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When you have a personal injury case, whether it be from a motor vehicle collision, a slip & fall, or truck accident, it is important to do everything that is in your control to preserve your claims and to make it difficult for the insurance company or the defense attorney to defend your case.  The following article will outline the “do’s and don’ts” of a personal injury case.

The Do’s of a Successful Personal Injury Case

  • Do call the police to the scene.
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If you or a loved one has been taking the drug, Valsartan, you may have a claim against pharmaceutical companies for the distribution and sale of Valsartan medication that has been contaminated with toxic, cancer-causing substances.

On July 13, 2018, the FDA recalled the drug, Valsartan.  Valsartan is the generic form of Diovan, which is used to treat high blood pressure and heart conditions.  Because it costs less, the active pharmaceutical ingredient (API) for Valsartan is manufactured in countries outside of the United States.  Several of the foreign API manufacturers changed the manufacturing process in 2012, and this change is believed to have caused unintended byproducts, which contaminated the drug with impurities, including N-nitrosodimethylamine (NDMA), N-Nitrosodiethylamine (NDEA) and/or N-Methylnitrosobutyric acid (NMBA). These toxic substances are classified as probable human carcinogens, meaning that they are more likely than not to cause cancer in humans.  Zhejiang Huahai Pharmaceutical (ZHP) in China and Hetero Labs Limited (Hetero) in India are two of the API manufacturers that used the altered manufacturing process. ZHP has an estimated 45% of the US market share of the Valsartan API production. 

The APIs from ZHP and Hetero are used in finished pills, which are sold in the United States.  Many American pharmaceutical companies have made, distributed, marketed and/or sold Valsartan products containing the API containing toxic substances. It is believed that the contaminated pills have been sold in the United States since 2014 and that there have been millions of contaminated pills taken in the United States.  Based on tests, the API manufacturers were aware that Valsartan contained high levels of the toxic substances. The manufacturers minimized the information, citing testing inaccuracies. Eventually, after additional testing, the European Medicines Agency (EMA) issued recalls for Valsartan and the FDA followed.  The FDA initially issued a report that 1 in 8,000 people taking Valsartan may develop cancer, but scientific evidence show that the number of cancer cases is likely significantly higher.    

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In Georgia, a property or business owner can be held responsible for a crime that is committed by a third party criminal, if the crime was reasonably foreseeable.  Many cases involving violent crimes, such as assaults, rapes, or murders, occur on properties that are owned and operated by businesses that earn profits and have a duty to keep their patrons, tenants, and other visitors safe.  This duty of care is outlined under Georgia’s premises liability law, which states that a landowner or operator has the duty to exercise ordinary care to keep its premises safe for its invitees.

This legal language generally means that a property owner has to act in a way that a reasonable person in the same position would act to keep the property safe for people who are invited onto the property or otherwise allowed to be on the property.  The protection is not one that is all-encompassing, nor does it apply to people who are not supposed to be there.  Ordinarily, a criminal act by someone that has nothing to do with the property is considered an “intervening act” for which the property owner cannot be held liable.

However, many Georgia cases have allowed victims of crimes occurring on properties where the owners should have reasonably foreseen the occurrence of the crimes.  One way of showing foreseeability is using substantially similar previous criminal activities that occurred on or near the premises that would alert a reasonable person in the same position to take ordinary care to protect visitors and other people from the criminal activity.  That is not the only way to show foreseeability, but is one way to prove it.

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5 Things You Should Do After Having a Slip & Fall

If you are severely injured on someone else’s property because of a dangerous condition that should not be there, you’re probably not thinking about what you need to be doing to preserve a legal claim.  Nonetheless, there are certain steps that you can take that will help strengthen or preserve your potential legal claim based upon Georgia’s premises liability laws.  

  • Report the incident to the property owner.
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Demanding Payment:  Timeline of Settlement

One of my clients recently asked me about how long it would take to settle her case from the date we sent off a demand to the insurance company in her car wreck case.  Before even sending a demand, a claimant in a personal injury case needs to complete his or her medical treatment, so that amount of time will vary according to the injuries and treatment.  After the treatment is completed and the medical bills and records are gathered (that normally takes at least 60 days), the timeline of settlement from the date of the demand also depends on the circumstances of each case.  Under Georgia law (O.C.G.A. Section 9-11-67.1), the minimal amount of time a claimant must give an insurance company or at-fault driver to settle a bodily injury claim based on personal injuries sustained in a motor vehicle collision prior to filing a lawsuit is 30 days from the receipt of the offer.

Preserving Bad Faith Claims:  Giving Insurance Company Reasonable Amount of Time to Settle

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A personal injury case is a civil claim that the victim of another person or company’s negligence can make under the law.  What that means is that if one suffers from an injury that arises out of an event, such as an automobile collision, a slip & fall, a mistake that a medical provider made in treatment, a workplace injury, the use of a defective product or drug, and many other types of situations, then that person may make a claim for compensation for his/her injuries, pain and suffering, medical expenses, lost wages, and other costs that s/he incurs from that injury.  Most personal injury cases begin as insurance claims and transition into civil lawsuits (as opposed to criminal) against the at-fault party.

The Basic Elements of a Personal Injury Case

The basic information that must be proven to successfully bring a personal injury case include:  (1) showing that the other party acted carelessly or negligently; (2) showing that the carelessness or negligence caused an (an event that caused an injury) injury to the claimant or plaintiff; and, (3) showing the amount of loss that resulted from the injury (or injuries).

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In Atlanta, crimes such as shootings, rapes, robberies, or assaults occur on many commercial properties, including hotels and motels.  Under Georgia law, a victim of a crime that occurs on the property of an unsafe hotel or motel may be able to recover against the hotel or motel for negligent security.

Negligent security is a type of premises liability claim. Premises liability cases in Georgia rest on the principle that a property owner has the legal duty to make sure that lawful visitors or “invitees” to its property are safe from dangerous conditions.  An invitee of a hotel or motel includes guests, and dangerous conditions can include crimes that are committed by unrelated persons who come on to the property or even other motel or hotel guests.

Hotel and motel owners have the duty to protect its guests from “foreseeable” criminal acts, even if the crimes are committed by third parties.  Thus, one of the factors that a victim of a crime on an unsafe property has to prove is that the crime was foreseeable.  You may ask how anyone could predict the future to foresee the criminal act of a third party.  Some factors that show that a property owner should have foreseen a criminal act are past crimes that occurred on the property or complaints about criminal behavior from customers, employees, or other guests.

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Generally, the victim of a security guard’s bad acts or negligence (false imprisonment, excessive use of force, wrongful detention) may bring a civil lawsuit in Georgia to recover damages for the victim’s resulting injuries.  However, because recovering damages in a civil suit requires money, whether it be via a corporate entity with deep pockets or via insurance coverage, a more important question is, “can any corporate defendants also be held responsible for the individual security officer’s acts?”  When looking at corporate entities to sue in a case involving a bad acting security guard, Georgia attorneys should investigate the case to see if the property owner who hired the security guard and/or the security company who employed the guard can be held responsible for the guard’s behavior.

Under Georgia law, property owners have the ultimate duty of care, or the responsibility to its customers, tenants, visitors, or other people who are lawfully on the property, to keep the property safe.  This responsibility includes making sure that the security guard or security guard company is one that will properly ensure the safety of the people who are lawfully present on the property.  Under some circumstances, a property owner can be held liable for the security guards intentionally bad acts, crimes, or unintentional acts/negligent acts.  Examples of intentional bad acts include using excessive force, such as assaulting or shooting someone unnecessarily or wrongfully detaining or arresting someone.  Examples of negligence include not being on the property when required or failing to follow certain safety protocols and procedures.

Many property owners hire private security companies to keep their properties safe.  Thus, it is possible for a victim of a security guard’s bad or negligent acts to sue the security company that employed the guard.  Under the Georgia law of respondeat superior or vicarious liability, an employer can be held responsible for an employee’s wrongful acts, if the employee was working within the course and scope of his or her employment. Secondly, an employer, such as a security company that employs a bad security guard, may be held responsible for the negligent hiring, retention, supervision, and training of a security guard who acts negligently or wrongfully. Thus, an attorney handling the case against the security company should investigate whether the employer checked the guard’s criminal history or work history before hiring him.

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Yes, victims of crimes such as assaults, shootings, robberies, and rapes in Georgia may be able to sue property owners and operators where those crimes occur under the Georgia law of premises liability.  Victims may also sue the assailants, but, when looking at a civil suit, suing a corporate owner or operator of a premises gives the victim a better chance for monetary recovery, as most individuals, particularly criminals, probably do not have assets with which to pay their victims.

Under Georgia law, owners and operators of businesses owe a duty of care to the keep their premises safe for visitors and customers.  Where a business owner knows that there is a significant amount of violent crime on its property that could cause customers to be assaulted or even killed, a business owner is required to provide security or take measures to prevent such crimes.  Where such a business owner fails to provide adequate security, and a violent crime, such as a shooting or a rape occurs on its property, the property owner may be civilly liable and be required to pay the victim for the crime, even if the criminal is totally unrelated to the property owner.

Places such as business parking lots, parking decks, bars, hotels, and gas stations can be high crime areas where adequate security is a must.  Business owners who know about high crime on their property can make efforts such as providing well-trained security guards, controlled access, adequate lighting, fencing, warning signs, and security cameras.

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On May 3, 2017, a jury in New Orleans found in favor of the manufacturers of the blood thinner Xarelto in a lawsuit that Joseph Boudreaux filed against Bayer AG, Janssen Pharmaceuticals, and Johnson & Johnson after Mr. Boudreaux’s was hospitalized for gastrointestinal bleeding that required multiple blood transfusions.  The Boudreaux case was based on a failure to warn theory, where the plaintiff alleged that the manufacturers of the drug did not adequately warn him about the dangers and risks of Xarelto.  The defense of the case was based on the learned intermediary doctrine, which allows a drug manufacturer to warn a medical professional about the dangers of a drug rather than to the patient directly.

On June 12, 2017, the drug manufacturers won a second bellwether case based on the death of Sharyn Orr, who died after suffering from hemorrhaging in her brain after taking Xarelto.  Ms. Orr required surgery, but her doctor did not operate because Xarelto was still in her system; by the time she could have the surgery, it was too late, and Ms. Orr passed away.  The plaintiff’s lawyers alleged that the drug manufacturers not only failed to adequately warn Ms. Orr and her doctors, they also failed to create a monitoring plan and properly instruct doctors to conduct a blood test that would allow them to predict which patients are most susceptible to internal bleeding from taking Xarelto.

The Boudreaux and Orr cases are just two out of 40 or so “bellwether” trials (test trials that are conducted to help determine value where there are a heavy volume of similarly based cases, typically in multi district litigation) that are scheduled in the Xarelto multidistrict litigation.  Thus, there is still hope that plaintiffs will win some of the future Xarelto cases.  There are currently 18,000 or so Xarelto claims pending, and the results of the bellwether trials will help shape the future of the claims process.