Alaska Injury Law Blog

The Alaska Personal Injury Law Group recently obtained a favorable ruling on a matter of great importance for aviation law in Alaska. Apparently reversing a prior contrary decision, the Federal District Court ruled that aviation wrongful death and personal injury claims cannot normally be transferred ("removed") from Alaska State Courts to the Federal District Court at the request of the defendant.

The Alaska Personal Injury Law Group (APILG) has extensive experience in the area of aviation accident litigation. APILG Attorney Neil O'Donnell, representing Port Heiden resident Ted Matson, filed a wrongful death action for the loss of Mr. Matson's wife in the crash of a Peninsula Airways ("PenAir") Piper Saratoga near Port Heiden. The wrongful death action was filed in the Alaska Superior Court in Naknek, the court closest to Port Heiden and closest to the aircraft crash site. PenAir, however, transferred ("removed") the case to the Federal District Court in Anchorage arguing that a recent Ninth Circuit decision, Montalvo v. Spirit Airlines, 508 F.3d 464 (9th Cir. 2007), made all aviation-related wrongful death and personal injury claims removable to federal court. The Federal District Court in Alaska had previously agreed with this argument in another aviation personal injury case (not handled by the Alaska Personal Injury Law Group) that had been removed from the Alaska Superior Court in Bethel. Alexie v. Hageland Aviation, Case No. 4:07-cv-0031-RRB.

The effect of the Alexie case would have been to allow any defendant to transfer any aviation-related death or injury claim out of the Alaska State Courts and into the Federal District Court in Anchorage, Fairbanks or Juneau. Plaintiffs in rural Alaska often want their cases heard in local state courts for both practical and strategic reasons. For example, local rural jurors appreciate the importance of lost subsistence services, often a major portion of a rural plaintiff's economic damages. Juries in federal court must also reach a unanimous verdict. Since the plaintiff has the burden of proof, one or two "holdout" jurors can derail what would otherwise have been a persuasive and successful claim. In contrast, juries in Alaska State Courts can return a verdict based on the vote of only 10 of the 12 jurors.

The Alaska Personal Injury Group was able to convince the Federal District Court that the correct rule is that aviation wrongful death and personal injury claims are not normally removable from state court to federal court. The Federal District Court accordingly ruled that "for the reasons argued by plaintiff," Mr. Matson's case must be returned to Alaska State Court.

The coming issue of Clinical Cancer Research will publish two case reports concerning the progression of prostate cancer believed to have been caused by a dietary supplement "spiked" with pharmaceutical compounds. "Spiking" is, unfortunately, an all too common practice in that industry. While claiming to sell "all natural" products, and taking advantage of the regulatory limitations imposed on the FDA under the Dietary Supplement Heath and Education Act (DSHEA), www.fda.gov/opacom/laws/dshea.html , diet supplement manufacturers put consumers at risk by "spiking" their products with pharmaceutical compounds they know to work, when the herbal compounds do not. Unlike prescription and over-the-counter drugs, current law does not require nutritional supplements to undergo pre-market testing or approval for safety and efficacy.

This was a key issue in the first jury verdict in the nation against an ephedra manufacturer, a case the Alaska Personal Injury Group brought: Talbert v. E'ola Products, Inc., www.cfsan.fda.gov/~dms/ds-ephed.html . There, the manufacturer, whose product has since been confiscated by the FDA, "spiked" its ephedra product with the pharmaceutical drug, ephedrine hydrochloride. www.fda.gov/bbs/topics/ANSWERS/2001/ANS01114.html . In that instance, it caused a healthy young woman to suffer a cerebellar stroke.

The product analyzed by the researchers at University of Texas Southwestern Medical Center has led to an equally horrific outcome--virulent prostate cancer. The researchers report in the journal that the diet supplement, which they have declined to identify by name, contained the sex hormones testosterone and estradiol. Laboratory tests of the product on human prostate cancer cells found it to be a more potent stimulator of cancer cell growth than testosterone alone. Such compounds cannot be sold except by prescription. The spiked hormones are believed to have caused the two men to develop rapidly advancing prostate cancer within months of using the dietary supplement. Both men, before using the product, had low levels of prostate-specific antigen (PSA), a signal for prostate cancer and then presented with widespread cancer within six months, which is unusual. One of the men has died; the other is in the final stages of the disease and is expected to die within months. Notified of these findings, the FDA sent a warning letter to the manufacturer, and the supplement has now been removed from the market.

In addition to failing to list all the steroid hormones contained in the product, the researchers also found that the product’s label stated ingredients that were not present, and it also misrepresented the concentrations of the ingredients present. These kinds of failings are very common in this industry, and arise because of the lack of regulation over the industry's manufacturing processes. This type of misrepresentation and mislabeling is not just blatant consumer fraud, it can be dangerous when the concentration of an ingredient is too high.

Continue reading " Diet Supplement Found To Exacerbate Prostate Cancer--Another Spiked Product " »

On January 5, 2008, a Servant Air Piper Navajo Chieftain with 10 people aboard crashed shortly after take off from Kodiak, Alaska. The pilot and five passengers tragically died in the crash. Surviving passengers reported that a baggage door popped open shortly after takeoff and the pilot was attempting to return to the airport. The National Transportation Safety Bureau (NTSB) is investigating the crash. Based on recent NTSB investigations in Alaska, that may take awhile. I represented a family who lost a loved one in the crash of a PenAir Cessna Caravan 208 shortly after takeoff from the Dillingham airport on October 10, 2001. The pilot and nine passengers died in that crash. The NTSB did not release its probable cause determination until January 23, 2003 -- 15 months after the crash. I am presently representing a family who lost a loved one in the crash of a PenAir Piper Saratoga PA-32 shortly after takeoff from the Pt. Heiden airport on December 14, 2006. The NTSB recently released its "factual report" on that accident just over one year after the crash. The NTSB has yet to make its probable cause determination. This illustrates why it is important for families to promptly hire counsel to independently investigate an accident and not to wait a year or more to see what the NTSB concludes about the accident. The families who have lost a loved one will typically not know what the NTSB has been up to for a year or more. In the meantime, important evidence may be lost and important witnesses may have disappeared.

The "tort reform" statute passed by the Alaska Legislature in 1997 continues to whittle away, automatically, year after year, at the real damages available to Alaska families who have lost a loved one due to a defendant's negligent or reckless conduct. The 1997 legislation limited the amount of "non-economic damages" that can be recovered in a wrongful death action to $400,000, or $8,000 times the person's life expectancy, whichever is greater. AS 09.17.010 These amounts have not changed since 1997. The United States Bureau of Labor Statistics states that someone would need $520,712 in today's dollars to equal the purchasing power of $400,000 in 1997. Even when "tort reform" was passed in 1997, $400,000 was a modest amount for the death of a loved one. In real terms, the available damages decrease every year with the march of inflation. The $400,000 limit is also particularly harsh when the deceased did not have substantial economic earnings, such as a homemaker. Even assuming $400,000 was an appropriate limit when it was adopted in 1997, that amount should in fairness be updated by the current legislature to account for inflation and then indexed to the rate of future inflation. This limit also remains ripe for a constitutional challenge in court.

On Saturday, January 12, 2008, two Alaska Native leaders and their 16-year-old granddaughter were killed in a three-car collision on the Glenn Highway. Allan and Sophia Chase, and Melissa Pike were struck when a Chevrolet truck crossed the center line and sideswiped their vehicle, which caused their vehicle to hit a third vehicle driven by John Lavarnway. Lavarnway and his wife, Mary, were injured in the crash. The driver of the pickup, Joshua Swigart, and his passenger, Erin Guhl, were not injured. Troopers are investigating why the pickup crossed the center line, and no charges have yet been filed.

Allan Chase was a former board member of Cook Inlet Regional, Inc., an Alaska Native corporation based in Anchorage. Sophia Chase was on the board of Southcentral Foundation, a Native health organization affiliated with CIRI.

Source: Anchorage Daily News, January 13, 2008.