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Malaysia Airlines Flight MH 17 – International Treaty Affords Legal Right to Passengers’ Families to Pursue Claims in Their Home Countries

Given the location and geo-political implications of the occurrence involving Malaysia Airlines Flight MH 17, speculation as to its cause will likely run rampant for years and remain vehemently contested even after a governmental probable cause is determined.

Yet regardless of the ultimate cause of the occurrence, the rights of the passenger’s beneficiaries to recover compensation for damages from Malaysia Airlines will be governed by the Montreal Convention of 1999. Even out-of-court, private settlements between the air carrier and passengers’ beneficiaries would be predicated on the provisions of the Montreal Convention.

Article 17(1) of the Convention provides:

“The carrier is liable for damage sustained in case of death or bodily injury of a passenger upon condition only that the accident which caused the death or injury took place on board the aircraft or in the course of any of the operations of embarking or disembarking.”

Beyond this threshold requirement, Article 21 of the Convention establishes a two-tiered scheme of liability for compensation. First, the air carrier is strictly liability up to an amount of 100,000 Special Drawing Rights (SDRs), which had the equivalent of US $154,166 on July 17, 2014. Thereafter, there is presumptive liability to an unlimited amount unless the air carrier proves that:

“(a) Such damage was not due to the negligence or other wrongful act or omission of the carrier or its servants or agents; or (b) Such damage was solely due to the negligence or other wrongful act or omission of a third party.”

If an air carrier and the passenger’s beneficiaries are unable to reach an agreement on the amount of compensation for damages, a court action must be brought within the two years prescribed under Article 35.

The location or jurisdiction for the bringing of such a court action is limited under Article 33 of the Convention to one of five places:

1. a court in the country where the air carrier maintains its domicile;

2. a court in the country where the air carrier maintains its principal place of business;

3. a court in the country where the air carrier has a place of business through which the contract has been made (usually considered the place the ticket was purchased);

4. a court in the country of the place of destination; or

5. a court in the country in which the passenger had his or her principal and permanent residence, so long as the air carrier or its code sharing partner does business there.

Many of these five potential jurisdictions are often the same in a given action. However, to the extent that they are different, it is the option of the plaintiff as to which of the five jurisdictions the action is to be brought.

Once an action is brought, the Montreal Convention continues to govern the substantive legal remedies of the parties, but under Article 33(4), “questions of procedure shall be governed by the law of the court seised of the case.” Such applicable procedural law may well contain limitations of the nature and amount of the recoverable damages. This must be appreciated and understood before settlement or proceeding with an action in any court.

Wrongful Death Lawsuit Filed From Plane Crash Captured In Viral Video

(Chicago, July 8, 2013) A wrongful death lawsuit was filed today in the Circuit Court of Cook County, Illinois on behalf of the family of an airline employee who perished in the fiery crash of a Boeing 747 cargo plane outside Bagram Air Field, Afghanistan on April 29, 2013.  The victim, Gary P. Stockdale, was a mechanic for National Airlines who was aboard the flight when it crashed shortly after takeoff.  The suit was filed by Chicago-based Nolan Law Group which is also representing the families of Jamie Lee Brokaw and Rinku Summan, pilots for National Airlines who were among the seven men killed in the crash.

Video of the crash captured on a vehicle dash cam went viral after being posted on the internet through the Live Leaks website.

At the time of the crash, the plane was transporting cargo that included five Mine-Resistant Ambush Protected (MRAP) vehicles weighing nearly 80 tons which were on pallets in the main cargo area of the plane.  Government investigators have reported that it is likely a shift in the cargo from one of the vehicles breaking loose from its restraints that resulted in the crash.

The suit alleges that the accident aircraft was unreasonably dangerous and unfit for the transport of high density, rolling cargo and that Boeing’s manuals lacked sufficient limitations and warnings related to the transportation of such cargo.  The suit further alleges that the airplane’s cargo restraint system was faulty, that it was improperly assembled by Boeing during its conversion from a passenger to a cargo aircraft, and that the instructions on the use of the cargo restraint system were inadequate.

Well-known as an aviation law firm, Nolan Law Group has extensive experience in major air cargo crash litigation having represented crew members and families of crew members in accidents involving Fine Air at Miami Airport in August 1997, Emery Worldwide near Sacramento in February 2000, and most recently the Kalitta Air Boeing 747 crash near Bogotá, Colombia in July 2008.  The firm has also been active in other crash claims from Afghanistan including a previous National Airlines crash near Kabul in October 2010, and the successful resolution of claims arising from a fatal helicopter accident at Kandahar Air Field in July 2009.

 

Contact:

Tom Ellis

tje@nolan-law.com

Office: (312) 630-4000 x.112

Cell: (312) 493-3349

Asiana Accident Highlights Passenger Rights And Limitations To Recovery

Although Asiana Airlines Flight 214 crashed while landing at the San Francisco International Airport, contrary to simple logic, lex loci delicti may not be applicable and the United States may not be a forum for all passengers to bring a case against the airline. In cases wherein a claim may not be brought against the carrier in the United States under the provisions of the Montreal Convention, a passenger may wish to consider other avenues of recovery. Historically, these have included claims against aircraft and aircraft component manufacturers, airport operators and pilot training facilities. In each of the foregoing, it should be proven that adequate ties exist which points to the United States courts as the most convenient forum where the case may be filed and heard.

Under the Montreal Convention for the Unification of Certain Rules for International Carriage by Air (the “Montreal Convention”), a treaty superseding the Warsaw Convention, which the United States ratified on July 31, 2003, any one of the following basis for jurisdiction should be present before jurisdiction may be acquired by the US court, namely: (1) domicile of the carrier; (2) the “principal place of the business” of the carrier; (3) the place where the carrier has a “place of business through which the contract has been made; (4) “the place of destination”; or (5) the “principal and permanent residence” of the passenger.” Art. 33, Montreal Convention, as quoted in Baah v. Virgin Atlantic Airways Ltd., 473 F.Supp.2d 591 (2007).

Thus, as held by the Adjoyi, et. al. v. Federal Air (Pty) Ltd., 137 F. Supp.2d 498 (2001), federal district courts have no jurisdiction over Warsaw Convention (now Montreal Convention) claim unless air carrier’s domicile or principal of business is in the United States, the carrier has place of business through which contract for passage was made in the United States, or that the United States is the place of destination of flights. Applying the foregoing to the recent crash, it is clear that only the third, fourth or fifth basis (added by the Montreal Convention) would allow a claim to be filed in the United States, to wit, where the ticket was purchased in the United States, or that the United States was indicated as the ticket’s final destination or where the passenger is a resident of the United States, regardless of where the ticket was purchased or its destination is. Otherwise, a case filed with the US courts may be dismissed for want of jurisdiction.

In addition to the foregoing, Article 17 of the Montreal Convention provides that a carrier is liable only when death or injury took place on board the aircraft or in the course of the operations of embarking or disembarking. It likewise provides that for death or bodily injury claims, the carrier cannot exclude or limit its liability if damages do not exceed 100,000 special drawing rights. Article 21 of the Montreal Convention. Furthermore, a carrier may not be liable for any claims in excess of the said amount, should the carrier prove that damage was not due to the negligence or wrongful act or omission of the carrier or its agents and employees, or that the damage was due to negligence or wrongful act or omission of a third party. Id.

 

Wife of Afghanistan Plane Crash Victim Retains Aviation Attorneys

A Boeing 747 cargo plane, operated by National Air Cargo, crashed on takeoff from Bagram Air Base in Afghanistan on April 29th of 2013, killing all seven of its crew members. Among these crew members was Jamie Lee Brokaw (33) of Monroe, Michigan, a third generation pilot whose family’s aviation history stretches back to WWII. Brokaw was a member of the U.S. Air Force during Operation Enduring Freedom and Operation Iraqi Freedom before becoming a commercial airline pilot in 2008 and a First Officer in 2010. Brokaw is survived by his wife Elizabeth, who has retained Nolan Law Group to represent it for claims arising from the fatal injuries he sustained in the crash.

The accident gained unusual international attention when footage of the crash was posted on the internet and speculation ensued as to its cause, as the aircraft attained a very steep nose-up attitude immediately after takeoff. The aircraft then rolled left and right and entered a stall, where it descended into the ground near the end of the runway. Mrs. Brokaw, confident of her husband’s knowledge and attention to safety are searching for further answers and placing liability, something government investigators are precluded from doing. The accident aircraft was originally manufactured as a passenger aircraft and converted to a freighter in December of 2007 by Boeing for Air France. This raises some serious concerns about the structural strength of the aircraft and floor, as well as issues about the cargo restraint systems. The plane’s cargo included extremely heavy vehicles, and although the total cargo weight was within proper limits, the individual restraint capabilities of such heavy vehicles have their own limits.

Well-known as an aviation law firm, Nolan Law Group has extensive experience in major air cargo crash litigation, having represented crew members in accidents both nationally and internationally. A few examples include Fine Air at Miami Airport in August 1997, Emery Worldwide near Sacramento, California in February 2000, and most recently the Kalitta Air Boeing 747 accident near Bogotá, Colombia in July 2008. The firm has also been active in other crash claims from Afghanistan including a previous National Airlines crash near Kabul in October 2010, and the successful resolution of claims arising from a fatal helicopter accident at Kandahar Air Field in July 2009. Brokaw is also survived by his step-daughter Chloe and parents Susan and Terry.

 

Nolan Law Group Video Report: Mirena IUD Complications

Several lawsuits have been filed against Bayer for the serious medical, physical and emotional problems resulting from use of Mirena. The lawsuits also specify Bayer knew of the risks and failed to disclose the dangers associated with using the IUD. Bayer is also accused of using deceptive marketing practices in advertising Mirena to the public. The FDA did issue a warning to Bayer for deceiving advertising practices; however, Mirena is still on the market today and available for use.

Mirena IUD Complications

The FDA did issue a warning to Bayer for deceiving advertising practices; however, Mirena is still on the market today and available for use.

Frequently Asked Questions About the Mirena Lawsuits

What is Mirena?
Mirena is one form of a long-acting birth control called an intrauterine device (IUD). The IUD is globally the most popular form of birth control with an estimated 150 million uses. Mirena must be inserted by a medical provider. The system includes a T-shaped body made from plastic and a cylinder-shaped steroid reservoir. Mirena works by slowly releasing levonorgestrel, the progestin hormone, into the uterus each day. Because Mirena thins the lining of the uterus, it also decreases menstrual bleeding.

Why are women suing Bayer Pharmaceuticals?
Bayer Pharmaceuticals is the manufacturer of Mirena. There have been more than 45,000 incidents of complications submitted by women who have used Mirena, according to AdverseEvents.com, and currently over 40 lawsuits have been filed against the drug manufacturer for serious medical concerns following or during usage of the IUD.

What kind of injuries and problems are women suffering while using Mirena?
Women across the country have complained of the following issues: abscesses, embedment of the IUD in the uterine wall, uterine perforations, infertility, infection, intestinal perforations or obstruction, Pelvic Inflammatory Disease (PID) and ectopic pregnancy. Other less severe, but still inhibiting side effects, are: acne, weight change, nausea, mood changes, breast tenderness, vaginal discharge and abnormal bleeding patterns.

What are the lawsuits alleging?
The lawsuits against Bayer regarding Mirena allege a variety of serious medical problems following or during usage of the IUD. The most common claims in the lawsuits allege migration of the IUD to other parts of the body and perforation of the uterus. A small number of claims filed contend women have suffered severe scarring, hospitalization and extended medical care.  Claims have also been filed by girls and women who have suffered some of the complications mentioned above, including ectopic pregnancy, fertility problems and infections requiring extreme medical care. Additionally, some of the suits are asserting that Bayer knowingly released a defective drug and failed to warn doctors and women about the potential risks.

I suffered health consequences following use of Mirena. What should I do if I am interested in pursuing a lawsuit?
The team of nationally and internationally recognized trial lawyers at Nolan Law Firm are currently evaluating Mirena IUD cases. We will take special care to work with you and your individual needs while seeking full and fair compensation through the legal system. Please Contact Us or call 312-630-4000 for questions or to share your story with one of our team.

What type of damages might I receive in a lawsuit?
Depending on your complaint, you may be eligible to receive compensation for medical costs, lost wages, pain and suffering, impaired quality of life and other damages. Once we hear your individual story, we can help you receive the help you deserve and need.

How a Drug gets Approved by the FDA

There have been more than 45,000 incidents of complications submitted by women who have used Bayer Pharmaceutical’s intrauterine birth control device (IUD) Mirena, according to AdverseEvents.com. Additionally, over 40 lawsuits have been lodged against Bayer alleging severe health consequences after using the IUD. These staggering numbers lead many to question how a drug that has caused everything from surgeries to infertility can be approved for use.

According to Wikipedia, President Theodore Roosevelt signed the Food and Drug Act into law in 1906. This act was the basis for the Food, Drug, and Insecticide organization, shortened to the Food and Drug Administration (FDA) a few years later. Since 1938, every new drug has been required to be approved by the FDA before U.S. commercialization.  The FDA regulates almost every facet of prescription drugs, including testing, manufacturing, labeling, advertising, marketing, efficacy and safety.

Mirena was approved by the Food and Drug Administration (FDA) in 2000 and is one of only three IUD’s approved for use in the United States. In 2009, the FDA expanded Mirena’s approval to treat heavy menstrual bleeding in women already using an IUD. According to the FDA’s website (fda.gov), the mission of FDA’s Center for Drug Evaluation and Research (CDER) is to ensure that drugs marketed in the United States are safe and effective. CDER does not test drugs, although the Center’s Office of Testing and Research does conduct limited research in the areas of drug quality, safety and effectiveness.
When a company wants to introduce a new drug into the market, it must submit a New Drug Application (NDA). It is the company’s responsibility to test the drug and submit evidence that it is safe and effective. A team of CDER physicians, statisticians, chemists, pharmacologists and other scientists reviews the sponsor’s NDA containing the data and proposed labeling. The documentation required in an NDA is supposed to tell the drug’s whole story, including what happened during the clinical tests, what the ingredients of the drug are, the results of the animal studies, how the drug behaves in the body and how it is manufactured, processed and packaged.

Despite this lengthy, time-consuming and expensive process, thousands of women have suffered severe medical problems while or after using Mirena. Women across the country have complained of the following issues:

  • Abscesses
  • Embedment of the IUD in the uterine wall
  • Uterine perforations
  • Infertility
  • Infection
  • Intestinal perforations or obstruction
  • Pelvic Inflammatory Disease
  • Ectopic Pregnancy

There is help if you or someone you know has suffered any harmful side effects following Mirena usage. The lawyers at Nolan Law Group are currently evaluating Mirena IUD cases. If you or someone you know has suffered an injury after using Mirena,  please Contact Us or call 312-630-4000.

A look into the Mirena lawsuits

Kelli Baugh was a typical South Carolina woman seeking birth control. Now that 20-something year old women has had a total hysterectomy, is in surgically-induced menopause and must take estrogen daily. All this because the intrauterine device (IUD) she choose to use, Mirena, migrated from her uterus, causing physical pain and the above mentioned issues.

Baugh and her husband are suing Bayer Pharmaceuticals, the maker of Mirena, alleging that the design of the Mirena IUD allows for easy migration of the device through the uterine lining. Baugh’s trial was set to begin May 6 in South Carolina and would have been the first Mirena trial in the country. Now, over 40 lawsuits regarding complications associated with the Mirena device have been filed in the United States, leading to the consolidation of all of the lawsuits, including Baugh’s, into one trial.

In another Mirena lawsuit, one of the plaintiffs, a Missouri woman, experienced no side effects after the initial implantation. Approximately one year later, she began experiencing severe cramping.  A visit to the emergency room and an ultrasound revealed that the Mirena IUD had perforated her uterine wall, leading to surgery for its removal.  Bayer did provide warnings that the device could perforate the uterus upon insertion but not after implantation for a long period of time.

Another lawsuit involves a young woman whose Mirena IUD had migrated within her body.  Her health care providers were unable to locate the IUD after its migration, and assumed that it had fallen out. Unfortunately, it had not fallen out but remained in her body for years. It was not located until she began experiencing abdominal cramping when she was 12 weeks pregnant, which required a very high risk surgery to remove the IUD.

Infertility as a result of uterine perforation is also a possibility. One woman became pregnant shortly after she underwent surgery to remove a Mirena IUD that had perforated her uterine wall. She subsequently suffered a miscarriage and now may be infertile. 

Complaints listed in the lawsuits vary, but some of the most serious health issues associated with Mirena include migration of the device from the uterus, device expulsion, pregnancy complications if a woman becomes pregnant while the IUD is inserted, ectopic pregnancy (an egg becomes fertilized outside the uterus) and pelvic inflammatory disease (PID). PID can cause infertility. Other less severe, but still inhibiting side effects, are: acne, weight change, nausea, mood changes, breast tenderness, vaginal discharge and abnormal bleeding patterns.

Additionally, several of the lawsuits claim Bayer knew of the risks and failed to disclose the dangers associated with using the IUD. Bayer is also accused of using deceptive marketing practices in advertising Mirena to the public. The FDA did issue a warning to Bayer for deceiving advertising practices.

The lawyers at Nolan Law Group are currently evaluating Mirena IUD cases. If you or someone you know has suffered an injury after using Mirena,  please Contact Us or call 312-630-4000.

Is Mirena the Next Dalkon Shield?

Mirena, a long-acting birth control called an intrauterine device (IUD) which has been responsible for over 47,000 reports of serious adverse events on adverseevents.com as well as over 40 lawsuits filed against the drug manufacturer for serious problems resulting from the device, is not the first IUD that has caused severe side effects in women.

In the 1970s, A.H. Robins Company sold an estimated 2.5 million Dalkon Shields, the first popular IUD on the market. The Dalkon Shield killed 17 and caused physical injury, miscarriages, infection and hysterectomies to over 200,000 women. The product was pulled from the market just three years later, but not before over 300,000 women filed lawsuits against the company. The largest settlement amounted to $2.2 million. A.H. Robins filed for bankruptcy in 1985 and is still engaged in legal arguments over whether the $1.75 billion it proposes as a compensatory fund to women who claim to have been injured by the shield is anywhere near enough.

Both pharmaceutical companies have been faulted for their marketing campaigns. Mirena was marketed by maker Bayer Pharmaceuticals to busy moms while Dalkon Shield was promoted as a birth control for teenagers in college and the underprivileged as a highly effective, inexpensive and non-intrusive birth control. Bayer received an official warning from the Food and Drug Administration (FDA) for overstating the effectiveness of Mirena, while minimizing the risks associated with it during its marketing campaign. A.H. Robins, through its “Designed for Greater Comfort” marketing campaign, allegedly promoted a device with an ill-designed removal string that caused bacteria in the uterus, often causing Pelvic Inflammatory Disease (PID) and sepsis (blood poisoning) which, when untreated, can cause infertility and death. Lawsuits claimed A.H. Robins knew about the poor design when it purchased the rights to the device.

There are some similarities between medical complications associated to Mirena and Dalkon Shield. However, Mirena could prove to be more dangerous in the end as most of the complaints revolve around the device spontaneously migrating or expelling from the body. Device migration is serious in that it has been shown to puncture the uterus and surrounding organs, sometimes requiring surgery and even causing infertility.  

Though it has been 40 years since the Dalkon Shield was pulled from the market, the similarities between that device and Mirena is shocking. While there are only just over 40 lawsuits currently pending against Bayer Pharmaceuticals related to Mirena, the number of lawsuits could grow to the level of Dalkon Shield given that the Mirena IUD is used by two million women in the United States and 15 million worldwide. 

The lawyers at Nolan Law Group are currently evaluating Mirena IUD cases. If you or someone you know has suffered an injury after using Mirena,  please Contact Us or call 312-630-4000.

AIR CARGO CRASH CAUSED BY LOAD SHIFT

On August 7, 1997, a McDonnell Douglas DC-8-61F aircraft operated as Fine Air Flight 101, a cargo flight en route from Miami International Airport to Santo Domingo- Las Americas International Airport in the Dominican Republic, crashed on initial climb, killing all crew members aboard. The said aircraft was loaded with blue-jean fabric which was later found to have exceeded the aircraft’s cargo weight limit. In addition, investigation revealed that the cargo was improperly secured, shifted aft during rotation, producing an extreme aft center of gravity.

As a result of the crash, wrongful death claims were brought by Nolan Law Group on behalf of families of two crewmembers who perished. The complaints filed alleged that the cargo hauling company was negligent in its loading and securing of the cargo on the aircraft causing the load shift. The complaint likewise alleged negligence on the part of the aircraft owner for failure to exercise ordinary care in its control and maintenance of the subject. Fine Air was also sued for willful and wanton misconduct. The case was settled prior to trial.