Cleveland Personal Injury Lawyer

Plum Organics Baby Food Recalled for Possible Botulism Contamination

Nick DiCello — Wed, 21 Oct 2009 13:25:26 GMT

On October 20, 2009, Plum Organics, a california-based organinc baby food brand, voluntarily recalled a particular batch of its 4.22 oz. Apple & Carrot Pouch baby food. The pouches at risk of being contaminated with Clostridium botulinum, the bacteria that causes botulism, have a best by date of May 21, 2010 and all contain the following universal product code ("UPC") code: #890180001221. These particular pouches are sold exclusively at Babies-R-Us and Toys-R-Us stores nationally.

Botulism is a rare but serious paralytic illness caused by a nerve toxin that is produced by the bacterium Clostridium botulinum. Botulism can be fatal and is considered a medical emergency. The classic symptoms of infant botulism include lethargy, constipation, a weak cry, muscle weakness, and poor feeding. These symptoms result from muscle paralysis caused by the bacterial toxin. For more information on botulism see the Center for Disease Control and Prevention's website on Botulism.

Consumers who have purchased the potentially infected pouches should not feed the food to their infants, even if the the food looks or smells ok. Rather, all consumers who have purchased the potentially infected pouches are entitled to a full refund at any Toys-R-Us or Babies-R-Us location.

Originally posted at InjuryBoard by Nick DiCello

Insurer Ordered to Pay $10,000,000.00 for Bad Faith Termination of Health Insurance Policy

Nick DiCello — Wed, 14 Oct 2009 11:15:57 GMT

On September 14, 2009, the South Carolina Supreme Court upheld a jury verdict against Fortis Insurance Company, now known as Assurant Health or Time Insurance Company, for wrongfully terminating Jerome Mitchell, Jr.'s health insurance coverage after he was diagnosed HIV positive. The Court upheld the verdict, but reduced the punitive damage award from $15,000,000.00 to $10,000,000.00.

Mitchell, a 17 year-old student, sued Fortis for breach of contract and bad faith termination of his insurance coverage in 2003. Fortis cancelled Mitchell's coverage after receiving claims regarding treatment for Mitchell's HIV-positive diagnosis. Mr. Mitchell's coverage was terminated during a two-hour Fortis "Rescission Committee" meeting, at which the Committee also considered 45 other rescission cases. Fortis terminated coverage on the purported basis that Mr. Mitchell had misrepresented his HIV-positive status on his application for coverage. Evidence at trial, however, clearly demonstrated that the information on which Fortis was allegedly relying was inaccurate. Specifically, a single entry in Mr. Mitchell's medical records included an incorrect date. Mr. Mitchell, his health care providers, and his attorney attempted to bring the mistake to Fortis' attention, but the insurer refused to reinstate coverage for approximately 20 months. Evidence at trial strongly suggested that Fortis was aware it had no basis for the termination, and the South Carolina Supreme Court determined the evidence was sufficient to demonstrate that Fortis "tried to conceal the actions it took in rescinding Mitchell's policy."

South Carolina's highest Court also found "ample evidence in the record to establish that Fortis's conduct was reprehensible," and that Fortis "was deliberately indifferent to its contractual obligations and to Mitchell's health and wellbeing." Click here for a copy of the Supreme Court's written opinion.

Assurant's "post-claim underwriting" (reviewing medical recrods after claims are presented rather than during medical underwriting before coverage is issued) and rescission practices have come under recent fire. Amazingly, Fortis argued to the South Carolina Supreme Court that post-claim underwriting was perfectly legal, and thus apparently an acceptable practice! This summer, Assurant and other large health insurers were called to testify before Congress about rescission. Also testifying were individuals and family members of people who have had their health insurance rescinded, most of whom when they needed it most after being diagnosed with a terminal illness. I attended the hearing. The outrage on Capitol Hill was palpable.

Assurant CEO, Don Hamm, testified that his company's Enrollment Forms and applications are easy for the consumer to understand. When asked about the definition of certain medical terms used in the form, however, Mr. Hamm admitted he did not know the meaning of the terms, and in fact he could not say whether the copy of the form he was shown by Representative Bart Stupak of Michigan was current or not. Mr. Hamm's testimony drew laughs and gasps from the audience and several members of Congress could only shake their heads. Not surprisingly, Mr. Hamm decided not to testify at the next hearing held in Indiana. For a press release about Mr. Hamm's testimony issued by the House Committee, see Insurance Company Executive Cannot Explain His Own Application Form.

Fortis fought Mitchell's claims for more than 6 years. Now, finally, however, Fortis is being made to pay for its reprehensible conduct. Hopefully this award will send a message to Fortis/Assurant and other health insurers that engage in post-claim underwriting and bad faith termination that their conduct will not be tolerated and will be punished. Mr. Mitchell and his counsel are to be commended for standing up to Assurant and perservering for the past 6 years.

The attorneys at Spangenberg, Shibley & Liber, LLP are currently handling and investigating wrongful health insurance termination and wrongful claim denial cases againt Fortis/Time Insurance Company/Assurant Health. If you or someone you know has had health insurance coverage cancelled or claims denied, contact us for a consultation.

Originally posted at InjuryBoard by Nick DiCello

Spangenberg Attorneys Obtain $2,000,000.00 Verdict for Motor Vehicle Collision

Nick DiCello — Tue, 13 Oct 2009 09:43:20 GMT

On August 27, 2009, a Toledo jury returned a verdict in federal court in favor of the family of Thomas and Therese Lee in the amount of $2,000,000.00 plus funeral expenses. Tom and Tess Lee were killed on August 31, 2007, while traveling on the Ohio Turnpike to attend a family wedding in Cleveland. Tom and Tess were killed when a vehicle traveling in the oppisite direction on the Turnpike crossed the grassy median and struck them nearly head-on. Tom and Tess are survived by their five children.

Prior to trial, the defendant attempted to assert a sudden medical emergency defense. No reliable scientific or medical bases existed, however, to prove that the driver of the vehicle that struck and killed the Lees experienced an unforeseeable and sudden medical emergency rendering him incapable of controlling his vehicle. After extensive investigation and pre-trial discovery, the Spangenberg attorneys petitioned the court to exclude evidence of any alleged sudden medical emergency at trial. After a hearing on the issue, the court granted the motion and excluded any evidence of sudden medical emergency at trial. The matter proceeded to trial only as to the amount of damages incurred by the Lee family as a result of their parents' death.

After a 3-day trial, the jury returned a verdict for $2,000,000.00 plus funeral expenses.

Originally posted at InjuryBoard by Nick DiCello

Three Ohio Women Killed in Head-On Collision in Oklahoma

Nick DiCello — Mon, 12 Oct 2009 18:34:05 GMT

Today, October 12, 2009, we are reminded how dangerous, and deadly, a driver's inattention or inability to stay awake and alert behind the wheel can be. Tragically, the lives of four motorists, including three women from Ohio, were taken today in a head-on collision near Barndall, Oklahoma. The Oklahoma Highway Patrol identifies the dead as 69-year-old Christine Fulghum, 85-year-old Martha Jacobs and Lavonne Gantt all of Toledo, Ohio, and 84-year-old Norma Otterstetter of Southgate, Mich.

The three Toledoans were traveling in a van on State Highway 11 near Barndall, Oklahoma around 4:30 P.M. when a pickup truck traveling in the opposite direction collided with their van head-on. Early reports indicate that the driver of the pickup truck fell asleep in the moments before the collision.

more and more we hear stories and news coverage about people texting while driving or otherwise engagning in activities that undoubtedly distract them from their driving. In addition to inattentiveness, however, drowsiness or falling asleep behind the wheel is still the most dangerous of all.

The U.S. National Safety Council offers the following suggestions to avoid drowsiness while driving:

1) Get plenty of sleep before your trip. Stick to a regular sleep schedule.

2) Try not to drive between midnight and 6 a.m.

3) Try to take long trips with someone else, and switch drivers regularly.

4) Get on the road early in the day, and keep the car nice and cool to help you stay awake.

5) Make frequent stops -- about every 100 miles or two hours. Walk around, get a little exercise or have a snack.

6) Practice good driving posture -- head up, shoulders back and knees bent at about a 45-degree angle -- to help you stay awake.

Originally posted at InjuryBoard by Nick DiCello

Faced With More Claims, Long-term Care Insurers Deny Benefits

Nick DiCello — Wed, 02 Sep 2009 09:26:19 GMT

As Baby Boomers aged, there was a boom in the sale of long-term care insurance during the 1990’s. Now, however, an ever increasing portion of our population, which is living longer and longer, is seeking protection under their long-term care policies. One insurance company executive described the situation as follows: “The long-term care party of the 1990s gave us one hell of a hangover in the 2000’s.”

Long-term care insurance is a contract or policy of insurance which promises, in exchange for the timely payment of premiums, coverage for expenses of long-term care, such as the costs of a nursing home or assisted living facility. As more and more Americans with long-term care insurance enter these facilities, the insurance industry is faced with making good on their promises. Some insurers, however, have miscalculated the profitability of certain long-term care insurance products. For example, many insurers fighting to get into the “long-term care party of the 1990s” overestimated policy lapse rates and miscalculated the mortality rates for the target population. Now, during the “hangover,” insurers too commonly attempt to refuse payment of legitimate claims, sometimes on a global scale.

On March 15, 2006, Penn Treaty President and CEO issued a news release indicating that a “review is showing us that our policyholders remaining on claim beyond three years (particularly on policies issued prior to 2002) appear to be living longer than we had previously anticipated, which will likely cause us to pay higher future benefits due to the expanded duration of these claims.”

Denial of a long-term care claim or the loss of one’s long-term care coverage can be devastating. Imagine becoming accustom to life in a long-term care facility only to one day receive a letter from your long-term care insurer stating that it is “no longer medically necessary” that you or a loved one continue to receive nursing home care, and that benefits will end. This is a common exclusion cited by long-term care insurers to deny benefits. Without benefits, the elderly individual must tap into his or her assets to continue to pay for care, or must burden their family for assistance. Ultimately, once one’s assets are exhausted, he or she is forced to seek government assistance.

If you or a loved one has had their claims for long-term care benefits denied or their policy rescinded, contact the trial attorneys at Spangenberg, Shibley & Liber, LLP for a consultation, and protect your legal rights.

Originally posted at InjuryBoard by Nick DiCello

Yaz and Yasmin Birth Control Linked to Serious Injuries

Nick DiCello — Wed, 29 Jul 2009 18:44:34 GMT

For several years, Bayer HealthCare Pharmaceuticals, the manufacturer of the popular birth control pills Yaz and Yasmin, marketed the oral contraceptives as not only effective in preventing pregnancy, but also as the solution to a variety of other conditions associated with menstruation, such as acne, body aches and mood swings. That ad campaign has come under scrutiny by the Food and Drug Administration, which recently ordered Bayer to run a $20 million ad campaign to correct the misrepresentations made by the company. According to the FDA, Bayer overstated the benefits of Yaz while improperly downplaying its risks. In its letter warning Bayer about the ads, the FDA noted that Yaz actually has additional risks compared to other birth control pills because it contains a progestin called drospirenone, which can increase potassium levels. The side effects of drospirenone include an increased risk of serious heart and other health problems.

Yaz and Yasmin are already the subject of multiple federal lawsuits against Bayer, alleging that the pharmaceutical giant failed to warn women and their doctors of the increased risk of injury associated with the pills while overpromoting the benefits of the oral contraceptives. The most notable – and life threatening – of these injuries include deep vein thrombosis and pulmonary embolisms. Bayer’s irresponsible marketing of these oral contraceptives has left otherwise healthy young woman facing frightening health consequences caused by a drug that they and their physicians believed they could trust. If you or someone you know has suffered blood clots, pulmonary embolism, hyperkalemia (elevated potassium levels), hypertension, seizures/convulsions or kidney problems after taking Yaz or Yasmin, you should contact an attorney to review the circumstances surrounding your injuries and investigate whether you are entitled to compensation.

Originally posted at InjuryBoard by Nick DiCello

Boating Safety in Ohio

Margaret Embry — Mon, 22 Jun 2009 14:16:32 GMT

According to the Ohio Division of Natural Resources (ODNR), Division of Watercraft, there were 155 boating accidents in 2007 in Ohio. Out of the 155 accidents, there were 80 injuries and fourteen fatalities. Twelve out of the fourteen victims who died as a result of a boating-related accident were not wearing lifejackets.

Passenger/Skier Behavior, Operator Inexperience, Careless/Reckless Operation, Alcohol Use, and Operator Inattention combined to cause 43% of the reported accidents, and resulted in half of the 14 fatalities.

The ODNR Divion of Watercraft has developed the four S.A.F.E. Boating Principles, which, if followed, will allow boaters to have a safer and more enjoyable boating experience.

Sober boating - drive your boat sober

Alertness - look first and have a proper lookout

Fasten life jacket - buckle up and wear the gear

Education - get trained

Please see the ODNR Division of Watercraft Safety Tips for more boating safety information.

Boating on Lake Erie, specifically, poses unique problems not found in other areas. A few things boaters should be aware of: 1) minimal navigation equipment includes a compass and an up-to-date chart of the lake, as well as a basic understanding of navigation and navigation tools; 2) Lake Erie storms are known for catching boaters by surprise so chack the forecast before boating, monitor the weather on a marine radio, and head for safety as soon as you are aware of bad weather; 3) A seaworthy boat designed for rough waters is necessary considering Lake Erie can produce rolling and sometimes violent waves; and, 4) be able to recognize the commercial fishnets that are in the lake (they are marked with red flags).

For additional safety information specific to Lake Erie, please visit Ohio's Boater Education website, BoatEd.

Originally posted at InjuryBoard by Margaret Embry

Ohio Spangenberg Attorney Settles ATV Injury Case Pre-Suit

Nick DiCello — Sat, 14 Mar 2009 13:15:15 GMT

When used for recreation, ATVs can be a lot of fun. Furthermore, they have a wide range of utility for industrial use. As with any vehicle, however, there are dangers associated with ATVS. Understanding those dangers allows us to take the necessary precautions, including safety equipment, training, maintenance, and safe operation, to name a few. When an ATV does not operate as expected or is defective in its design or manufacturing, however, we are less able to protect ourselves from the dangers and risks inherent in operating an ATV.

The attorneys at Spangenberg, Shibley & Liber in Cleveland, Ohio recently settled claims on behalf of a woman who was seriously injured as a result of an ATV accelerating unexpectedly. In October of 2007, Cheryl Gaus was driving one of the family's two ATVs with her son on their rural property. After they stopped to observe some wildlife, Cheryl started the ATV which suddenly and unexpectedly accelerated at full throttle without Cheryl touching the throttel lever. Cheryl was thrown from the ATV as it violently surged forward, after which, the ATV continued riderless for several feet before finally striking a fence and flipping onto its side. Even then, however, it continued to spin its wheels.

Cheryl suffered multiple injuries, the most serious of which were fractured cervical vertabrae. Fortunately, Cheryl was not rendered paralyzed. Her recovery, however, was long and arduous.

Upon being contacted by the Gauses, the attorneys at Spangenberg quickly located and contacted a well-qualified expert in the field to inspect the machine and instructed the Gauses not to tamper with the ATV. An inspection identified a clear failure of the ATV to perform in the manner expected. Specifically, the throttle cable had failed to return to its closed (idle) position when Cheryl turned off the ignition. Therefore, when she re-started the machine, the throttle was engaged and the machine surged forward unexpectedly and was uncontrolable. With the help of the inspector, a report was prepared and submitted to the ATV manufacturer.

Spangenberg's understanding of defective ATV claims was essential to preserving the evidence and acquiring the information necessary to achieve early resolution.

If you or someone you know was injured while riding an ATV that may have been defectively designed or manufactured, or that otherwise failed to operate as expected, contact

Originally posted at InjuryBoard by Nick DiCello

New Nursing Home Quality Rating - Get Informed

Nick DiCello — Fri, 13 Mar 2009 17:58:31 GMT

The U.S. government's Centers for Medicare and Medicaid Services recently instituted a quality rating system for all nursing homes that are eligible to receive federal funds through Medicare or Medicaid. The scoring is based on a 5-star quality rating system, with 5 out of 5 stars being the highest rating. The Five-Star Quality Rating System was created to help consumers, their families, and caregivers compare nursing homes more easily and help identify areas about which you may want to ask questions. The website is easy to use and offers other useful links and information.

Nursing homes are rated based on information obtained from health inspections and include certain results from recent inspections. The ratings also address staffing and other important quality measures such as how well the nursing home helps people keep their ability to dress and eat, or how well the nursing home prevents and treats skin ulcers. In addition to the ratings, consumers can compare a facility's performance with average national and state scores for specific quality measures. Now, anyone contemplating entering a nursing home or placing a loved on in a nursing home has access to the information necessary to make an informed decision.

Unfortunately, nursing home neglect and abuse is endemic. The Government's new rating system, however, provides an invaluable resource to the public. The more informed we become, the better able we will be to reduce neglect or potential abuse. Ultimately, a better informed public will put pressure on the industry to raise its standards.

Before deciding on a nursing home facility check out Medicare/Medicaid's Five-Star Quality Rating System.

Originally posted at InjuryBoard by Nick DiCello

Spangenberg Attorneys Begin Distributing Vioxx® Settlement Payments to Clients

Nick DiCello — Wed, 04 Feb 2009 14:07:24 GMT

The product liability attorneys at Spangenberg, Shibley & Liber, LLP have begun distributing partial payments to several clients who sued drug maker, Merck & Co., Inc., over injuries allegedly caused by the once popular pain medication, Vioxx®.

On September 30, 2004, Merck & Co., Inc. withdrew its blockbuster painkiller, Vioxx®, from the market over concerns about the safety of the prescription drug. Specifically, data and studies surfaced suggesting an increased risk of stroke and heart attack associated with use of the drug. Prior to its recall, Vioxx® was widely prescribed for arthritis and pain, generating billions of dollars in sales each year.

The attorneys at SS&L fielded hundreds of Vioxx®-related inquiries in the months following the recall, and quickly put a team of attorneys, paralegals, nurses, and reviewing experts together to investigate these potential claims. In 2005, SS&L began filing suit against Merck on behalf of people claimed to have been injured as a result of taking Vioxx®.

Soon thousands of suits were pending against Merck across the country, the majority of which were consolidated in the United States Federal District Court for the Eastern District of Louisiana sitting in New Orleans. Years of litigation ensued during which Merck aggressively defended the claims asserted against it and a few select cases were tried to the Court in New Orleans.

In the fall of 2007, a global settlement was proffered, pursuant to which individual claims would be evaluated based on defined criteria by an independent Claims Administrator who would assign a value to the claim. The attorneys at SS&L recommended all their clients elect to participate in the settlement program. Because of SS&L’s quick response to the Vioxx® recall and thorough continued investigation, SS&L was able, on behalf of its clients, to submit all the necessary information to the Claims Administrator for prompt review.

Now, SS&L is happy to report that its clients’ claims are routinely being approved by the Claims Administrator and partial payments being issued, the remainder of which will be distributed by the Claims Administrator upon final administration of all claims.

The Vioxx® recall spawned nationwide complex litigation. By quickly responding to the recall and setting up a team of lawyers, support staff and experts dedicated to handling their clients’ Vioxx® inquiries and claims, the pharmaceutical and product liability attorneys at Spangenberg, Shibley & Liber were able to efficiently manage each client’s unique claim and see it through the claims administration process.

If you or someone you know believes you have been injured by a dangerous or defective product or drug, contact the product liability attorneys at Spangenberg, Shibley & Liber.

Originally posted at InjuryBoard by Nick DiCello