Missouri Injury Lawyers Blog

An Associated Press article in the St. Louis Post Dispatch notes that the Missouri law prohibiting young drivers from texting and driving remains difficult to enforce. The article citing a Columbia Missourian article reports that less than four drivers a month receive citations for these traffic violations.

The article reports that the Missouri texting and driving laws are some of the most lenient in the country and remain difficult to enforce.

The enforcement of the prohibition against texting and driving is probably more difficult in practice than plan due to the design of many smartphones. From the outside of a car, it is not easy to differentiate whether a driver is dialing a number on a phone or texting a friend. Using the phone as a phone is not strictly against the law, so it is likely that officers are unable to stop a vehicle when he or she is unable to determine if the phone is being used as a phone or the driver is texting and driving.

As a result, the drafting and enforcement of similar laws will need to be re-considered by state legislatures across the country and not just in Missouri and Illinois. Should drivers be required to use hands-free devices like commercial drivers? Should an out-right ban of cell phone use while driving be implemented? It seems incredibly unlikely that the latter would take place, so the adoption of laws and continued research in product development and driving habits will need to be a priority.

Mike Sudekum is a car accident attorney in St. Louis, Missouri. He has written an number of posts on the dangers of distracted driving. You can find more information by contacting him online.

You may have noticed the phrase, "Don't drive in-text-icated" popping up on cars and billboards in recent months. Similar messages that you can find with a simple google search include:

- Don't tempt f8 that txt can w8
- Dnt txt n drv
- Pay attention.

These are strong messages for all drivers, especially young drivers.

Recent statistics from the Official U.S. Government website on distracted driving highlight this point. The website, a joint collaboration between the National Highway Safety and Transportation Association and the US Department of Transportation reports that for drivers under 20 involved in fatal crashes, 11% of them were reported as distracted at or near the time of the crash.

For the parents who were wondering if your teen and his or her friends were getting the message, the website located at distraction.gov does little to increase your confidence. It states that almost half of all teens in a car with another driver report that the driver used a cell phone in a dangerous manner.

While distracted driving happens (kids, other drivers, unexpected noises, etc.), limiting these distractions is important to the safety of ourselves, our passengers and other drivers. Educating the drivers in your house is an important first step in reducing the number of motor vehicle accidents caused by distracted driving.

Continue reading "In-Text-icated Driving" »

A recent court filing by plaintiff lawyers and one filed by the manufacturer itself signals an increasing interest in the safety of another contraceptive device on the market. This time, the contraceptive is not a pill like Yaz, Yasmin or Ocella, but rather an IUD.

The court filings concern Mirena, an IUD contraceptive device manufactured by Bayer Healthcare Phamaceuticals. The IUD device is implanted by health care professionals usually in an office setting and is intended to last up to five years. In recent months, a number of law firms are investigating injuries sustained by women who had this device implanted into them.

According to one source (AdverseEvents.com), over 45,000 adverse event reports related to Mirena have been filed between November 1997 and June 2012. Further, there are currently eight federal lawsuits and over a dozen state court lawsuits pending against Bayer for injuries related to this medical device.

Some of the injuries alleged to be related to the Mirena IUD include perforation of the uterus, embedding in the uterus, complications resulting from the perforation, infections and other serious health conditions.

On January 16, 2013, plaintiffs in some of these lawsuits filed a petition with the Judicial Panel on MultiDistrict Litigation to form a MDL (multi-district litigation) to consolidate the pending federal cases against Bayer into the U.S. District Court, Northern District of Ohio, located in Cleveland, Ohio. The result would be litigation similar to the Yaz MDL that is currently proceeding in the U.S. District Court, Southern District of Illinois.

As with YYO, Bayer, as the manufacturer of Mirena, is the subject to increasing number of lawsuits related to its complications. The future of these lawsuits will depend on the science and the relationship between these complications and the device. Another important consideration will be whether these complications were known, should have been known and if consumers were warned of them.

We will monitor this situation and continue to provide updates.

Mike Sudekum is a medical device and pharmaceutical lawyer located in St. Louis, Missouri. You may contact him here.

According to its website dedicated to this issue, www.distraction.gov, the Department of Transportation has instituted several laws and regulations to curb distracted driving. These include:

- Banning federal employees from text messaging while driving on the job;
- Encouraging federal contractors to adopt and enforce a similar policy; and.
- Banning (through the FMCSA) commercial truck, including hazardous materials under the PHMSA and bus drivers from texting and using hand held cell phones while driving.

The laws and regulations have been extended to the rail industry by the Federal Railroad Administration and to pilots by the FAA.

Similarly, each state and every company should adopt laws and policies that are at a minimum as strong as these policies. The statistics concerning distracted driving and accidents is pretty clear. The avoidance of the first helps avoid the later. The benefit to companies will be safety to others and its employees and reduced costs. Less accidents equal lower premiums.

Alternatively, companies that fail to implement these policies will be subject to lawsuits and work related injury claims. The failure to implement these policies could under the right circumstances even trigger the risk of punitive damages, which are not covered by insurance. See Pennington v. King, slip copy, 2009 WL 425718, 2009 U.S. Dist. LEXIS 12779 at 21 (E.D. Pa. 2009, Pratter, J.).

Mike Sudekum is a personal injury lawyer. You may contact him through this blog.

According to the National Traffic Highway Safety Administration, in 2010, more than 3,000 people were killed in distracted driving crashes. Further while drivers under 20 represented the highest proportion in this group, the 30-39 year category represented the highest proportion of cell phone use.

As part of its safety initiatives, the NTHSA has developed advertising and marketing materials for parents and community organizations. These materials are professional and may be a valuable resource to your family.

An example of one of the ads is:

Mike Sudekum is a trial lawyer in St. Louis, Missouri.

The litigation concerning revision surgeries and metal poisoning following certain hip replacement devices continues to grow. Other manufacturers' products are being called into question and the presiding judge of the federal MDL (No. 2197) has scheduled the first bellwether trials in the DePuy case for May and July of 2013.

These trials will be an important step in moving these cases toward resolution.

Bellwether trials are used by both sides in mass tort litigation to gauge the success of future trials. Obviously, the party that prevails more often in the bellwether cases will have a stronger negotiating position at the settlement table. For example, the Vioxx litigation provides some guidance into these cases. In the Vioxx litigation, the parties conducted six federal trials and 13 in state courts around the country. The plaintiff was successful in only 1 of the 6 federal trials. The state court verdicts were more evenly split between the parties. However, the verdicts for the plaintiffs tended to be large. As a result, after these cases were concluded, the parties were able to reach a global settlement of $4.85 billion for qualifying cases. While the Vioxx litigation is just one example, it illustrates the importance of these cases.

The hip replacement device litigation continues to evolve. You can follow its progression on our website's new page concerning these medical devices.

Mike Sudekum is personal injury attorney in St. Louis, Missouri. You may contact him here.

A recent article in the New York Times concerns a study by the World Health Organization has identified a link between diesel fumes and certain cancers. The article notes that a study conducted by the chief of environmental epidemiology for the National Cancer Institute found that miners with heavy exposure to diesel fumes had seven times the risk of developing lung cancer as nonsmokers without the exposure.

Bladder cancer was also identified as potential risk from excessive exposure to diesel fumes.

The article did note that the levels of exposure and content of the fumes (whether from an older or newer engine) have a direct impact on the link between cancer and the diesel fumes.

Occupational diseases are a real risk to workers in Missouri and Illinois. Zero exposure to certain chemicals, fumes or by-products is unlikely - even in the modern workplace and factories. Managing that risk by reducing exposure times, levels and particulates in the fumes is an important step in making the work place safer for employees.

Continue reading " Diesel Fuel and Cancer - Exposure to Workers May Cause Lung and Bladder Cancer" »

On May 29, 2012, the Missouri Supreme Court reversed a Labor and Industrial Relations Commission decision in the Johme v. St. John's Mercy case.

In the decision, the court addressed the issue - whether the employee's injury arose out of and in the course of her employment. Ultimately, the court found it did not. The reasoning is important to workers who suffer similar injuries.

First, the court notes that the employee must show a causal connection between the injury at issue and the employee's work activity. In finding no such connection, the court noted

"Miller [v. Missouri Highway & Transportation Commission, 287 S.W.3d 671, 673 (Mo. banc 2009)] instructs that it is not enough that an employee's injury occurs while doing something related to or incidental to the employee's work; rather, the employee's injury is only compensable if it is shown to have resulted from a hazard or risk to which the employee would not be equally exposed in "normal nonemployment life."

The court concludes stating,

"Johme failed to meet her burden to show that her injury was compensable because she did not show that it was caused by risk related to her employment activity as opposed to a risk to which she was equally exposed in her "normal nonemployment life." See sec. 287.020.3(2)(b)."

What does this mean?

A sarcastic commentator might note that this is the end of making coffee at work. Another commentator might conclude that falling out of your shoe and twisting an ankle is not a work-related injury just because it happens at work.

However, the real importance of this decision lies again in the documentation of the work related injury.

Continue reading "Making Coffee at Work in Missouri - Not Covered Under Comp?" »

The Centers for Disease Control and Prevention have released its annual National Youth Risk Behavior Survey. While the report contained some positive findings related to teens' behavior related to driving, one of the most alarming findings was that:

"1 in 3 high school students had texted or e-mailed while driving a car or other vehicle during the past 30 days."

At this point, the dangers of texting and driving are well-established and well-known. Simply stated, parents should institute severe consequences if they catch a teen driver using a cell phone while driving. Of course, we all make our own parenting decisions; however, one of the best ways to prevent young drivers from making this mistake is to not do it yourself.

Continue reading "More On Texting & Driving" »

The St. Louis Post Dispatch recently ran an article, originally from the Chicago Tribune, describing the nature of wrist pain and ways to relieve the pain. Interestingly, in the article, an occupational therapist in explaining the increased incidence of carpal tunnel for workers since the adoption of the computer as a data entry tool or document creator stated,

"People typing on the typewriter had to stop and move their hands in many different ways. They had to stop and return the carriage or put in a new piece of paper," says Amini. "The problem now is that you can sit on a computer and never, ever leave."

That conclusion highlights an important issue in the modern workplace. And, the importance here is that if you develop hand pain or numbness at work, the treating physician should be told about each and every activity that you perform at work on a repetitive basis. One of the common defenses for insurance companies defending workers compensation claims for occupational disease is that the worker did not perform sufficient repetitive work to trigger carpal tunnel. Documenting the work performed will go a long way to reducing the success of such defenses.

Continue reading "Repetitive Injuries - Why and How to Avoid" »

A recent case from the Missouri Western District Court of Appeals highlights the importance of reporting your work accident correctly and the dangers in not mentioning the cause of injuries to a treating physician. In Arciga v. AT&T, an injured worker was denied workers compensation benefits because the commission found that - despite the worker's assertions otherwise - that the worker failed to properly report the injury to his work or to his treating physicians.

The case notes that the worker testified that he did mention the work accident to his supervisor and that he did not immediately report the claim because he hoped the pain would lessen. However, in the face of other evidence including a witness to the alleged work injury, who did not recall the circumstances of the accident as the injured worker reported, the court upheld the Labor and Industrial Relations Commission opinion that the employee was not entitled to benefits.

The lesson here is to properly report work related injuries, even if they are minor. Even in jobs where it would be naive to think that employees could report every single injury, no matter how minor without consequence, it is usually more important to report injuries to the back, neck, spine or arms and legs as compared to less serious injuries. The reasoning being that, on occasion, severe complications develop when the worker tries to "work through" his or her injury and ends up causing more damage. Without the proper notice in those situations, some employers may seek refuge in the notice provisions of the law and try to avoid paying the injured worker while he is off work from his injuries, avoid paying the medical expenses subjecting the injured worker to co-pays, and avoid providing compensation for resulting disability to the body part.

Continue reading "Workers Comp Claim Fundamentals -- Report the Accident Correctly" »

The Post-Dispatch has reported that the Missouri House passed a workers compensation reform bill that would make occupational diseases or exposure cases subject to the exclusive jurisdiction of the the workers compensation laws of Missouri. This bill is the same as the one the Missouri Senate passed a few weeks ago. Whether this legislation becomes law is up to the governor.

The target of this legislation is workers who are injured on the job from circumstances that do not qualify as an accident under the definition in the Missouri workers compensation law. These injuries can include carpal tunnel, asbestos exposure or other repetitive use or exposure injuries. While under the current interpretation of the 2005 amendments to the law, these injuries are not subject to the workers compensation act, the fact missing from the arguments in favor of returning these injuries to the comp system entirely is that to prove a civil case against an employer, an injured worker must show negligence.

That is one of the fundamental difference between the two systems. Under workers compensation laws, the need to prove negligence is negated in exchange for certain, but limited compensation. Under a civil action, the damages are not restricted, but the injury must be caused by negligence. Certainly in many work accidents, the employer could be considered negligent in such ways as failing to provide proper equipment and non-ergonomic work spaces when they know repetitive actions are being performed by employees.

Continue reading "Are Occupational Diseases and Repetitive Injuries Headed Back to the Comp System in Missouri?" »

As noted previously here, the type 2 diabetes prescription medication, Actos, has been alleged to increase the risk for certain individuals to develop bladder cancer. The manufacturer of this medication has denied this association and any allegations that it knew of such risks and failed to warn patients.

At least 11 lawsuits were filed against the manufacturer in federal courts around the country. When lawsuits concerning a medication reach a certain level or the expectation for increased lawsuits appears likely, federal courts will consolidate the pending lawsuits into a single court for pre-trial proceedings, MDL No. 2299., IN RE: Actos (Pioglitazone) Products Liability Litigation.

In this case, following a petition to consolidate the pending Actos lawsuits into a multi-district litigation, in late December 2011, the pending lawsuits were transferred to the United States District Court for the Western District of Louisiana for pre-trial proceedings. The purpose of an MDL is to provide a consolidated mechanism to conduct discovery and avoid the expense of individual discovery for each and every case. There are advantages and disadvantages to the MDL system. Likewise, there are fans and detractors of the system. This debate is on-going and probably best left to legal commentators at this point. The transfer order can be found here.

As with all MDLs related to prescription medications, such as Yaz/ Yasmin, the court will address the discovery process in a similar manner. Of course, each case has its own issues that will be decided as the case progresses and will affect how the case is handled.

Missouri and Illinois who were diagnosed with bladder cancer while taking Actos may have multiple options where they are able to file a lawsuit despite this action by the courts. There are many state court actions pending as well. The location of your lawsuit will depend on a number of factors, including where you live, who prescribed the medication and when you took the medication.

Continue reading "Actos Update - MDL Established in Louisiana " »

In an article in the January 3, 2012 online edition of the The St. Louis Post Dispatch, an Illinois politician is quoted as saying that something similar to a ban on all cell phone use while driving may be "inevitable." The article also notes that 9 states currently ban handheld cell phone use while driving. This statistic is from the Governor's Highway Safety Commission.

The link provides some interesting information on the regulation of cell phone use while driving. For example, while Illinois does not have current restrictions covering all use, among its current restrictions on young drivers, it does prohibit cell phone use while driving in a school zone or in a highway construction zone. In contrast, Missouri has a ban on texting and driving by young drivers.

The use of cell phones while driving is a complicated issue. Certainly, most drivers can relate to stories of distracted driving while using a cell phone and driving. Many of the current smart phones on the market can add to this distraction in that the keys are integrated into the touch screen or are so small that use of the keypad requires a driver to look away from the road to operate the phone.

Further, the restriction of cell phone use while driving is a difficult problem for police to enforce. Determining whether a driver is under a certain age or texting instead of making a call may result in unnecessary stops by law enforcement. This is a result neither drivers nor police desire. Instead, drafting laws that restrict the use of handheld cell phone in certain areas, roads or by drivers of a certain age is a good place to start.

Continue reading "No Cell Phones While Driving; "Inevitable" for Illinois Drivers?" »

On November 23, 2011, the U.S. Department of Transportation in a final rule approved by the Federal Motor Carrier Safety Administration and the Pipeline and Hazardous Materials Safety Administration prohibited interstate truck and bus drivers from using hand-held mobile or cell phones while driving.

The rule provides for civil penalties and the potential loss of a commercial drivers license (or CDL) to both the driver and the motor carrier. According to the press release:

Nearly 5474 people died and half a million were injured in crashes involving a distracted driver in 2009. Distraction-related fatalities represented 16 percent of overall traffic fatalities in 2009, according to National Highway Traffic Safety Administration (NHTSA) research.

While many companies have policies in place that prohibit cell phone use; the rule will ensure that companies who do not have such policies in place are subject to the same type of policies that provide for the safety of other drivers. Therefore, it is an example of the types of regulations that ensure public safety, in particular to the drivers traveling the interstate highways.

Mike Sudekum is an trucking accident attorney with offices in St. Louis and Wentzville (by appointment), Missouri. You may contact him here.