California Personal Injury Law Case Notes : California Personal Injury Lawyer & Attorney : Kristine Meredith : The Danko Law Firm : Car Accidents & Product Liability

Last Thursday, the California Supreme Court handed down its decision in Howell v. Hamilton Meats.  The ruling favors those who cause injury to others (such as people who get into accidents while texting) over their victims. The Court decided that it is those who cause injuries, and not their victims, who will benefit from the health insurance that the victim has paid for.

I attended the oral argument before the Supreme Court back in May.  I wrote about that here.  Today, Gary Simms, who argued the case for Rebecca Howell, provided me his perspective on the Court's decision.  

Q: Were you surprised by the 6-to-1 decision against the plaintiff?

A: Unfortunately, I wasn’t surprised by the result. The Court is deeply conservative (six Republican appointees) and predictably anti-plaintiff in most personal-injury cases, so I knew from the outset of being retained for the Supreme Court briefing that I would face a very uphill battle. I was working at the margins; in other words; three justices would never vote for my position, and I knew it. I expected to get Justice Pro Tem Klein’s vote, though, and she very clearly signaled it at oral argument. I hoped to get three other votes, but I knew it would be difficult.

Q: Were you surprised by the new Chief Justice’s vote with the majority after she had taken the opposite view in her Court of Appeal opinion in King v. Willmett very shortly before she was appointed to the Supreme Court?

A: Yes, but after the oral argument, I sensed that she would flip-flop, so I was only mildly surprised. I can only speculate why she reversed her position. But I think the most likely reason was that she knew her vote would not change the outcome, so she chose to join the majority to make it unanimous. (Because Justice Klein was sitting pro tem by designation, her dissent does not matter in that regard; all the permanent Justices joined in the majority opinion.) This allowed the Chief Justice to establish herself as being a collegial and open minded consensus-builder. That’s a very important quality for a Chief Justice. And perhaps

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Beyaz is Bayer Healthcare Phamaceuticals’ newest birth control pill. In its latest marketing ploy, Bayer enriched its Yaz product. The new pill includes levomefolate calcium, which is designed to increase folate levels in women to help prevent neural tube birth defects. Neural tube birth defects include spina bifida and encephalopathy.

Prevention of birth defects is a good thing. But like Yaz, Beyaz contains ethinyl estradiol and drospirenone. With this troubling combination, Beyaz also carries the same increased risk of blood clots, pulmonary emboli, deep vein thrombosis, gallbladder disease and other potentially life-threatening side effects.

Do women need “fortified Yaz“?  No. Folate, also known as folic acid, is naturally found in green vegetables such as spinach, asparagus and broccoli. Since the early nineties, the FDA has required adding folic acid to grains and cereals. A U.S. woman can meet her daily requirement of folic acid by eating a bowl of breakfast cereal.   

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In April, U.S. scientists reported that short term use of the popular diabetes drug, Actos (pioglitazone), posed no risk of bladder cancer, while use for more than two years was only weakly associated with an increased risk.

But last month a French study found diabetics who used Actos for longer than 12 months were exposed to a 40 percent increase in risk for bladder cancer compared to diabetics who had never used Actos.

In a footnote to their study the U.S. scientists admit:

• The study was funded by a grant from Takeda the manufacturer of the Actos. 
• Takeda reviewed and commented on the study before it was submitted for publication.
• The scientists are paid consultants of Takeda, as well as, other drug manufacturers GlaxoSmithKline and the Actos distributor Eli Lily. 

When the U.S. study was published the U.S. Food and Drug Administration did not take any action against Actos or its manufacturer Takeda.

But, when the French study was published, France and Germany pulled Actos from the market.  In response to the French study, the FDA issued a warning to consumers that Actos may increase the risk of bladder cancer when used for more than a year.

Did the funding from the drug manufacturers influence the results of the U.S. study?  It sure looks that way. How did the French study uncover such a strong association of risk of bladder cancer, when the U.S. researchers missed it?  

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Maybe. A California court has ruled that the assumption of risk defense does not apply to rides at an amusement park. The guest will still need to prove her case; but the claim is not automatically barred as many would have expected.

In Nalwa v. Cedar Fair,LP.,  a guest who broke her wrist on a bumper car was allowed to proceed with her claim against Great America amusement park.  But isn't an injury from getting bumped on a bumper car an inherent risk of the riding a bumper car? Perhaps, but the analysis goes further.
 

The Court explained that California laws require amusement parks to make their rides safe. If  parks can avoid responsibility by asserting theassumption of risk defense, the purpose of the laws would be frustrated. Also, the Court pointed out that sitting as a passenger on a bumper car is not a vigorous enough activity to be considered a “sport”. And, the court determined that an amusement park owner should be held to a higher level of responsibility for safety of its rides -- not a lower or non-existent safety level.
 

The park guest assumes the risk of being frightened -- expecting a thrill; not an injury.

 

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Actos has become one of the most popular treatments for type 2 diabetes mellitus.  Now the FDA is warning of a link between Actos and bladder cancer. A recent study showed that the risk increases by 40% after 12 months on the drug.  That risk is significant enough that the use of the drug has been suspended in France and no new patients are to be started on the drug in Germany. The FDA is suggesting that doctors limit the use of Actos while it continues to study the matter.

According to class action law firm Girard Gibbs, who is investigating the drug, early symptoms include blood in the urine, an urgent need to urinate or pain while urinating, and low back or lower abdomen pain.

The irony is why Actos is so popular:

Actos, despite links to heart failure risk and other serious side effects, became the No. 1 diabetes pill after Avandia, the only other drug in that class, was found in 2007 to sharply increase risk of heart attacks. Avandia’s use was banned in the EU and sharply restricted here. Actos sales jumped from about $2.9 billion in 2006 to more than $4.3 billion last year.

More at the Actos lawyers' website.

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Who is more impaired – a drunk driver or a driver conversing on a hands-free phone? According to a University of Utah study and the National Highway Traffic Safety Administration (NHTSA), it’s the driver conversing on the hands-free phone.

The University of Utah study  showed that when controlling for driving conditions and time on task, cell-phone drivers exhibited greater impairment than intoxicated drivers. The study found that compared with undistracted drivers motorists who talked on handheld or hands-free cell phones:

• Drove slightly slower
• Resumed normal speed after breaking more slowly, and
• Were more likely to crash

In fact, three study participants rear-ended the pace car. All were talking on cell phones. None were drunk.

Further, the NHTSA has indicated that hands-free cell use causes a cognitive distraction that impairs a driver’s performance. Drivers are less likely to pick up on visual and audio cues that are necessary to avoid an accident. This makes hands-free cell use just as dangerous as handheld cell use.
 

Distracted driving is dangerous. Don’t be lulled into a false sense of security by hands-free cell use. There is no meaningful difference between handheld and hands-free cell use while driving.
When a driver is rear-ended, it may be important to consider whether the second driver was impaired or distracted. While the police officer who responds to the scene will evaluate the second driver’s sobriety, he may not ask about cell phone use. If cell phone use may be an issue, the victim’s attorney should take steps to obtain the second driver’s cell phone records.
 

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