Landlord Caused Injures, Refuses to Pay

We all take steps to be safe. Unfortunately, you can be injured anywhere. Harm can come to you while you drive down the road, walk down the sidewalk and even in your own home.

Some cases are clear-cut as to who caused your injury; but if you’re hurt in your own house, can another party be at fault? This may be the case if your landlord has failed to do his or her job properly.

Your landlord has a legal responsibility to keep the dwelling you live in safe and free from causing you harm. Your job is to report anything that may be an issue. This can include broken steps, cracked tile, eroding floors or ceilings and many other dangers including leaks and electrical defects. Just remember, no matter how small the problem may seem, it is important to submit a notice to make repairs in writing.

Once you’ve notified the landlord, it is then their job to ensure all problems are fixed and you are no longer in any danger. They must make any repairs within a reasonable amount of time after receiving notice. Their failure to do so can make them liable for any injuries you do incur due to an unrepaired hazard. Tenants may be compensated for wage loss, doctor and hospital visits, physical therapy, prescription drug costs and other medical expenses.

There may be times when repeated attempts to notify the landlord are ignored and finally, the feared accident takes place. In other cases, the landlord does not issue any warning to the tenants about a possible source of danger. In both examples, the landlord may be found liable for any resulting injury if an accident occurs. If you or someone you love has been injured due to the negligence of a landlord, you may be entitled to compensation for their carelessness. Speak to an experienced attorney immediately to help you recover your costs.

To learn more about personal injury law, I encourage you to watch the video above and to explore our educational website at If you have legal questions, please call us at 1-800-ELK-OHIO. I welcome your call.

– Ryan M. Harrell

You did not sign away all your rights with that injury waiver


People participate in many physical activities, usually with an understanding of the associated risks and dangers. The activity could be mild, like riding in a go-kart or extreme, like bungee jumping or skydiving. It seems like everywhere you go, you’re being asked to sign a waiver to exclude someone from being sued.

An injury waiver, also known as a release and waiver of liability, frequently states that a participant cannot take legal action if they are harmed or injured in any way because of the activity. But is that it? Does a waiver prevent us from taking any action — no matter what has happened? Actually, the answer is no. You do have some rights.

A waiver, once signed, is a valid contract. However, in the state of Ohio, you cannot waive away a person’s rights from unforeseeable negligence. By signing, you are saying that you understand the risk and are agreeing to go forward with the activity anyway. You are not saying that you won’t sue if someone is negligent and causes you harm.

Another instance that may allow you to file a claim is an injury due to a defective product. If you were injured as a result of a defective product and the defendant knew (or reasonably should have known) about the defect, you may be entitled to money damages.

If you suffered an injury because of a normal risk associated with the activity, you probably don’t have a case. On the other hand, if negligence was involved, your injury probably wasn’t caused by any of the normal risks and you may have a valid claim.

To learn more about personal injury law, I encourage you to watch the video above and to explore our educational website at If you have legal questions, please call us at 1-800-ELK-OHIO. I welcome your call.

Art Elk

Medical Apps – Who’s Responsible?

FDA looking at mobile medical applications

photo_13870_20090831From programming your DVR to dealing with a car accident, these days there seems to be an “app” for everything. Now, according to the U.S. Food and Drug Administration, when a mobile device runs certain medical applications, it will be subject to FDA oversight.

The FDA has issued guidance to mobile app developers in an effort to protect patients from medical apps that could be harmful if they do not work properly. The guidance document states that the FDA will focus its oversight on medical mobile apps that meet the definition of a medical device in the Federal Food, Drug, and Cosmetic Act and are intended to:

  • transform a mobile device into a medical device regulated by FDA; or
  • be used as an accessory to a medical device regulated by the FDA

A mobile device is “transformed” into a medical device when it performs the same task as a medical device that is already regulated by the FDA, such as controlling the inflation and deflation of a blood pressure cuff. Accessories to medical devices would include apps that enable physicians to make diagnoses based on medical test results sent to their mobile device, such as x-rays or blood work.

Not all medical apps will be regulated

While many medical apps may fall into these two categories, the FDA stated they are focusing their oversight “on mobile apps that are devices for which safety and effectiveness are critical.” This means apps that recommend calorie or carbohydrate intake or track trends in a patient’s blood pressure or glucose levels would not be regulated.

As more medical apps are developed for the healthcare industry, the government must adapt its standards to protect patients and to set standards for liability in the event of an adverse effect. The FDA has made it clear that their policy only applies to the application software and not to the use of smartphones or tablets themselves. Providers of mobile medical apps, such as the iTunes store, would not be treated as a medical device manufacturer.

The FDA has already cleared around 100 mobile medical apps so far, and experts expect the market to grow exponentially in the future. If you are considering using a medical app on your mobile device, it is important to speak to your doctor. While many of these apps are helpful, they are not meant to be a substitute for care from a qualified professional.



FDA to regulate some medical-related apps” by Michelle Castillo, CBS News, September 24, 2013.

“Keeping Up with Progress in Mobile Medical Apps” FDA Consumer Health Information, September 2013.

FDA to Track Medical Devices

The Food and Drug Administration (FDA) has issued a new rule requiring that most medical devices distributed in the United States carry a unique code. The code, also known as a unique device identifier (UDI), will include information about each specific device, including: model number, lot or batch number, serial number, the date the device was manufactured, and, if applicable, an expiration date.

These codes will be stored in a database accessible to the public, but it will not include personal information about patients. The Global Unique Device Identification Database (GUDID), will enable doctors, companies and regulators monitor safety concerns more efficiently.

According to the FDA website, the UDI system will have many benefits when the system is fully implemented – in 7 years. The Associated Press reports:

The FDA will begin phasing in the new system in the coming year, starting with high-risk devices like heart stents and defibrillators. The requirement will then be expanded to moderate-risk devices such as X-ray systems, surgical needles and power wheelchairs. Makers of those devices will have three years to implement the tracking codes. Many low-risk devices, such as bandages, will be exempt from the requirements.

Given the number of patients harmed by  recalled medical devices, doctors and patient advocate groups are pleased with the new regulations. Patients have recently reported adverse reactions to a wide range of devices, including hip replacement systems, knee replacements, surgical mesh, and the Mirena Intrauterine Device.

“The rule that came out today is a victory for patients, hospitals and clinicians,” said Josh Rising, director of Pew Charitable Trusts’ medical device initiative. “Up until now medical devices were among the only products on the market that could not be uniquely identified. This is going to be a tremendous victory for all of those interested in improving the performance of devices.”

If you have been injured by a defective product, it is very important to report the incident. Call the experienced medical device attorneys of Elk & Elk for more information at 1-800-ELK-OHIO or contact us online.


FDA requires tracking codes on medical implants” by Matthew Perrone, Associated Press/USA Today, September 20, 2013.

The final rule was published in the Federal Register today (9/24/13) and is available online at

Woman Injured by Store Employee


You never know when an injury will become more serious. At the time of most accidents, injuries may seem less painful as adrenaline is flowing and the real pain has not set in.

For one client this was all too true. She was injured in a department store by an employee who hit her in the back of the foot with a floor scrubbing device. In any personal injury case, it is important to know who will be held accountable for your injury. In this case, the retail store needed to be held responsible for their employee’s actions when they caused this woman harm. This is a legal doctrine known as respondeat superior — Latin for “let the superior make answer.”

Unfortunately, on video, the accident didn’t look like it was that big of an issue and we knew that might be a problem for us in court. But the evidence was on our side.

We had proof of all of her medical records and countless expenses she was forced to incur due to this incident. The injury developed into a much more serious condition — one which kept her unable to work for almost two years after the accident. So not only did she have her medical bills but she had the loss of income this accident had caused. Furthermore, her injuries will continue affect her for a very long time.

You may not feel in a large amount of pain right after an accident so it’s always a good idea to seek medical attention immediately. You then want to follow that up with visits if the pain persists or you’re presented other issues that could be linked to the injury.

To learn more about personal injury law, I encourage you to watch the video above and to explore our educational website at If you have legal questions, please call us at 1-800-ELK-OHIO. I welcome your call.

— Kevin L. Lenson

FDA Shuts Down Ohio Drug Company

The U.S. Food and Drug Administration (FDA) announced that a federal judge has approved a consent decree of permanent injunction against Shamrock Medical Solutions Group of Lewis Center, Ohio for manufacturing and labeling violations. The company repackages and distributes drug products to hospitals across the country.

  • A consent decree is a legal agreement between the FDA and a company that has either continually received violations or has significant violations that pose a serious risk to the public. It typically requires a company to cease manufacturing and/or distribution of affected products until proof can be demonstrated to the FDA that appropriate actions have been taken to comply with applicable regulations.
  • A permanent injunction order is typically issued for the purpose of requiring a person or entity to permanently stop acting in a certain manner. A court can also hand down a permanent injunction for the purpose of compelling a party to perform in a certain way.

According to reports, the FDA regulators discovered several prescription drugs had been mislabeled, including Levothyroxine, Diltiazem and Metoclopramide. In one instance, a batch of a drug incorrectly labeled as opiate painkiller morphine was in fact an oral concentrate of opioid painkiller oxycodone, which is approximately 1.5 times more potent than morphine. Shamrock was also found to have violated current good manufacturing practices by failing to have written procedures for repackaging and quality control.

The FDA had performed five comprehensive investigations of the company’s facilities since 2007, including the Lewis Center plant, and a former facility in Massachusetts. Shamrock had been issued several warning letters, but failed to take corrective actions.

“This company continued to distribute mislabeled drugs despite previous warnings by the FDA,” said Melinda K. Plaisier, the FDA’s associate commissioner for regulatory affairs. “We will take swift, aggressive enforcement action against firms that violate the federal law.”

Shamrock will not be able to resume operations until an independent expert certifies that necessary corrections have been made and the FDA sends written notice that their operations are compliant with all applicable regulations.

“Mislabeled drugs pose a serious risk to patients who rely on labeling to know what they are taking,” said Howard Sklamberg, director of the Office of Compliance in the FDA’s Center for Drug Evaluation and Research. “These potential risks include overdose, dangerous interactions with other drugs, unnecessary exposure to toxicity, and potential side effects.



“Federal Judge approves consent decree against Shamrock Medical Solutions Group” FDA News Release, September 18, 2013.

Personal Injury: Negligence per se Lawsuits


Personal injury lawsuits are usually based on negligence. In a negligence claim, the plaintiff alleges that the defendant failed to use ordinary care.

In order to prove negligence, you attorney must prove four basic elements:

1)      The existence of a duty owed to one person by another

2)      The failure of a person to fulfill this duty

3)      Injury

4)      The injury must be caused by the failure of one person to fulfill his/her duty to another

Another type of claim involves concept referred to as negligence per se. Very simply, this is when the party was negligent not just due to being careless but because he or she broke a law.

For example, if a driver of another vehicle didn’t see you about to make a turn and hits you, they were negligent. They are at fault because they did not exercise ordinary care while operating their vehicle. Now let’s say that same driver blew through a red light and that caused your accident. This is a clear violation of the law and falls in the category of negligence per se.

You may be wondering how this would affect your case. Well, negligence per se is much easier to prove. It is far easier to show a jury that the driver ran the light than to prove he was careless using all four elements of simple negligence.

Negligence per se comes into effect any time someone violates a traffic or safety related law and caused someone else harm. If you have been injured according to negligence per se rules, it is in your best interest to contact an attorney immediately. You may be able to recover losses for your injuries under negligence per se theory.

To learn more about personal injury law, I encourage you to watch the video above and to explore our educational website at If you have legal questions, please call us at 1-800-ELK-OHIO. I welcome your call.

– Ryan M. Harrell

What to Keep in Your Car in Case of an Emergency

by Arthur M. Elk

No one likes to spend time thinking about the possibility of a life-threatening collision out on the road, but sometimes auto accidents are completely out of one’s control. If you’re involved in a car accident, experienced attorneys at our firm can handle any legal or financial ramifications. Unfortunately, I can’t be there for you in those first critical moments when disaster strikes. What I can do is give you some advice on how to assemble a basic roadside emergency kit.

First of all, a first aid kit is a worthwhile investment. If you’re injured in an accident and far from help, bandages, antibiotic ointment, and rubbing alcohol are helpful to prevent infection and treat minor scrapes and cuts.

It’s also good to have jumper cables or a portable jump box on hand in case you find yourself with a dead battery. According to, drivers should bring along extra containers of applicable fluids, such as motor oil, brake fluid, transmission fluid, and antifreeze.

A few other essentials can come in handy during an on-road crisis including a blanket, a flashlight, maps, a snow scraper, road flares, and non-perishable food items. In addition, an auto escape tool, which is a device designed to help drivers break through windows, can be clipped to your keychain and used if you become trapped in your car underwater.

It’s true that you can never be too prepared because sometimes accidents are unavoidable. If you were involved in a wreck, a dedicated car accident lawyer from Elk & Elk would be happy to represent you and help you work toward a positive outcome.


Court revives J&J Whistleblower lawsuit

Former Johnson & Johnson executive claims he was fired for whistleblowing about product safety – he warned management 15 years ago that Ortho-Evra was dangerous.

A three-judge appellate panel in New Jersey has overturned the dismissal of a whistleblower retaliation lawsuit filed against J&J and its subsidiary Ethicon by Joel S. Lippman. The former Ethicon vice president of clinical trials claims he was terminated in 2006 for raising concerns about the safety and efficacy of several products, including the Ortho-Evra birth control patch.

His former employers tell a very different story. They claim that Lippman was fired for having a romantic relationship with a coworker. However, in its opinion, the court concluded that there were “sufficient material issues of fact in dispute” that should be resolved by a jury.

That means it will be left to a jury to decide whether J&J actually fired Lippman for his office romance or if the allegations were simply a pretext to fire him for being uncooperative. You can read the complete 51-page decision here.

Dangerous drugs: profits over safety

In his suit, Lippmann alleges that J&J and its subsidiary were callously indifferent to safety concerns he raised regarding various products and in some cases, the pharmaceutical giant delayed or even declined to recall dangerous products that presented “an unreasonable risk of substantial harm.”

In 1999, Lippman objected to the launching and marketing of the Ortho-Evra birth control patch because of data that showed an increasing amount patients were experiencing deep-vein thrombosis (DVT), or blood clots, due to the estrogen dosage in the patch. After his allegations, Lippman was transferred to another subsidiary and given a substantial raise. Despite his concerns, J&J launched Ortho-Evra in 2002 using attractive models in a high profile ad campaign.

The lawsuit also describes how J&J repeatedly ignored Lippman’s advice on other new drugs and medical devices and circumvented the medical board’s recommendations due to financial concerns over expiring patents.

Thousands of women have filed Ortho-Evra Claims

In the 15 years since Lippman first warned management about Ortho-Evra, complaints have be filed on behalf of over 4,000 women who say they were harmed by patch. Women using Ortho-Evra claimed it caused DVT, blood clots in the lungs, strokes, and heart attacks. The patch has also been blamed for more than 20 deaths.

The drug injury attorneys at Elk & Elk have helped several clients in Ohio with Ortho-Evra-related claims, including complications from blood clots, and unfortunately, death. In 2008, court records revealed that J&J had spent over $68 million to settle the birth-control claims.

Other birth control methods, such as the Mirena Intrauterine Device and NuvaRing have also been linked to increased health risks.

If you have been harmed by a dangerous drug or medical device, fill just fill out our online contact form or call 1-800 –ELK-OHIO to schedule a free consultation.



“J&J Watchdog Employee Can Proceed With Retaliation Lawsuit” by Ed Silverman,, September 9, 2013.

“J&J Paid $68 Million to Settle Birth-Control Cases” by David Voreacos, Bloomberg News, October 10, 2008.

Dozens injured in Ohio Bus Accident

A passenger bus crashed early this morning, just north of Cincinnati. The driver may have fallen asleep.

The Greyhound bus was carrying 51 passengers bound for Detroit when it careened off I-75 around 4:00 a.m., violently striking a tree and fence. The out-of-control vehicle flipped over twice before it finally came to rest on its side, injuring at least 35 people.

Nearly 100 first-responders arrived on the scene to find passengers suffering from a wide range of injuries. Six people required helicopter transportation to area hospitals and 29 were taken by ambulance. Reports indicate that emergency crews had to extract passengers trapped in the bus, some of whom had a suffered compound fracture – a grisly injury in which a broken bone pierces the skin.

Driver may have fallen asleep

Christopher Lake, a passenger from Michigan, told TV reporters that he saw the driver slumped over and heard a woman scream at the driver, “Wake up! Wake up!”

However, Kim Plaskett, a spokeswoman for Greyhound Lines Inc., assured reporters that the driver had only been on duty for an hour and was “fully rested.”

Interstate commercial passenger bus drivers must follow strict Hours of Service (HOS) regulations set forth by the Federal Motor Carrier Safety Administration (FMCSA).  Once drivers have been behind the wheel for 10 hours, they must rest for 8 hours before they are permitted to drive again. Additionally, there are limits for total weekly hours. Drivers may not exceed 60 hours in 7 days or 70 hours in an 8 day period.

Commercial drivers must also submit to a medical exam conducted by the Department of Transportation (DOT). Physicians take a detailed medical history and perform a physical exam – testing the driver’s vision, hearing, blood pressure, and screening for drugs and alcohol. The results are recorded in a medical report. The DOT exam is valid for 24 months.

Bus accidents are a serious problem

According to the Cincinnati Enquirer, “In the last two years, Greyhound buses have been involved in 102 crashes, three involving fatalities and 57 involving injuries. Nationally, in 2011 alone, there were 54,000 accidents involving buses, with 283 fatalities and 2,400 injuries.”

Don’t wait

In any motor vehicle crash, the period immediately after the crash is critical. Prompt investigations can capture accurate explanations of what happened and prevent evidence from being lost or destroyed. You can trust our experienced attorneys and comprehensive team of doctors, nurses, and accident reconstruction experts to investigate your claim.

For information about how our Ohio lawyers can help you obtain compensation for your damages after an accident, call 1-800-ELK-OHIO or contact us online.



“34 injured in Liberty Twp. bus crash” by the Cincinnati Enquirer, September 14, 2013. (Updated)

“Greyhound Bus Overturns In Southwest Ohio; 34 Injured” by Lisa Cornwell, Huffington Post, September 14, 2013.

Ohio bus crash: Did driver fall asleep?Christian Science Monitor/AP, September 14, 2013.