Negligence Claims

Insurance Policy Exceptions in Automobile Accidents

Published on: February 8, 2011 | By Berniard Law Firm

Automobile insurance policies are a means of protecting car drivers and accident victims. It creates a pool of money so that any party at fault can make the victim of his or her negligence whole. When a business holds itself out as a car dealer, policy terms are a little different based on each party and insurer. An insurance policy agreement between the insurer and the insured is a contract between the parties. Under Louisiana law, words in a contract are presumed to have the plain and ordinary meaning they are generally given. The basic intent of the parties is construed through the words of the contract, and no court can disturb the intent of the parties. If an insurer is attempting to show that a certain provision in an insurance policy exempts coverage, the insurer has the burden to prove any exception.

In a recent case, a court discussed how insurance policy language will be interpreted. The facts giving rise to the cause of action in McKay v. W & J Farms, are as follows:

The plaintiff, Connie McKay, was driving South on Highway 153 in Richland Parish. As she travelled through an intersection, her vehicle was struck on the side by a tractor driven by Kyle Mills. Ms. McKay claims that an insurance policy held by the seller of the tractor extended to Mr. Mills when he was driving the tractor. The way in which Mr. Mills came to be driving that vehicle at the very moment are interesting and are crucial in relation to the cause of action. Mr. Mills works on a farm with his brother and another individual, Mr. Livingston. The three individuals decided that it was important that they purchase another tractor to increase productivity on the farm. Mr. Livingston and Mr. Mill’s father went to a Peterbuilt tractor dealership in order to check prices of tractors. Mr. Livingston brought a tractor to the farm to test it out. Mr. Mills was advised to drive the tractor from the farm to the elevator. During this fateful drive, he struck Ms. McKay at the intersection with Highway 153.

Ms. McKay argued that the Peterbuilt dealer’s insurance coverage extends to Mr. Mills as he was driving the tractor. The insurance company’s policy with the Peterbuilt dealer states in relevant part:

The following are insured for covered autos…anyone else while using with your permission a covered auto you own, hire, or borrow, except…Your customers, if your business is shown in the Declarations as an auto dealership.

In the Peterbuilt dealers business declaration, the business was declared a car dealership. Ms. McKay argued that there is a distinction between auto dealership, as is stated in the insurance policy, and car dealership, as is stated in the declaration. There is obviously no real distinction between these terms. From a logical perspective, a person reading these two terms would find that they are identical. The next question is whether Mr. Mills was a customer of the Peterbuilt dealer. The facts in the case showed that Mr. Mills’ brother was going to be the actual purchaser of the tractor. However, under Louisiana law, a person test driving a vehicle in order to help a purchaser make a decision of whether to purchase that vehicle is considered an extension of the purchaser. This means that the test driver is a customer in the eyes of the law. Therefore, when Mr. Mills was driving the tractor he was a customer and under the terms of the dealer’s contract with the insurance provider, Mr. Mills was not covered under the policy.

Insurance policies are difficult and complex contractual agreements. In order to understand policies, a general understanding of the law is essential. If you have been involved in an accident, you are likely going to have to deal with an insurance company.

Chinese Drywall Still a Major Issue Throughout Gulf Coast

Published on: February 6, 2011 | By Berniard Law Firm

For thousands of homeowners, an unwelcome companion lives with them every day, without their consent and sometimes without their knowledge. This unwelcome housemate is known as Chinese drywall. This dangerous defective material was utilized in a multitude of homes between 2001 to 2007, when it was imported from China. The drywall has created an unhealthy and dangerous atmosphere for homeowners, who have to deal with not only symptoms of failing health, but also their actual possessions showing evidence of exposure to Chinese drywall. One couple in particular describe the chain of events that led them to the discovery that they were living in hazardous circumstances as a result of the Chinese drywall being used in the construction of their dream home.

Chinese drywall is not the type of danger that is instantly apparent; rather, it is hidden in the home, being that it is sheet rock which is later covered and painted over. However, this hidden hazard releases toxic fumes into the air which causes health effects as well as deterioration in objects exposed to such toxins. According to the U.S. Consumer Product Safety Commission, “the drywall releases hydrogen sulfide and possibly other gases causing corrosion of wiring and appliance and possible health problems.” A couple who detail their experience with the defective, hazardous material, stated that their first inclination that something was seriously wrong was when they had to replace their air conditioning compressor and coils twice, within a three month time span. Upon speaking with their friends and neighbors, they discovered that numerous homeowners in the area had to replace their air conditioning compressor and coils often as well, which is not normal for such equipment. The trauma continued when the couple described smelling rotten egg in their home on a daily basis, to such an extent that when they left their home, co-workers and friends would mention that the couple themselves smelled like rotten egg. As further indication of the danger that lurked in their home, the silver jewelry and dishware turned black after sitting out for a mere week and half. Pretty soon, friends, relatives, and neighbors stopped coming to their home, the smell was too much to handle and the couple was at a loss of what to do. Hiring a home inspector to come help them discover the root of their problems, the inspector discovered their house was built with Chinese drywall. Scared and unsure of what their options were, the couple turned to legal guidance and support for answers.

Lawsuits have been filed against the Chinese drywall manufacturer, Knauf Drywall, and the distributor, Interior/Exterior Building Supply. In fact, to date, over 5,000 cases have been filed in a multi-district litigation in Louisiana under federal Judge Eldon Fallon. These lawsuits were pressed by those looking to recover the money it would cost to replace their drywall with a safer version. Since this process involves major construction, the costs are high and these people rightfully felt like they should not have to pay for unknowingly being exposed to contaminants by the manufacturer.

The health risks are extremely important to understand and take into consideration. According to Dr. Patricia Williams, a University of New Orleans toxicologists, “highly toxic compounds have been found in Chinese drywall and prolonged exposure to these compounds can cause serious problems. Strontium sulfide may be dangerous to developing children; affecting bone growth. Chronic exposure to these gases may affect the central nervous system (including visual and sensory changes), cardiovascular system, eyes, kidney, liver and skin.” These risk cannot be ignored, thus, seeking legal advice to understand all of the issues involved is strongly advised.

Chinese drywall is a hazardous material that thousands of homeowners have had to live with for years. Throughout this time period they were constantly barraged with toxic fumes which affected their health, lives, and enjoyment of their homes. Legally, homeowners have an action against the manufacturer and distributor of such a defective product and should seek legal advice as soon as possible. Homeowners need to understand how Chinese drywall impacts their health and environment. Monthly status calls are available for homeowners to listen to, that detail settlement discussions as well as liability issues. Homeowners are encouraged to listen in and can call the conference call number at: 1800.260.0702, with the access code 183730. The next scheduled status meeting will be January 20, 2011. Homeowners are strongly advised to seek legal support to protect their rights; if you live in a home with Chinese drywall, contact an attorney immediately.

Lead Attorney Participates in Status Conference for ASR DePuy Hip Recall Litigation

Published on: February 4, 2011 | By Berniard Law Firm

Lead Attorney Jeffrey Berniard of the Berniard Law Firm participated in a recent status conference called by U.S. District Judge David A. Katz of Ohio. The conference was a coordination hearing, and it was the first of several that will be held to determine the strategic direction of DePuy litigation. At the conference, Judge Katz listened to several attorneys argue for a position on the Plaintiffs Steering Committee. Berniard previously submitted his application for a position on the Plaintiff’s Steering Committee, and even if he is not picked as a member, he looks forward to being an active participant in the litigation on the Plaintiffs’ behalf. Judge Katz will consider all applicants, and he will announce the committee selection at a later time.

Jeffrey Berniad is pleased that Judge Katz was ultimately chosen by the Judicial Panel on Multi-District Litigation to preside over the DePuy pretrial matters. Because the Berniard Law Firm represents clients nationwide, Jeffrey Berniard is accustomed to practicing in front of judges located throughout the country. Indeed, Berniard has indicated that Judge Katz is a remarkable judge with a great reputation and that he is happy to be working with him.

As Judge Katz considers the various DePuy matters pending in front of him, including applications to the Steering Committee, Berniard continues to work diligently to achieve justice for those clients who have been harmed by defective DePuy hip implants. In August 2010, DePuy announced a nationwide recall of hundreds of thousands of its ASR hip implant devices due to abnormally high failure rates and structural breakdowns. Hundreds of thousands of patients who received the implants have experienced serious injuries, such as pain and suffering, as a result. Since day one of the recall, Berniard, along with other attorneys, have been seeking recovery on their behalf through the filing of lawsuits with various district courts on a near daily basis.

Speculation Surrounding DePuy Kickbacks to Doctors Who Recommended Recalled Device

Published on: January 31, 2011 | By Berniard Law Firm

The New Haven Independent reported in December 2010 that DePuy, the company responsible for manufacturing thousands of defective hip implants, spent millions of dollars in attempts to woo doctors toward the use of its products on patients. DePuy, a division of Johnson & Johnson, recalled hundreds of thousands of the hip implant devices it had manufactured after a serious design defect was discovered in August 2010. Just as many patients are currently faced with potential complications or the prospect of revision surgery. Some question whether patients could have been saved from these consequences had doctors not been prompted, via kickbacks, to surgically implant DePuy devices into hip replacement patients.

DePuy discloses payments to doctors on its website, but it categorizes such pay as “product royalty payments, “compensation for research,” “meals,” “airfare,” and other expenses. DePuy paid nearly $50 million to surgeons in 2009, with some physicians receiving as much as $1 million from the company. Even if doctors in good faith believe that payments from DePuy do not compromise their medical judgment, health consumer advocates disagree. “…[T]he reality is, it’s human beings,” Jean Rexford, executive director of the Connecticut Center for Patient Safety, said. “We are influenced. If somebody does something nice for me, I’m nicer to them than someone who hasn’t done something nice to me.”

Another expert, Gregory E. Demske, an assistant inspector general, testified before the Senate that “…[I]n an environment where physicians routinely receive substantial compensation from medical device companies through stock options, royalty agreements, consulting agreements, research grants and fellowships, evidence suggests that there is a significant risk that such payments will improperly influence medical decision-making.”

Depuy Litigation Hip Replacement Surgery Claimant Interview Part 3

Published on: January 25, 2011 | By Berniard Law Firm

In parts 1 and 2 of a three-part interview with client Eugene O’Neal (name changed to protect attorney-client privilege), Eugene communicated to readers the menacing effects a failed DePuy ASR hip implant can impose on a person. Not only is the required revision surgery physically taxing, but it generates emotional uncertainty and psychological anxiety as well. For Eugene and the thousands like him, the fallout from the nationwide recall of DePuy ASR hip implants carries with it very real, very human consequences.

When Eugene realized his defective hip had been recalled, he turned to the Berniard Law Firm for guidance. Immediately, attorney Jeffrey Berniard and his staff gave Eugene vital legal advice and connected him to medical professionals who could explain in plain language how the defective hip implants were adversely affecting his body and causing pain.

As previously reported by this blog, Mr. Berniard is using his legal expertise to assist those like Eugene everyday. As he has for years before, Berniard is filing lawsuits for those affected by the inappropriate actions of a large company; in this case, our firm has filed on behalf of patients who have suffered before the recall. Lead attorney Jeffrey Berniard has sought to centralize DePuy litigation to Lousiana and, although his motion was not granted, he is very happy with the selection of the Northern District of Ohio as the transferee forum. Mr. Berniard has also applied to the Honorable Judge Katz in the transferee court for a leadership position with the Plaintiff’s Steering Committee. If granted the position, he would be responsible for directing the strategic direction of national DePuy litigation. However, even if Mr. Berniard is not selected as a member of the Plaintiff’s Steering Committee he will continue to be a part of the litigation as a valuable member of one of the junior committees.

ASR Defective Hip Recall Surgery Claimant Interview Part 2

Published on: January 23, 2011 | By Berniard Law Firm

This is the second installment of Berniard Law Firm’s interview with client Eugene O’Neal (name changed to protect attorney-client privilege). In the first installment, it was revealed that Eugene’s DePuy hip implant had failed and he now requires revision surgery to remedy the problem. Below, Eugene shares his thoughts on having to endure hip replacement surgery for a second time as a direct result of DePuy’s faulty manufacturing techniques.

In addition to fear, Eugene possesses frustration at the weeks upon weeks of rehabilitation he will be forced to undertake in order to recover from his upcoming revision surgery. Following the original implantation of his ASR hip implant in 2008, Eugene endured sixteen weeks of physical therapy before he got to the point where he could adequately walk again. “After they saw your femur off, your body takes a lot of pounding,” Eugene explains. “During the first week of rehab, you have to learn to use your leg all over again. You just stare at your leg and tell it to move. But it won’t move. Your toes move, but your leg doesn’t.” When asked for his thoughts at the prospect of enduring a similar round of rigorous rehabilitation within the next few weeks, Eugene puts it tersely: “It will be a major disruption.”

Eugene makes no secret of his antipathy toward DePuy and its faulty manufacturing practices. “I can’t understand how they’d put a medical product on the market that deteriorates or comes apart in such a short amount of time. To have to get a replacement is just crazy.” Because of the company’s mistake, Eugene believes he’s paying the largest price. “I’m putting my life on the line,” he says, referring to the serious risks of revision surgery. When asked what DePuy owes him, Eugene explains that his ability to earn an income for his family is likely ruined. What’s more, the possible consequences of surgery make him worry about his family. He notes “you can’t put a price on my life, but if something happens to my family because of what DePuy did, they are responsible. I want my wife and kids to be taken care of if something happens to me because of this.”

Interview with Depuy Hip Replacement Claimant Requiring Revision Surgery – Part 1

Published on: January 21, 2011 | By Berniard Law Firm

To document the struggles of those encountering difficulties with defective DePuy hip implants, the Berniard Law Firm presents an interview with one of its clients. While the client’s name in the following article has been changed to protect attorney-client privilege, his story is true and, unfortunately, all too common for many others suffering from undue pain and hardship due to defects recently identified in recalled DePuy ASR hip implant units.

“Eugene O’Neil” never envisioned he’d once again face the pain and anxiety associated with hip replacement surgery. Only two years ago, Eugene was fitted with a DePuy ASR Hip Implant. At the time, his surgeon maintained the artificial joint would last 15 to 20 years before showing any signs of deterioration. For Eugene, his DePuy-manufactured hip implant lasted just a little over two years before completely failing. The warehouse worker from Georgia must now undergo revision surgery to replace his failed hip unit with a functional one.

Eugene’s story is not unique. After DePuy, a division of Johnson & Johnson, announced in August 2010 that it was recalling hundreds of thousands of its defective ASR hip implants from the American marketplace, swarms of patients suddenly realized that the intense pain and lack of mobility they had experienced following their own hip replacement surgeries were not an isolated phenomenon. At the moment, thousands of lawsuits are pending against the manufacturer for billions in dollars of pain, suffering, lost wages, and medical expenses. Revision surgery remains the only viable medical remedy for the alleviation of pain in those patients who have experienced complications from the recalled units. Like most other major surgeries, revision surgery carries with it an inherent risk of serious complications including further injury, or even death.

Court of Appeals Awards Bad Faith Damages Against Insurance Company Who Refused to Pay

Published on: January 17, 2011 | By Berniard Law Firm

For the family of someone killed in a tragic car accident faced with mounting medical bills there is nothing worse than learning that the driver at fault for the accident did not have insurance. Luckily, when that happens, you should be protected by the uninsured or underinsured motorist (UM) coverage on your vehicle. For the Jones Family, however, their UM provider refused to tender the policy limits even after undisputed evidence was provided that damages exceeded that amount. This nightmare happens to far too many families and is a sad reality during a time in which insurance companies try to limit payouts in any way possible.

Thomas Jones was severely injured when his motorcycle was hit by a vehicle driven by Bertha Johnson, and his wife Mary was killed. Johnson was entirely at fault for the accident but neither she, nor the owner of the car she was driving, had insurance coverage at the time. The Jones’ sought their policy limits of $100,000 per person/$300,000 per accident from their UM insurance and at one point the parties agreed that $200,000 would be paid. However the amount was not tendered due to disputes regarding liens from the Jones’ healthcare providers and the company’s concern regarding future claims.

Luckily the Jones had redress when their UM provider refused to pay. The Jones’ brought an additional claim against their insurer, the Markel American Insurance Company, and were awarded $100,000 in (additional) penalties as well as $10,000 in attorneys’ fees. In a recent decision (available here: 45,847-CA) the Louisiana Court of Appeals upheld that ruling.

DePuy Had Time to Recall Device, Chose to Not Notify Public

Published on: January 13, 2011 | By Berniard Law Firm

This blog has noted several times that DePuy knew of the likely failure rates of its ASR hip implants several years before the medical device manufacturer issued its 2010 recall of the product. In light of this knowledge, DePuy nevertheless waited years before it decided to remedy the dangerous situation caused by its defective hip implants. Instead, it chose to shift the blame for reported problems elsewhere before finally initiating the recall.

New evidence has been uncovered showing that DePuy had received credible notification of its ASR hip implant failure rates as far back as 2007. According to The Independent, the Australian joint registry, the second largest registry of its kind in the world, informed DePuy of identified problems in seven separate reports. One of the most striking findings made by the registry was the higher than usual amount of revision surgeries needed to replace previously-implanted ASR hip units. DePuy sat on this knowledge until 2009, when the company finally withdrew the ASR hip implants from the Australian marketplace, citing “commercial reasons.” DePuy initially blamed the Australian joint registry findings on “imprecise surgical techniques” by doctors, but was forced to retreat from that position in response to the multiple reports of problems sent the company’s way.

Director of the Australian joint registry, Stephen Graves, has since stated DePuy behaved “irresponsibly and very badly.” Graves warns, “This is why regulators should not rely so heavily on manufacturer data. It is a complete untruth that DePuy did not have reason to withdraw the ASR before now; we have been telling them since 2007, but they allowed it to be used on thousands of people.”

Artificial Hip Recall Shows Dangers of a Broken Medical Implant System

Published on: January 11, 2011 | By Berniard Law Firm

The A.S.R., or Aritcular Surface Replacement, artificial hip was promoted by Johnson and Johnson as a breakthrough in design that would last 15 years or more and provide patients with more natural movement. Now, the device has been recalled due to patients developing inexplicable pain and surgeons discovering mysterious masses of dead tissue in patients who are having the device replaced. DePuy Orthopedics, the Johnson and Johnson unit responsible for the hip and the largest maker of replacement hips worldwide, maintained that the hip was working for a long time despite warnings that it was a failure.

As pointed out in a recent New York Times article, the trouble with the hip is an indicator of a bigger problem: a piecemeal, broken medical implant system. Critical implants are sold without going through medical trials and testing or gaining FDA approval if the device resembles an implant that has already been approved. Theoretically, this allows manufacturers to make small changes to devices without having to jump through approval hoops; however, according to experts, it has also created a loophole that allows manufacturers to bundle an unapproved component into an existing design and sell it with minimal testing.

This is what happened with the A.S.R. as DePuy announced late last year that it was phasing the device out. However, the company blamed lagging sales rather than safety issues. In a recent statement an official stated that, “We believe we made the appropriate decision to recall at the appropriate time given the available information.”