steve Uresti’s foreseeable act of firing a gun that had been brought into the Pussycat Lounge as a result of the inadequate security measures employed by Defendants at The Pussycat Lounge on May 21, 2011.
The Estate of the deceased, Martin Blea, Jr., incurred funeral and burial expenses of $11,423.06 and medical expenses of $1,193.50. The parents sought to recover damages under the Survival Statute for the alleged conscious pain and suffering endured by Martin Blea, Jr. between the time he was shot and the time he was pronounced dead. The parents also sought to recover for damages to the parent-child relationship, including loss of affection, solace, comfort, companionship, society, assistance, emotional support and love, loss of pecuniary value of the services of Martin Blea, Jr. and past and future mental anguish, grief and sorrow.
Despite the various contentions of the owners/operators, their insurance company paid our clients the insurance policy limits of $1,000,000 to settle their claims. The net recovery for our clients, after payment of attorneys’ fees and case expenses, was $555,494.39.
Top 10 things to do if you are injured by a product:
by Daryl L. Derryberry, Member of Derryberry Zips Wade Lawhorn, PLLC
- Contact a lawyer immediately to prevent the product from being destroyed or disposed of. An attorney can send a spoliation letter to preserve the product for inspection which is crucial to your case. Do not sign any documents prior to consulting with an attorney.
- Obtain the name of the product manufacturer and the make and model number of the product.
- Send all worker’s compensation forms, if any, to your lawyer before signing.
- Take photographs of your injuries if possible.
- Take photographs of the scene of the incident if possible.
- Do not give any written or recorded statements to any insurance company or company representative without consulting with an attorney.
- Immediately seek medical attention at a hospital or from a doctor if you are injured. If you do not seek medical attention, then the insurance company and/or product manufacturer will contend that you delayed in treatment and are not injured.
- If you do not have health insurance, contact an attorney. We may be able to assist you in obtaining medical care.
- Prepare a brief summary of the incident. Our memories fade about the details of an accident as time passes. This is helpful later in jogging your memory of the details of the incident.
- Obtain a police report if one is available.
Daryl L. Derryberry is one of the two founding partners of the firm now known as Derryberry Zips Wade Lawhorn, PLLC (the “Firm”). Daryl and Craig Zips started the Firm in May, 2002 and have enjoyed great success since the Firm’s inception. Daryl’s legal career spans two decades and includes successfully securing jury verdicts and settlements on behalf of his clients in oil rig accidents, 18 wheeler wrecks, medical negligence, products liability, broker malpractice, breach of fiduciary duty and other cases.
GM Halts Pickup Sales While Searching for Air-Bag Fix
The issue affects an undisclosed number of 2015 Chevrolet Colorado and GMC Canyon midsized pickups. The air bags were wired incorrectly, which will disrupt the firing process, the company said in a statement yesterday.
“GM is working to validate the correction for the condition,” Alan Adler, a spokesman for the Detroit-based automaker, said in the statement. “Once that service procedure is released to dealers, customer deliveries can resume.”
The largest U.S. automaker is trying to move beyond a year in which it has recalled almost 30 million cars and trucks in North America. Chief Executive Officer Mary Barra faced four separate congressional hearings over the handling of an ignition-switch recall now tied to 23 fatalities.
GM introduced the Colorado at the Los Angeles Auto Show in November, when it touted the vehicle’s capacity to tow greater loads than Toyota Motor Corp.’s Tacoma model. The Canyon, which sold 11 models in September, is the GMC version of the truck. Colorado sales totaled 36 that month. “The volumes are low and there are very few cars in customer hands,” said John Krafcik, president of TrueCar Inc., an auto-buying website based in Santa Monica, California.
“It comes down to when sales can start again. They’ve started marketing the car, so if a consumer comes in and can’t buy one, then it becomes an inefficiency,” Krafcik said in a phone interview yesterday.
GM is preparing to conduct a safety recall for the trucks, meaning it will notify U.S. regulators and repair the vehicles for free. The company doesn’t know of any crashes, injuries or fatalities connected to the error, Adler said. The automaker has recalled about 26.4 million cars in the U.S. this year. That eclipses Ford Motor Co. (F)’s single-year record of 23.3 million in 2001.
Customers are being notified by overnight letter as well as being contacted by phone to bring their trucks to a dealer as soon as possible, Adler said. Free loaner vehicles will be provided.
To contact the reporter on this story: Jeff Plungis in Washington at email@example.com To contact the editors responsible for this story: Jamie Butters at firstname.lastname@example.org Niamh Ring, John Lear
How disdain for government regulation sparked a “Texas miracle” economy — while tearing down protections for the workers who built it.
Texas saw a decline in the number of people killed on the job in 2013, but the state still leads the nation in workplace fatalities, according to preliminary government data released Thursday.
There were 493 fatal work injuries in Texas in 2013, compared with 536 a year earlier, the U.S. Bureau of Labor Statistics reported. That represents a decline of about 8 percent. The 2013 figures are considered preliminary and will be revised in the spring.
As the Texas Tribune reported in its Hurting For Work series this summer, Texas has led the nation in worker fatalities for seven of the last 10 years. That trend held firm with the release of the 2013 data. Stretching back to 2000, Texas has experienced more job fatalities than any other state for 10 of those 14 years.
Other large U.S. states had significantly fewer workplace fatalities last year: California had 385, while Florida had 234 and New York had 160. (It’s worth noting that Texas has experienced comparatively high employment over the last decade. Since 2003, a third of the net new jobs created in the United States were in Texas).
While fatalities fell overall nationwide last year, deaths among Latino workers went up 7 percent nationwide between 2012 and 2013 — or 797 last year compared to 748 the year before. Texas has a large Hispanic workforce, particularly in the construction industry, but racial and ethnic breakdowns by state weren’t available Thursday.
Transportation accidents, accounting for 213 deaths, caused the most workplace fatalities in Texas, followed by contact with objects and equipment, 76; falls, slips and trips, 73; violence by persons or animals, 66; fires and explosions, 32; and exposure to harmful substances or environments, 31.
Heavy truck and tractor-trailer drivers proved to be the most dangerous occupation in Texas in 2013, accounting for 104 incidents, the data shows.