December 2010 Archives

December 30, 2010

Patients Get Exposed to Excessive Radiation from Stereotactic Radiosurgery

Three Evanston, Illinois patients recently received excessive amounts of radiation from a popular radiation therapy called stereotactic radiosurgery, also called SRS. These accidents have devastating effects on patients, according to a recent NYTimes article. As a result of excessive radiation, one patient is nearly comatose and requires treatment in a nursing home.

Our Annapolis Maryland injury attorneys have experience representing Plaintiffs who have been injured by excessive radiation either by the negligence of medical providers and/or defective medical devices.

SRS is a treatment designed to target tiny tumors affecting the brain or spinal cord, while minimizing damage to surrounding tissue.

The NYTimes article reported that SRS systems made by Varian and its German partner Brainlab have figured in scores of accidents. While experts claim that there is nothing inherently wrong with the devices in question, called linear accelerators, most problems are the result of user error and a lack of guidelines for mixing and matching multiple companies' products.

For example, in the Evanston incidence, a mismatch of a cone-shaped attachment to the linear accelerator caused excessive amounts of radiation to spill out of the accelerator.


Linear accelerators are less expensive than a competing medical device called the Gamma Knife. Linear accelerators are also less regulated.

While SRS is regulated by the Food and Drug Administration, the Gamma Knife is regulated by the Nuclear Regulatory Commission, since it uses a radioactive isotope. The Nuclear Regulatory Commission is required to publicize incidents regarding radiation.

Not only is the FDA not required to publicize adverse events, the FDA approved the linear accelerators with little review on the grounds that it was an extension of old equipment.

Experts from the American Society for Radiation Oncology are calling for a central database for the reporting of errors involving linear accelerators.

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December 29, 2010

Plaintiffs Prepare Mass Tort Action Against Makers of Darvon and Darvocet

pills.jpgPlaintiffs attorneys in several states are preparing to file lawsuits against Xanodyne Pharmaceuticals, a Kentucky-based drug company that marketed the painkillers Darvon and related brand Darvocet, both pain killers, according to an article that appeared in the Daily Record yesterday.

Our Annapolis Maryland attorneys have significant product liability trial experience representing Plaintiffs who have been injured by defective drugs and/or manufacturers' failures to warn consumers.

Some attorneys plan to also sue drug company Eli Lilly, which pioneered the drugs prior to selling them in 2002 to AAI Pharmaceuticals, which has since gone bankrupt. Xanodyne purchased the drugs in 2005.

According to the Daily Record Article, the drugs' active incredient propoxyphene causes a condition called QT prolongation, a form of an irregular heartbeat. Plaintiffs' experts allege that QT prolongation is a "signature" injury caused only by propoxyphene and several other drugs. This condition can cause severe problems. Additionally, the drugs have been linked to overdoses.

Britain, Canada and Japan withdrew the drug from the market prior to the FDA taking action.

In July 2009, the FDA declined to remove Darvon from the market, but required manufacturers to provide more information to help physicians and patients to decide whether propoxyphene is the appropriate pain treatment.

Under pressure, Xanodyne Pharmaceuticals agreed to withdraw propoxyphene from the U.S. market on November 19, 2010, after the FDA received new clinical data showing the drug put patients at risk of potentially serious or even fatal heart rhythm abnormalities.

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December 20, 2010

New York Jets Defensive End Sued for Throwing Snowball at Fan

New York Jets Defensive End Shaun Ellis has been named in a lawsuit filed by a Seattle Seahawks season ticket holder who says he suffered physical and emotional pain after he was struck by snowball thrown by Ellis after a Dec. 21, 2008 loss to the Seahawks.

Seattle Seahawks fan Robert Larsen claims Ellis targeted him with the snowball because Ellis had been waving a pro-Seahawks sign. A video of the incident (above) shows Ellis throwing a large chunk of snow at a fan holding a sign as Ellis exited the field. Ellis appears to catch the snowball and then start dancing with the snowball.

The NFL fined Ellis $10,000 for the incident.

Video evidence can often aid a party in litigation. Whether this video will help the Plaintiff prove any damages remains an open question.

December 9, 2010

Jury Awards $66 Million in Defective Exercise Equipment Product Liability Action

A Buffalo, New York jury awarded $66 Million to a former massage therapist who became a quadriplegic after a 2004 workplace accident in which a 600-pound leg extension exercise machine fell on her. The jury ruled against Cybex International Inc., a well-known maker of exercise equipment, in a product liability action that also apportioned liability on Plaintiff's employer.

Our Annapolis, Maryland product liability attorneys represent Plaintiffs in product liability actions in which Plaintiffs have been injured by manufacturing defects or a manufacturer's failure to warn of risks.

The New York jury verdict awarded $8 million for past pain and suffering, $151,690 in past lost earnings, $1.68 million for past medical expenses, $25 million for future pain and suffering, $1.79 million for future lost earnings, $28.56 for future medical expenses and $792,435 for care of potential children to 30-year-old Natalie Barnhard.

The accident occurred while Plaintiff was doing a shoulder stretch. Plaintiff had her hand on top of the leg extension machine, and it fell onto her when she stretched back with her shoulder and arm, according to attorney. The machine broke two cervical vertebrae and compressed the bones onto her spinal cord.

The jury found Cybex 75 percent liable for the Plaintiff's injuries, Plaintiff's employer 20 percent liable, and the Plaintiff 5 percent responsible for the accident.

Maryland law also supports recovery for Plaintiff's that have been injured by a Manufacturer's negligence in producing defective products and/or failing to warn of a risk that is reasonably discoverable by the manufacturer. Two points, however are noteworthy:

  1. Maryland, as of 2010, presently caps recovery for non-economic damages, such as pain and suffering, at $740,000. This amount modestly increases every October.
  2. Maryland law precludes recovery under the doctrine of Contributory Negligence in a negligence action where a Plaintiff contributes to his/her injury, notwithstanding a Defendant manufacturer's negligence.

Nevertheless, a Plaintiff's contributory negligence does not bar a Plaintiff's recovery under a theory of Strict Product Liability. The key difference between Strict Product Liability and Negligence is that an action based in Negligence focuses on the conduct of the manufacturer. In Strict Liability, the law focuses on the product itself.

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December 1, 2010

Maryland Increases Civil Jury Trial Limit

gavel.jpgGovernor Martin O'Malley issued a proclamation today enacting the results of November's Election on Constitutional Amendments, effectively increasing the amount in controversy necessary for a party to seek a jury trial.

At the Brassel, Alexander & Rice, our attorneys represent plaintiffs in personal injury cases, who have been injured by another party's negligence in Annapolis, Baltimore and throughout the State of Maryland.

The Constitutional Amendment increases to $15,000 the amount that must be in controversy for a party to seek a jury trial in civil actions. Under the previous law, the limit was $10,000.

Keeping a case in district court is frequently beneficial to plaintiffs, since circuit court cases frequently require expenses such as expert witnesses and depositions. District Court discovery is less formal and is often handled in writing.

In a case where a Plaintiff has sustained an injury, but damages are not permanent or severe, it often makes sense for a Plaintiff to ask for damages consistent with the limits of the District Court's jurisdiction.

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