In May 2010, chickens on the grounds of Parx racetrack outside of Philadelphia spooked the horse upon which exercise rider Mario Calderon sat.  The horse threw Mr. Calderon off and he died from the injuries he received.  A jury ordered Parx to pay $7.8 million to Mr. Calderon’s family because it found that the track should have known the chickens posed the type of danger that killed him and they allowed them to exist on their grounds.  Just recently, a Pennsylvania appellate court upheld the judgment.

What was Parx’s response?  Make sure their grounds are free from hazards and safer to the people that work and make a living there?  No.  Parx responded by attempting to force all of the jockeys riding at the track to essentially sign waivers of liability.  Parx conditioned the jockeys’ ability to ride at the track on signing the waiver.  The waiver reportedly included terms that required any claims to go through arbitration and limited the authority of an arbitrator to assess damages.  The form also would give the track the absolute ability to remove a jockey from its grounds.

As an attorney who is also a huge horse racing fan, these actions concern me.  Race tracks need take responsibility for their property.  If hazards and dangers exist on the grounds that make it unsafe to those who work or visit there, then address them.  It is pretty common knowledge that thoroughbreds can be high strung animals and prone to getting spooked.  So, why not take a look around and eliminate things that can spook horses, which can seriously injure or kill someone?  Sure, no property owner can make their place absolutely safe, but anything within reason should be done instead of just maintaining unsafe practices and trying to keep those who may get hurt because of them from holding you responsible.

These forced arbitration clauses continue to creep into many aspects of our consumer and work lives.  They show up in credit card, mobile telephone, employment and nursing home agreements or paperwork, to name a few.  They show up in places where the consumer or worker has no true and real bargaining power.  If you do not like it and do not agree to it, then you will not get the credit card, telephone, job or admission into the nursing home.  The problem comes when our courts uphold these one-sided agreements, which has happened all to frequently.  Fortunately, organizations and movements out there exist to fight these insidious clauses.  One such movement is Take Justice Back.  TJB is a pro-civil justice movement that fights the well-funded interests, such as the big businesses and industries, that want to use these clauses.  It sees forced arbitration as an avenue to keep ordinary people from holding these more powerful interests accountable in a courtroom with a jury rather than in an arbitration where the deck is stacked in favor of the company who wrote the clause.

The 7th Amendment of the United States Constitution guarantees us a right to a trial by jury and thereby access to the courthouse when we need it.  Let’s keep it that way.

The civil lawsuit, which began in April of 2011, involved 13 female inmates who were victimized over a two year period inside the LaRue County Detention Center (LCDC). The women, who ranged in age from mid-20s to early 50s, were each incarcerated for varying periods and lengths of time between 2008 and 2010.

The Complaint filed on behalf of the 13 Plaintiffs claimed, among other things, that while the Plaintiffs were incarcerated in the LCDC, Defendants, Travis Strader and Harold Marcum, mistreated, harassed, assaulted, forcibly raped, and forced the Plaintiffs to perform sexual acts. Claims of battery, assault, and intentional infliction of emotional distress were alleged against Defendants Strader and Marcum.

Bahe Cook Cantley and Nefzger’s very own Vanessa Cantley and Nathan Williams were among those representing the 13 female plaintiffs in this case. A settlement agreement was reached between all of the parties involved in May of this year, resulting in an $850,000.00 final judgment against the Defendants. Both of the Defendants also faced criminal charges in LaRue Circuit Court for their conduct.

A National Inmate Survey conducted by the Bureau of Justice Statistics found that from 2011 to 2012, 1.8% of jail inmates across the US were victims of sexual misconduct by jail staff (source: http://www.bjs.gov/content/pub/pdf/svpjri1112.pdf). In Kentucky alone, from 2011 to 2012, the percentage of prison inmates reporting sexual victimization by members of the prison staff jumps to an average of 4.3%. With a prison population of roughly 21,000 in Kentucky at the time of the survey, the results suggest that around 900 inmates reported being victims of staff sexual misconduct.

Bahe Cook Cantley and Nefzger is currently reviewing and accepting more of these claims.

Bahe Cook Cantley & Nefzger PLC partner Will Nefzger is handling cases involving Mavic R-Sys bicycle wheel failures.  The wheel spokes are made of carbon fiber composite.  Carbon fiber composite can and does fatigue over a relatively short period of time.  When the fatigue occurs, the spokes can and do fail.  When the spokes fail, the integrity of the entire wheel is compromised and results in its failure.  Obviously, a catastrophic wheel failure can lead to a crash and very serious injuries or death.
There are a couple of major problems with this.  First, Mavic does not warn its consumers that the spokes fatigue to the point of failure in a relatively short amount of time or give any instructions regarding changing the spokes after a certain amount of time due to fatigue.  Second, even though fatigued to the point of failure, the damage to the spokes often is undetectable.  Thus, a purchaser of the wheel has no notice of the potential problem and most likely will never be able to detect it on its own anyway.  Mavic markets and sells these wheels to casual riders, in addition to more serious riders and racers.
Will Nefzger is currently reviewing and accepting these cases from consumers that have been injured as a result of the failure of a Mavic R-Sys wheel.  He is accepting cases on a nationwide basis.

GM announced yesterday that nearly 3.4 million more vehicles will be recalled in light of its review of ignition switch issues following the first set of recalls affecting 2.6 million cars earlier this year. This move brings the total number of vehicles recalled by GM this year over 20 million.

GM admitted in February that its engineers first knew of the ignition switch issues as early as 2004, leading to an investigation into the nearly 11-year delay in recalling the faulty vehicles. Less than two weeks ago, GM announced its decision to dismiss 15 employees, and to discipline 5 additional employees, in wake of the three-month investigation by former federal prosecutor Anton Valuka. While Valuka’s report did not reveal a conspiracy by the corporation to cover up relevant facts over the 11 year delay, it did point to “a pattern of incompetence and neglect” throughout the company, especially in regards to the 20 employees the report found to be the most at fault.

At least thirteen deaths have been attributed to the faulty ignition switch, which can fall out of the “run” position while the vehicle is in operation, shutting down crucial safety features such as airbags. The National Highway Traffic Safety Administration has indicated that the number may, in fact, be much higher.

The company’s CEO, Mary Barra, has said that GM will voluntarily create a program to compensate those who have suffered injuries or death due to the defective cars, but she has not indicated how large that fund may be. According to GM president Dan Ammann, compensation expert Kenneth Feinberg will be in charge of determining who is eligible and to what extent. Feinberg will also be responsible for determining whether there have been more than 13 deaths caused by the defect.

GM is set to start accepting claims on August 1. Bahe, Cook, Cantley & Nefzger, PLC is currently seeking damages for a client who sustained injuries in a motor vehicle accident caused by the faulty ignition and air bag deployment. We are also currently reviewing and accepting more of these claims.

Transvaginal mesh is an implant typically manufactured with a plastic material called polypropylene. The product was created to repair conditions such as pelvic organ prolapse and stress urinary incontinence. The mesh is inserted through the vagina in order to provide support for the pelvic organs in the case of pelvic organ prolapse, the vagina in the case of a hysterectomy, and/or the urethra in the case of stress urinary incontinence.

According to court documents, more than 50,000 transvaginal mesh lawsuits are not pending in several cases in U.S. District Court, Southern District of West Virginia. Manufacturers facing these mounting lawsuits include American Medical Systems, Boston Scientific, C.R. Bard, Cook Medical, Ethicon, Inc. and Coloplast. Endo International, PLC, without admitting fault or liability, agreed last month to pay $830 million to resolve legal claims of approximately 20,000 women who have been injured by transvaginal mesh devices.

Many of these lawsuits claim, among other things, that the transvaginal mesh products are defective in both their design and manufacture which has resulted in side effects such as mesh erosion, severe pain, infection and scarring. In many cases, the spouses of women who have experienced these complications are also bringing claims for loss of consortium.

Less than two weeks ago, two studies were presented at the American Urological Association’s annual meeting. These studies suggested that even when a woman has undergone surgical removal of a transvaginal mesh device, the injuries allegedly caused by these devices may be permanent. (medicalxpress.com/news/2014-05-faulty-mesh-incontinence-women-symptoms.html, HealthDay News, May 19, 2014). The first of these studies followed 123 women who had the devices surgically removed due to chronic pain. Only 67% of these women reported being pain free after recovering from their surgeries. The second study reported that of the 214 women surveyed three years after surgical removal of their transvaginal mesh devices, more than a third continued to suffer moderate-to-severe pain. Similarly, more than a quarter of these patients reported urine leakage at least once a day.

Bahe Cook Cantley & Nefzger is currently reviewing and accepting on behalf of women injured by transvaginal mesh.

Bahe Cook Cantley & Nefzger is currently evaluating legal claims on behalf of men who may have suffered cardiac problems due to their use of AndroGel and other similar testosterone therapy medications.

The FDA began reviewing these products for safety in January after two studies published by the Journal of the American Medical Association (JAMA) showed that on average the medications doubled the risk of stroke, heart attack, or even death after a mere 90 days of treatment in men over the age of 65 with no heart problems, as well as in men under age 65 with heart problems.   (Stephen R. Braun, “Promoting Low T: A Medical Writer’s Perspective” JAMA Inter. Med. 2013; Lisa M. Schwartz, et. Al, “Low T as in Template: How to Sell Disease” JAMA Intern. Med. 2013).  More recent studies have shown that all men may face a 30% risk increase within weeks of beginning treatment with these products.

Sales of Testosterone replacement therapy products have doubled since 2006, and are expected to triple to $5 billion by 2017.  Some of the more popular testosterone therapy medications include Androgel®, Androderm®, Fortestra®, Axiron®, Testim®, Bio-T-Gel®, Delatestryl®, Depo-Testosterone®, Striant®, and Testopel®. If you or someone you know are using any of these drugs, take caution.  It is also important to be wary of the generic versions of these products.

Since the FDA announced its investigation, law suits against pharmaceutical manufacturers have been increasing exponentially.  Multiple law suits are now active across the country, with claims that (1) the companies failed to provide adequate warnings regarding the increased risks to cardiovascular health and that (2) marketing tactics were not up to the required ethical or legal standards and in fact resulted in prescriptions being issued to men who did not even have low testosterone levels.  The most recent of these lawsuits was filed against Endo Pharmaceuticals, Inc. on May 8th, less than two weeks ago.  Our firm is currently investigating and accepting these cases.

GM is in the process of recalling 2.6 million sedans in order to repair faulty ignition switches and lock cylinders after studies revealed that under certain conditions the ignition switches in these vehicles have a risk of moving out of the “run” position, thus deactivating the airbag deployment process.  GM has stated that if the ignition switch is not in the “run” position at the time of a collision, the air bags may not deploy, increasing the risk of injury or fatality.  So far, thirteen deaths have been linked to the faulty ignition and airbag deployment issues.

GM has declared on their website that the vehicles are safe to drive if the driver follows instructions to remove all other keys, key chains, and key rings from the key used to operate their vehicle.  GM states that the weight of just the ignition key by itself has proven insufficient to cause the ignition to shift out of the “run” position, thus making these vehicles safe to drive under these conditions.

While companies do not intentionally manufacture defective products in terms of its design, manufacturing flaws, and/or inadequate warnings, such incidents do occur. This can be a result of a manufacturer’s negligence or recklessness. If an individual is injured or killed due to such a product defect, the product’s manufacturer and/or seller may be held liable for the injuries suffered.

Even if a product has not been recalled, consumers still have the capability to bring a legal action for any injuries suffered due to a defective product as long as the defect is due to a manufacturing error, defective design, or inadequate warnings and/or directions.

Bahe, Cook, Cantley & Nefzger is seeking damages for a client who sustained injuries in a motor vehicle accident caused by the faulty ignition and air bag deployment.  The firm is also currently reviewing and accepting more of these cases.

Three passenger vehicles and two commercial vehicles were involved in a crash on I-71 in Oldham County, just north of the Jefferson County line, on Tuesday morning. According to Major Jimmie Laytham Jr. of the Oldham County Police Department, 48-year-old Sherri Bray of Pendleton, the driver of one of the passenger vehicles was killed in the crash when a box truck hit her sedan from behind, forcing it under the rear of a semi-truck. Initial investigation has indicated that traffic was slowing or stopped due to road work when the box truck failed to come to a complete stop. Three other people were transported to the hospital for injuries that were considered non-life threatening.

Southbound lanes at the location of the accident were closed well into Tuesday evening, allowing police to thoroughly investigate the scene. Investigators stated that there was no indication that drugs or alcohol were involved and that no criminal charges will be filed. Although traffic due to road construction was likely a factor, it is important to remember that drivers must adjust the operation of their vehicles accordingly. Lower rates of speed and heightened alertness are often necessary to comply with the appropriate standard of care.

If the driver of the box truck failed to operate their vehicle in a safe and reasonable manner given the road conditions, Bray’s estate could potentially have a wrongful death claim against that driver for hitting Bray’s car. KRS 411.130 allows for a party with a qualifying relationship with the deceased, such as a spouse or child, to hold the party who negligently or intentionally caused their loved one’s death liable for damages. Bray’s estate may similarly have an independent claim for negligence.

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Two vehicles were involved in an accident Friday evening when a pickup truck carrying four teenagers struck a stopped semi-truck off the side of Bluegrass Parkway. Witnesses stated that the pickup truck was drifting off into the left shoulder when it took a hard right into the back of the semi. The teens were returning from a basketball game across town when the accident occurred.

One of the teens was pronounced dead at the scene. A second, who had been airlifted to University of Kentucky Chandler Hospital, was pronounced dead after surgery. The driver and third passenger were taken to the hospital with serious injuries. The semi driver also was taken to the hospital as a precaution.

The Anderson County Coroner has stated that drugs and alcohol are not thought to be involved in the crash. Investigators are still trying to figure out the exact cause; while driver error is always a prime suspect, things like mechanical error and product defects should be considered and ruled out. In any event, with a serious accident such as this, a full investigation should be performed, including an accident reconstruction, in order to figure out just what went wrong. No doubt, the friends and family of the victims will have questions and want answers.

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26 year old Bobby Jones received fatal injuries when the vehicle he was driving was side swiped by a vehicle driven by 27 year old Richard Taylor. The vehicle then flipped onto its top and was struck again by a vehicle driven by 62 year old Frank Berry. Jones traveled on U.S. 25 northbound and Taylor traveled southbound. The Jones and Taylor vehicles made contact close to the intersection of Frogtown Road. The Berry vehicle traveled northbound on U.S. 25 as well and collided with the Jones vehicle after it flipped on its top. Additionally, the Jones vehicle then struck 30 year old Chelsie Ketron as a pedestrian as she attempted to render aid.

The details are sparse right now and it is unclear who is at fault for the accident. The investigating police department should be performing a full investigation, including an accident reconstruction, as a matter of routine in such a serious accident. While driver error is always a prime suspect, things like mechanical error and product defects should be considered and ruled out by the investigation.

Hopefully, those who survived make speedy recoveries and all involved get answers to the questions they will certainly have regarding how this occurred.

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