Generic Drug Injury

Under Alabama law, a brand-name-drug company may be held liable for fraud or misrepresentation (by misstatement or omission), based on statements it made in connection with the manufacture of a brand-name prescription drug, by a plaintiff claiming physical injury caused by a generic drug manufactured by a different company. See Supreme Court of Alabama, Special Term, 2014, 1101397, Wyeth, Inc. et al. v. Weeks, Question Certified from US Dist. Ct. Mid. Dist. of AL, S.Div., (Case No. 1:10-cv-602).

 

Search and Seizure

The U.S. Supreme Court has muddied the water regarding reasonableness of warrantless searches. In a recent case, the justices reviewed a 3rd Cir. case that involved the “knock and talk” exception to the warrant requirement. This allows police to enter any property where the public may also enter such as a sidewalk and front porch. Here the police entered the property through a rear carport and walked onto the rear deck without a warrant. The high court said that the entry was not illegal simply because it was through a rear entry, and went on to say that police officers  are allowed to go to any door that a visitor may go. So if you want the police out of your backyard, lock it up. See U.S. Supreme, JEREMY CARROLL v. ANDREW CARMAN, No. 14–212. Decided November 10, 2014.

 

Fibromyalgia

In 2012, Social Security recognized fibromyalgia as an impairment capable of causing disability. The basic criteria are: 1) a history of wide spread unexplained pain; 2) at least 11 positive tender points; and 3) repeated episodes of six or more symptoms including fatigue, memory problems, depression, anxiety, irritable bowel and poor sleep for which there is no other explanation. See SSR 12-2p.

Wrongful Death

Alabama has a convoluted wrongful death statute. A recent Alabama Supreme Court opinion dealing with Ala. Code 1975, § 6–5–410 and probate court procedure is a good example. The code requires a personal representative, i.e. an administrator appointed by the probate court, to bring the action. The money recovered is not subject to payment of debts or liabilities of the dead person, and is distributed according to the probate code. In this case, the administrator, a sister of the deceased, listed she and her two sisters as the only heirs. She settled the case for over two million dollars and split the money with her sisters. In the mean time, several heirs at law catch wind and file an action in the probate court to get their shares. There is protracted procedural maneuvering in the probate court, then the circuit court, and finally the Supreme Court. The Alabama Supreme Court rules that  probate courts do not not have jurisdiction (legal authority) over the proceeds of wrongful death actions, only circuit courts. See Supreme Court of Alabama, October Term, 2014-2015, 1130385, Bessie Kirksey v. Iris Johnson et al., Appellate Proceedings from Jefferson Probate Court (Case No.: 44653).

Foreclosure

Alabama Supreme Court sides with home owners in most recent decision dealing with redemption after foreclosure. Alabamians have the right to buy back their foreclosed property within one year of the sale. However, they must pay the purchase price plus any lawful charges. Here the foreclosed property owners disputed the lawful charges, and filed an action to determine the correct amount of redemption. But they failed to pay into the court the undisputed charges which is required by Ala. Code 1975, § 6-5-256. The court dismissed their action to contest the charges and redeem the property. The Alabama Supreme Court citing the equitable nature of redemption, sided with the redeemer and stated that a bona fide disagreement over lawful charges is all that is required to have the court determine the redemption amount. See Supreme Court of Alabama, October Term, 2014-2015, 1130098, Cameron Givianpour v. Thomas J. Curtain, Sr., Appeal from Jefferson Circuit Court (CV-12-900647).

Assets of the Estate

The Alabama Supreme recently reiterated its position of judicial estoppel in regards to listing assets in a bankruptcy filing. The debtor failed to list a medical malpractice cause of action (she lost both legs below the knee) in her Chapter 7 petition. After she received her discharge, she filed her malpractice action. The defendant found out about her bankruptcy filing and moved the court to estop or dismiss her malpractice action due to her failure to list it. In the mean time, the Chapter 7 trustee found out about the malpractice action and asked the court to allow him to take over the action, since it was an asset of the Chapter 7 estate. The court granted the motion to estop the debtor/plaintiff and granted the trustee’s motion to take over the suit. So the debtor discharged $28,000.00 in debt, but lost out on a potential million dollar judgment. The moral of this story debtors–list any and all assets no matter how trivial or unlikely they may be. See Supreme Court of Alabama, Oct. Term, 2014-2015, 1130342, Ex parte Jackson Hospital & Clinic, Inc., et al., Petition for Writ of Mandamus (In re: Joanne Anderson v. Jackson Hospital & Clinic, Inc., et al, Montgomery Circuit Court, CV-12-1044).

Appeals Council

Has your Social Security Disability appeal been rejected by the Appeals Council? Did the AC fully explain its decision or merely state that they considered everything and found the ALJ’s decision correct? Case law in the 11th Circuit Court of Appeals and the Northern District of Alabama hold that the AC must consider the whole record and evaluate the evidence. If it does otherwise, then it’s decision is not supported by substantial evidence and must be overturned. See Culver v. Astrue, Case 4; 11-cv-03286-VEH, Northern Dist. AL, and Bowen v. Heckler, 748 F.2d 629 (11th Cir. 1984).

Arbitration

The Alabama Supreme Court has followed suit and come down on the side of arbitration in its most recent decision dealing with arbitrability. Arbitrability is the issue of whether the arbitrator gets to decide whether your issues are subject to arbitration. In other words, even if your issues fall outside of the scope of the arbitration agreement, the arbitrator gets to decide that issue. See Regions Bank v. Jerry Wayne Neighbors, Appeal from Montgomery Circuit Court, (CV-13-901459).

Bankruptcy

11th Circuit rules that filing proof of claim for a stale debt in Chapter 13 violates Fair Debt Collection Practices Act. This means creditors that try to collect a debt no longer collectable under state law (statute of limitations has run for instance) are subject to suit under the FDCPA. See Crawford v. LVNV Funding, LLC, et al. (In re Crawford), Case No. 13-12389, Opinion (11th Cir. Jul. 10, 2014) (“Crawford”).