Las Vegas Injury Lawyers Blog

Written By Las Vegas based Law Clerk: Robert Maxey (Las Vegas, Nevada)

If a product is sold in Nevada, it is automatically subject to numerous laws and regulations. Some of these apply to the manufacturer of the product, and fall into responsibilities that must be met in order to sell the product. Manufacturers are responsible for their products under what is called the law of product liability.

This branch of law implicates all entities that were involved with the manufacture and retail sale of the product. The damages caused by a dangerous product can be recovered upon sustained claims of negligence, strict liability, or breach of warranty. Each one of these claims can help earn those who have been harmed.

In Nevada, negligence claims require that a plaintiff prove that (1) there was a duty and responsibility owed by the defendant to the plaintiff or public (2) breach of that duty, (3) causation and (4) the damages that occurred are linked causally to the alleged negligent act.

Strict liability means that the manufacturer of a product is liable if the product was defective in nature. This claim allows for plaintiffs to receive compensation if an action was not negligent, but a product was still dangerous.

Some products have expressly written warranties that are regulated by the Magnuson-Moss Warranty Act (15 U.S.C. §§ 2301 et seq.). This act was primarily targeted for car warranties, but can be applied to all expressly given warranties.
However, there are also implied warranties, which include claims of: implied warranties of merchantability, and implied warranties of fitness.

An implied warranty of merchantability protects a consumer from a product that is below the standard of merchantability; this means that goods must be of the same average quality that is to be expected of similar goods in similar circumstances. Goods must be acceptable for their ordinary purpose, and a seller establishes this implied warranty when (1) the seller is the merchant for the product (2) the buyer uses the product for its ordinary purpose.

Implied warranty of fitness prevents a seller from knowingly selling a product unfit for the intended use of the buyer. To establish an implied warranty of fitness claim it must be proved that (1) the seller has reason to know the buyer's intended purpose for the product (2) the seller must know of the dependence the buyer has upon the seller's experience and expertise to sell the appropriate good (3) the buyer when making a decision to purchase the good must, actually, be reliant upon the seller's experience and expertise. Some exclusions exist to this particular implied warranty, including: instances where a buyer has more knowledge of the product than the seller, or when an entire brand of goods is specified.

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Written By Las Vegas based Law Clerk: Robert Maxey (Las Vegas, Nevada)

The Federal Arbitration Act (FAA) was passed in 1925 and it allowed for disputes to be settled through arbitration instead of the court. Once in arbitration, decisions are made by either an arbitrator or an arbitration panel, and are legally binding. The FAA is a preemptive law that will take precedent if state laws do not support arbitration. This is true in many cases in Nevada and around the United States.

After an arbitrator has determined an award, it will need to be confirmed by the court. The FAA also assures that arbitration should be equally as fair as using the court system. Entities who participate in arbitration give up their right to an appeal. The FAA only allows for arbitration to be invalidated upon confirmed claims of duress or unconscionability.

Arbitration offers an additional legal remedy to resolve disputes, and can be helpful. However, the Supreme Court of Appeals of West Virginia has recently ruled, citing unconscionability, against clauses in nursing home contracts, requiring mandatory arbitration, in cases of injury or wrongful death.

Several families had filed lawsuits alleging loved ones had died of negligence at the fault of nursing homes. The nursing homes, however, had binding arbitration clauses written into the contracts of those who were admitted as residents. When a lawsuit would arise with claims against the nursing home, the nursing home would force the plaintiff into arbitration. In these cases, arbitration was seen by some, as unfairly beneficial to nursing homes, because it limited damages plaintiffs could receive.

The court goes on to further explain itself and the reasons to its decisions. The court explains the situation that people come to sign contracts admitting their loved ones, as full of duress. They state that individuals lack the time to "comparison shop." It is under these circumstances that the court points out, families often have no idea that they are signing a contract that "go[es] far beyond the medical care and ... instead, have serious implications for their legal and constitutional rights"

The court's ruling has had a tremendous impact in the justice system for elderly abuse. Families, who may have been tricked into an unfair and unjust contract, protecting neglectful nursing homes, can now fight back.

As an alternative view, some Las Vegas lawyers do not challenge arbitration clauses. Many jury verdicts from trials in Clark County in recent years have demonstrated that juries tend to give medical providers the benefit of the doubt. In some cases, outright jury nullification has taken place according to some attorneys. In other words, even if there is a belief by the juries that a doctor or nurse did something wrong, the juries still find in their favor because certain people believe that doctors should be exempt from lawsuits. Other people feel differently. Sometimes arbitration might be the way to go. Every case is different.

Full information the story can be found here: West Virginia Supreme Court Rules Against Arbitration

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Written By Las Vegas based Law Clerk: Robert Maxey (Las Vegas, Nevada)

Love is supposed to be the basis of a happy relationship. When people get married, the intent is that it is to last forever. However, with increasing divorce rates, it is obvious that this is not true. Although divorce may be more of a commonality with our current culture, it is still difficult to accept for most people.

Xiaoye Wang and Tianle Heidi were married with a two-year-old son up until Wang's death. Wang had been a computer engineer, and Li a chemist at Bristol Myers Squibb. The couple resided within the Monroe Township in New Jersey, where Wang's relatives have filed a wrongful death lawsuit.

Wang had been admitted to the University Medical Center in Princeton, New Jersey, complaining of abdominal pain. Twelve days later he died there. It was discovered that thallium, which is an odorless substance, and nicknamed "The Poisoner's Poison" was responsible for Wang's death.

When Wang had first been admitted he confided in doctors that he suspected his wife of poisoning him. He told his doctors that they were expecting to soon be divorced. He requested to have his urine checked. The doctor made a note suggesting Wang's concern might be brought on by paranoia, but nonetheless recommended an investigation.

Despite Wang's warnings of his wife's potential danger, she was allowed free and unsupervised access. It was also discovered that a note on Wang's medical chart, reinforced his desire stating, "Wife should be monitored...patient shouldn't be left alone." However, these instructions were allegedly ignored. Six doctors were named in the lawsuit that was filed by Wang's family. Wang's wife was arrested on suspected murder charges, and had her bail set at over $4,000,000. The lawsuit also alleges that Bristol Myers Squibb's regulations, regarding its thallium used for diagnosing coronary artery disease, were too relaxed. Thallium has previously been banned from use in rat poisons, due to its potential for murder and easy access.

If Li is convicted of murder, using thallium, then the doctors and the hospital, which allowed her access to Wang may be held responsible. It is frightening to think that should we be admitted to a hospital, and suspect someone of causing our ailment, that the hospital could continue to allow that person to see us unsupervised. While thallium carries a strong tie to poisoning, it seems only natural that access to it should be restricted to legitimate purposes. Tragedies like the one described may not always be preventable, but legal recourse can help bring justice to a family.

Full information the story can be found here: Lawsuit names drug company, hospital over suspected murder case

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Written By Las Vegas based Law Clerk: Robert Maxey (Las Vegas, Nevada)

Seinfeld was an amazing show that set a standard for comedy. I remember watching an episode of Seinfeld in which Kramer and Jerry attended a surgery. During the surgery, however, a Junior Mint is dropped into the man's body. While incidents like this can be hilarious to an audience, the real life dangers of surgery can be horrifying.

There is no such thing as a risk free surgery, no matter how minor the procedure might be. This is true in Las Vegas, the rest of Nevada, and nationwide. Surgeons are required to tell their patients all of the dangers of a surgery they are to undergo. The reasons are that, during surgery, there is always a chance for complications and there is always a chance for death. It is the duty of surgeons and other doctors to deal with these dangers responsibly and professionally.

Just choosing to have surgery, when all of these risks are involved, can be a traumatic and stressful decisional experience for any patient. However, some patients do not have a choice in whether or to have surgery, and are left at the mercy of their physicians. A woman in Bucks County was giving birth to her first child and underwent a cesarean-section. Her child was successfully delivered. Shortly after the surgery, she complained of abdominal pain. Her pain was written off as being brought on by the procedure, and she was advised that it would dissipate with time. This, however, turned out not to be the case.

Two months after having her cesarean-section, she complained of excruciating pain in her abdomen. After receiving a CT scan it was revealed that a lab sponge was left inside her, most likely left by a prior surgery. During this surgery it was required that 16 inches of her small intestine be removed, due to the damage the sponge had caused. Two years following this corrective procedure, the woman experiences digestive problems and abdominal pain.

A jury awarded her $525,269 in a unanimous decision. The jury found the nurses working at Lower Bucks Hospital responsible for failing to perform the adequate sponge count. This procedure would have prevented these kinds of errors from happening. The doctor was not found liable, as he relied upon the nurses' sponge count before deciding to close the woman's abdomen.

The dangers of surgery are reduced when both doctors and nurses perform their job according to good policy and procedure. The negligence that occurred in this case is horrifying.

Full information the story can be found here: Woman awarded $500K after nurses left sponge in her abdomen

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Written By Las Vegas based Law Clerk: Robert Maxey (Las Vegas, Nevada)

The University of Nevada, Las Vegas is an institution of higher learning. During the years of our youth in school, we are taught to obey and follow instructions. However, once students are in college they face in a world of choices. Most freshmen in college are considered adults, and therefore are treated as such. Students take on the reasonability of picking out their career and life paths. Here they embark on a journey of education, to achieve a degree that will open up the doors to the opportunities they desire.

Students are expected to make many choices regarding the rest of their lives while in college. It is perhaps the most advanced learning a person will experience within their lifetime. The boundaries of college learning are not confined to textbooks and classrooms. Universities offer students a wide array of areas of learning through clubs, organizations, fraternities and sororities, lecture series, athletic teams, campus events and student government. All of these areas offer the student an additional way to enhance their education, and experience something unique.

Recently a student attending the University of Nevada, Las Vegas, however, has enhanced their learning through a different means, in the form of a settlement of $20,000. Robert Maxey, a junior studying philosophy and economics, has settled his lawsuit against the Consolidated Students of the University of Nevada (CSUN), which is the branch of student government at the University of Nevada Las Vegas (UNLV).

The state of Nevada has some of the strictest Open Meeting Law requirements, which help maintain an open and honest government. These laws ensure that all people have appropriate opportunity to participate, and witness their government taking place. Maxey had been elected student body president in 2010, but quickly after his election found himself in a sham meeting to disqualify him. The meeting had been prompted by his opposition, with the intent to remove him from office. In the lawsuit that Maxey filed, he alleged that the CSUN meeting violated not only Open Meeting Laws, preventing students from being fully aware of the actions of CSUN, but also due process.

The lawsuit lasted the entire term that Maxey would have served as student body president. Lawyers representing CSUN (despite previous requests for settlement from Maxey's attorney Peter Goatz) agreed only at the end of Maxey's would be term to settle. Although the matter had been settled, Maxey laments that no real justice has been performed and the denial of such a great opportunity is regrettable.

Full information the story can be found here: UNLV student wins $20K after suing student senate

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