Archive for September, 2013

Woman Sues Own Insurance Company to Recover Compensation for Serious Whiplash Injuries

September 25th, 2013. By Compensation News.

A woman who was rear-ended by a Texas Forest Service employee has had to sue her own insurance company to recover compensation for serious whiplash injuries.

In April 2011, Brenda Nolen (51) from Texoma in Young County, Texas, was driving her Dodge pick-up when it was rear-ended by a Texas Forest Service employee who had fallen asleep at the wheel. The force of the impact pushed Brenda´s vehicle into a petrol pump on a garage forecourt, which exploded as she hit it and burst into flames.

With help from passers-by, Brenda escaped from the burning wreckage of her vehicle, but had suffered multiple burns, a broken arm and serious whiplash injuries. Brenda had to undergo multiple surgeries to repair the damage to her neck from the initial rear-ending and was unable to work or drive for almost two years.

Brenda made a claim for compensation for serious whiplash injuries against the State of Texas – who are responsible for the Texas Forest Service – to cover her medical costs and loss of property. However, insurers for the State of Texas denied their liability for her injuries; claiming that the Homeland Security Act made employees of the State Forest Service immune from liability for any injuries or accidents caused while on their way to an emergency.

Brenda then approached her own insurance company – State Farm – who used the same anti-terrorist legislation to decline her claim for serious whiplash injuries, despite having a statement from the Texas Forest Service employee that he had fallen asleep at the wheel of his vehicle and was not en route to an emergency.

With mounting medical costs – and an unsympathetic insurance company – Brenda was forced to take legal action against her own insurers. With the help of a solicitor, Brenda pursued her entitlement to compensation for serious whiplash injuries and, after a two-year legal battle, an undisclosed settlement was negotiated which enables Brenda to get a new car and cover most of her medical costs.

MDL DePuy Court Cases Delayed for Two More Weeks

September 18th, 2013. By Compensation News.

The start of the MultiDistrict Litigation (MDL) DePuy court cases into the company´s faulty ASR hip replacement systems has been delayed for two more weeks.

U.S. District Judge David A. Katz rescheduled the start of the first case to be heard, which was originally due to begin on September 9th, to allow additional time for discovery and the consideration of other legal matters after the substitution of the original plaintiff – Faye Dorney-Madgitz – with Ann McCracken.

The reason for the substitution is still unclear. McCracken -v- DePuy was originally scheduled to be the second of the ‘bellwether’ court cases to be heard in a series of Federal cases which will determine how juries will respond to the relative strengths and weaknesses of each case. It is not yet known whether Dorney-Madgitz -v- DePuy is to be rescheduled at a later date or indeed heard at all.

Ann McCracken originally made her claim for DePuy injury compensation in March 2011; alleging that she received a DePuy ASR metal-on-metal hip replacement system in August 2009 which had to be removed by January 2011. The 57-year-old single mother from Rochester in New York claims that when her surgeon removed the DePuy ASR hip implant he saw evidence of metallosis which had killed healthy tissue around the implant and resulted in a painful hip dislocation.

McCracken´s case is to be decided without reference to the DePuy hip replacement recall of August 2010, after Judge Katz ruled that the injury “began with the initial implementation” and agreed with DePuy´s solicitors that, to reference the recall at trial, might deter other companies from voluntarily withdrawing potentially harmful medical devices because of the financial consequences.

Once verdicts are delivered on the first ‘bellwether´ MDL DePuy court cases – and a benchmark has been set for the value of compensation settlements – Johnson & Johnson (DePuy Orthopaedics´ parent company) are likely to make offers of settlement for the 7,800 outstanding MDL DePuy court cases consolidated within the multidistrict litigation.

If settlements are not reached following the series of ´bellwether´ MDL DePuy court cases, the 7,800 outstanding claims will be remanded back to the U.S. District Courts where they were originally filed to be heard individually. This would have serious implications for the DePuy court cases in Ireland, where notice of cases has been served against Johnson & Johnson, DePuy Orthopaedics and the Health Service Executive.

Woman Awarded Injury Compensation for an Office Accident

September 14th, 2013. By Compensation News.

A woman, who injured her back when the chair she was sitting on broke, has been awarded more than Au$1million in injury compensation for an office accident by a judge in Australia.

Fifty-one year old Terry Anne Downie from Canberra in the Australian Capital Territory worked as a team leader for the Community Information and Referral Service when, on behalf of her employers, she purchased office furniture – including a chair for her own use in the office – from the furniture outlet store Fyshwick.

Several months later, Terry Anne was talking on the telephone in the office, when two of the spokes on the plastic moulding at the base of her chair snapped, causing her to fall to the floor and land on her back. Unable to move, Terry Anne was taken to hospital, where it was discovered that the accident had caused a disc to swell and that Terry Anne´s immobility was caused by the disc touching a nerve root in her spine.

Doctors were unable to repair the damage to Terry Anne´s spine, and she now suffers from a permanent tingling sensation under the skin of her legs which has prevented her from maintaining a job since her accident. Her doctors believe that the formerly active Terry Anne has suffered a mental illness and sexual dysfunction as a direct result of her office accident.

Terry Anne received injury compensation for an office accident from her employer amounting to Au$190,000 in 2005 but, backed by the Community Information and Referral Service, she also made a private claim for injury compensation for an office accident against the company that imported the faulty chair from China in kit form – Jantom – and their insurers, claiming that the product was faulty when it was brought into the country in kit form.

Jantom and their insurers denied their responsibility for Terry Anne´s injuries but Judge Master David Harper, at the Australian Capital Territory Supreme Court, found in favour of the plaintiff after hearing an expert testify that the plastic moulding on the base of the chair had “failed catastrophically” and had been responsible for two of the five supporting spokes breaking.

The judge awarded Terry Anne Au$933,030 injury compensation for an office accident to reflect the pain she experienced at the time of her accident and thereafter, and a further Au$112,000 to cover past medical expenses and those she is likely to incur in the present. Janton´s insurers were also ordered to repay the Community Information and Referral Service the injury compensation for an office accident that had been paid to Terry Anne in 2005.

Speaking after making the award, Judge Master David Harper said “Terry Anne has many years ahead of pain and depression. Her life is very different to the life she could have expected if it had not been for her injury. Her enjoyment of life, and the kind of life she is able to lead, have been altered immeasurably.”

Woman to Pay Costs of High Court Hearing despite Winning her Claim

September 7th, 2013. By Compensation News.

A High Court judge has imposed sanctions on the recovery of legal costs due to a successful plaintiff, meaning that the woman will have to pay some of the costs of her High Court hearing herself.

Ms Justice Mary Irvine announced the sanctions after reviewing the case of Madeline Wright v. the Health Service Executive and the Mater Misericordiae Hospital, which was heard in the High Court during May and June earlier this year.

Although the claim was successful – and the plaintiff awarded compensation for an avoidable delay in treatment – the judge was of the opinion that only 20% of the evidence presented in court related to the act of negligence for which Madeline was ultimately compensated.

Therefore, in a departure from the normal legal principal of “costs follow the event”, Ms Justice Mary Irvine – the judge who heard the original case – has penalised Madeline for attaching allegations to a genuine claim which could not be substantiated in court.

The judge said “Just because a plaintiff has one good point they should not, to my mind, be permitted to litigate a myriad of others and have the court make an order requiring the successful defendant on such issues to pay for that luxury.”

Despite admitting that she was tempted to allow just 20% of the costs of a High Court hearing, the judge acknowledged that the case was complex and it would be harsh to deliver such a stiff sanction when there was no precedent in this type of litigation

Ms Justice Mary Irvine subsequently sanctioned 35% of Madeline Wright´s costs of a High Court hearing, meaning that the successful plaintiff will have to pay the outstanding amount from her medical negligence compensation settlement.