Recent Alabama Appeals Court Opinion

Last Friday, the Alabama Court of Civil Appeals issued its opinion in Pell v. Tidwell, No. 2120313.

Tidwell, who worked for the Municipal Utilities Board of Albertville, was driving a truck with a lift bucket northbound on Highway 431 in Albertville, where Highway 431 is a divided four-lane highway with a grass median.  Tidwell got into the left-turn lane in anticipation of making a left turn onto Buchanan Road.  Tidwell observed Rucks’s Toyota in the paved portion of the median and obstructing his ability to make his left turn.  Based on the position of the Toyota, Tidwell assumed that Rucks intended to pull onto Highway 431 to travel north.  Tidwell made a hand signal to Rucks to indicate that it was clear for her to turn onto the inside, northbound lane of Highway 431.  Unfortunately, Rucks’s intention was to cross Highway 431 and she collided into Pell’s vehicle that was traveling in the outside, northbound lane of Highway 431 and had the right of way.  It was a clear day and there was nothing obstructing Rucks’s view down Highway 431.

After Pell entered into a pro tanto settlement with Rucks, Pell appealed the summary judgment which the trial court had granted Tidwell and his employer.  Pell maintained that, even if Tidwell was under no affirmative duty to act, once he volunteered to make the hand signal to Rucks, Tidwell was charged with the duty of acting with due care.  In rejecting Pell’s argument, the appellate court wrote:

“We agree … that a motorist’s hand signal to another motorist to proceed does not absolve the signaled motorist of his or her duty under Alabama law to ensure that it is safe to travel across an intersection and to yield to oncoming traffic.  This is especially true when, as in this case, there are no unusual obstacles or obstructions.

“Because a driver cannot delegate his or her responsibility for ensuring that it is safe to proceed across an intersection, especially under normal driving conditions, i.e., when there are no unusual obstructions or conditions, we now hold that, as a matter of law, a signaling motorist cannot be held liable for negligence when the signaled driver proceeds across an intersection without independently ensuring that it is safe to do so.”

According to the appellate court, as a matter of law, the proximate cause of the accident was Rucks’s breaches of the Rules of the Road, and not Tidwell’s conduct.

One cannot help but conclude that the critical fact was that Tidwell thought that Rucks wanted to turn onto Highway 431.  Therefore, Tidwell signaled that it was clear to turn onto the inside, northbound lane of Highway 431 without having made any determination as to whether there was an approaching vehicle in the outside, northbound lane, and was not “vouching” that it was safe to across Highway 431.  Tidwell’s truck was not obstructing Rucks’s ability to look for traffic in the outside, northbound lane and Rucks apparently made no effort to see the Pell vehicle before venturing to cross Highway 431.

 

Latest Alabama Supreme Court Ruling on Nursing Home Care

On Friday, October 19, 2012, the Alabama Supreme Court issued Hill v. Fairfield Nursing & Rehabilitation Center, LLC.  Hill suffered a broken leg while being helped out of bed by a nursing assistant at the Fairfield Nursing Home.  Hill was 85 at the time of the fall and had been a Fairfield patient since 1992.

In addition to suing Fairfield, Hill sued a number of other entities seeking to “pierce the corporate veil.”  Prior to trial, the trial court granted summary judgments to these other entities.  At the close of Hill’s case-in-chief, the trial court granted Fairfield’s JML motion.  The Supreme Court reversed both the JML and the summary judgment.

Hill’s designated standard-of-care expert was Nelson, “a registered nurse since 1997, who had worked in skilled-nursing facilities and who had supervised both certified nursing assistants and licensed practical nurses.”  Fairfield contended that its physical-therapy department assessed or determined the measures to take when getting Hill out of bed and that because Nelson was not licensed, trained, or experienced in the field of physical therapy, she was not a similarly situated health-care provider.  The Supreme Court declared that Fairfield could not rely on its delegating “to its physical-therapy department responsibility for making patient-transfer assessments” because, “[u]ltimately, [Fairfield’s] position would allow any institutional medical provider to control the standard of care for which it will be held responsible simply by having some department within its corporate structure, rather than the law, select the standard of care applicable to various activities undertaken by its individual medical-provider employees.”   (Emphasis in original.)   Thus, Nelson could testify as to the standard of care applicable to the “certified nursing assistant in effecting a transfer of a patient such as Hill and as to whether [the assistant] met that standard in this case.”

Hill’s designated causation expert was Dr. Volgas, a board-certified orthopedic surgeon who treated Hill following the fall.  Fairfield contended that the broken leg could have been caused by her osteoporosis.  In responding to a question, Dr. Volgas acknowledged that “this fracture [could] have occurred prior to … falling at the nursing home” but proceeded to declare that this was not likely “because of the fracture pattern and because of where the fracture is.”  The Supreme Court held that Dr. Volgas’s testimony was sufficient to create a jury question as to whether the fall was the probable cause of this broken leg.

The opinion extensively discusses Alabama law regarding piercing the corporate veil and details the extensive evidence proffered by Hill.  Among other things, Fairfield owned no real property or significant personal property and carried only $25,000 in liability insurance.   The Supreme Court held that genuine questions were created as to whether Fairfield was the “alter ego” of the other entities.   

 

Alabama Supreme Court Ruling on Common-Fund Doctrine

In Ex parte State Farm Mut. Auto. Ins. Co., 2012 WL 4238631, Mitchell, a State Farm insured, was injured in an accident caused by Kirk, a Cotton States insured.   Mitchell retained an attorney who investigated the accident and wrote Cotton States seeking to settle for policy limits.  State Farm paid Mitchell (a) $5,000 in medical payments and (b) $7,992.90 in non-medical payments.  State Farm contacted Cotton States seeking reimbursement of the full $12.992.20 paid Mitchell; Cotton States acceded as to $7,992.90 of the demand but, as to the $5,000, declared that “the balance of the subrogation remains outstanding pending the settlement of the Bodily Injury claim with the insured and her attorney.”  State Farm wrote Mitchell’s attorney that State Farm did not him to assist in protecting its subrogation rights as to the $5,000.  Mitchell sued Kirk and State Farm.  When Mitchell and Cotton States reached a tentative settlement for $35,000, State Farm consented to the settlement but requested full reimbursement of the $5,000 payment for medical expenses.  On behalf of Kirk, Cotton States paid $30,000 to Mitchell and interpleaded $5,000 into court.  The trial court ruled that, the common-fund doctrine did not apply and that State Farm was entitled to the entire $5,000.  The Alabama Court of Civil Appeals reversed the trial court and held that the common-fund doctrine fund did apply and that Mitchell was entitled to a deduction for attorney fees and expenses.  The Alabama Supreme Court affirmed the Court of Civil Appeals.

 

The Supreme Court noted that Cotton States declined to meet State Farm’s direct subrogation demand for repayment of the subject $5,000.  Thus, Mitchell’s filed lawsuit would create a common fund from which State Farm’s subrogation right would be satisfied.

 

The Supreme Court rejected State Farm’s contention of “active participation,” an exception to applying the common-fund doctrine.  This exception arises if the insurer “actively assist its insured in the creation, discovery, increase or preservation of the common fund.”  The Supreme Court declared that “an insurance company’s limited appearance to protect its subrogation interest and no more will not shield the insurance company from the application of the common-fund doctrine.”  In other words, the insurer must do more than inform the insured’s attorney that his assistance is not wanted; instead, the insurer must actually do something that helps create the common fund.

 

The Supreme Court further found that there was no policy language that abrogated the application of the common-fund doctrine.

Alabama Supreme Court Ruling on Wrongful Death

In Boudreaux v. Pettaway, No. 1100281, deceased’s medical records clearly showed that she had numerous risk factors placing her in the category of patients with a high risk of pulmonary aspiration during the administration of anesthesia via routine intubation.  Despite those risk factors, a board-certified anesthesiologist and certified registered nurse anesthetist failed to review the medical records or physically examine the patient for the presence of aspiration risks.  The pair failed to employ the rapid-sequence induction process required for patients at risk for aspiration.  Patient aspirated bile into her lungs and died as a result of aspiration pneumonitis.

 

The jury awarded $20,000,000 in damages.  The plaintiff accepted the trial court’s remittance of $16 million, leaving a $4 million judgment.

 

Defendants appealed the denial of their motion for new trial.

 

Defendants suggested that they were entitled to a new trial because prospective jurors failed to answer questions asked during voir dire.   The Supreme Court agreed with the trial court’s determination that the questions were unclear and confusing.  The Supreme Court noted that the information the defendants claim was not disclosed were matters of public record.  The Supreme Court observed that the defendants had allowed individuals to sit on the jury who had disclosed information similar to what the subject jurors allegedly failed to disclose.

 

Defendants also sought a further remittitur.  The opinion addresses how Alabama wrongful-death cases are different from non-death cases.  In assessing the impact of the judgment on the defendants’ net worth, the trial court considered the defendants’ “bad-faith” action against their insurer.  Only Justice Murdock dissented to the other justices’ finding that the trial court properly considered the “bad faith” action in assessing the impact.

 

From reading the opinion, it is evident that the justices concluded that the anesthesiologist and nurse anesthetist were medically negligent and acted reprehensibly.  The anesthesiologist arrived at the hospital only minutes before the surgery.  At trial, the nurse anesthetist repeatedly admitted that he breached the applicable standard of care.

A Recent Alabama Federal Court Opinion

Here is a good pleading lesson from Abercrombie v. Lowe’s Home Centers, Inc., 2012 WL 2383503 (M.D. Ala. June 25, 2012). 

Abercrombie sued Countertop Visions with the intention of holding Countertop Visions vicariously liable for the acts of its employees in the course of their work, namely, the employees taking her jewelry while doing remodeling work at her home.  Yet, in the factual allegations in her complaint, Abercrombie did not specifically allege that the theives were Countertop Visions’ employees acting within the line and scope of their employment or for the benefit of their employer. 

The Senior District Judge dismissed Countertop Visions but gave Abercrombie time to amend her complaint to allege the required facts.  The lesson is that, in federal court, you need to make exact factual allegations that correspond to the elements of the asserted cause of action because simple notice pleading is no longer allowed.

Recent Alabama Rulings on Removal

In Freeman’s 66 v. Scottsdale Ins. Co., 2012 WL 1747973 (N.D. Ala. May 15, 2012)(Coogler), after Freeman’s 66’s gasoline station sustained some structural damages in a vehicle accident, its insurer failed to pay a claim.  Freeman’s 66 sued Scottsdale for breach of contract and bad faith, and sought $12,400 to replace a metal awning, $12,600 for replacing three gas pumps and unspecified punitive damages.  After the removal, Freeman’s 66 moved for remand contending a failure to satisfy the amount-in-controversy requirement.  Obviously, Freeman’s 66 specifically demanded just $25,000 in compensatory damages.  Referencing three earlier opinions, Scottsdale unsuccessfully argued that the request for punitive damages was for at least $50,000.  Correctly, Coogler differentiated the three opinions and noted that the range of possible punitive-damages awards was far less than $50,000 to some figure in excess of $50,000.

In Lambeth v. Peterbilt Motors Co., 2012 WL 1712692 (N.D. Ala. May 15, 2012)(Steele), as he was attempting to enter the cab of his Peterbilt truck, a step collapsed, causing Lambeth to fall to the ground and hurt his back.  He brought a products-liability lawsuit in which he alleged that he suffered a “serious injury to his back” and included the typical “boilerplate” language in his complaint. 

In removing the matter, the defendants relied solely on the complaint and, more particularly, on the allegation of a “serious injury” and asked the federal court to find that Lambeth must be seeking more than $75,000.  Judge Steele found that using the word “serious” does not make it “facially apparent” from the complaint that Lambeth was seeking more than $75,000 – “While the back injury is characterized as ‘serious,’ nothing in the Complaint elaborates on the nature or severity of that injury, or otherwise lends substance or meaning to it.  We simply do not know – or have any basis for inferring from the pleadings – anything about how severe, permanent, debilitating or painful the injury might be; how extensive, costly, or traumatic the course of treatment was, is or might be; or whether and to what extent the injury did, does or will constrain Lambeth’s work or life activities.” 

Judge Steele essentially chastised the defendants for relying merely on the complaint and not proffering evidence as to the true nature of Lambeth’s injury, that is, he truly suffered a severe injury that resulted in high medical costs, a lot of pain, significant disability, etc., as opposed to Lambeth’s attorney merely overhyping the injury. 

When the defendants argued that Lambeth’s attorney was “playing a game” by not being more specific in the complaint, Judge Steele wrote:  “These sentiments are an oft-heard refrain voiced by members of the defense bar who feel aggrieved by the manner in which Eleventh Circuit amount-in-controversy jurisprudence has developed in recent years.  Their lament is understandable.  It is true enough that defendants who wish to remove an action to federal court on diversity grounds may face daunting proof obstacles and difficult strategic choices, particularly as to whether to remove the case right away or to develop additional evidence on damages via discovery before pulling the removal trigger.  Contrary to defendants’ insinuation, however, Lambeth neither created this state of affairs nor engaged in impropriety, trickery or skullduggery in proceeding as he has.  For better or worse, the harrowing Scylla-and-Charybdis scenario described by PACCAR is a natural, inevitable consequence of the interaction among liberal pleading rules that do not require a plaintiff to plead injuries and damages with specificity, strict removal statutes that place both the burden of proof and temporal constraints on removing defendants, and appellate evolution of a substantial, subjective gray area in which defense counsel cannot discern for sure whether the “facially apparent” criterion will be deemed to be satisfied in a particular case.  …  A perception of unfairness or hardship is not a valid reason to excuse removing defendants from their strict jurisdictional burden of proving by a preponderance of the evidence that the amount in controversy exceeds $75,000.”

The Freeman’s 66 opinion will be useful in situations where there was just property damage to a business and/or where the insurance claim was for significantly less than $75,000.

The Lambeth opinion is a good counter to those opinions where a federal judge uses the “facial apparent” approach and holds that alleging a “serious injury” equates to seeking more than $75,000.  Chief Judge Steele correctly notes that more should be required when the complaint is so general in his description of the injury and its consequences.

Alabama Supreme Court Opinion on Rule 56(c)(2) and the 10 Day Rule

In Tucker v. Scrushy, the plaintiffs filed a garnishment against Richard M. Scrushy Charitable Foundation. Among other things, the plaintiffs alleged that the Foundation was Scrushy’s alter ego. The Foundation filed an answer and the plaintiffs contested the answer. 

In a separate action, the plaintiffs sued the Foundation, asserting claims under the Alabama Uniform Fraudulent Transfer Act (“AUFTA”); no “alter ego” claim was made.  The Foundation moved for a partial summary judgment, asserting that the AUFTA claims were not timely brought.  Following being allowed to conduct additional discovery, the plaintiffs conceded that the AUFTA claims were not timely brought. 

On November 19, 2010, the plaintiffs filed a pleading (1) acknowledging that the AUFTA claims were timed barred and (2) requesting a trial as to the garnishment contest.  On December 1, 2010, on the eve of a hearing on the partial summary judgment motion, the Foundation requested a summary judgment in the garnishment contest.  After conducting a hearing, in which the plaintiffs objected to hearing any summary judgment motion in the garnishment contest, the trial court granted the Foundation a summary judgment in both matters. 

On appeal, the Supreme Court reversed, holding that the plaintiffs were deprived the required 10-day notice and had not waived the right to such notice.  The Supreme Court declared that the plaintiffs were prejudiced because they were deprived the ability to file a response within two days of the hearing.  The Supreme Court rejected the Foundation’s argument that there was no prejudice because, between the hearing and the entry of an order, the plaintiffs could have filed an opposition. The Supreme Court noted that the procedural rules do not provide for the filing of an opposition after a hearing.

Alabama Court Opinion Regarding Motions to Strike

In Ex parte Secretary of Veterans Affairs, No. 1101171 (Ala. Mar. 20, 2012), in support of his summary-judgment motion, the Secretary proffered an affidavit executed by Hiatt to which were attached a number of unsworn, uncertified, and unauthenticated documents.  In his opposing memorandum brief, Smith pointed out why Hiatt’s affidavit and the documents were inadmissible and should not be considered.  Smith was correct.  Yet, Smith never filed a motion to strike the affidavit and documents. 

Bolin wrote a majority opinion to which Woodall, Stuart, Main and Wise concurred.  The majority held that Smith waived his objection to the affidavit and documents when he failed to contemporaneously file a motion to strike. It was not sufficient to argue that the affidavit and documents were inadmissible in Smith's opposing memorandum brief. 

Murdock, with Parker and Shaw concurring, wrote a strong dissent. Murdock pointed out that, having to file a motion to strike along with objecting to the affidavit and documents in the opposing memorandum brief was redundant and placed “form” over “substance.” 

THEREFORE, IN THE FUTURE, IF THE MOVANT PROFFERS INADMISSIBLE EVIDENCE IN SUPPORT OF A MOTION, YOU MUST FORMALLY FILE A MOTION TO STRIKE IN ADDITION TO OBJECTING TO THE INADMISSIBLE EVIDENCE IN AN OPPOSING BRIEF. 

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.

Latest Removal Procedure Ruling in Alabama

Earlier this month, Alabama Chief District Judge Watkins issued an opinion dealing with removal procedure in Stewart v. Bureaus Investment Group #1, 2011 WL 2313213.

In the Circuit Court of Macon County, Alabama, Bureaus brought a debt-collection action against Stewart.  Stewart answered and filed a counterclaim complaint, asserting a claim under the Fair Debt Collection Practices Act (FDCPA) and various state-law-based claims.  Bureaus dismissed its debt-collection complaint, leaving pending only Stewart’s counterclaims. 

Interestingly, Bureaus then moved to realign the parties and the state court granted its motion.  Thereafter, Bureaus filed a notice of removal, asserting federal-question jurisdiction, predicated on the FDCPA claim.  Stewart filed a motion to remand and argued that there was no removal jurisdiction because only defendants may remove and, when the matter was commenced Bureaus was the plaintiff.

As noted by Chief Judge Watkins, no Circuit Court of Appeals has addressed “whether an order of realignment by a state court can allow a former plaintiff, now defendant, to remove a case to federal court based upon a pleading that was originally filed as a counter-complaint.”  Chief Judge Watkins determined that such a former plaintiff/now defendant could and subsequently denied Stewart’s motion to remand.  Because removal jurisdiction is determined based on the situation at the time of removal, for Chief Judge Watkins, at the time of removal, Stewart was the plaintiff prosecuting claims against Bureaus, the defendant.  The prior procedural history was immaterial in the analysis.

Likely, Stewart did not oppose the motion for realignment because she believed that there was no possibility of removal because Bureaus had instituted the litigation as the plaintiff.  The lesson to be drawn is that, if confronted with this scenario, one should oppose a motion to realign because the motion is being filed solely to divest the state court of jurisdiction and unnecessary for any other purpose.  Chief Judge Watkins’s analysis may be correct but it would be interesting to see if the Eleventh Circuit would affirm if there is ever any appellate review. Obviously, this case could turn out significantly different in another venue.

Our firm handles many cases dealing with the above issues. Most of the cases we handle involve victims of identity theft who have their credit wrecked by the credit companies, collection agencies and the credit reporting agencies who do not practice due diligence when handling someone’s credit rating and score. Credit score has become one of the single most important tools used in the financial world today. Deciding whether to file in state or federal court is a major decision when handling these types of cases. If you have been a victim of identity theft and your credit rating has been negatively affected, contact me today for a free case evaluation.

Birmingham IV Infections Update

The Alabama Department of Public Health and the Centers for Disease Control and Prevention have been investigating the outbreak of Serratia marcescens in five hospitals around Birmingham and one in Prattville. It is linked to bags of TPN, total parenteral nutrition -- a supplement given intravenously to patients too sick to eat -- mixed by Meds IV and sent to those hospitals in January, February and March.

A failure in the sterilization process at a Birmingham pharmacy appears to have caused the infection that sickened 19 people in Alabama hospitals, nine of whom died, the Alabama state health department said Thursday. Investigators found exact matches of the bacteria on a water faucet, a container and a device used to mix intravenous nutritious supplements at Meds IV. But there are still questions about how the contamination occurred.  "We've identified the weak point in the chain where infection occurred," State Health Officer Don Williamson said. "We're now trying to figure out exactly what happened."

Samples of the bacteria were taken from Meds IV's compounding room, grown out and run through a genetic fingerprinting process. The same strain found in the TPN and in 12 patients turned up on the water tap and mixing equipment. Samples weren't available from six patients and one is still in process, the health department said.

S. marcescens also grew from samples taken from a bag of amino acids used to make the TPN, but that culture hasn't been fingerprinted yet. Investigators suspect it will match and was tainted at the pharmacy.
Williamson said Meds IV staff used tap water to wash the mixing vessel before rinsing it with sterile water. Then the amino acid solution, which was mixed from a powder and sterile water, was also contaminated by touching the equipment. That amino acid mixture is supposed to be run through a filter small enough to catch the bacteria, but for some reason, that didn't work. At this point, he said, it's not clear what went wrong, and whether the problem lies in the process itself, a flaw in the filtering equipment or in human error.

Investigators are working with the Alabama Board of Pharmacy and federal Food and Drug Administration to find out more about what went wrong. Williamson said investigators plan to look at patients who received TPN in those six hospitals but did not show signs of infection and is working with the FDA to get samples of other recalled products made by Meds IV. Fortunately, it does not appear that there is any additional contamination.

We are currently investigating this recall and are available for a  free consultation regarding a Meds IV lawsuit. Call 1-866-515-8880 (toll free) or email booths@pittmandutton.com

Birmingham Area IV Bag Contamination Update

Nine people died and 10 more were sickened in six Alabama hospitals after receiving IV packs filled with liquid nutritional supplements that were contaminated. Inspectors have identified the contaminate as the bacteria Serratia marcescens, organisms that can cause infection in several sites on the body including the urinary tract, respiratory tract, eyes, and in wounds.

In this case the bacteria entered the bloodstream due to the contaminated IV fluids. The bacteria can cause pneumonia and meningitis, and the infections are often fatal.

The Centers for Disease Control and Prevention (CDC) has identified six Alabama hospitals where infections were confirmed - Princeton Baptist Medical Center, Shelby Baptist Medical Center, Cooper Green Mercy Hospital, Medical West, Prattville Baptist Hospital and Select Specialty Hospital, a long-term acute care hospital that operates within Trinity Medical Center.

In addition to the deaths, a total of 19 people were confirmed to be infected. A Birmingham pharmacy, Meds IV, was reported as being the supplier. According to officials, the contaminated bags have been removed off the shelves and the threat of injury or more wrongful deaths to more Alabama hospital patients has been contained.

Lethal Bacterial Infection Linked to Tainted IV Bags in Alabama

The Centers for Disease Control and Prevention and the Alabama Department of Public Health are investigating an outbreak of the bacteria Serratia marcescens at five Birmingham-area hospitals and one in Prattville. Nineteen patients tested positive for the infection and nine of those died. Most of the infections occurred around the middle of March, but one case was in January and one in February, said Mary McIntyre at the state health department.

Officials linked the infection to TPN, a common nutritional supplement delivered directly from the plastic bags into the bloodstream through IV tubes. A single pharmacy, Birmingham-based Meds IV, made the bags. The company has notified its customers of the contamination and has discontinued production.

Serratia marcescens bacteria grow in moist areas and can settle in hospital patients' respiratory and urinary tracts. The bacteria is common and easily treatable if detected early. Patients with serratia sepsis may have fever, chills, shock, and respiratory distress. The CDC in 2005 identified the bacteria as causing blood stream infections in about a dozen patients in New Jersey and California that were treated with contaminated salt solutions administered through IVs from similar bags.