Oklahoma Injury Lawyer Blog

An American Pit Bull Terrier muzzled. Español: Un Pit Bull Terrier Americano con bozal. (Photo credit: Wikipedia)

A vicious dog attack has put two north Tulsa women in the hospital. As Oklahoma's Own reports, the owner of the dog that committed the attacks has already been ticketed, and may be held liable for the injuries the pair sustained.

The victims of the attack were Beverly Wright, 43, and Irene Parker, 78. The women are currently in fair and serious condition, respectively. The pit bull who attacked them was shot to death by a neighbor who heard the pair's screams.

The owner of the pit bull will receive at least two citations, one for having an unneutered dog inside city limits, and another for not registering the dog. It is still unclear, however, whether the owner will be held liable for the attack.

Dog bite cases such as this hinge on strict liability. In this case, the two women had knocked on the man's door. The man opened the door and the dog ran past him to attack. Because the victims were lawfully at the front door, and the dog presumably attacked them without first being provoked, the owner may be held liable. Dog owners should be sure to take extra safety precautions with dog breeds that are prone to be vicious. For example, had the owner of the dog been aware of the possibility of the dog attacking visitors, the owner should have put him in another room before opening the door.

In August of 2011, two teen employees of Oklahoma's Zaloudek Grain CO. suffered horrific injuries when they fell into the floor auger of the grain elevator and each lost a leg. Their parents filed lawsuits against the company and its shareholders, which alleges five counts of negligence.

The grain company planned to defend in the lawsuit by claiming that the teens' injuries were caused by their own negligence, as well as the negligence of others. The families of the two boys, Tyler Zander and Bryce Gannon, then filed a motion asking the court to block the company's use of this defense. In a hearing that lasted approximately four minutes, the court sustained he motion.

According to the court, "The plaintiff's motion for partial summary judgment is sustained . . . The defendant may not plead or prove as a defense that the injury was caused by the negligence of a fellow servant, or that the employee assumed the risk of his employment, or that the injury was due to the contributory negligence of the employee. As a matter of law, defendants are not entitled to rely on such affirmative defenses."

The parties were also informed that the case would require mediation, and asked that it be scheduled in May.

So, why is this in the news?

Zaloudek Grain also is waging its own lawsuit against workers' compensation provider CompSource Oklahoma, which refused to cover the teens' injuries because it had canceled Zaloudek Grain's policy months earlier for failing to provide information needed for audit.

After Karen Bartlett took a mild pain pill to treat pain in her shoulder, she developed a rare reaction to the drug, sulindac, which caused two-thirds of her skin to slough off. Bartlett had to spend two months in a hospital burn unit, and was even placed under a medically induced coma.

Bartlett later sued the company that manufactured the generic pill she took, Mutual Pharmaceutical Company. In her lawsuit, she claimed that the design of sulindac was dangerous and defective. When describing her experience at trial, her surgeon said Bartlett experienced "hell on earth."

The Supreme Court is now set to hear a case considering whether Mutual can in fact be held responsible for the injuries suffered by Bartlett. In a decision handed down two years ago, the Supreme Court found that consumers of generic drugs could sue their manufacturers only in limited circumstances. The court came to this conclusion after finding that "such companies did not have control over what warning labels said and therefore could not be sued for not alerting patients to the risks of taking their drugs."

Bartlett's case is different, however, because she is arguing that the drug itself is defective. Mutual argues that, because the company has no control over the drug's design, they cannot be held liable for its defects.

The Oklahoma Supreme Court has recently ruled that Oklahomans have a constitutional right to sue jails when they believe that excessive force was used against them. The ruling may have a large impact on county jails, as well as Oklahoman taxpayers.

The decision came on the heels of a video released from the Cherokee County Jail. In the video, guards attacked and severely injured handcuffed prisoner Daniel Bosh. The video, which was viewed by millions, shows the guards slamming Bosh's head into a counter and then knocking him onto the ground.

Bosh later filed a lawsuit against the guards, as well as the jail. At the time, Oklahoma statutes protected jails from such lawsuits. According to Bosh's attorney, "These people were protected by something the legislature had put in called the Oklahoma Governmental Tort Claims Act, which had provided immunity for certain people doing certain actions, as long as they were acting within their job."

The Oklahoma Supreme Court's ruling applies to those who are in jail but have not been convicted for a crime. It may be applied retroactively to those lawsuits that were filed after Bosh initially filed his in 2011.

A judge has recently ruled that a service dog that bit a woman multiple times will be euthanized. The euthanization is currently pending appeal.

The dog, named Dutch, is an American Allaunt. This type of dog is typically bred for guarding and hunting. Before the attack, Dutch was training to be a service dog in Oklahoma. Dutch currently assists his owner, Afghanistan and Iraq war veteran Jeremiah Aguilar, in dealing with his PTSD.

The victim of the attack was Dutch's previous owner, who agreed to watch Dutch while Aguilar was out of town. The attack occurred after the victim found Dutch fighting with a Pit Bull. She struck Dutch in an attempt to free the Pit Bull. After she freed Dutch and brought him inside the house, the dog attacked her. She did not call the police or emergency workers because she feared the dog would attack them as well.

Aguilar does not believe the dog is vicious, stating, "If I thought he was vicious for one second, it would already be done . . . I would have taken what punishment I was to get. But it's just wrong because he's not vicious. He's a family dog. He loves everybody. He's friendly, he's kind and he doesn't have a vicious bone in him."

After 6-year-old Oklahoman boy who was injected with Botox ended up on a ventilator, his mother sued Botox manufacturer, Allergan Inc. Shortly after the trial began, however, Allergan and the boy's mother reached a settlement agreement.

The boy was injected with Botox to treat spasticity in his legs. According to his attorneys, he developed acute botulism as a result of the injections. As a result of the botulism, he lost the ability to breathe on his own and was placed on a ventilator. The boy's attorneys argued that Allergan marketed the drug as safe for this use, although it lacked the proper regulatory approval.

The lawsuit, which began on February 19, 2013, settled shortly after the boy's treating doctor testified. According to U.S. District Judge Robin J. Cauthron, "While the amount is confidential, young Jackson Wells will be well taken care of for life." Judge Cauthron then closed the case in a one-page order. Spokespeople for Allergan have declined comment on the settlement.

Allergan raked in over $1.7 billion in sales of Botox, its most popular product. According to Allergan's earnings statement, profits generated by Botox are divided equally between medical uses and treatment for wrinkles. In 2013, Allergan anticipates to top $2 billion in sales.

As reported in The New York Times, a jury has recently awarded former prison guard Loren Kransky, $8.3 million dollars. The substantial award came after Kransky accused DePuy Orthopedics - a subsidiary of Johnson & Johnson - of marketing a hip implant that they knew to be faulty. The hip implant has since been recalled.

Kransky's attorneys argued that black pieces of metal broke off from the hip replacement and caused various health problems. The jurors agreed with Kransky that the ASR XL implant caused him to suffer health problems including metal poisoning. They declined to find, however, that the company acted with malice, foreclosing any award of punitive damages.

Kransky's suit is one of thousands of similar suits alleging fraud and negligence based on the all-metal ball-and-socket hip joint. DePuy Orthopedics pulled the hip replacement from the market two years ago, amid reports that the implant has left thousands with crippling injuries.

According to attorney for Kransky, Doug Saeltzer, "The message is that these cases are valid, that the injuries are real and severe, and Johnson & Johnson and DePuy have to pay significant money for their mistakes." DePuy plans to appeal the verdict (as usual), and claim that the "ASR XL was properly designed."

Surgeons commonly refer to their mistakes as "never events," and for good reason. The mistakes that surgeons make should never happen. Unfortunately, a recent article reports that such 'never events' remain a frequent occurrence.

According to a recent study conducted by the Johns Hopkins University School of Medicine, every year approximately 4,000 'never events' occur in the United States. These events may include "leaving a sponge or instrument inside a patient, perform at incorrect procedure, or operate on a wrong body part or even a wrong patient." While some instances of 'never events' can go undetected for the rest of a person's life, 1 in 15 such events will lead to the patient's death.

Studies have shown that the use of simple precautionary procedures such as operating-room checklists and marking the surgery site in ink are helpful in preventing surgical errors, however they are not universally employed. According to the leader of the Johns Hopkins study, Martin Makary, such incidents will continue to occur until a public accounting of surgical errors has been made.

Most hospitals currently report surgical errors on a voluntary basis, which leads to many errors being missed. When errors are not reported, surgeons are more likely to repeat them. In the Johns Hopkins study, for example, 12% of the doctors made at least two surgical errors, if not more.

In the past 48 years, 18 Oklahomans have died from dog bite injuries. Nationwide, 4.5 million Americans are bitten by dogs every year. In light of these alarming statistics, a recent article in The City Sentinel, discusses the three important factors in reducing dog bites: (1) public education, (2) humane care, and (3) socialization.

A recent National Canine Research Council ("NCRC") report encourages dog owners to educate themselves on the importance of caring for and controlling dogs in a humane way. This study revealed that the number of dog-bite injuries nationwide dropped as more states enacted and enforced leash laws.

The report further showed that, in most cases, the biting dog was abused and neglected by its owner. Such abuse and neglect includes isolating the dog, confining it with a chain, and ignoring medical problems. According to the NCRC, one in three dog owners of those dogs that bit a person in 2011 was charged with a crime such as manslaughter, criminally negligent homicide, and endangering the welfare of a child.

According to Central Oklahoma Humane Society president Christy Counts, "The evidence is overwhelming that proper socialization as well as spaying/neutering is critical to maintaining a safe population of dogs in our community. Chained up dogs and backyard dogs not included in daily family life quickly become a hazard to public safety."

In November of 2011, 16-year-old boy purchased a Monster energy drink before going to church to participate in volunteer work. After consuming the beverage, the boy suffered from cardiac arrest and collapsed. The boy's mother, Angela Wheat, is now suing the makers and local distributor of Monster.

According to legal documents, "Shortly after consuming the Monster Energy drink, [he] collapsed and lost consciousness while working with other church members to clean the church." The boy was immediately given CPR, and taken to the hospital for treatment. Attorneys for Wheat claim that the boy's consumption of the energy drink is the sole cause for the cardiac arrest he suffered.

Wheat is seeking over $75,000 in damages. She claims that the drink's packaging had a "design defect and failure to warn." Wheat further alleges that the company was negligent, and participated in unfair and deceptive trade practices.

According to a report released by the Food and Drug Administration ("FDA") in 2012, during a three-year time span there were three deaths that may have been connected to the consumption of a high-caffeine beverage. This lawsuit is the first of its kind for Oklahoma, although a number of similar lawsuits have been filed across the country by parents of teenagers who died after consuming a Monster energy drink.

Recently, Silicon Valley pioneer Brett Bullington was involved in a serious bicycle accident in Oklahoma. According to a fellow cyclist, Bullington lost control of his bike while accelerating down a hill. Bullington was lucky to be with other cyclists when the incident occurred, as they were able to shed some light on the events that caused the accident. Other cyclists are not as lucky.

When reporter John Markoff was involved in a serious biking accident several summers ago, he was left with a 20-minute gap in his memory where recollection of the accident should have been. Without the use of technology to recreate the accident, Markoff may have never learned exactly what happened between the moments he was riding his bike approximately 30 miles per hour down a hill and when he woke up in the back of an ambulance.

As reported in Forbes, Markoff was able to recreate the accident with the help of his Garmin 305, which was attached to the handlebars when he crashed. After he recovered from the crash, Markoff uploaded data from the tracking device to learn that the cause of his crash was a pothole that he hit.

Although critics may wonder whether "he really needed a digital device to tell him that [he hit a pothole]," having data from his accident recorded on such a device may come in handy in a variety of situations, such as if litigation had arisen from the crash. Another cyclist was using a similar device when a driver plowed into his bike. Although the driver claimed that the biker darted out of nowhere, data from the device helped him prove that the driver was distracted and the biker had the right of way.

In the wake of proposed legislation that would allow Oklahoma municipalities to ban ownership of certain kinds of dogs, Oklahoman dog owners may be more interested than ever in learning how to properly train their dogs. In a recent interview published in Forbes, the world's most respected authority on dog training and behavior, Dr. Ian Dunbar, offers suggestions on how dog owners can best train their pets.

According to Ian, dogs have three problems: manners, behavior, and temperament. These problems, he believes, are best dealt with at an early age. When owners have small puppies, Dunbar uses a "visualization process" to help owners understand that puppies cannot be allowed to do things that would be unacceptable if adult dog did them.

The visualization process begins with "showing them [dog owners] the cutest puppy . . . Underneath is a bladder and bowels and teeth. He's deceptively cute . . . And I show them a picture of an adult dog's mouth . . . Everything your puppy does, I want you to visualize him doing that as an adult animal." Preventing unwanted behavior when dogs are young is easier and more successful than curing unwanted behavior in adult dogs.

Importantly, dog owners need to remember that dog training is not a once-a-week event. Owners should be constantly training their dogs, and if they choose to go to training classes, that is a place for a trainer to review the owner's progress.

If you are currently looking for a reputable dog trainer, Dr. Dunbar suggests consulting the Association of Pet Dog Trainers. At their web site, you can search dog trainers by zip code.

Beautiful Pit Bull (Photo credit: Tobyotter)

Oklahoma Senator Patrick Anderson is currently proposing a law in an attempt to reduce the number of people who are bitten by dogs in Oklahoma. The law, titled Senate Bill 32, would allow municipalities within the state to ban residents from owning specified breeds of dogs. It is currently illegal for Oklahoma municipalities to prohibit dog ownership based on breed.

Senator Anderson believes the bill will protect citizens from dangerous dogs. The article suggests that some dog breeds, namely pit bulls, are more likely to be banned than others. According to Senator Anderson, "[The bill] doesn't specifically target pit bulls, but it says a community can choose to ban a specific breed if they choose to do so. Most of the discussion I have ever had about the topic center around pit bulls."

If the legislature passes the bill, it will only need the signature of Governor Fallin to become law.

After an Oklahoma jury found that a carbon-fiber-enhanced Louisville Slugger bat was responsible for the injuries sustained by a 15-year-old pitcher, a federal court has thrown the decision out. According to the court, there was "no basis for a reasonable jury to find that the bat had 'dangerous characteristics.'"

As reported by Forbes, attorneys in various states have been able to show that baseball bats made out of aluminum are more dangerous than those made from wood. This is because the aluminum bats can launch a faster ball. In the opinion, the judge states, "Plaintiffs assert that a bat that hits the ball too fast is unacceptable."

Jurors agreed with this assertion last December, when they ordered Louisville Slugger manufacturer Hillericn & Bradsby to pay $871,000 to injured pitcher Dillon Yeamon, and another $80,095.85 to his parents. Yeamon's face was shattered when he was hit with a line drive. The new decision asserts that attorneys for the plaintiffs did not conclusively establish that the bat itself was the cause of Yeamon's injuries. The attorneys were unable to show that the bat displayed any measurable characteristic that made it defective.

The difference between the bats? About 64 milliseconds. According to WolframAlpha, that's the average length of a human blink of an eye.

Every day, 1,000 Americans nationwide require emergency treatment for injuries sustained as the result of dog bites. The Insurance Information Institute ("III") reports that in 2011, the average cost of such dog bites for the respective dog owners was approximately $29,396. This number is 12.3% higher than the average cost of a dog bite in 2010. According to the III, the increase is at least partially attributable to higher jury awards (which corresponds to the necessary medical treatment) given to plaintiffs.

If you or a loved one has been bitten by a dog, the dog's owner may be held liable to pay various resulting expenses, such as lost wages, pain and suffering, and disfigurement (scarring). Oklahoma law provides that: "The owner or owners of any dog shall be liable for damages to the full amount of any damages sustained when his dog, without provocation, bites or injures any person while such person is in or on a place where he has a lawful right to be."

When considering what amount of damages to award to a plaintiff, a jury can consider a multitude of factors, including:

• Past and future physical pain and suffering
• Past and future mental pain and suffering
• Age
• Physical condition immediately before and after the accident
• The nature and extent of the injuries
• Whether the injuries are permanent
• The physical impairment
• The disfigurement
• The loss of earnings and time
• Impairment of earning capacity
• The reasonable expenses of necessary medical care, treatment, and services, past and future