Alan Alexander and Annie Dike recently obtained a favorable jury verdict for a hospital in a medical negligence action involving an infant in the Circuit Court of Mobile County. Plaintiffs contended the infant was born with a significant brachial plexus injury caused by the negligence of the defendant physician and hospital in managing a shoulder dystocia emergency during delivery. Defendants established that the physician and nurses timely and effectively performed the proper maneuvers to relieve the shoulder dystocia in a very short period of time and safely delivered the baby. The jury deliberated for only twenty-five minutes before rendering a unanimous defense verdict in favor of the defendants.
In David’s Auto Shredding, Inc. v. Shredder Co., LLC, Slip Copy, 2009 WL 8478359 (S.D. Ala. March 24, 2009), United States Magistrate Judge Sonja Bivins agreed with Helmsing Leach attorneys Joseph P. H. Babington and D. Andrew Stivender that a lawsuit filed against their clients should be transferred to a federal court in Texas based on a forum selection clause contained in an agreement binding on the plaintiff. Before Judge Bivins’s recommendation could be considered by a district court judge, however, the plaintiff filed for Chapter 11 bankruptcy protection and the case was stayed. After the plaintiff’s bankruptcy reorganization plan was confirmed by the bankruptcy court, the plaintiff requested the district court to transfer the lawsuit to that court. In response, Attorneys Babington and Stivender argued that the action should not be transferred because the bankruptcy court did not have jurisdiction or, even if it did, circumstances did not warrant a transfer. United States District Judge Kristi K. DuBose agreed and denied the plaintiff’s request. David’s Auto Shredding, Inc. v. Shredder Co., LLC, Slip Copy, 2011 WL 4025716 (S.D. Ala. September 12, 2011). The court also asked the parties to brief the issue of whether Judge Bivins’s recommendation to transfer the case to Texas should be adopted. The plaintiff argued that the case should not be transferred because of what the plaintiff asserted were changed circumstances relating to the bankruptcy. In contrast, the Helmsing Leach attorneys argued that there was no evidence supporting the plaintiff’s position and that the forum selection clause was entitled to substantial weight. Judge DuBose ruled in favor of Helmsing Leach’s client and adopted Judge Bivins’s recommendation to transfer the lawsuit to Texas. David’s Auto Shredding, Inc. v. Shredder Co., LLC, Slip Copy, 2011 WL 4915155 (S.D. Ala. October 17, 2011).
Finding that the plaintiff, who had amended his complaint to add Helmsing Leach’s hospital client as a defendant after the statute of limitations had run, had not exercised due diligence to ascertain the defendant’s correct name in a timely fashion, the Alabama Supreme Court directed the trial court to grant the hospital defendant’s motion for summary judgment. Click here for the Defense Research Institute’s report on the case
Helmsing Leach lawyers Joseph P. H. Babington and D. Andrew Stivender teamed up with Daniel R. Lanier (email@example.com), principal of Miles & Stockbridge, P.C. and United States Coordinating Counsel for Black & Decker Corporation, to obtain a favorable ruling from the Alabama Supreme Court in Ex parte Delta International Machinery Corp., ___ So. 3d ___, 2011 WL 3211098 (Ala. July 29, 2011). The Court held that a plaintiff in a products liability action against Helmsing’s client, saw manufacturer Delta International Machinery (“Delta”), was not entitled to inspect and test “flesh sensing” technology created by a joint venture in which Delta was a member. The plaintiff had been injured years earlier when his hand contacted the blade of a lightweight portable bench-top saw made by Delta. He alleged in his lawsuit that the saw was defective under the Alabama Extended Manufacturer’s Liability Doctrine because it did not incorporate technology that can sense human flesh contacting the blade and retract the blade in time to avoid injury.
Delta had been part of a joint venture which created flesh sensing technology the plaintiff sought to inspect and test. After the trial court entered an order allowing inspection and testing, Delta filed a petition for a writ of mandamus, asserting that the technology was irrelevant to the plaintiff’s claim and also highly confidential. Agreeing, the Supreme Court concluded that there was no evidence indicating that the technology could have been incorporated into a lightweight bench-top saw like the one the plaintiff used. The Court also rejected any argument that the manufacturer had a duty to create flesh sensing technology and incorporate it into the subject saw when it was made. Finally, the Court determined that the joint venture’s technology was a trade secret entitled to heightened protection from discovery. Accordingly, the Court issued the writ and directed the trial court to vacate its order allowing inspection and testing.
Glenn S. Kerner and Joseph P.H. Babington
Glenn S. Kerner, chair of the Mass Tort and Class Action SLG of DRI’s Product Liability Committee and partner of Goodwin Procter LLP in New York City, teamed with Joseph P.H. Babington, partner of Helmsing, Leach, Herlong, Newman & Rouse, P.C., in Mobile, Alabama, recently to obtain summary judgment in favor of Teva Pharmaceuticals USA, Inc. (Teva) in a product liability action involving the prescription drug cephalexin in the United States District Court for the Southern District of Alabama. Barnhill v. Teva Pharmaceuticals USA, Inc., et al., case no. 06-cv-00282 (S.D. Ala. May 10, 2011). Plaintiff’s negligent failure to warn claims were dismissed on the basis of the learned intermediary doctrine. In dismissing the plaintiff’s claim for negligent failure to conduct post-marketing surveillance, the court declined to extend Teva’s post-marketing surveillance duty beyond the requirements of FDA regulations. The court also dismissed the plaintiff’s breach of implied warranty of merchantability claim.
The plaintiff alleged that, at age 12, she developed Stevens-Johnson Syndrome, a rare and severe hypersensitivity reaction, as a result of ingesting Teva’s antibiotic cephalexin. Plaintiff’s complaint asserted various claims under Alabama law, including strict liability, misrepresentation, negligence, breach of express warranty and breach of implied warranty of merchantability. Early in the litigation, Teva prevailed on a motion to dismiss the plaintiff’s strict liability and misrepresentation claims. All remaining claims were dismissed on summary judgment, including negligent failure to warn, negligent failure to conduct post-marketing surveillance and breach of implied warranty of merchantability.
The court held that summary judgment for Teva was warranted on the failure to warn claim because the plaintiff could not establish proximate cause under Alabama’s learned intermediary doctrine. The plaintiff’s prescribing physician had testified at deposition that she still prescribes cephalexin today, despite being aware of the potential risks. Given that testimony, the court held there was no evidence to support the plaintiff’s allegation that a more forceful warning would have changed the physician’s decision to prescribe cephalexin for the plaintiff. In so holding, the court rejected the plaintiff’s argument that a heeding presumption should apply in this case.
The court rejected the plaintiff’s claim that Teva had a legal duty to conduct post-marketing surveillance beyond the requirements of FDA regulations. Teva demonstrated that it complied with all FDA regulations relating to reporting adverse events. However, the plaintiff argued that Teva was obligated to monitor and report adverse events from other manufacturers’ cephalexin products, as well as its own. The court found that the plaintiff provided no support for her argument that such a duty existed.
The court also rejected the plaintiff’s breach of implied warranty of merchantability claim, holding that the plaintiff presented no evidence to rebut the presumption under Alabama law that cephalexin, as an inherently dangerous product, is fit for its intended use.
Warren Herlong represented a landowner whose Florence, Alabama property was partially taken for a road widening project. The Alabama Department of Transportation testified to only owing $131,000 as just compensation for the taking, but after the two and a half day jury trial the Firm recovered a judgment of $402,720 plus approximately $115,000 in pre-judgment interest for its client.
The Firm secured summary judgment for its client on the grounds of judicial estoppel arising out of a plaintiff’s failure to list the underlying civil claim against the Firm’s client in the plaintiff’s bankruptcy schedules. The order issued out of the Mobile County Circuit Court and was recently affirmed on appeal by the Alabama Supreme Court (Verneuille v. Buchanan Lumber of Mobile, Inc., 2005 WL 1189598 (Ala. May 13, 2005)). This case is yet another example of how the Firm’s bankruptcy practice and experience can assist the Firm’s general litigation practice.
Warren Herlong and Casey Pipes represented two landowners whose Mobile County, Alabama property was partially taken for a road widening project. The Alabama Department of Transportation testified to only owing $137,835 as just compensation for the taking, but after the two and a half day trial the Firm recovered a judgment of $511,746.35 for its clients.