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.

 

Recent U.S. Supreme Court Opinion on Alabama Case

                In 2010, in Weatherspoon v. Tillery Body Shop, Inc., 44 So. 3d 447 (Ala. 2010), Weatherspoon’s vehicle was towed from a restaurant parking lot by Tillery as an abandoned vehicle.  Without making any effort to contact Weatherspoon, Tillery sold the vehicle.  Weatherspoon sued Tillery, not for anything related to the towing but for conduct occurring after the towing was completed.  The Alabama Supreme Court held that all of Weatherspoon’s claims were preempted by the Federal Aviation Administration Authorization Act of 1994 (“FAAAA”) and the ICC Termination Act of 1995 (“ICCTA”). 

 

                On May 13, 2013, in Dan’s City Used Cars, Inc. v. Pelkey, 2013 WL 1942398, the United States Supreme Court specifically abrogated the Weatherspoon opinion.  Like Weatherspoon, Pelkey was towed away and Pelkey’s claims against Dan’s City did not involve the towing but Dan’s City’s conduct in selling the vehicle.  There was federal preemption as to state law provisions “related to a price, route, or service of any motor carrier … with respect to the transportation of property.”  Yet, “state-law claims stemming from the storage and disposal of a car, once towing has ended, are not sufficiently connected to a motor carrier’s service with respect to the transportation of property to warrant preemption ….”  2013 WL 1942398 at *4 (emphasis in original).

 

               Obviously, the United States Supreme Court, with no dissenters, concluded that the Alabama Supreme Court had over-extended the preemptive effect of the FAAAA and ICCTA to cover matters totally unrelated with the actual towing, the transportation of property.

$6.5 Million Verdict Against Actos Maker Thrown Out

Actos users who were harmed by the drug suffered a major setback after Takeda Pharmaceutical Co., persuaded a judge to throw out a $6.5 million jury verdict against it. The mega-corporation’s lawyers argued that the Plaintiff did not produce sufficient evidence to show his cancer was caused by the medication. The Los Angeles case is Cooper v. Takeda Pharmaceuticals America Inc., CGC-12-518535, California Superior Court (Los Angeles).

The trial lasted nearly two months and the jury deliberated for almost five days.

Judge Kenneth Freeman ruled that the Plaintiff’s, Jack Cooper, attorneys were not able to properly link his bladder cancer to his Actos use and jurors should not have had a chance to return their verdict against Asia’s largest drugmaker. It was the first of more than 3,000 lawsuits over the medication to go to trial.

 

The Plaintiff in this case took the drug for more than four years before being diagnosed with bladder cancer in 2011. Takeda’s lawyers argued during the almost two-month trial that Cooper was more likely to develop bladder cancer because he was an elderly male former smoker who suffered from diabetes. That placed him in high-risk categories for the disease regardless of his Actos use, the company’s attorneys argued to jurors.

However, Judge Freeman’s ruling hinged on an expert doctor who concluded Cooper’s Actos use caused his bladder cancer turned out to be “inherently unreliable” and that justified throwing the case out. Freeman issued a 27-page ruling.

It is believed that Cooper’s lawyers will appeal Freeman’s post-verdict ruling throwing out the case.

It is estimated that Actos sales peaked in the year ended March 2011 at $4.5 billion, or 27 percent of Takeda’s revenue at the time.

More than 1,200 suits have been consolidated into an MDL in the U.S. District Court for the Western District of Louisiana. The first federal case is set for trial in January and Mark Lanier, who won a $253 million verdict against Merck in 2005 in the first trial over the company’s withdrawn Vioxx painkiller, is slated to try the case for plaintiff Ida St. John.

Former Actos users contend in court filings Takeda researchers ignored or downplayed concerns about the drug’s cancer-causing potential before it went on sale in the U.S. in 1999, and misled U.S. regulators about the medicine’s risks.