About: David Goguen

David Goguen is a legal editor at Nolo, focusing on claimants' rights in personal injury cases. He is a member of the California State Bar with over a decade of experience in litigation and legal publishing. David is a graduate of the University of San Francisco School of Law.

Recent Posts by David Goguen

Airplane Turbulence Injuries: Liability is Up in the Air

Five people had to be hospitalized on Monday after their United Airlines flight encountered some rough turbulence on the flight path between Denver and Billings, Montana. (Get the full story from The Denver Post.)

While a particularly bumpy flight can lead to rows full of white knuckles and muttered prayers, the fact is that actual injuries caused by turbulence are pretty rare.  According to the Federal Aviation Administration, every year around 58 people in the U.S. are injured by turbulence on a commercial flight. Over an almost-20 year period (from 1980 through 2008), 298 airline passengers and flight attendants were seriously injured in a turbulence-related incident, and three people died.

But what if you are injured on a turbulent flight? It’s possible that the airline could be held legally responsible for your injuries, especially since airlines are considered “common carriers” and the law imposes a heightened duty of care on them. That means airlines must use the vigilance of a very cautious person in order to protect passengers from potential harm.

That heightened standard of care doesn’t guarantee that you will have an easy time proving your case, however. It’s not enough to show that your flight experienced turbulence and that you were injured as a result. You also need to prove that the airline or one of its employees was somehow negligent in connection with the incident.

So, did the captain and the flight crew take reasonable steps to avoid the turbulence and follow proper protocol for warning passengers — ordering everyone to return to their seats and fasten their seat belts, for example? Was the flight understaffed? You could also have a valid claim against the manufacturer of a seatbelt or other piece of equipment if it was defective or otherwise did not perform properly, and that played a role in your injury.

On the other side of the causation coin, if the plane’s captain warned passengers to stay in their seats with their seatbelts fastened because the aircraft was entering a particularly rough stretch of turbulent air, and you decided to stretch your legs in the aisle anyway, the airline is likely to argue that you share most or all of the blame for your own injuries.

For everything you need to know about these kinds of cases, check out Nolo’s popular article Airplane Turbulence and In-Flight Injuries.

It’s a Super Bowl Party! Who Brought the Lawsuit?

What’s more American than twelve-minute renditions of the National Anthem and sexually suggestive potato chip commercials? Lawsuits, that’s what.

Maybe your Seahawks fan buddy has an awesome recipe for German potato salad that involves leaving the dish in the trunk of his car for 24 hours. Perhaps that weird friend of a friend in the Peyton Manning jersey keeps doing a shot of Jagermeister every time number 18 calls “Omaha!” at the line of scrimmage.

With the Super Bowl only a few days away, before you open your home to friends and family (and show off your new billboard-sized flat screen for the big game), remember that you could also be opening yourself up to legal liability. If, for example:

  • someone is injured on your property
  • someone comes down with a bad case of food poisoning because of something they ate while they were at your party (whether you made the food or not), or
  • someone has too much to drink before they leave your place, they get behind the wheel, and they end up getting into a drunk driving accident.

The specifics of your potential liability as a homeowner depend on the laws that are in place in your state. And whether or not you’re sufficiently protected in case of a lawsuit depends on the coverage details you can find in your homeowner’s insurance policy.

All of this good advice is brought to you by the party poopers fine folks over at Independent Insurance Agents & Brokers of America, Inc. Check out their Super Bowl Party Playbook for all the details.

FDA Lets Avandia Up Off the Mat

Harsh sales restrictions on the once-popular diabetes medication Avandia have been lifted by the FDA. Use of the drug will no longer be limited to certain patients, and new labeling will be pretty much in-line with other prescription diabetes meds. Maybe you’re reading this and asking yourself, “Hey, isn’t the FDA sort of doing a complete 180 on Avandia?” Not a bad question.

The restrictions have been in place since 2010, when, on the heels of a study that linked Avandia use to an increase in heart problems, the FDA ordered that Avandia only be prescribed to certain diabetes patients whose condition could not be adequately controlled with any other medication.

The FDA wasn’t done with Avandia in 2010. The following year, the agency announced that the drug would no longer be available through retail pharmacies, and that only a very limited number of patients would still be able to receive it. Those patients needed to be enrolled in a special program before receiving Avandia via mail order, from specially-certified pharmacies.

So, why the regulatory change of heart now? A recent clinical trial suggested that Avandia use actually comes with no elevated risk of heart attack or death when compared with other diabetes drugs. Not that the new study was without controversy — check out this Wall Street Journal article featuring a few barbs from critics of the trial and the way it was carried out.

It sounds like Avandia’s new labeling will be pretty standard, according to the FDA announcement: “The FDA anticipates that the new indication will state that the drug may be used along with diet and exercise to improve control of blood sugar in patients with type 2 diabetes mellitus, an indication similar to other diabetes drugs currently available.”

Learn about Product Liability Claims Involving Pharmaceutical Drugs.

Tesla Model S Gets Federal Safety Probe After Fires

On the heels of three incidents in which Tesla Model S cars have caught fire after striking road debris, the federal government has announced that it is investigating a potential vehicle safety defect involving the popular electric car — specifically, the effect of “undercarriage strikes” on the vehicle’s battery compartment.

Here’s what the NHTSA’s Office of Defects Investigation had to say in announcing the Tesla probe:

    The ODI is aware of two incidents occurring on US public highways in which the subject vehicles caught fire after an undercarriage strike with metallic roadway debris. The resulting impact damage to the propulsion battery tray (baseplate) initiated thermal runaway. In each incident, the vehicle’s battery monitoring system provided escalating visible and audible warnings, allowing the driver to execute a controlled stop and exit the vehicle before the battery emitted smoke and fire.
    Based on these incidents, NHTSA is opening this preliminary evaluation to examine the potential risks associated with undercarriage strikes on model year 2013 Tesla Model S vehicles.

According to the Washington Post, it’s not clear whether Tesla CEO Elon Musk asked the NHTSA to look into the issue — Musk claims he did, but the head of the agency said he was “not aware” of any such request.

In any case, Musk isn’t thrilled with the picture that the media is painting when it comes to the Model S and its propensity to catch fire, and he may have a fair point.

In a blog post on the Tesla website, Musk makes the argument that three incidents of fire involving the Model S does not add up to a safety problem, especially when you put that incident rate side-by-side with the one for gasoline-powered cars. Here is the numbers breakdown from Musk:

    There are now substantially more than the 19,000 Model S vehicles on the road, for an average of one fire per at least 6,333 cars, compared to the rate for gasoline vehicles of one fire per 1,350 cars. By this metric, you are more than four and a half times more likely to experience a fire in a gasoline car than a Model S! Considering the odds in the absolute, you are more likely to be struck by lightning in your lifetime than experience even a non-injurious fire in a Tesla.

J&J Pays $2.2 Billion Fine to Feds Over Risperdal

Drug giant Johnson & Johnson, makers of the anti-psychotic medication Risperdal, have agreed to pay $2.2 billion in fines over allegations that the prescription drug was inappropriately marketed to older dementia patients and to children with behavioral disabilities.

The agreement was announced yesterday by the U.S. Department of Justice, which called it “one of the largest health care fraud settlements in U.S. history, including criminal fines and forfeiture totaling $485 million and civil settlements with the federal government and states totaling $1.72 billion.” In legalese, that is what is known as a “whopping” amount of money.

Risperdal is part of a class of “atypical antipsychotic” medications used to treat mental illnesses like schizophrenia, bipolar disorder, and irritability associated with autistic disorder.

Johnson & Johnson and other makers of atypical antipsychotics have come under regulatory scrutiny for for illegally touting these drugs for unapproved uses, and in spite of clear health risks. The New York Times calls yesterday’s settlement “part of a decade-long effort by the federal government to hold the health care giant — and other pharmaceutical companies — accountable.” Learn more about Lawsuits Over Risperdal and Other Antipsychotic Drugs.

J&J actually lost its patent protection for Risperdal a few years back, but the company is still paying a hefty price for a questionable-slash-illegal marketing strategy over the once-popular drug.

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