VERDICT SEARCH REPORTS A $1,100,000.00 SETTLEMENT BY THE TYLER, TEXAS FIRM OF DERRYBERRY ZIPS WADE, PLLC IN A COMMERCIAL MOTOR VEHICLE REAR END DRUNK DRIVING CRASH

Pictured from left to right: Daryl L. Derryberry, Guy I. Wade, III and Craig D. Zips “Keeping Your Community SAFE One Case At A Time”

On Sept. 16, 2016, plaintiff Clarissa Hill, 31, and her husband, plaintiff Mike Hill, 45, were occupants of a sport utility vehicle that was traveling on Mineola Highway, in Smith County. Their SUV’s rear end was struck by a trailing pickup truck that was being driven Teodoro Ortega.  Mr. Hill claimed injuries to his neck. Ms. Hill claimed that she suffered injuries of her low back and right hip.

Ortega told police he had consumed only a single beer, but he failed field sobriety tests and was arrested for DWI. A breath test about two hours after the accident showed a blood alcohol concentration of 0.176, and he was arrested and convicted.

The Hills sued Ortega and Ortega’s employer, Dryce Inc. The Hills alleged that Ortega was negligent and grossly negligent in the operation of his employer’s vehicle. The Hills further alleged that Dryce was negligent and grossly negligent in its hiring of Ortega and in its entrustment of its vehicle.

The defendants acknowledged that Ortega was in the course and scope of his employment at the time of the accident and he alone was responsible for the accident. Dryce had hired Ortega in the late 1980s. Ortega did not disclose a 1985 DWI conviction to Dryce. After a 2010 DWI arrest, he told Dryce’s general manager he was not driving but sitting in his truck in his driveway listening to music. Ortega claimed the same thing in his deposition. However, plaintiffs’ counsel obtained records from the Tyler PD indicating a witness had followed Ortega several miles home at 2 a.m. and called police. The witness told police Ortega had been weaving and driving on the wrong side of the freeway.

Dryce’s general manager acknowledged that she was unaware whether Ortega was convicted in the 2010 incident, and she did not request Ortega’s driving record or try to verify his version of the charges. Also, Ortega’s personnel file contained no criminal background check or driving record.  Plaintiffs’ counsel argued that Dryce failed to request Ortega’s driving record or verify what he told the general manager.

In addition, a Dryce corporate representative acknowledged that if the company had been aware of the 2010 conviction, it would have revoked Ortega’s driving privileges. Also, the company, president and owner, Mr. George Wrappe acknowledged he would not want anyone with even one DWI conviction to operate a Dryce vehicle. However, another Dryce corporate representative testified that a single DWI would be acceptable under company policy.  The defense argued the prior DWI convictions were too remote to show negligent hiring or negligent entrustment at the time of this accident.

INJURIES/DAMAGES arm; chiropractic; discectomy; epidural injections; fusion, cervical; hand; herniated disc at C3-4; herniated disc at C4-5; herniated disc at CS-6; herniated disc at L3-4; hip; radicular pain / radiculitis

The plaintiffs did not seek immediate treatment.

Mr. Hill claimed that he suffered disc herniations at C3-4, C4-5 and C5-6. He also complained of neck pain and radicular pain in his right (dominant) arm and hand.

Hill underwent chiropractic care from October 2016 to December 2016. He also underwent two epidural steroid injections, which provided temporary relief, but he claimed that he was still unable to lift anything more than 15 pounds or engage in normal activities without pain. He then underwent an anterior cervical discectomy and fusion on Jan. 22, 2019. He testified that he is doing much better since the surgery.

Hill’s paid or incurred medical expenses were about $190,000. He was also seeking damages for future medical expenses, past and future physical pain and mental anguish, past and future physical impairment, and past and future disfigurement.

Ms. Hill claimed that she suffered a herniated disc at L3-4. She also claimed that she suffered right hip pain. A lumbar epidural steroid injection and a hip injection provided some relief. Her neurosurgeon has recommended lumbar surgery.  Hill testified that she was unable to sit for long periods and pain with normal activities, including walking.

Hill’s paid or incurred medical expenses were about $24,000. She was also seeking damages for future medical expenses, past and future physical pain and mental anguish, past and future physical impairment, and past and future disfigurement.

The defense argued that, based on the medical records, the Hills’ injuries were almost completely resolved within a few weeks of the accident. Also, Mr. Hill had right arm and hand issues that were pre-existing and unrelated to the accident, the defense argued.

The defense also argued that Ms. Hill’s medical records described her lumbar and right hip pain as a pre-existing condition.

The case settled in mediation for $1,100,000.00 million. After payment of attorneys’ fees ($360,000.00), expenses ($14,364.73) and paying back his medical providers ($107,044.22), one of our clientS received $410,686.05. Our other client received $94,328.02 after payment of attorneys’ fees ($80,000.00), expenses ($14,364.73) and paying back her medical providers ($11,307.25).

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DERRYBERRY ZIPS WADE, PLLC

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VERDICT SEARCH REPORTS A $1,400,000 SETTLEMENT BY THE TYLER, TEXAS FIRM OF DERRYBERRY ZIPS WADE LAWHORN, PLLC IN AN 18 WHEELER CRASH

Pictured from left to right: Tab E. Lawhorn, Daryl L. Derryberry, Guy I. Wade, III and Craig D. Zips “Keeping Your Community SAFE One Case At A Time”

On Feb. 17, 2016, plaintiff Wanda Huddleston, 79 and retired, was northbound in a Chevrolet Silverado pickup truck on U.S. Highway 69 near Lindale, Texas. Handrijono Oetomo (“Oetomo”), an employee of DAT Truck Lines Inc. (DAT”), was southbound in an 18-wheeler owned or leased by HNL Truck Lines Inc (“HNL”). It was early morning and dark, and traffic was heavy. Oetomo attempted a U-turn in an open intersection, and Huddleston struck the 18-wheeler. She sustained multiple injuries and later had multiple strokes, which caused her to become mentally incapacitated. The investigating officer gave Oetomo a ticket for failing to yield the right of way.

Huddleston’s son, on her behalf, sued Oetomo, DAT and HNL for Oetomo’s actions in negligently making an unsafe U-turn, failing to yield the right of way and failing to keep a proper lookout. He also sued DAT for violating numerous policies and procedures and Federal Motor Carrier Safety Administration (FMCSA) regulations by not giving Oetomo any driver training, not disciplining him for driver log violations, not suspending him after he was given a citation, and not making a determination of whether the accident was preventable. The plaintiff sued HNL on theories of vicarious liability, alleging that Oetomo was a statutory employee of HNL.

Oetomo took no responsibility for the wreck and blamed Huddleston, in part, because women have slower reflexes.

Plaintiff’s counsel argued that Oetomo was lost and unfamiliar with the area and that he was in a rush, and that he falsified his logs. The truck’s data recorder said the truck had been operating for more than 13 hours, but Oetomo’s handwritten logs said he had been driving for only 7.25 hours.

Plaintiff’s counsel further argued that, under FMCSA regulations, because Oetomo did not understand English well enough, he should not have been driving the vehicle at all.

The defense argued that Huddleston was contributorily negligent for driving too fast, not keeping a proper lookout, not controlling her speed, and not braking or turning in time to avoid the collision. The defense accident reconstruction expert opined that Huddleston should have been able to see the truck and stop before the impact. An eyewitness who was behind Huddleston was able to stop, the defense noted.

HNL further argued that the truck was not a listed vehicle under its insurance policy and that it therefore had no insurance coverage. (Plaintiff’s counsel argued that, because the policy had a particular endorsement, known as an MCS-90 endorsement, the carrier would have to pay any eventual judgment against  Oetomo and HNL.)

Huddleston sustained a leg fracture and a subdural hematoma. She claimed that the accident caused two to three debilitating strokes, as well.

She underwent open reduction and internal fixation (“ORIF”) of the fracture, with placement of pins and screws. For the subdural hematoma, she underwent a craniotomy.

As a result of the strokes, she required 24-hour care and had to move into a nursing home. Plaintiffs’ neurology expert opined that the strokes were related to the accident.

Huddleston sought past medical bills of about $315,000, as well as $918,000 for the present value of her life-care plan. She also claimed past and future physical pain, mental anguish, physical impairment and disfigurement.

The defense neurology expert opined that strokes resulted from pre-existing conditions, not from the accident.

 The case settled for a total of $1,400,000. DAT and Oetemo settled on Sept. 16, 2016, for their policy limit of $1 million, paid by their carrier. HNL settled at mediation on March 6, 2017, for $400,000, paid by HNL’s carrier. HNL’s policy limit under the MCS-90 endorsement was $750,000.

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DERRYBERRY ZIPS WADE LAWHORN, PLLC

http://www.dzwlaw.com and http://www.urhurt.com

$1,000,000.00 SETTLEMENT OF COMMERCIAL TRUCK WRECK AS REPORTED BY VERDICT SEARCH

Pictured from left to right: Tab E. Lawhorn, Daryl L. Derryberry, Guy I. Wade, III and Craig D. Zips “Keeping Your Community SAFE One Case At A Time”

 

On July 2, 2014, our client, was operating a 10-wheeler truck on Interstate 20 West in Harrison County, Texas. The defendant was operating a Ford F-350 pickup truck, hauling a load of drill pipe on a flatbed trailer for an oilfield service company. The defendant negligently rear-ended our client, whose in-cab video camera recorded the violent jarring of the impact. The defendant’s truck burst into flames and our client pulled the defendant from her burning vehicle. The truck the defendant was operating was owned by or leased to an oilfield service company.

Our client hired our firm to sue the defendant for negligently failing to keep a proper lookout, driving too fast and following too closely. He also sued the oilfield service company under respondeat superior (being responsible for the negligent acts of the defendant) and for violating its policies by failing to conduct a post-accident drug test of the defendant; by failing to investigate the wreck; and by providing the defendant a company truck to drive even though she had five (5) prior convictions for moving violations under Texas law. The oilfield service company’s policy prohibited giving a company vehicle to anyone convicted of more than three (3) moving violations.

Our client also alleged that the defendant was a distracted driver (using her cell phone constantly for 44 minutes before the violent wreck and at the time of the wreck) and that the distracted driving caused the wreck. During that 44 minute period, her cell phone records showed 194 calls or text messages to or from a single number.

The defendant testified that she accepted responsibility for failing to control her speed and rear-ending our client. However, she also testified that she was not using her cell phone in any manner at the time of the wreck. Our client believes the cell phone records unequivocally showed that she was being untruthful in that regard.

Our client’s injuries included herniated discs and facet tears in his neck and back, as well as sustaining other injuries, harms and losses.

The wreck was in the afternoon, and our client sought medical treatment the next morning. He initially treated through workers’ compensation, but he felt that he was not receiving adequate care, and he sought treatment outside of the worker’s compensation system, including seeking treatment from a neurosurgeon. Our client tried physical therapy, but found it too painful.  Our client also underwent lumbar epidural steroid injections (ESIs) and, in April 2015, he had a discogram done as well.

In the summer of 2015, a neurosurgeon performed a posterolateral fusion in his back with placement of hardware (pedicle screws on the left). The neurosurgeon opined that our client’s neck and back injuries were caused by the wreck.

The oilfield service company and the defendant had $1,000,000.00 in liability insurance coverage and the entire policy limits were paid to our client to settle the case.  After payment of attorney’s fees ($400,000.00), expenses ($35,599.34) and medical bills ($160,429.31) the client netted ($403,971.43).

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DERRYBERRY ZIPS WADE LAWHORN, PLLC http://www.dzwlaw.com and http://www.urhurt.com 

 

What do I do if I am injured by a defective product?

Top 10 things to do if you are injured by a product:

by Daryl L. Derryberry, Member of Derryberry Zips Wade Lawhorn, PLLC

Defective tires de tread frequently and can cause serious injuries or death to the occupants of the vehicle.

1. 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. 
2. Obtain the name of the product manufacturer and the make and model number of the product.
3. Send all worker’s compensation forms, if any, to your lawyer before signing.
4. Take photographs of your injuries if possible.
5. Take photographs of the scene of the incident if possible.
6. Do not give any written or recorded statements to any insurance company or company representative without consulting with an attorney.
7. 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.
8. If you do not have health insurance, contact an attorney.   We may be able to assist you in obtaining medical care.
9. 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.
10. 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.

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DERRYBERRY ZIPS WADE LAWHORN, PLLC  http://www.dzwlaw.com and http://www.urhurt.com 

GM HALTS TRUCK SALES- AIR BAG ISSUES

GM Halts Pickup Sales While Searching for Air-Bag Fix

By Jeff Plungis and Madeline O’Leary Oct 3, 2014 11:00 PM CT

General Motors Co. (GM), already reeling from a record number of vehicle recalls this year, is halting sales on two new pickup truck models after discovering an electrical flaw that could cause the air bags to misfire.

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.

Recall Planned

“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 jplungis@bloomberg.net  To contact the editors responsible for this story: Jamie Butters at jbutters@bloomberg.net Niamh Ring, John Lear

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DERRYBERRY ZIPS WADE LAWHORN, PLLC  http://www.dzwlaw.com

Derryberry Zips Wade Lawhorn, PLLC Announces A $400,000 Settlement of A Commercial Truck Wreck Case as Reported by Verdict Search

Our client, age 52, and employed as an inventory specialist, was turning into her employer’s parking lot from a two-lane road in Tyler, Texas. Austin Gray, in a Ford F-350 pickup, attempted to pass her on the right, and the vehicles collided. Our client was in a mid-size sedan. Gray was in the course and scope of his employment with LCR-M, L.P. He received a ticket for passing unsafely on the right and did not contest the ticket.

Our client sued Gray for passing unsafely on the right and causing the wreck. She also sued LCR-M under respondeat superior. Our client testified that Gray actually entered the parking lot to pass her on the right and that the impact occurred in the parking lot.  Gray and LCR-M contended that our client was stopped in the middle of the road without her turn signal on and that the wreck occurred on the road.

Our client went to the ER later the night of the wreck and again the next morning.  She sustained an internal disc disruption at L4-5. She tried physical therapy, but testified it did not provide her any relief from the constant pain. She underwent pain management with injections and then, on 4/16/13, an anterior lumbar fusion and posterolateral lumbar fusion at L3-4 and L4-5  was performed on her.

Our client’s paid medical bills were about $90,000. She also claimed past and future loss of household services, past and future loss of earning capacity, past and future disfigurement, past and future physical impairment, and past and future physical pain and mental anguish.

Our client had been working full time and making $13 an hour. The Social Security Administration declared plaintiff completely disabled as a result of the injuries she sustained in the wreck.

The Defendants contended that the impact was minor and that our client’s back injury could not have been caused by the wreck because the vehicle photos showed little damage to either vehicle.

The Defendants also contended that our client’s lower back problems were related to injuries she sustained in a rollover wreck around 1989. In that wreck, our client sustained compression fractures at L3 and L4, and the Defendants argued that this prior injury necessitated her surgery, not this wreck.

The Defendants further argued that our client’s earnings history was insufficient to support her claim for future lost earning capacity. And, the Defendants disputed our client’s need for any future surgery or other future medical treatment.

Finally, the Defendants note that our client’s workers’ compensation carrier determined that our client’s lower back injury was a preexisting injury related to the 1989 rollover and not related to this wreck.  Despite this contention,  our firm was able to negotiate a $400,000 settlement of this case for our client at mediation as reported by Verdict Search.

 

Bard Settles Second Bellweather Vaginal Mesh Case

Bard settles second bellwether mesh case after plaintiff verdict in first trial

By Courtney L. Davenport

Following a plaintiff verdict in the first transvaginal mesh bellwether trial in a federal MDL against C.R. Bard, Inc., the device maker settled the second bellwether case shortly after jury selection. About 4,400 suits are pending in that MDL, and about 25,400 federal suits are pending in MDLs against other mesh manufacturers. (In re C.R. Bard, Inc., Pelvic Repair Sys. Prods. Liab. Litig., MDL No. 2187 (S.D. W. Va. Aug. 23, 2013).)

Last month, a jury awarded Donna Cisson and her husband $2 million, including $1.75 million in punitive damages, against Bard after transvaginal mesh implanted to treat pelvic organ prolapse (POP) eroded, causing bleeding, pain during intercourse, and bladder spasms and requiring additional surgeries. The Cissons alleged Bard defectively designed the mesh and failed to warn doctors when it learned of the risks.

Less than two weeks later, Bard settled with Wanda Queen and her husband for an undisclosed amount. Queen’s specific injuries were not disclosed in the complaint, but attorneys said that despite six corrective surgeries, her injuries are permanent.

Harry Bell of Charleston, W. Va., coliaison counsel in the MDLs, said the Cisson verdict may have prompted Bard to settle with the Queens because Queen’s case was even more egregious. But he does not know what impact the positive resolutions will have on the two remaining bellwether suits or the other MDL plaintiffs.

“From the perspective of the manufacturer, how’s it going to look to the public to have two adverse verdicts back to back and with the verdict amounts increasing? They made the decision they couldn’t take that risk,” he said. “Whether Bard makes the decision to settle [the others], one never knows. Bard has to be considering settlement considering the cases it is losing.”

Transvaginal mesh is surgically implanted in the vagina or abdomen to treat POP—in which the bladder, bowel, or other pelvic organs protrude into the vagina—and stress urinary incontinence. But shortly after it became popular in the late 2000s—in 2010 alone, mesh was implanted in 300,000 women—the FDA started receiving reports of serious injury when the mesh eroded, scraping tissue and protruding into the vagina or other organs, causing chronic pain, incontinence, infection, pain during intercourse, and other problems. Sufferers often require multiple surgeries to remove all of it. In 2011, the FDA warned that serious complications are “not rare” and advised that transvaginal mesh should not be used to treat POP, because it had not proved to be more effective than safer alternatives.

Thousands of mesh recipients and their families sued Bard; Johnson & Johnson subsidiary Ethicon, Inc.; American Medical Systems, Inc.; Boston Scientific Corp.; Coloplast Corp.; and Cook Medical, Inc. The suits allege the manufacturers did not test the defectively designed mesh before putting it on the market, nor did they properly train physicians. Federal MDLs were established against each defendant. State lawsuits are also pending against many of them, and at least two plaintiffs have obtained jury verdicts.

In July 2012, a California state court jury awarded Christine Scott—who suffers fecal incontinence and chronic pain and cannot have sexual relations after mesh eroded into her colon and vagina—and her husband $3.61 million against Bard. (Scott v. C.R. Bard, Inc., No. S-1500-CV-266034 (Cal., Kern Co. Super. July 24, 2012).) Earlier this year, a New Jersey court jury awarded Linda Gross and her husband $11.11 million against Ethicon. Gross underwent 18 surgeries to remove eroded mesh and permanently suffers such severe pain in her legs and pelvis that she cannot sit comfortably, be active for more than a few minutes, or have sexual intercourse. (Gross v. Ethicon, Inc., No. Atla-L-6966-10 (N.J., Atlantic Co. Super. Feb. 25, 2013).)

Bard asked that the court stay the other bellwether trials or certify an interlocutory appeal of an order in Cisson that excluded evidence of the FDA 510(k) device-approval process and the FDA’s decision not to recall Bard’s mesh devices. The judge has denied the request, holding that “I remain unconvinced that Bard is likely to succeed on the merits of any appeal related to the 510(k) issue” and that Bard will not be irreparably injured by waiting for the outcome of the remaining bellwether trials, the first of which is set to begin Oct. 8.

First Transvaginal Mesh trial against Johnson & Johnson set to begin week of January 7, 2013

http://www.dzwlaw.com/mesh/

Johnson & Johnson (JNJ) is set to face its first trial over its vaginal mesh implant in a case brought by a South Dakota woman who blames the product for constant pain and 18 subsequent operations.

The lawsuit by Linda Gross, 47, is the first of 1,800 in state court in New Jersey to go to trial today over whether J&J’s Ethicon unit adequately warned of the risks of the device. Several manufacturers, who make the devices to shore up pelvic muscles, face lawsuits by women who blame them for organ perforation, pain, scarring and nerve damage.

“She can no longer sit comfortably for more than a few minutes without having to either stand up or lay down to try to reduce the level of pain,” Gross’s attorneys said in court papers filed in Atlantic City. “She requires various daily medications to treat her severe chronic pain.”

J&J, based in New Brunswick, New Jersey, denies Gross’s claims for failure to warn of the risks, defective design and negligence.

In August, the company stopped selling four mesh devices in the U.S., including the Gynecare Prolift that Gross had implanted on July 13, 2006. The former nurse claims her pain ruined her quality of life and keeps her from working.

J&J, the world’s biggest seller of health-care products, denies Gross’s allegations, according to an Ethicon spokesman,Matthew Johnson.

“The evidence will show that Ethicon acted appropriately and responsibly in the research, development and marketing of pelvic mesh products to treat debilitating conditions affecting many women,” Johnson said in an e-mail.

Jury Selection

Jury selection began today when more than 100 potential jurors began filling out questionnaires. Lawyers will select a jury panel Jan. 9, with opening statements expected the next day. The trial is scheduled to last more than a month.

The U.S. Food and Drug Administration told J&J, C.R. Bard Inc. and 31 other manufacturers last January to study rates of organ damage and complications linked to implants. Doctors implanted more than 70,000 mesh devices in U.S. women in 2010, threading them through incisions in the vagina to fortify pelvic muscles that failed to support internal organs.

J&J said in June that it would end sales worldwide based on their commercial viability, not their safety and effectiveness.

Superior Court Judge Carol Higbee has wrestled in recent days with what lawyers for Gross and J&J can tell jurors about how the company introduced the Prolift device in March 2005.

No Application

J&J began selling the Prolift without filing a newapplication under the agency’s so-called 510(k) application process, which requires companies to show that a device is“substantially similar” to others on the market.

The company determined on its own that it was substantially similar to the Gynecare Gynemesh, one of the company’s devices already approved by the FDA, J&J said last year in an e-mail.

The FDA disagreed with J&J’s interpretation and required a new application in August 2007, saying Prolift sales began“without appropriate” clearance, an agency spokeswoman, Morgan Liscinsky, said last year in an e-mail.

J&J has said it began sales after citing an agency guidance document, “Deciding When to Submit a 510(k) for a Change to an Existing Device,” according to Liscinsky and Johnson.

The company faced no sanctions because the FDA determined that it applied the guidance in good faith and promptly complied when the agency required a new application, Liscinsky said. The FDA cleared the device in May 2008 after nine months of negotiations with J&J.

Addressing Jury

Higbee heard arguments Jan. 4 about what jurors could hear about the device’s regulatory history.

“We’re entitled to say they were required to get 510(k) clearance, and they didn’t get it,” Gross’s attorney, David Mazie, told Higbee.

“We continually hear that we marketed the device without clearance,” William M. Gage, J&J’s lawyer, told the judge. That’s not true. We marketed it under the guidance.”

“If they’re going to go in and say we didn’t get clearance, we’ve got to be able to say we did get clearance,”Gage said.

Higbee barred Adam Slater, the lawyer who will give an opening statement for Gross, from using words like “fraud,” “illegal” and “similarly inflammatory language” in addressing the jury.

‘Mental Illness’

On Jan. 3, Mazie argued that J&J should not be allowed to let a psychiatrist testify that Gross suffers from a “serious mental illness” that contributes to the excruciating pain she’s suffered. The doctor would testify that Gross refused to go a pain management center and wants to “hold on to her pain” so she can continue to claim disability, Mazie said.

At the hearing on Jan. 4, Higbee said jurors can hear about Gross’s various medical problems.

“I don’t foresee that defense counsel is going to stand up there and say this woman is responsible for her injuries,”Higbee said. “I have very little doubt that that would be a mistake.”

Possible witnesses for Gross include Alex Gorsky, who became J&J’s chief executive officer last April and was elected chairman Nov. 30.

Gorsky joined J&J’s Janssen unit in 1988 as a sales representative, according to a company biography. He left the company in 2004 to join Basel, Switzerland-based Novartis AG (NOVN), where he headed North American pharmaceuticals.

Four years later, he returned to J&J. He was named global chairman of the devices and diagnostics groups in 2009.

The case is Gross v. Gynecare Inc. Atl-L-6966-10, Superior Court of Atlantic County, New Jersey (Atlantic City).

To contact the reporters on this story: David Voreacos in Newark, New Jersey, at  dvoreacos@bloomberg.net; Jef Feeley in Wilmington, Delaware, at  jfeeley@bloomberg.net.

To contact the editor responsible for this story: Michael Hytha at  mhytha@bloomberg.net.

What to do if you are involved in an accident, including car accidents and 18 wheeler accidents

Top 10 things to do if you are injured in an accident, including a car accident or 18 wheeler accident.

By Craig Zips, Member of Derryberry Zips Wade Lawhorn, PLLC

Accidents involving 18 wheelers can cause serious injuries because of the size and weight of the tractor and trailer.

1. Immediately call the police or 911 to report the accident, do not leave the scene of the accident and attempt to ensure the other party also stays at the scene.
2. Contact a lawyer immediately.   The insurance company for the at fault driver and your insurance company will act only to protect their respective financial interests.   The insurance companies only care about saving their money.  Do not sign any documents prior to consulting with an attorney.
3. Attempt to identify any witnesses to the accident and write down their names, addresses and telephone numbers.  If possible, also write down their license plate numbers.
4. Exchange the following information with the other driver; name, address and telephone number, make and model of the car or 18 wheeler, license plate number, the other driver’s employer, if applicable, if the driver does not own the car then obtain the name, address and telephone number of the owner of the car or 18 wheeler, obtain all insurance information, including the name of the insurance agent for the other driver.  Also, if the accident involves and 18 wheeler then write down the Unites States Department of Transportation (“US DOT”) number that is typically located somewhere on the tractor or trailer.
5. Write down any statements that are made by the other driver that indicate the other driver is at fault.  These statements may be used against the other driver and/or their employer in settlement negotiations or   if a lawsuit is filed.  Conversely, do not make any statements to the other driver or witnesses in connection with the accident.  Please remember to make sure that any statements made to the police are truthful and accurate.  Do not guess or speculate about any answer to any question asked by the investigating officer.
6. Take photographs of the property damage to your car and the other car(s) or 18 wheeler while you are at the scene of the accident.  Also take photos of the accident scene, including any visual obstructions, road signs, speed limits signs, and any skid marks made by any vehicle involved in the accident.
7. Immediately seek medical treatment if you are even slightly injured.  Sometimes accident victims can sustain internal injuries without realizing he/she is injured.  Internal injuries can be fatal if not treated.    Do not be embarrassed to ask for an ambulance if you have been injured in any manner.  Please also make sure you attend all doctor and physical therapy appointments.  If you miss these appointments, then the insurance company will argue these missed appointments mean you are not really hurt.
8. Do not give any written or recorded statements to any insurance company or insurance company representative without consulting with an attorney.
9. Prepare a brief summary of the accident.   Our memories fade about the details of an accident as time passes.  These notes about the accident will be  helpful later in jogging your memory of the details of the accident.   Also, keep a daily diary of your medical visits, as well as a daily diary of the pain you are experiencing after the accident.
10. Obtain a police report if one is available.

Craig Zips is one of the two founding members of the firm now known as Derryberry Zips Wade Lawhorn, PLLC. He is board certified in personal injury trial law by the Texas Board of Legal Specialization, and has been given the premier AV rating by Martindale Hubbell. Craig has represented numerous clients for over 15 years in a variety of litigation matters, from complex commercial matters, including business disputes and securities fraud, as well as the  representation of plaintiffs in serious injury cases.