Recent Alabama Opinion Regarding Contributory Negligence

In Lafarge North Am., Inc. v. Nord, No. 109062, six justices found that Nord was contributorily negligent as a matter of law; Malone, Woodall and Main dissented.

The records shows that Nord regularly picked up loads of cement bags at Lafarge’s cement packhouse, which had two loading bays.  Drivers would park their trucks in one of two bays and walk to an office “to receive [a] load assignment.”  A Lafarge employee, using a forklift, would load pallets of bags onto the truck’s flatbed.  Nord had parked his truck in the second bay and walked to the office.  Upon leaving the office and as he was walking across the first bay, the forklift operator backed up and ran over Nord’s foot.  The jury awarded Nord $125,000 in compensatory damages and $75,000 in punitive damages. 

All nine justices agreed that there was not even “substantial” evidence of wantonness.  The six-justice majority relied on the following in finding that Nord was contributorily negligent as a matter of law:  (1) due to his frequently picking loads at this packhouse, Nord was well aware that forklifts operated in the loading zone; (2) Nord knew that forklifts were dangerous machines that could injure a pedestrian; (3) Nord testified that he knew that it was a good safety practice to get the attention of a forklift operator when entering an area where a forklift was in operation before attempting to walk through that area and (4) Nord indicated that he could have taken an alternative route. 

The six-justice majority concluded that, with appreciation of the danger, Nord voluntarily entered into a dangerous situation.  Arguably, the most germane fact was that Nord failed to get the forklift operator’s attention despite Nord’s appreciation that the operator might not have known of Nord’s presence.

I must presume that we will see defendants rely on this opinion in future summary-judgment motions.  There was evidence that the forklift operator was not looking backwards as he was backing up but the majority concentrated on Nord’s failure to get the operator’s attention, as opposed to taking an alternative route.

FDA Actos Warnings

The drug Actos (pioglitazone hydrochloride) is used in the treatment of diabetes. Actos is used to control blood sugar levels in patients with Type 2 diabetes, which keeps the body from producing enough insulin to properly use the sugar in the bloodstream.  Type 2 diabetes can also cause the patient to become resistant to insulin.  Actos remedies this problem by making cells more sensitive to insulin, thereby making it easier for sugar to pass through the body.

The Food and Drug Administration (FDA) mandated a “Black Box” warning be added to Actos packaging in 2007.  A second FDA warning in June 2011 contained specific details of the risk of bladder cancer associated with Actos.

A recent study of 193,099 patients over a five-year period found that people who took Actos for at least 12 months or longer were 40 percent more likely to develop bladder cancer. A subsequent FDA Adverse Event report found that Actos was involved in one-fifth of all reported diagnoses of bladder cancer in diabetes drug users. At this time, however, Actos is still on the market and being prescribed by physicians. 

If you represent a client who has been diagnosed with bladder cancer after using Actos, we would welcome the opportunity to work with you on these cases.  Please contact Booth Samuels at booths@pittmandutton.com or at 1-866-515-8880.

Evaluating a Potential Fosamax Case: Part II

How should you evaluate a potential Fosamax case?

One important tool is determining whether the patient was diagnosed with osteopenia or osteoporosis at the time they were first prescribed Fosamax.

Osteopenia is a condition where bone mineral density is lower than normal. It is considered by many doctors to be a precursor to osteoporosis. However, not every person diagnosed with osteopenia will develop osteoporosis. More specifically, osteopenia is defined as a bone mineral density T-score between -1.0 and -2.5. This score is based on a deviation from the bone mineral density of a healthy 30 year old white woman. Any test result over a -2.5 will result in a diagnosis of osteoporosis.

In reality, osteopenia is an arbitrary diagnosis. It is an invented term to characterize women who may be at risk of osteoporosis and have lost some bone density. There is no real medical basis for developing this term or choosing that number. Many women are told they have osteopenia when they may never develop osteoporosis. The definition or term is controversial among the medical community. The patient’s diagnosis may not always be determined by a test result from a bone scan but from the doctor’s notes/diagnosis. However, if we find the test result fits in that -1.0 to -2.5 reading and the doctor prescribed Fosamax, it is almost a certainty that the doctor diagnosed the patient with osteopenia.

Because of the loose definition of osteopenia, the treatment for the ‘condition’ is even more controversial than the diagnosis. Many women diagnosed with osteopenia are treated with biosphosphates, including Fosamax. It is reported that half of all postmenopausal women are being told they had this "disease"—with the implication that they should begin taking drugs to treat it. These patients probably should not be treated with biosphosphates to begin with and better treatment would consist of monitoring by their doctors.

There are several reasons why the distinction between the two is important in evaluating a potential case. We know that osteoporosis patients are much more at risk for bone fractures, whereas osteopenia patients have almost as much risk for bone fractures than a healthy white woman age 30. An osteoporosis patient is much more likely to have a history of fractures, making the causation connection difficult. Also, an osteoporosis patient is probably on more medication than an osteopenia patient, thus making the causation connection even more difficult.

Our firm is currently investigating claims for those people who have taken Fosamax and have been injured. If you would like a free case evaluation, please contact Booth Samuels at toll free 1-866-515-8880 or booths@pittmandutton.com.