>> Host: Welcome to LawCall. Tonight we talk about dangerous products. Give us a call at 1-855-law-1955. If you have a dangerous toy, what should you do? Give us a call with your questions at 1-855-law-1955. The insurance company got around to paying your claim. Or did they? Should you deposit the first check? There are a lot of frivolous lawsuits clogging the legal system. First a question from a viewer: My son was playing Pokémon. A driver hit him. Is the driver at fault?
>> Kirby: We have been reading so much about this game, kids doing all of this stuff. Going into people’s homes — when you are in a crosswalk, you have to pay attention to what is going on. You can be somewhat negative in a crosswalk but not paying attention to traffic around you. In 47 states it’s not as much of a problem as in Alabama. In 47 other states, the jury would assess the young man’s damages. If he were 20% at fault, he would recover $800. Alabama and two other states are different. If you are in any way contributory negligent, you cannot recover in Alabama. This young man would have a difficult time in our state, but not as much in others.
>> Host: For more information go online and click on LawCall. In tonight’s side bar, Ken Riley talks about the insurance company’s first offer and if you should take that check and put it in the bank or send it back.
>> Ken Riley: You are in a wreck and the insurance company is offering to send you a check. Should you accept the offer and settle? While your financial situation after a car accident makes it tempting to take the insurance check as soon as possible, it’s not always the smart thing to do. Insurance companies want to pay little as possible. Sometimes the amount is not enough to pay your bills or compensate your injuries. Here’s your side bar advice. If you have been injured in an accident and have been contacted by the other party’s insurance company, contact a lawyer who can go over your case to determine what it may be worth, help you navigate the process and deal with the insurance adjustor so you can get better. I’m attorney Ken Riley.
>> Host: Once again, we are talking about dangerous products. We have Kirby. Kirby tell them who is joining us today?
>> Kirby: Our law firm was blessed a few years ago. We have a dynamic lawyer named Nate Vanderveer. He handles medical device, medications on the market that are dangerous for people. Brilliant young man. Proud to have him here and in our firm.
>> Nate: Thanks, Kirby. That’s a lot said. I appreciate being here with everyone as always. I think this is my fourth show. It’s exciting every time to talk about things that impact us on a daily basis like drugs and answer your caller questions. I’m looking forward to that.
>> Kirby: Sometimes we lose sight when we talk about cars and products and motorcycles. Drugs, medical devices, when you see your doctor or have a surgery, those are products that the majority are safe but there is occasionally some that are bad.
>> Host: We are talking about dangerous products. We have had a lot of conversation over the last two years. We have Kirby. We have Nate. What can you do about something you bought in general?
>> Nate: Sure, like Kirby said, whether it be a drug, device, baby product. I remember when I had my first daughter, finding out about these Bumbo seats that weren’t secure and kids were getting head injuries, diapers causing chemical burns — all sorts of things. You can contact a manufacturer. You want to report it. What happens then, the CPSC or other consumer watchdog agencies track and trend when people are injured by a device or drug that the FDA — and that allows everyone else to hopefully get the information where you can make an informed decision on whether or not you want to take that risk.
>> Host: Again, we are talking dangerous products, 1-855-law-1955. Kirby, a lot of times consumers don’t know the rights they have.
>> Nate: That’s true. I remember reading about talc powder cases. I remember thinking, what? That’s been around since I was a child. I have since seen the lawsuits had time to read the lawsuits and what the doctors are finding, and evidence that has been put in front of injuries in those cases. It’s stunning. There are certain varieties of that, that are extremely dangerous and around our entire lives.
>> Kirby: Does it change based on the product? Does it change to know there has been a lot of conversation about hover boards. Does it matter what the product is?
>> Nate: To an extent, it does. When it comes to drug and devices, my niche work, the FDA, there are a couple of ways to clearance or approval regulatory to get a drug or device on the market. Depending on how the drug or device got to market can impact it.
>> Kirby: How do you determine who is responsible?
>> Nate: In Alabama, we have an innocent seller laws. Essentially, the manufacturer can be held responsible. Someone down the chain that didn’t make a substantial change to the product but didn’t make it can’t be held responsible. You have to get to the source that made it.
>> Kirby: Let’s talk about a couple of things we are working on right now. Filters, you are doing a lot of work for our firm. Tell everyone about IVC filters, why there may be problems and what it is?
>> Nate: Good question, Kirby. An IVC filter is a blood clot filter. It is designed for people that have a predisposition for blood clots and don’t respond to normal blood thinners. What we found was that over time, the devices, the longer they are in our bodies, the more likely they are to cause a problem. They are not made to withstand the stresses of normal movement. If you have a filter and it’s been in for some time, the FDA recommends routine monitoring in the form of studies to ensure that the filter is not causing harm.
>> Nate: You see the filters break up and migrate to the heart muscle. This requires open-heart surgery to repair.
>> Host: Good information. We have Kirby. We have Nate. We are waiting on you. Give us a call. We are coming back after the break. If you have a question, shout at us. Fox 6 LawCall continues in just a minute.
>> Host: We hear a lot about frivolous lawsuits.
>> Bob Prince: Some people think personal injury cases are clogging the legal system. Let me tell you some things you may not know. First the bar association prevents lawyers from filing frivolous lawsuits. We can be disbarred or suspended. A judge can throw the case out and many times they do. Third, lawyers work on a contingency basis. They gamble their time and money on things like deposition costs and witnesses. Lawyers don’t file frivolous lawsuits. They are rarely filed if ever because there are many safeguards to avoid their abuse. Back to you.
>> Host: We are talking about dangerous products. If you have a question, give us a call. We have Kirby. We have Nate and we have Robert from center point. How are you?
>> Caller: Hello?
>> Host: Hey, Robert. How are you? What is your question tonight?
>> Caller: I was in a car accident two years ago. I have been having problems getting disability or help from the hospital. I have insurance. I wonder, what can I do, sir?
>> Nate: That’s a change from products. I think his question is about disability. Our firm does not handle disability work, but the process generally involves pulling your medical records together, testimony from your doctor, and there are two or three good lawyers in Birmingham. That is presented to an administrative law judge. They make a determination as to whether you are entitled to benefits. Usually, as I understand it, on the first try people are turned down. I believe it’s important to have legal representation when you do that. Sounds like he has a serious injury, and should find a capable lawyer. We would be happy to put one in touch with you.
>> Host: We are talking about dangerous products. We have Lucille from Anniston. How are you?
>> Caller: I’m fine, thank you.
>> Host: You are on with LawCall. What is your question tonight?
>> Caller: I have a granddaughter that’s 26 years old. When her mother was carrying her, her doctor gave her drugs for six months and when the baby was born, she’s had permanent damage and seizures. The doctor in Birmingham said the doctor should have let nature take its course and only have the drug three months. They say she’s too old to do anything about it now.
>> Kirby: Nate?
>> Nate: Unfortunately, I think that’s right. Generally, people under the age of 19 are not able to file a lawsuit, not able to enter into a contract. Once you turn 19, you are not incompetent by minority anymore and able to make your own decisions. The law allows minors three years from their 19th birthday to file a claim. If Lucille is now 26, which I think I heard you say, you might be past the deadline to pursue the claim, unfortunately.
>> Host: We hope that gives you clarity. Let’s take another call from a viewer. We have Wanda from jasper. What is your legal question tonight?
>> Caller: I had a Teflon coated implant put in, in 1984. I got a letter a couple of years later and was told it was recalled. He assured me everything was okay and I was fine. He would be there if anything happened to see me through, whatever. I went on for 30 years, and I have been sick, really sick for the last four years. I was diagnosed with TMJ. A lady on Facebook heard my story and said you need to see a doctor. I did and the first word out of the specialist’s mouth was “you have to have surgery. “There is nothing to stop your brain from leaking into your body. The Teflon migrated throughout your body. I contacted a lawyer and I was told the statute of limitations has run out. Is that through or is there something that could be done.
>> Kirby: My goodness. Nate?
>> Nate: That’s a tough one, Wanda. I think that the statute of limitations has probably run out. In Alabama, our lawmakers in their ultimate wisdom decided that we were not going to have a discovery rule in the state of Alabama, meaning that when the injury accrues, when you first appreciate you have been harmed is when the clock takes on the two year old limitation period, not when you discover your injuries might have been because of a faulty product, but the injury itself. That’s a tough pill to swallow sometimes. Given that this has been going on for about four years, I think you would have a difficult time pursuing that case and would likely be time barred. I hate to tell you that.
>> Host: Thank, Nate. Wanda, we hope that answers your question. We’ll be back with more calls. You are watching WBRC.
>> Host: Go ahead and mark your calendars, august 7th, we talk about funeral homes and funeral negligent. August 24th, we talk about worker compensation. Bob prince, 1105 or visit prince law. net. If you have questions for Kirby Farris or Ken Riley, reach them at (205) 324-1212 or on the web at delivering justice. com. Follow them on twitter and Facebook. Give us a call at 1-855-law-1955. Let’s take a call from another viewer. We have Yolanda from Birmingham. How are you?
>> Caller: I’m fine how are you?
>> Host: I’m fine. What is your question tonight?
>> Caller: I had a repair done end of 2012. After the repair, I had to have it removed and I was hospitalized for over four months, had 16 surgeries to stop the infection. After I spoke with a couple of attorneys, I was told they are no longer doing the hernia mesh, but they were doing a vaginal mesh and I had missed the statute of limitation class action lawsuit. Do I have to do a class action? Can I do a single lawsuit?
>> Nate: Sure. That’s a good question. Hernia mesh was a multi-district litigation, different than a class action, but you could certainly attempt to file your individual lawsuit. More likely than not you would have to file in federal court. I imagine the manufacturer was barred, which is not a company domiciled here in the state of Alabama. I would act promptly on that.
>> Host: We are talking dangerous products. Give us a call at 1-855-law-1955. We have Kirby, Nate and we have Jeff. How are you?
>> Caller: Pretty good. How are you?
>> Host: You are on with LawCall. What is your question tonight?
>> Caller: I was taken to estrogen treatments. I had a stroke because of it. It caused me damage. When that was going on, I tried to — I sent in my paper work and talked to a couple of lawyers. They said I couldn’t sue because it was a genetic drug. Why can’t you sue the company when it causes the problem?
>> Nate: This is one of the most difficult things for — quite frankly, anyone to understand, because it doesn’t make sense. Years ago, Congress in its ultimate wisdom wanted to make drugs cheaper. The way they did that was they made the brand named manufacturers give up their patents earlier than they had allowed. Generics are equivalent, meaning they have to be the same, but they have to be the same in warnings and chemical makeup, so the generic manufacturers took it to the supreme court and said look, if we have to be identical to the brand name, we can’t be held liable because we have no choice in how we warn or make the drug. It’s the same. The Supreme Court, unfortunately, agreed. Alabama made interesting law a year ago that changed that a little bit and the legislator changed it back. That is the lay of the land, Jeff. Unfortunately, you don’t have a claim if you were injured by a generic drug or testosterone, compounded testosterone project.
>> Host: Let’s take another call. What is your legal question tonight?
>> Caller: My dad was diagnosed with lung cancer about three years ago. About a year ago he had a blood clot in his lungs. They prescribed him drugs and two weeks later he started to see blood. After that he was hospitalized and they stopped giving that to him and the bleeding stopped. He passed away two months ago. I wonder if I have a case since he’s deceased?
>> Nate: Unfortunately, the claim expired when your dad died. Alabama is tough on that. We don’t have a statute for pre-suit injuries.
>> Kirby: Unless it was a wrongful death claim.
>> Nate: Thanks, Kirby.
>> Host: We have Kirby and Nate. We thank you for your calls. Join us next Sunday. After the news, we’ll take your questions about nursing homes and funeral homes. Goodnight, everybody.