New Mexico Injury Attorney Blog

There have been numerous Actos lawsuits filed throughout the country. Due to the large and growing number of Actos claims, those claims filed in federal court have been consolidated to the Western District of Louisiana. Due to the large number of users of the drug, the number of legal claims is likely to grow exponentially in the coming months and years.

Actos is prescribed for the treatment of Type 2 Diabetes. Actos has been hugely successful financially for its manufacturers. Both the root of the success of the drug and the coming wave of lawsuits is evident from a quick look at the numbers on Diabetes in the United States.

The 2011 National Diabetes Fact Sheet issued by the Centers for Disease Control and Prevention (CDC) provides some remarkable data portending the future of the Actos lawsuits. Unfortunately, the data would suggest a rather bleak outlook for the scope of the potential harm to the public caused by this blockbuster drug.

The National Diabetes Fact Sheet suggests that over 25 million Americans suffer from diabetes. This represents over 8% of the United States population. There are a number of states whose rates are above 15%. These states and their people are likely suffer the greatest harm associated with Actos use.

Of the 25 million suffering from diabetes, over 18 million have been formally diagnosed according the CDC. These numbers suggest the basis for the huge market success of Actos. They also point to the many unsuspecting users of Actos from a potential market of 18 million diagnosed patients who were unaware of the dangers of prolonged Actos use.

It is alleged that Actos causes bladder cancer. In fact, studies have suggested that the risk of bladder cancer may increase by up to 40% for those using Actos for more than one year. The risk appears to be directly related to dosage levels and duration of use. In other words, those that used it the longest and at the greatest dosages will have the greatest risk of Actos induced bladder cancer.

If you or a loved one has been on Actos for over one year, a checkup with the doctor is surely in order to review your medication. Diabetes is a horrible and life-threatening disease and Actos is in fact it appears effective at treating diabetes. However, the risk of cancer may outweigh the risk of the diabetes in light of alternative treatments.

This risk assessment is between you and your doctor and you have an absolute right to understand these risks. And this failure to inform patients, and doctors for that matter, of the risks associated with extended Actos use lies at the heart of the Actos litigation.

If you have any signs of bladder cancer, then you should get to your doctor immediately. As with all cancer, early detection and treatment is key to survival. In the unfortunate event that you have used Actos for over a year and do learn from your medical professionals that you have bladder cancer, you should contact a personal injury attorney right away to insure that you, your claims and your family are protected.

Collins & Collins, P.C.
Albuquerque Attorneys

Actos bladder cancer lawsuits are beginning to mount. Many of the cases were consolidated to Federal District Court in the Western District of Louisiana at the end of December by the United States Judicial Panel on Multidistrict Litigation. On January 4, 2012, a number of California Actos bladder cancer lawsuits were consolidated by the Los Angeles Superior Court.

Due to the significant risks of bladder cancer associated with Actos use, the lawsuits will continue to mount and probably at an escalating pace. The FDA has found that approximately 2.3 million prescriptions were filled just during the period of January 2010 to October 2010. Actos was first approved by the FDA for use in the treatment of type 2 diabetes in 1999. This means that millions of upon millions of patients have been prescribed this potentially dangerous drug and many of these will have been on the drug for prolonged periods of time.

The lawsuits allege that Takeda Pharmaceutical and Eli Lilly, the manufacturers of Actos, failed to provide appropriate warnings of the dangers of Actos despite knowledge of those dangers. It has been determined that Actos can increase the risk of bladder cancer by up to 40%. Those taking Actos for more than one year are at the greatest risk. The risks increase with longer usage and greater dosages.

Those injured by Actos may be able to recover a wide range of damages depending upon the circumstances, their injuries, and the duration and dosages that they took Actos. The recoverable damages would include medical expenses (past and future) associated with Actos related injuries. Injured plaintiffs might also depending on the circumstances recover for lost wages (past and future), pain and suffering, permanent disfigurement, and wrongful death.

Though rare, punitive damages might also be a possibility. An argument for punitive damages might have particular weight here where the manufacturers have known for quite some time of the danger. In addition, both France and Germany have either banned or placed significant restrictions on the prescription of Actos. Despite the clear findings of risks, Actos continues to be prescribed in the United States.

If you have taken Actos for more than one year and you have any signs of bladder cancer, you should first contact your doctor. Once this is done, you should then contact an experienced personal injury attorney right away. These cases are complex and require significant analysis and preparation, particularly in light of the multidistrict litigation consolidation. Finally, as with all personal injury claims in New Mexico, there are strict deadlines associated with these claims so that undue delay could have bar your recovery completely.

Collins & Collins, P.C.
Albuquerque Attorneys

As the New Mexico Legislature considers making texting while driving a crime through House Bill 197, the auto industry ramps up the technology to allow drivers to do just that. And much, much more!

Ford in particular seems to be leading the way on mobile communications technology but others will surely follow. Ford Sync will allow drivers to sync up with all their communications and social media apps. Drivers will be able to check their texts messages, email, calendars, and newsfeeds. Presumably, there will be the ability to respond as well including updating the driver's schedule.

With each and every new feature will come new and dangerously escalating levels of distraction. Long gone are the days when the worst driving distractions were lost french fries and lipstick. Now all the frustration and confusion of the smartphone, the computer, cable television, channel surfing, social media and more will be brought to the dashboard of our and our fellow driver's cars.

Rest assured, these features will not come cheap. Auto manufacturers are not, or least their mission is not in the business of losing money. They will profit at the expense of the safety of drivers. Unfortunately, those that choose not to jump at this technology will still be exposed to the hazards of those that do.

In the end, the auto industry will make money. And with will surely be a significant rise in auto accidents caused by the distractions, they will scream for tort reform and liability limits when cars start piling up on our roads. They will scream for market freedom to allow drivers to adapt the technology and the right of industry to profit from the technology. Some may both support auto industry's right to profit with the technology while also making it a crime to use it.

On the other hand will be those hapless drivers who thought the technology was safe and legal. It was all built right into the dashboard for goodness sake? It will be those same hapless drivers who at best are charged criminally for their behavior and at worst endanger their own lives and the lives of others as they twitter their way down the road.

Collins & Collins, P.C.
Albuquerque Attorneys

The statute of limitations in most personal injury cases is 3 years from the date of the incident that caused the injuries. In cases against state, county and local governmental entities, the statute of limitations is only 2 years.

Failure to file a suit within the statute of limitations bars a lawsuit completely. In other words, if you do not file within the statutory period, then you cannot file the lawsuit at all. The statute of limitations is harsh and a personal injury plaintiff should not flirt with these deadlines.

There are some rare cases where the statute of limitations may be extended or tolled. These are extremely rare and an injured plaintiff would be well advised not to place any reliance on these exceptions to the statutory deadlines.

Perhaps the most common situation where the statute of limitations would be extended is in cases where the injured party is unaware of the injuries. This often arises in cases of medical negligence. After all, for instance, the patient may not know of a surgical sponge left inside them for years following the surgery.

An injured person may also be unaware of his or her injuries in cases of product defects. Often these too are associated with a medical malpractice claim. The best example currently in the news are the hip replacement recalls from Depuy . There are many other surgical products that have caused injuries to patients which were apparent only years after the surgery.

The same type arguments hold for numerous pharmaceuticals both past and present that have been found to cause serious personal injury to patients. There are currently recalls with either pending or possible lawsuits involving Yaz, Nuvaring, Accutane, Darvon, Darvocet, Gardasil, Fosamax, and Paxil to name only a few. For each, patients may have taken the drugs for years before realizing the harm that the drugs caused. Some may have ceased using the medications long before knowing of their injuries.

There are certainly other situations where an injured party may not be aware of his or her injuries until months or years after the incident. Keep in mind, however, that ignorance of the injuries alone is not sufficient to toll the statute of limitations. If the injured person should have known of the injuries, then there will be no tolling of the statute of limitations. By way of example, this is true in New Mexico even where there are differing medical opinions regarding the source of the injuries.

The bottom line is the statute of limitations is real and it is rigid. There are very few exceptions. It would be exceedingly unwise to ignore an injury or illness that may have been causes by medical negligence, a product defect or any other cause. It is entirely possible that ignorance of the cause may not be grounds for tolling the statute of limitations.

If you are injured or sick and you believe it was caused by the products or actions of another, then seek a medical opinion immediately. If there is more than one possible cause, then it may unfortunately be necessary to sue them all and sort out the causation through litigation.

Collins & Collins, P.C.
Albuquerque Attorneys

The New Mexico Court of Appeals addressed for the first time in under New Mexico law whether modifications to a product by the user provides a complete defense to a product liability claim. The court in Chairez v. James Hamilton Construction Co. held that it did not and that a seller could be held strictly liable under product liability law for injuries caused by the product when the modifications to the product were foreseeable.

The case involved the modification of a rock crushing machine. The user, the deceased plaintiff's employer, had removed a metal plate covering a flywheel to facilitate removing debris and obstructions in the machine that occurred during operation. The metal plate was a safety feature designed to prevent users from being caught in the flywheel and crushed by the machine. This is in fact what happened to the deceased plaintiff. In addition, the deceased had been removing a jam while the machine was operational despite clear warnings in the user's manual against such behavior.

The plaintiff was prevented from bringing a claim against the clearly negligent employer due to the exclusive worker's compensation remedy under New Mexico law. The plaintiff did bring an action against the defendant manufacturer under a product liability theory. The defendant argued that the modifications to the machine provided a complete defense to the product liability claim. The defendant filed a motion for summary judgment on this ground. The district court granted the defendant's motion and dismissed the claims.

A number of states do indeed hold that alteration or modification of a product by an end user does provide a complete defense. However, as noted by the Court in Chairez, "Most states will not absolve a manufacturer or seller from liability as the result of an alteration or modification that was reasonably foreseeable." The court stated that New Mexico would follow the majority position.

The defendant had further argued that the modification was not foreseeable as a matter of law The court again disagreed holding that the issue of the foreseeability of the modification was an issue that should be left to the jury. The New Mexico Court of Appeals therefore reversed the district court's grant of summary judgment. The court was careful to add that it was by no means suggesting that the modification was foreseeable. Instead, the court reiterated that this was a question of fact best determined by a jury.

Likewise, the issue of the comparative negligence of the employer would need to be addressed by the jury. Assuming the jury did award damages to the plaintiff, the total amount of the award would then be reduced by the percentage of fault attributed to the employer. Unfortunately, the deceased plaintiff would be out of luck for this portion of the damage award due to the exclusive workers compensation remedy against the employer.

Related Reading:
Caps on Punitive Damages: Great for Business, Bad for Everyone Else
Tort Reform Ignores Bad Corporate Behavior: Case in Point, Toyota!
Smart Cars, Hapless Drivers and Highway Carnage Coming to a Road Near You!

Collins & Collins, P.C.
Albuquerque Attorneys

Following a $16 million verdict, Ford Motor Company settles with a woman left paralyzed in an auto accident. The settlement came as the jury considered additional punitive damages against the manufacturer for design defects in the rear seat latch on its Explorer model.

The $16 million verdict came despite the fact that the cause of the accident was the driver of another vehicle that struck the Ford Explorer in which Lynn Wheeler was a passenger in the back seat. Ms. Wheeler was sitting in the center of the back seat between her two grandchildren as the family was en route to church on Christmas Day in 2005. Upon collision with the other vehicle, the rear seat latch failed folding on Ms. Wheeler and slamming her forward into the front console.

Ms. Wheeler suffered spinal cord damage and permanent paralysis from the neck down. The Georgia jury awarded a total of $17.7 million in damages. The jury found apportioned the liability and fault between the driver of the other vehicle that caused the accident holding him liable for $1.2 million for his negligence and Ford liable for the remainder on the products liability claim.

The jury was considering additional punitive damages against Ford at the time of the settlement. The punitive damages could have enormous. Punitive damages typically are based in part on the revenue of the defendant. Punitive damages function to deter future conduct. In this case, it appears based upon the evidence presented by the plaintiff's attorney, that Ford had known about the dangers of the lap only seatbelts for more than 30 years based upon extensive crash testing and research. The knowledge was well documented in Ford's own safety documentation and internal memos.

Despite the obvious dangers presented by the defective design, Ford failed to correct the problem continuing to install the lap belts rather than the safer shoulder belts. As a result of Ford's knowledge of the dangers of its defective design and its deliberate failure to correct the problem, it is likely that the jury would have awarded significant punitive damages. Due to the settlement, Ford will avoid a possibly enormous punitive damages award.

Product liability cases such as these are extremely important for the public safety. Consumers trust their safety and the safety of their families to manufacturers such as Ford. Without product liability suits such as this one, manufacturers would have little incentive to design and manufacture safer products. Indeed, as in this case, the motivation flows in the exact opposite direction as manufacturers would ignore their own safety research and findings in an effort to keep production costs down. It is important that the costs savings associated with cutting costs be weighed heavily against the costs of these suits in the event of their deliberate indifference to the safety of their consumers. Unfortunately, profit alone drives manufacturers such as Ford and the threat of lawsuits if nothing else will hopefully drive them toward more responsible design decisions.

Related Reading:
Uninsured/Underinsured Coverage: An Insurer's Duty to Passengers in New Mexico - The Sequel
Uninsured/Underinsured Coverage: An Insurer's Duty to Passengers in New Mexico
Tort Reform Ignores Bad Corporate Behavior: Case in Point, Toyota!

Collins & Collins, P.C.
Attorneys at Law