COVID-19 UPDATE Peter Thompson & Associates is implementing a social distancing policy to slow the spread of COVID-19 based on the recommendations of the public health authorities. So, our offices are closed to walk-ins and all visitors unless approved in advance. All appointments and meetings will be conducted by phone or videoconference until further notice. Thank you for your understanding as we work together to keep our clients, staff, and communities healthy.

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According to a recent report, pediatricians discovered that Baby Brezza, an expensive baby formula maker, may pose serious health risks to infants. The machine is a popular baby registry item and available for sale at various retailers such as Target, Buy Buy Baby, and Amazon. The company markets its’ patented product as an advanced way to mix powdered baby formula and water. However, a recent lawsuit alleges that some of the mixers are defective. This defect causes the product to create a watery formula that is less than required to meet a baby’s nutritional needs.

The initial plaintiffs in this case filed a lawsuit after their 2-month-old daughter began to exhibit increasing signs of fussiness and weight loss. The couple took the baby to her pediatrician, who confirmed the weight loss and sent the child for additional testing to determine the cause. Evidently, the cause was the formula maker, as the machine was dispensing watery formula. Over the last two years, the company received hundreds of complaints about the machine after parents discovered the machine was dispensing incorrect or inconsistent amounts of water. Further, several pediatricians described patients who were diagnosed with failure to thrive, after their parents fed them bottles dispensed from the machine. Additionally, pediatricians warned parents that babies who ingest bottles from this defective product may face other severe gastrointestinal issues, because their systems are not equipped to handle concentrated formula. The company alleges that their products are not defective and any issue is likely the result of caregivers incorrectly using the machine.

Parents who notice that their child is exhibiting changes in their feeding response, temperament, body temperature, or breathing should immediately contact their child’s healthcare provider. This change may be the result of defective formula, baby food, or formula maker. These changes can result in their children suffering severe weight loss, fevers, crying, sleepiness, and other life-threatening conditions. Manufacturing companies and retailers may be held liable under various Maine product liability theories, including negligence, strict liability, or breach of warranty theories. These claims often arise from manufacturing errors, failure to warn of possible risks, and design defects. Although the original Baby Brezza lawsuit was filed in another state, parents in Maine should contact an attorney to determine their rights and remedies.

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As the days go on, people across the United States have become increasingly concerned about the spread of COVID-19, commonly known as the coronavirus. The disease is thought to have originated in China and has quickly spread throughout the world. Maine’s Center for Disease Control Director has noted that there are about 30 confirmed cases and 12 presumed positive cases in the state. Although, in the majority of cases, the disease poses a relatively low risk of death, that is not the case for older adults. This is illustrated by how quickly the disease ravaged nursing home residents in Seattle. In some cases, it may be difficult to pinpoint precisely how transmission occurred, but in others, the negligence of a nursing home or their staff may be to blame for a resident’s disease or infection. A Maine nursing home abuse and neglect attorney can assist individuals in determining whether their long-term care facility or nursing home is responsible for their injuries.

Similar to other more commonly known viruses, coronavirus, is more likely to cause serious illness and death to individuals over the age of 65 or those that are immunocompromised. Recent research conducted by the CDC suggests that the fatality rate for individuals ages 60 to 69 is over 3.5%; for those ages 70 to 79, the rate of death if about 8%, and jumps to close to 15% for those 80 years or older. Further, those suffering from heart disease, chronic respiratory disease, diabetes, and hypertension are at an increased risk of fatal complications.

Given this stark reality, nursing homes and assisted living facilities should abide by the CDC’s guidelines and recommendations to prevent the spread of disease. All of these facilities should have plans in place to prevent and control these viruses and infections from spreading to their residents. Moreover, they should have an emergency plan if an outbreak does occur. To minimize the risk of an outbreak, healthcare workers and staff at these facilities should follow basic hygiene habits. This includes thoroughly washing hands before and after providing care to a resident and wearing eye and face protection.

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As the number of two-income households continues to increase, more families will begin to rely on Maine nursing homes to provide necessary care to their aging loved ones. Of course, selecting a nursing home for a loved one is a difficult decision. While many nursing homes are reputable facilities with care staff members, that simply is not the case for them all. Indeed, one study found that nearly 25 percent of all nursing home residents will experience at least one instance of physical abuse during their stay at a facility.

Under Maine law, nursing homes have a duty to provide an adequate level of care to each of their residents. Of course, this includes ensuring that residents are not abused by staff members or other residents, but it also includes making sure that residents’ physical needs are met. When a nursing home fails to live up to its duty, the resident (or their family members) can hold the facility accountable through a Maine nursing home lawsuit.

Arbitration contracts are an important part of many nursing home lawsuits. Thus, it is critical for residents and their family members to understand how arbitration contracts work, and what their limitations are. An arbitration agreement is a contract that is usually between the resident and the facility by which the parties agree not to pursue a claim through the court system. Instead, the parties agree that a neutral arbitrator will hear the case and render a binding decision.

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Under Maine premises liability law, landowners and occupiers generally owe a duty to ensure that their property is free from dangerous conditions that could result in unreasonable harm to lawful visitors. Unlike other states, which rely on the classification-of-status approach to premises liability, Maine determines liability based on the injury victim, the cause of the injury, and if the property owner did anything to prevent the damage. This framework applies to landowners, retail stores, some recreational areas, and private individuals. It does not apply to trespassers except if an attractive nuisance is involved. Further, Maine law provides landowners with specific defenses to liability that may limit a plaintiff’s recovery.

Maine’s comparative negligence principles allow plaintiffs to recover for damages even if they were partially responsible so long as they were less than 50% responsible. Defendants will frequently assert comparative negligence defenses by claiming that the dangerous condition was so “open and obvious” that the landowner should not be liable. However, exceptions exist in circumstances where the landowner should anticipate the harm despite the obviousness of the danger. Determinations regarding open and obviousness require a thorough and in-depth analysis of the specific condition.

For example, a state appellate court recently issued an opinion in a case hinging on whether a hole in a parking lot of a shopping center was an open and obvious danger. In that case, a woman parked in a parking spot next to a landscape island that was surrounded by a curb. As she exited her vehicle, she noticed that someone left a shopping cart partially on the island, and she walked around the island to get the cart. As she was dislodging the cart, she stepped back, and her heel went into a pothole, which caused her to lose her balance and fall backward, resulting in serious injuries. The woman filed a lawsuit against the shopping center alleging negligence and wantonness because they failed to warn invitees of hidden dangers. The trial court found that the risk was open and obvious and granted the defendant’s motion for summary judgment.

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Many people suffer injuries at the gym. Maine gym injuries can range from mild, such as pulling a muscle, to more serious injuries causing lifelong disabilities. These injuries can have serious consequences and can result in long-lasting financial, physical, and psychological damages. Individuals who suffer injuries at a Maine gym, yoga studio, fitness club or CrossFit club should contact an attorney to discuss their rights and potential remedies.

Before becoming a member, gyms often require individuals to sign a liability waiver. Waivers typically favor the gym and serve to protect the gym’s financial interest and general reputation. Many Maine fitness clubs do not allow members to join unless they sign a liability waiver; however, these waivers do not always bar lawsuits against the facility. The first step an injury victim should take is evaluating what type of waiver they originally signed. The three most common waivers in gym contracts are total waivers, waivers for negligence, and waiver of liability for intentional acts. These waivers provide different levels of protection to the gym, but each waiver and case is unique, and injury plaintiffs may still be able to hold the gym liable.

For example, recently, a state appellate court issued an opinion stemming from injuries a woman suffered while using a weight machine at the gym. The woman filed a lawsuit against a personal trainer at the gym, alleging that the trainer improperly instructed her on how to use the machine. The trial court found in favor of the defendant, reasoning that the woman signed a waiver releasing the gym and their agents from liability. The woman appealed the ruling and asked for reconsideration based on several issues. The appellate court found that there are issues surrounding whether there was an agency relationship between the personal trainer and the gym. Further, the court found that there were issues regarding whether the membership agreement and waiver extended protection to the personal trainer. Ultimately, the court found in favor of the plaintiff and remanded the case for further proceedings.

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The Centers for Disease Control and Prevention (CDC) reports that car accidents are the leading cause of teenage deaths in the United States. Approximately six teenagers between the ages of 15-19 die from injuries related to a car accident every day. Parents of teenage drivers and those that suffer injuries after a collision with a Maine teenage driver should understand their rights and remedies, because these car accidents often result in serious bodily injury and property damage.

For example, recently, three teens died and two suffered injuries in an accident on an icy Maine road. According to one news report, three children died after the car they were traveling in went into an “uncontrolled skid” after entering an icy stretch. After spinning out of control, the vehicle slammed into a large pine tree. When emergency personnel arrived, they found a 15-year-old boy and two sisters aged 14 and 12 lifeless inside the sedan. Two other victims, including the 16-year-old unlicensed driver, were transported to a local hospital. Police reported that the sedan was mangled, and there was an array of car parts and fast-food containers strewn across the road. The police spokesperson indicated that the accident was still under investigation, but inexperience and speed were likely the two main reasons for the accident.

There are many reasons teen drivers are more likely to cause Maine car accidents and suffer serious injuries. The primary reason is inexperience. Teen drivers, especially those that do not possess a driver’s license, do not understand how to operate a vehicle. Their immaturity, in conjunction with a lack of skills and experience, can have deadly consequences. Next, teen drivers are more likely to engage in distracted driving. Teenagers are often more concerned with their cellphones and what is going on in their cars, rather than on the road. Drunk driving is also one of the top five causes of teen driving accidents. Recent studies indicate that 15% of drivers between 16 and 20 years old had a blood alcohol content over the legal limit of .08%. The CDC also reports that teenagers are more likely to speed and swerve in between vehicles. Finally, teenagers have the lowest rates of seatbelt use, which can exacerbate injuries.

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Recently, the Maine Department of Public Safety, in conjunction with the Bureau of Highway Safety and the Maine Department of Transportation (DOT), released crash data that was compiled over the past ten years. This report may serve as an essential resource when Maine car accident victims try to collect damages from an at-fault motorist. The crash data provides safety officials and motorists with valuable information regarding common causes of Maine car accidents. The report evaluates relevant contributing factors such as time of day, day of the week, type of driver, type of vehicle, and driver behavior.

For ease of use, the report reflects five-year annual averages and only covers the most frequently requested crash information. Generally, the report found that after seeing a dip around 2010, Maine crash rates have steadily increased over the last five years. Over this time, there have been over 8,000 crashes resulting in severe injuries and over 150 fatalities. Most serious injury crashes occurred on Fridays, Thursdays, and Wednesdays. Whereas, the majority of fatal car accidents occurred on Saturdays and Fridays. Interestingly, both types of accidents occurred mainly between 9 pm and 2 am, even though this is generally a low traffic volume time of day.

The report included crash rates by driver age, but did not differentiate between fault. However, drivers between the ages of 16-24, and then 65-69, seem to be involved in the majority of the crashes. They also evaluated the number of drivers with suspended licenses, finding that about, on average, 2.5% of car accidents involved a driver with a suspended license. The report also provided detailed information regarding the number of vehicles, pedestrians, bicyclists, ATVs, and snowmobiles involved in these accidents.

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After a car accident, most injury victims file an insurance claim to recover for their damages. Indeed, insurance companies play a critical role in most Maine car accident cases, and it is essential that these companies responsibly, accurately, and lawfully review claims. Insurance companies who fail to settle claims, unduly delay compensation, or improperly deny claims can cause injury victims to experience significant physical, financial, and emotional consequences. Maine has several complicated and specific statutes in place to hold insurance companies liable for engaging in this behavior. However, these remedies are often hard to effectuate and require a comprehensive understanding of Maine’s insurance laws.

Under Maine’s insurance laws, anyone who owns or operates a vehicle in the state must carry the minimum amount of coverage required by law, which is $50,000 per person or $100,00 per accident for bodily injury liability, $25,000 for property damage, and $2,000 per person in medical payments coverage. Additionally, motorists must purchase uninsured/underinsured motorist coverage (UIM) of at least $50,000 per person and $100,00 per accident. This crucial coverage protects drivers and their passengers if the at-fault party does not have insurance or has inadequate coverage. Although, these amounts may seem high, they are often not enough to cover the damages caused by a serious Maine car accident.

Maine drivers naturally purchase motor vehicle coverage with the belief that the insurance company will provide them with financial protection. Generally, insurance companies must engage with their policyholders in good faith. This means that the law requires insurance companies to fairly and meticulously review a policyholder’s claim and attempt to settle claims against the insured. When an insurance company acts in bad faith by unlawfully failing to approve or settle a claim without a reasonable basis, they may face legal consequences through a Main bad faith insurance claim.

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The Center for Disease Control (CDC), Maine public health and regulatory officials, and the U.S. Food and Drug Administration (FDA) have expanded a hardboiled egg recall to include eggs sold in Maine. The hardboiled eggs were primarily sold to grocery stores and restaurants for use in prepared foods; however, some products were sold directly to consumers. Public health officials, following the CDC warning, issued the recall after discovering the strain of listeria during a routine inspection of a Georgia food manufacturing plant. An investigation into the bacteria revealed that the strain is identical to one found to be responsible for several foodborne related hospitalizations and deaths. The CDC advises consumers who have purchased boiled egg products to return them to the retailer or throw them away. Many of these products are marked with sell-by dates of “March 2, 2020”. Although the CDC issued a recall, some retailers and foodservice operations may fail to remove all of the affected products appropriately.

Food manufacturers, distributors, retailers, and restaurants must ensure that their food products are safe for consumption. This includes abiding by all food safety regulations, conducting periodic inspections, properly sanitizing, packing, and transporting food items. In some instances, food preparers at grocery stores and restaurants may not realize that they are using contaminated food products. These parties must ensure that they are up-to-date on all warnings and recalls that the CDC issues. Further, companies must train their employees on how to handle food items safely and advise sick employees to remain home.

The failure to do this can result in serious injuries to consumers. Bacteria such as, salmonella, E.Coli, norovirus, and listeria monocytogenes can result in various foodborne illnesses. The symptoms of foodborne illness often begin with an upset stomach and evolve into severe stomach cramps, vomiting, diarrhea, muscle pains, and fever. These symptoms can be deadly to vulnerable individuals such as newborns, pregnant women, and older adults. In some cases, individuals suffer longterm effects of food poisoning such as brain damage, arthritis, and organ failure.

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According to the National Safety Council, cell phone use while driving is one of the leading causes of car accidents. Cell phone use leads to over 1.5 million crashes and close to 400,000 injuries. Maine drivers who engage in this risky behavior may be liable for any resulting injuries and damages.

Driving while texting or talking on the phone exponentially increases the likelihood of an accident. In addition to other distracted driving such as, adjusting music, arguing with passengers, and tending to children or pets in the backseat can have potentially fatal consequences and account for almost 30% of accidents in the United States.

In response to these startling statistics, Maine legislators enacted a hands-free driving bill. This recent law prohibits Maine drivers from using hand-held devices or cell phones while driving. Before this law, Maine banned texting and operating a motor vehicle; however, police officials expressed the challenges they encountered trying to discern texting drivers from those engaging in other similar behaviors. This law is designed to allow police officers to apprehend drivers who are using their phones in any manner while driving.

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