Supreme Court Rules in Favor of Consumers

The Supreme Court ruling last week in Wyeth vs. Levine opened the door for all consumers to hold pharmaceutical companies accountable when they sell unsafe products. In fact, the Court decided that these claims can now be brought in State courts.

The drug manufacturer, Wyeth, was arguing that since the FDA had approved their anti-nausea drug Phenergan, they shouldn’t be held liable for damages it caused to patients prescribed the drug. They argued that FDA approval superseded state level “failure to warn” claims. Basically, they were arguing that a drug company cannot be responsible for any damages their drugs may cause after it has been approved by the FDA.

Diane Levine sued Wyeth in Washington State Court after losing her arm to gangrene, brought on by taking Phenergan. The jury awarded Levine $6.7 million in damages. Wyeth appealed to Vermont’s Supreme Court, which upheld the jury’s decision in favor of Levine. Wyeth then appealed to the U.S. Supreme Court which also ruled in favor of Levine.

The big manufacturers favor “preemption”, a doctrine that holds that federal law will override state law if there is a conflict between the two. The big manufacturers also argue that the FDA is best qualified to weigh all risks and benefits associated with a drug, and if the FDA says it is OK, then nobody should be able to challenge that.

This mindset is very similar to the old cigarette company defenses. For years they argued that they complied with the federal government’s requirement to tell people that cigarettes may be hazardous to health, by placing the warning on the packs. They argued that they should not be subject to lawsuits, because they did everything that the government told them to do. (In the meantime, they place dangerous and addicting compounds into the cigarettes to get people hooked on them.)

Big manufacturers are afraid of juries. They believe if juries in state courts are given the freedom to question the FDA’s rulings, then claims against pharmaceutical companies may get out of hand. In truth, they do not want to ever be held accountable, and so they send their lobbyists and millions of lobby dollars to Washington D.C. to get laws enacted that insulate them from consumer lawsuits. Obviously, it doesn’t always work, and sometime, the consumers rightfully win.

In truth, consumer lawsuits are the only thing keeping these giant drug companies in check. The threat of litigation for years has made the products in the United States a bit more expensive perhaps, but at the same time, much safer. Isn’t it a good idea to pay a few pennies more for a product, and know that it is safe, as opposed to not having these protections?


It seems that by this decision, the Supreme Court is alerting manufacturers that they are responsible for providing appropriate information regarding risks and dangers of their products to consumers. Is that a bad thing? Certainly not. It should be a minimum that we expect, especially from these big multi-billion dollar drug manufacturers. Of course, there is always the possibility of human error and we will never be able to prevent all types of mistakes. However, that is best sorted out though the legal, civil process. That is exactly what the court are for, and cases like this are the exact reasons that our forefathers wrote a document we live by, called the US Constitution.

2 Children Struck by Automobiles in Arizona

It is that time of year again when children of all ages want to be outside. They want to be playing sports, swinging, riding bikes, and soon, swimming. We all, as parents and adults, have to be extremely aware of what’s going on around us because children, especially very young children, are only aware of what they are doing If you’re a parent, you know how quick little ones can get away from you, or into something they shouldn’t. That is why as parents, neighbors, friends, we must remember to take every precaution we can to avoid injury causing or life threatening situations.

Last month a child was struck by a van while riding his tricycle. The child was taken to Maricopa Medical Center with non life-threatening injuries. Another child was hit by a truck while playing on the sidewalk in his neighborhood. He was pronounced dead at the hospital. Children tend to go about their business and forget to look for oncoming cars or dash into the road, because they don’t understand the dangers. Is that what happened in these cases? I don’t know. Nonetheless, one child is injured and another is gone. That is 2 too many, in my opinion.

Our legal system will make decisions regarding liability and money may change hands, but grief and pain will remain long after cases are settled. A settlement cannot replace your child, and cannot replace another’s child. Please remember to watch your children, and to drive and act safely to be careful for other children. As adults, we should understand these matters. Children do not. The law imposes the responsibility on all to act reasonably, and carefully, to avoid a result that might harm another. As to children, we must be more cognizant, especially as the weather warms and more people head out to play.

Bus Driver and Good Samaritan Ticketed

Is the best way to improve the world we live in to punish those who do the very things that make it better? Like the bus driver last week in Denver who got off his bus to assist two women safely across a street in a snowstorm. As the bus driver and another man were helping the women, a truck hit the bus driver. Yes, the truck driver was ticketed but unbelievably so was the bus driver, for jaywalking. Are you kidding me?!!!!!! The police officer stated that “jaywalking contributed to the cause of the accident”.

Under Arizona law, any evidence of the jaywalking citation against the bus driver would be inadmissible. However, there could be an argument that the bus driver contributed to the cause of the accident by not keeping a prudent watch for other vehicles on the roadway. “Comparative negligence” is applied in accident cases such as this. The negligence of every person involved can be considered in determining responsibility and damages. In this case, the bus driver’s financial recovery may be reduced or even denied, depending on how significantly his actions contributed to the accident.

I don’t know about you, but I hope the bus driver hires a good attorney, who proves that he was not negligent. Do we really need one more person in this world who isn’t willing to help a lady across the street, for fear of being held “liable” in some way for an accident? I certainly hope not.

Truck Rollover in Phoenix, Arizona

Imagine driving down the freeway one minute and being thrown out of your vehicle the next. If you aren’t scared yet try the onset of head and back pain and the ensuing ride to the hospital. Now, imagine the stress and worry about the medical bills you are accruing and wondering how much your insurance company will actually cover. After all of this, imagine that you just found out the authorities believe the rollover was caused by a mechanical issue.

This is what happened to a man last week, when his truck rolled over on I-17. The authorities believe his accident may have been caused by a mechanical issue involving a wheel. Do some people actually believe that it is so much easier on you because it wasn’t your fault? Does it lesson the pain and disability of the injured man, knowing that he is not at fault? Surely not.

We all have certain responsibilities not only to ourselves, but to each other when we perform services for them for a cost. Companies have a responsibility to us to sell safe products. Service organizations (i.e. repair shops) have a responsibility to provide services in such a way that do not cause us injury. In Arizona, a manufacturer may be liable for injury or wrongful death caused by failure to exercise ordinary care in manufacturing or designing car parts, drugs, children's toys or other products, resulting in:
- Defective design of the product
- Failure to adequately test and inspect the product
- Failure to provide adequate instructions, warnings and labels on the product
- Failure to issue an adequate recall notice concerning the product
Likewise, a mechanic may be liable for your damages if they are negligent in the repair of your vehicle. As consumers, we also have a responsibility to follow the sound advice of others trained in areas we are not. For example, if a mechanic advises you that certain repairs are needed and we choose not to have them done, and an accident occurs as a result, you may be found liable.
The law imposes duties of care upon everyone. If you pay someone for a product or service, you are relying upon an “implied warranty” that the product is safe for regular use. If you are unfortunate enough to be in an accident that you believe resulted from the negligence of another, or from a defective product, you should immediately contact an experienced attorney. These cases can be vey technical and difficult, and evidence can be lost or destroyed with the passing of time which may make it impossible to ever prove your case. Also, there are established timeframes and laws for bringing these types of claims. Failure to timely file a claim could result in forever losing your right to bring a claim for your injuries and damages.

Are Coaches Accountable For Heat-Related Injuries

The parents of a Kentucky high school football player who died several days after a practice, due to heat-related injuries, are suing the coach.

Surely, the coach is grieving and will probably carry this with him for the rest of his life, but is he at fault? In the past there hasn’t been a coach criminally charged in any heat exposure death to a player. However, one has to wonder to what extent is it okay to continue to push these kids in atmospheres that have at times escalated to dangerous conditions, and should a coach, being aware of this, be held accountable?

As each of these athletes are unique so are their stories, and as this coach in particular has been indicted on one count of reckless homicide , we shall see if his peers feel whether or not he should be held accountable.

At Zachar & Associates, we handle civil matters (i.e. claims, lawsuits), not criminal matters. We believe that the circumstance of a young athlete dying under these conditions is very disturbing. Through media sources, we have heard more about these types of incidents in recent years. To the extent that an injury or death does not result from a purely unknown medical condition, it seems that these incidents are quite preventable, with the use of a little common sense. Under Arizona law, we call this “reason”. The law is designed to hold civilly responsible those who have responsibilties to our young athletes, whose unreasonable behavior results in injuries, or death.

Living in Arizona, we have to be especially careful when it comes to heat-related injuries. Summer is quickly approaching so please remember to make sure your children are well hydrated and help them to be aware of warning signs from their own bodies. We are all concerned when a child is injured and we all want to make sure that we prevent the same thing happening to another child, especially when the injured child is our own. If your child is injured and you believe it is due to the negligence or carelessness of another, seek legal counsel.

Bus Crash in Arizona Kills 7

We are extremely saddened over the great loss of life caused by an accident involving a tour bus traveling north to Las Vegas. Seven Chinese nationals on the bus were killed and at least ten others were injured.

The bus rolled over, ejecting passengers after the driver overcorrected and hit a gravel median. Others were injured when their cars crashed trying to avoid the bus.
This was a terrible tragedy and our thoughts are with those who are trying to recover from injuries suffered due to this accident and, of course, with all of those who lost loved ones.

Under Arizona law, all drivers have a responsibility to drive with safety, to avoid causing injuries to those within their vehicles and others lawfully on the public roadway. This responsibility is referred to as a “legal duty”. When a driver causes an accident, they are said to have breached their legal duty to the injured. Under Arizona law, when a person or company transports persons for a fee, they are called a “common carrier”, and the law ascribes to them the highest type of duty (i.e. they have to be the most careful). Under Arizona law, a person is legally and financially responsible for damages they cause. In addition, if they are working for another at the time, then their employer is also legally and financially responsible for the injuries and damages of the injured party.
We know that at times like this no one wants to worry about how they are going to pay their medical bills or if their insurance company is going to pay for their hospital stay. We are here to answer your questions, and to provide you help and guidance for uncertain and troubled times following an injury accident. The responsible driver and employer will have insurance officials and attorneys to protect them---you also need to protect yourself and know your rights. There are few who can explain your right and options under these circumstances more so than an experienced personal injury attorney in Arizona. In particular, one who has been determined to be a specialist in injury and death matters by the State Bar of Arizona.

Dog Bites in Arizona

Phoenix Dog Bite Attorney

Many dog bites are not serious at all and many are never reported. However, those that are, have sparked widespread debates over how to prevent further attacks.

One popular topic for debate is ordinances or laws. There are those who support banning pitbulls versus those who support banning “dangerous breeds”. Then there are those who support restricting certain breeds and how they are contained while still others prefer fining owners of dogs that chase or attack people or animals.

In 2007 about 310,000 people were received in emergency rooms due to dog bites. If you live in a neighborhood with dogs or if you frequent areas where there are dogs, you might want to keep updated on the laws and regulations regarding dogs in those areas.

Contact an experienced dog bite lawyer if you or someone you know has been bitten by a dog. Most importantly, seek medical attention right away and then seek legal advice before discussing anything with any insurance company. Chris Zachar of Zachar & Associates has extensive experience handling animal attacks and dog bite injury claims.