Tennessee Injury Law Center

February 6, 2014

Negligent Hiring and Due Diligence as an Employer

In Manhattan this week, jurors are debating whether Matthew Martoma is guilty of insider trading while at SAC Capital Advisors, a prominent hedge-fund. For an injury lawyer, Mr. Martoma’s trial raises an interesting question: what kind of background searches are being performed these days?

I ask this question because Mr. Martoma’s background contains some serious red flags. While attending Harvard Law School, Mr. Martoma forged his transcript in an attempt to get a clerkship with a federal judge. When the fraud was discovered, he was expelled from Harvard. Thereafter, he changed his name — prior to that time, he had been Mr. Ajai Mathew Thomas. Despite being expelled from Harvard, Mr. Thomas aka Mr. Martoma was admitted to Stanford, a highly-competitive school that has its choice of candidates and certainly does not need to take disgraced students out of some type of financial necessity. And after leaving Stanford, Mr. Martoma found his was to SAC Capital Advisors. So one is left to wonder if Stanford or SAC Capital Advisors performed any type of due diligence in researching Mr. Martoma’s background before accepting him as a student or hiring him as an employee.

Failing to perform a background search in some instances can result in liability. For instance, if a daycare hires someone with a history of a sexual abuse and then the employee sexually abuses a child at the daycare, then the daycare could be held liable for the assault under a theory of negligent hiring. By failing to perform due diligence before hiring the employee, the daycare placed a person unsuited for the job in a position where they could inflict harm on a student in their care.

February 4, 2014

Could Your Car Help You Avoid An Accident?

by The Law Offices of John Day, P.C.

If you are of a certain age, you probably remember the Jetsons, a Saturday morning cartoon about the future, in which George Jetson drove a vehicle that flew, basically drove itself and avoided crashes with other vehicles and things. Well, according to the United States Department of Transportation, we may soon have cars and trucks that are one step closer to the Jetsons’ vision.

Yesterday, the Transportation Secretary announced it will move forward with vehicle-to-vehicle crash avoidance systems in cars and trucks. The systems use short distance radio networks that can send signals up to 300 yards. Cars and trucks equipped with the crash avoidance systems would essentially talk to one another and provide information about speeds, position and direction. If the crash avoidance system detected an imminent collision, an alarm would sound. In some cases, the warning alarm would sound even before the other vehicle was in view. In terms of timing, the Department of Transportation hopes to have a proposal in place before 2017.

Of course, the system’s effectiveness will be diminished until most vehicles on the road are equipped with the technology. But, this could be a significant step forward in crash protection. And, it comes at a good time. After several years of decline, fatal car accidents increased to 33,561 in 2012. (2013 numbers are not available yet).

February 3, 2014

Generic Drugs: A Less Expensive, But Possibly Dangerous Choice

by The Law Offices of John Day, P.C.

Imagine you are standing at the counter at Walgreens or CVS and the pharmacist offers you a choice: you can purchase either the brand name version of your drug for $400 or you can purchase a generic alternative for $50. Very few people would not opt for the less expensive generic version. But, there is something you should know before making a decision between generic and brand name drugs.

Generic drugs manufacturers are not responsible for drug defects or for failing to warn about such defects. So, if the drug poses a substantial risk of harm for diabetics but the label does not warn about it, the generic drug manufacturer is not responsible. The injured diabetic has no recourse. Think about that. Not only did the generic manufacturer not have to invest any money in researching and developing the drug, but then if they copy the drug they are not responsible for any harm caused by it (unless the generic drug manufacturer makes a mistake in the formulation process and does not accurately copy the drug). This crazy result is based on a 2011 U.S. Supreme Court decision, Mutual Pharmaceutical v. Bartlett.

In November of last year, the FDA announced a proposed change to the current rule which would make generic manufacturers responsible for labeling in the same fashion as brand name manufacturers. The original comment period for the proposed rule was 60 days but the deadline was extended. The new deadline is March 13, 2014. We will keep you posted about this important safety issue for drug consumers.

January 31, 2014

Driving While Drowsy – Dangerous and Deadly

by The Law Offices of John Day, P.C.

According to the National Highway Traffic Safety Administration, more than 100,000 police-reported accidents each year are directly attributable to driver fatigue. And this figure is almost certainly low because some states do not have coding for fatigue or driver fell asleep and if fatigue is combined with another factor, such as alcohol use, it does not get coded at all, etc. Unbelievably, 41% of drivers have reported actually falling asleep at the wheel, and one in every six fatal car crashes is related to a drowsy driver.

While anyone who is sleep-deprived is at risk for a crash, certain groups are at higher risk. Those groups include: (1) drivers who suffer with untreated sleep apnea syndrome; (2) shift workers who work at night or irregular hours; (3) young drivers (ages 16 to 29) especially males. And, as this trucker will tell you, truck drivers definitely work at night and keep irregular hours. So it is not surprising that the Large Truck Crash Causation Study found that 13 percent of Commercial Motor Vehicle drivers were fatigued at the time of a crash.

Some drivers will try to combat fatigue by drinking caffeine, rolling the window down, turning up the radio or other tricks. But, the U.S. Department of Transportation warns that such tricks are not an alternative for rest and can actually produce a false sense of security.

January 30, 2014

Exciting News For Those Suffering From Peanut Allergy

by The Law Offices of John Day, P.C.

In Britain, researchers introduced small amounts of peanut flour into the diet of children suffering with peanut allergies. After six months of this therapy, more than 80 percent of the children could eat a handful of peanuts without experiencing a reaction. The peanut flour helped to build tolerance to the allergen. While this news is promising, researchers warn that parents should not try this therapy at home. The children who participated in this study were in a very controlled environment with doctors on the ready to respond to any reactions.

Peanut is the most prevalent of the various food allergies and the number of people developing the allergy is growing with about 1 in 50 children affected. Food allergies are responsible for more than 200,000 emergency room visits each year. Because of their inexperience in dealing with their allergy, children are at the greatest risk. Cross-contact must be carefully avoided and emergency response plans must be in place.

If you or a loved one has suffered a serious injury due to a food allergy, we encourage you to read more about food allergy cases.

January 28, 2014

Company Recalls Defective Pool Gates

by The Law Offices of John Day, P.C.

Nationwide Industries has recalled its Trident Pool Gate because the magnet which secures the gate can come loose resulting in the gate failing to latch. The United States Consumer Product Safety Commission has a picture of the pool gate latch and a full description of the product.

Pool gates are critical safety devices. They prevent unintended access of the pool by children or other at-risk individuals. For children ages 1 to 14, drowning is the second leading cause of death so preventing unintended access is a high priority.

If you own a pool with a latching pool gate, take a moment and make sure your gate is not affected by the recall. If you live in a residential complex with a community pool, call or email your property manager to make sure they are aware of the recall and have checked the gate. If you have a neighbor who has a private pool, do the same thing. This is especially true if you are the parent of young child.

January 22, 2014

You Got a Good Deal – But At What Cost?

by The Law Offices of John Day, P.C.

Who doesn’t love a good deal? At garage sales, consignment stores, Ebay, Craig’s List, yard sales and the like, shoppers can snap up gently used products for a fraction of what the item would cost new. But in some cases, the good deal is an illusion because the product has been recalled and actually poses a danger to you and your family. For instance, in 2013, there were 5 separate recalls for baby strollers. The risks associated with these recalled strollers ranged from strangulation and choking hazards to projectile and fall hazards. Needless to say, regardless of the price, these particular strollers were not a good deal.

The good news is you do not have to choose between safe and full price. Instead, before purchasing used items, take a few moments and run a quick search on www.saferproducts.gov. The site will give you recall and other technical information on the product you are contemplating purchasing. It will also give you some piece of mind.

As part of the purchase negotiations, ask for the owner’s manual to be provided with the product. And while I know that most people do not relish reading an owner’s manual, take the time to do so to ensure you use the product correctly. Trust me, if you are injured by the product, and a warning about the issue was detailed in the owner’s manual that you did not bother to read, your product liability claim is going to be undermined. Not to mention, by reading the owner’s manual, you can often pick up a few handy tidbits about the product that you might not have otherwise been aware.

January 21, 2014

More Cold Weather in Tennessee; More Heater Recalls

by The Law Offices of John Day, P.C.

Chapter Two of the cold snap in Middle Tennessee is here. Many folks will use space heaters to ward off the cold. If you do, check your make and model because the Consumer Product Safety Commission has announced Sears and Kmart have recalled 42,500 Kenmore oscillating fan heaters bearing model number 127.90914310. The model number can be found on a silver sticker on the bottom of the heater. The fans are being recalled due to reports of them smoking and catching fire. If you own one of these heaters, you should immediately discontinue use and return it to Kmart or Sears for a full refund.

Defective products are all too common. And when they harm innocent consumers, manufacturers should take all responsible steps including recalling the product and fairly compensating any injured customers for the harm caused by the defective product. Unfortunately, that rarely happens. So if you or a loved one has been seriously injured by a defective product and would like to discuss your product liability case, contact our award-winning attorneys online or call us at 615-742-4880 or toll-free at 866-812-8787 for a free, no-obligation consultation.

January 19, 2014

Tennessee Injury and Wrongful Death Verdicts in Nashville, Davidson County, Tennessee November 2013

by The Law Offices of John Day, P.C.

There were five jury trials in personal injury and wrongful death cases in Davidson County (Nashville) Tennessee during the month of November 2013.

Two of those cases were slip and fall calls, also known as "premises liability" cases. In one of those cases, the jury returned a verdict for the injured party for $450,000. In another case, the Davidson County jury returned a verdict for the person or company that was sued, finding that the injured party was 75% at fault in causing the accident. Under Tennessee law a finding of 50% or more fault on the part of the injured party means that the injured party can recover no monetary award whatsoever.

Two car accident cases were also tried by the jury and both resulted in a jury award for the injured party. In one case the jury awarded $45,000 and in the other case the jury awarded $198,849. No information is readily available about the injuries in these cases.

January 18, 2014

Train Safety: What is Taking so Long?

by The Law Offices of John Day, P.C.

We have already written a couple of posts about Positive Train Control, which the CEO of Metrolink described as “perhaps the most important safety innovation in our lifetime”. (The first article explained how Positive Train Control can prevent several types of deadly train accidents and the delays in implementing it. The second article discussed whether Positive Train Control could have prevented the recent New York commuter train derailment which killed 4 people and injured dozens more.) If you did not read those articles, here is the deal in a nutshell: Following a 2008 Metrolink train crash in California, legislation was passed to require Positive Train Control and the implementation deadline was 2015. But with that date looming, most railroad companies are claiming they can’t meet the deadline.

Now, here is the latest. Following that same 2008 train crash, the National Transportation Safety Board began pushing the Railroad Administration to install cameras in train cabs to record drivers. The thought being this would deter dangerous behavior like texting while operating the train, sleeping, etc. Additional cameras would face outward to record the tracks for hazards. And, in the event of a crash, both sets of cameras would help investigators determine the cause of the accident. But to date, the Railroad Administration has not even proposed a rule (the first step in the process) to make the installation of these cameras mandatory.

Following the New York commuter train accident in December, two United States senators have publicly called out the Railroad Administration for its delay in implementing the rule. And now, finally, the Railroad Administration says they will move on the rule sometime later this year.