Published on:

April is Distracted Driving Awareness Month, and the instant case could not come at a more appropriate time. Recently, the Pennsylvania Court of Common Pleas judge held that a person who sent a text message can be liable for an ensuing accident if the sender had reason to believe that the recipient would read the text while driving.

There, defendant Garguilo apparently took a text from defendant Fend and, while distracted, hit a motorcycle ridden by plaintiff Daniel Gallatin, who was pinned under the vehicle, dragged 100 feet, and killed. In addition to suing Garguilo, the Estate sued the texter, averring that defendant Fend sent a text message to Gargiulo who he knew, or in the exercise of reasonable care, should have known, was operating a vehicle. The decision was the result of a motion from a preliminary objection, or demurrer, akin to a pre-answer motion to dismiss in New York.

The Court, in arriving at its decision, cited a 2013 case, Kubert v. Best, where the New Jersey Appellate Court held that under certain limited circumstances a texter can be held liable: “the sender of a text message can potentially be liable if an accident is caused by texting, but only if the sender knew or had special reason to know that the recipient would view the text while driving and thus be distracted.” Also, the Pennsylvania Court interestingly cited Section 876 of the Restatement (Second) of Torts, which provides that a third party can be held liable if he or she encourages another in violating a duty. “In reflecting upon [both] Section 876 of the Restatement and Kubert,” the complaint withstood the legal hurdle.

Published on:

PrintThe National Transportation Safety Board (“NTSB”) recently unveiled its 2016 Most Wanted List of Transportation Safety Improvements. This list, which details the most important safety issues to be addressed in 2016, focuses on 10 broad safety improvements that the NTSB has previously recommended, but which have not yet been implemented. One of the top items on the list is the fight to prevent fatigue-related truck accidents.

According to the NTSB, in a recent survey performed by AAA of highway vehicles, over 43% of participants reported falling asleep at the wheel or nodding off while driving at least once in their lifetime; and a 2010 AAA study estimated that one out of every six (16.5%) deadly traffic accidents is the result of drowsy driving. The National Highway Traffic Safety Administration’s (“NHTSA”) Administrator recently announced at the “Asleep at the Wheel” program in November that between 5,000 and 7,000 fatalities occur annually in the United States.

Among the recommendations issued by the NTSB to combat this problem, is equipping all interstate commercial vehicle carriers with electronic logging devices that collect data on driver hours of service in a valid, accurate, and secure manner to enable the carriers and their regulators to monitor and assess hours-of-service compliance. The NTSB also recommends that companies establish fatigue risk management programs which includes policies or practices to address scheduling, attendance, education, medical screening and treatment, personal responsibility during non-work periods, task/workload issues, rest environments, and commuting and/or napping. According to the NTSB’s press release on the topic, “[u]ltimately, fatigue-related accidents can be avoided with a combination of science-based regulations, comprehensive fatigue risk management programs, and individual responsibility.”

Published on:

Research published by Proceedings of the National Academy of Sciences reveals an increased risk of drowsy driving related motor vehicle crashes when operating a motor vehicle during the daytime following night shift work.

In the study, 16 night shift workers completed a pair of 2-hour driving sessions on a closed track. Prior to one session, participants slept approximately 7.6 hours the night before, with no shift work. Prior to the other session, participants were tested after working a night shift. Measures of drowsiness were collected, including brief micro-sleep episodes measured by an electroencephalogram, and partial eyelid closure with slow eye movements.

The results of each session were compared, resulting in the following findings:

Published on:

For many, the winter holiday season means family gatherings and a resultant increase in bus tickets, to get college students home. We here at Bottar Leone, PLLC wish everyone a happy holiday and take this opportunity to ask our readers to be careful when traveling to see loved ones this year.

Recently, a motor coach owned and operated by Abbott Trailways was involved in an accident in Richmond Virginia. The motor coach was chartered to take students at Virginia Tech and Radford University back to their campuses after the Thanksgiving weekend, when it overturned. Thirty-three passengers were injured – thirty-two of which were non-life threatening and one reported as “critical.” According to state police, speed was a factor in the bus overturning, and the driver was charged with reckless driving. He was subsequently suspended from his duties.

This news story illustrates how important bus safety is. If you or someone you know was injured in an accident on, or with a bus, you should contact the Firm. The aid of an experienced lawyer can be invaluable in receiving compensation for your injuries.

Published on:

invokana-heroInvokana (canagliflozin) lawsuits have been popping up around the country. According to the claims brought against Janssen Pharmaceuticals and parent company Johnson & Johnson, these companies failed to warn of the possible serious side effects associated with Invokana use.

According to one complaint filed in the Eastern District of California, a plaintiff was proscribed Invokana to treat her type 2 diabetes and she took as directed. Sometime after taking it, she was hospitalized for diabetic ketoacidosis (DKA) – a condition where the blood becomes too acidic, and can lead to serious health complications, including death.

After learning of at least 20 reports of patients with type 2 diabetes who were hospitalized for DKA after taking the drug, this past May the FDA warned doctors and patients about a possible link between Invokana and DKA. According to the FDA, DKA is a “type of acidosis that usually develops when insulin levels are too low or during prolonged fasting,” which is why DKA is most common in patients with type 1 diabetes, and is usually accompanied by high sugar levels. The FDA noted that the reports they received of patients with type 2 diabetes suffering from DKA “were not typical” because their blood sugar levels were only slightly increased compared to the greater increases normally seen in typical cases of DKA.

Published on:

The US Food and Drug Administration (FDA) recently ordered Custom Ultrasonics to recall all of its automated endoscope reprocessors (AERs) from health care facilities due to continued violations of federal law. The FDA also simultaneously issued a safety communication recommending that health care facilities currently using Custom Ultrasonics AERs transition away from their use to alternate reprocessing methods.

Endoscopes are devices used to look inside a body cavity or organ. AERs are units used to wash and high-level disinfect flexible endoscopes and scope accessories between patients. According to the FDA, Custom Ultrasonics’ AERs could not adequately wash and disinfect the endoscopes, resulting in deadly germs becoming trapped inside the scope and then transmitted to the next patient.

The FDA’s order could not come at a more appropriate time, as the problem with the spread of antibiotic-resistant pathogens by dirty endoscopes topped the 2016 list of health technology hazards put out earlier this month by ECRI, a nonprofit organization. The order also comes amid concerns about infection outbreaks linked to improperly cleaned duodenoscopes – a type of endoscope used in endoscopic retrograde cholangiopancreatography procedures.

Published on:

bair-huggerArguments will be heard in the District of Minnesota as to whether lawsuits involving the Bair Hugger Forced Air Warming Blanket will be consolidated. Sterile operating rooms are usually kept cool in order to help surgeons, nurses, and attending technicians remain alert, and also reduce the chance for infection. The Bair Hugger is a warming blanket thought to have a positive impact on healing by keeping a patient warm during an extended surgical procedure and reduce the risk of infections. It is heated with forced air, which travels up a hose connected to an external heater located at the floor. Though, according to various lawsuits, the Bair Hugger may actually be causing infections.

The allegation is that pathogens such as Methicillin-resistant Staphylococcus aureus (MRSA) are picked up from the floor by the heater and transferred to the sterile surgical site, resulting in the potential for severe infection. This is especially problematic for orthopedic procedures, where infection can be introduced deep into the joint.

Various plaintiffs have alleged an infection claimed to have originated with the blanket, resulting in serious health consequences, including additional surgery. In one case, a woman who went in for a routine knee replacement claims she left with a MRSA infection that resulted in 27 additional surgeries and eventually cost her her right leg, amputated just below the hip. Dr. Scott Augustine, the co-inventor of the Bair Hugger – who is now promoting a warming blanket that does not use forced air – claims the Bair Hugger is a risk to patients. The company that now owns the Bair Hugger, 3M Company/Arizant Healthcare, Inc., disagrees.

Published on:

This past month, the U.S. Judicial Panel on Multidistrict Litigation (“MDL”) consolidated lawsuits filed by families claiming that the anti-nausea drug Zofran (Ondansetron) caused birth defects in their children, including but not limited to, cleft lip, cleft palate, club foot, and heart defects.

According to the complaints, GlaxoSmithKline (“GSK”), Zofran’s manufacturer, concealed a known risk of harm related to Zofran which, on-label, is used to treat nausea and vomiting resulting from chemotherapy.  However, doctors have long prescribed the drug off-label for severe morning sickness or hyperemesis gravidarum.  Whether GSK will litigate or settle the product liability lawsuits, now consolidated as MDL 2657, is unknown.

In 2012, GSK pleaded guilty and agreed to pay $3 billion for unlawful promotion of several drugs, including Zofran.  As part of the settlement agreement, GSK conceded that it knowingly promoted the sale and use of Zofran for conditions other than those for which its use was approved as safe and effective by the FDA, including hyperemesis or pregnancy-related nausea.  Since then, several studies have raised concerns about the risk of Zofran causing congenital malformation (birth defects), resulting in a growing number of families pursuing a Zofran lawsuit against GSK.

Published on:

MABOn November 5, 2015, Michael A. Bottar completed the final leg of a six-city CLE tour for the New York State Academy of Trial Lawyers titled “Say What?  Using, Misusing and Abusing the Hearsay Rules.”  Bottar chaired the statewide CLE, which was attended by hundreds of attorneys in Syracuse, Albany, Rochester, Buffalo, New York City and Long Island.  

A DVD of the lecture and accompanying print materials may be obtained from the New York State Academy of Trial Lawyers members-only CLE library.  To join the New York State Academy of Trial Lawyers, click here.

CLE description:

Contact Information