Fiduciary is a fancy legal word.  It simply means a person who stands in a position of trust or confidence to another.  A fiduciary cannot profit at the expense of the other person.  A fiduciary relationship can be created by statute, such as in the case of partners or incorporators, or it may arise because of the course of dealing and relationship between the parties.

There are many ways in which a fiduciary duty may be created.  Attorneys have a fiduciary duty to their clients.  This is especially true where the attorney is in possession of money belonging to the client.  The Attorney has a fiduciary duty to properly handle and account for those funds.  Failure to do so would be a breach of his fiduciary duty.  Likewise, stockbrokers and financial advisors have fiduciary duties to their clients.  Luring investors into inappropriate investments or churning an account to generate commissions could be a breach of that fiduciary duty.  Sometimes insurance agents can be fiduciaries for their customers.  Such a relationship could arise where the agent, whose knowledge of insurance products is vastly greater than the customer, knows that the customer is relying on the agent’s superior knowledge.

There are many statutes in Alabama which define a fiduciary.  These include the Uniform Fiduciary Act which specifically defines a fiduciary as “a trustee under any trust, expressed, implied, resulting or constructive, executor, administrator, guardian, conservator, curator, re-agent, officer of a corporation” and so on.  Corporate officers and directors occupy a fiduciary relationship to the corporation and its stockholders.  For example, when it was discovered that Wells Fargo employees had created unauthorized bank and credit card accounts some of the shareholders filed what is called a shareholder derivative case against the officers and directors of the company.  The Court held that the plaintiffs had alleged a sufficient violation of the directors’ duties to survive a motion to dismiss.  Directors of corporations have a fiduciary duty to reasonably insure that management is complying with the law.

Abilify lawsuits involve claims against the drug’s manufacturers, Otsuka Pharmaceutical Company and Bristol-Myers Squibb for negligence in creating a drug that was defectively designed and manufactured.  The drug makers are accused of knowing of Abilify’s side effects and failing to provide adequate instructions and warnings.  The law suits claim these unwanted side-effects include compulsive behaviors, such as binge-eating, hypersexual behavior and uncontrollable spending and gambling.  According to these claims, Abilify can cause compulsive behavior in persons with no prior history of such problems.  The suits contend that had adequate warnings been provided, patients taking the drug could and would have been more closely monitored by their psychiatrists, physicians and family and therefore the unwanted side-effects of the drug could have been better managed or prevented. Presently, over 800 lawsuits involving excessive gambling claims are pending in federal court in Florida and over 100 cases are pending in various state courts.

Abilify is also known by its chemical name aripiprazole. It was first approved in 2002 by the US Food and Drug Administration (FDA) as a type of anti-psychotic medication.  Today, Abilify is commonly prescribed for treatment of depression, bi-polar disorder, schizophrenia, Tourette syndrome and even autism.

On May 3, 2016, the FDA released a new safety report warning doctors and patients that Abilify may cause uncontrollable urges to gamble and binge-eat.  No other FDA-approved anti-psychotic medication acts on the dopamine system (the body’s reward center) in the manner that Abilify does. Because of Abilify’s unique effect on the dopamine system, users can develop strong, irresistible urges, such as urges to constantly gamble, shop, or have sex. The compulsive urges can become so strong that users will destroy their entire lives in order to fulfill the urge. Upon fulfilling the compulsive urge, such as gambling, many users will experience euphoria, which results in repetitive compulsive behavior.

shutterstock_133245656-150x150Cars and trucks are coming out with newer and more advanced safety features every year.  The goal is to reduce the number of accidents and to reduce the severity of injury when an accident occurs.  Automobile manufacturers have made great strides over the years in reducing severe injuries and fatalities with safety devices like seat belts, airbags, and anti lock brakes.  There are occasions, however, when car makers do not get it right, when they overlook a potential hazard, or worse, when they learn of a hazard but keep the information to themselves while they continue to sell the vehicles.  When that happens, attorneys are often called upon to assist clients who’ve been injured or lost a loved one because of a defect in the vehicle.  Here are a few areas of automotive product liability lawyers are involved with.


Crashworthiness is a concept involving an automobile’s ability to protect its occupants during a crash.  We’ve all seen the footage of test dummies being hurled down a track behind the wheel and crashing into a wall.  Measurements are then taken to see how to dummies would have fared were they real people in a real crash.  There are several things that need to work together to keep people safe in a crash.  The airbags need to deploy when appropriate.  Seat belts need to engage.  Flammable substances in vehicle need to be kept away from sources of fire ignition to keep the car from catching fire.  The frame of the vehicle needs to hold firm to keep people from being crushed.  The crumple zone of a car needs to absorb the force of the impact so all of it is not felt by the passengers.  These and other factors go into making a vehicle crashworthy.  When one of these systems fails, people can get hurt or killed.  Cases involving crashworthiness involve one of these systems failing and a passenger that should have been kept safe during a crash being severely injured or killed as a result.

What do corn, wheat, canola, rice, papaya and sugar beets have in common?  These are all crops planted by farmers in the United States that have been negatively affected by contamination from genetically modified plants.  For decades seed and chemical companies have been seeking to develop genetically modified crops that have a specific trait or traits that are either resistant to certain herbicides or otherwise increase production.  Unfortunately, international markets are suspicious or fearful of GMOs and when GMO crops escape into export supplies the effect on the market for these agricultural products can be devastating.

GMO contamination can occur due to cross pollination or mechanical mixing.  Many years of experience have now taught us that it is very difficult, if not impossible to prevent the mixing of non-GMO plants with the GMO versions of the same variety.  It has been reported that between 1997 and 2013 there were almost four hundred cases of GMO contamination.  Plants are pollinated by wind, insects or birds.  Even with increasingly large buffer zones, pollen can cross from GMO fields to non-GMO fields.  This is called genetic drift.  It is one of the ways nature insures the continuation of the species.  Unfortunately, nature does not distinguish between GMO and non-GMO plants of the same species.

This contamination has resulted in billions of dollars of economic loss to United States farmers due to rejection by the export markets.  When Starlink corn was discovered in the corn supply in Japan, the European Union banned as U. S. corn exports.  Similar losses have been experienced by U. S. producers of rice, papaya and other crops.

When a product or device causes injury, a court will ask the same sort of questions you would: How did the injury happen? Was there something wrong with the product? Who is at fault for the incident that caused harm? Although these questions seem simple, the answers can be complex. Product defects are generally put into three categories: design defects, manufacturing defects and marketing defects. In a manufacturing defect case, the plaintiff bears the burden of proving that the product in question had a fault or defect. One useful tool for establishing that a device is defective is the use of non-destructive imaging.

When looking to determine the origin of product failures, X-ray and Computed Tomography (CT) scanning allows for analysis of a product’s internal workings without having to alter or open up the object itself.  This non-destructive method is crucial to maintaining a product’s structural integrity. CT scanning produces three-dimensional images by rotating the product or device 360 degrees and capturing detailed information at specific intervals. CT scanning provides dimensional analysis by making it possible to slice through parts in any direction in order to assess their internal structures.  This can be done without destroying or altering the device, thereby preserving the integrity of the most important evidence – the defective device itself.

Applications for Imaging include the following:

Farmers are our country’s oldest and largest producers.  From raw materials to food, the work farmers do is vitally important to our country’s economy and security.  Agricultural production typically only involves the services of attorneys in setting up the business entity or for other transactional work for farmers.  Occasionally, however, farmers will need the help of an agriculture litigation attorney.  Below are a few of the reasons.

Systemic Equipment Failure

One of the most important and most expensive parts of a farming operation is the farming equipment.  Most new farm equipment comes with a warranty, usually from one to three years.  Setup of the farm equipment is also included in the sale of new equipment and is equally important to farmers.  When equipment is not setup correctly by the dealership, or when equipment continues to malfunction without adequate repair, farmers’ suffer severely.

It was reported this week that the Center for Auto Safety has asked Ford Motor Company to recall all of its Explorer SUVs because of concerns about carbon monoxide poisoning.  While stating that its vehicles are safe, Ford has offered free inspections and repairs to deal with any potential problems.  But the National Highway Traffic Safety Administration is investigating thousands of complaints about possible problems with exhaust getting into these vehicles and the Austin, Texas police department has sidelined over four hundred Explorers because of these concerns.

Carbon monoxide poisoning is not a new phenomenon.  Sometimes called the silent killer, carbon monoxide is a tasteless, odorless gas that can make you really sick or even kill you.  Carbon dioxide is created by the combustion of carbon based fuels.  All internal combustion engines and most gas burning appliances emit carbon dioxide.  While carbon dioxide occurs naturally in the atmosphere (green plants absorb carbon dioxide and convert it to oxygen through the process of photosynthesis) it has only been through the advent of relatively modern gas and coal burning devices that this lethal substance is created in sufficient quantities that it can hurt or kill.

A long time ago, this was even a bigger problem than it is today.  Burning coal creates carbon monoxide and as we all know, coal use has diminished in favor of clean energy.  And our understanding of how appliances, cars and other devices can generate carbon dioxide has improved.  In fact, today nearly all carbon monoxide poisoning events are avoidable.  Nevertheless, this potentially fatal accident still occurs.

Jails and correctional facilities (local, state and federal) have an obligation under the law to provide adequate medical care to detainees and prisoners. A person who is in the custody and control of a detention facility obviously is not free to seek medical care and must rely upon the facility to provide adequate medical care. When they fail to do so, and that failure causes harm, liability may arise.

The duty owed to inmates depends on the nature of the claim as well as the status of the inmate or detainee.  For example, when improper or inadequate medical care is provided, a person who suffers harm may have a state law medical negligence claim as well as a federal constitutional claim. Under the Eighth Amendment to the US Constitution, convicted prisoners have a right to be free from “cruel and unusual punishment.”  The United States Supreme Court has held that the Eighth Amendment bars “deliberate indifference to serious medical needs of prisoners,” which would constitute the unnecessary and wanton infliction of pain.  Estelle v. Gamble, 429 U.S. 97 (1976).

In cases involving pre-trial detainees, the obligation to provide medical care arises from the due process guarantees of the Fourteenth Amendment. The U.S. Supreme Court has held that the failure to provide such care amounts to a form of punishment imposed on persons not convicted of a crime, which is impermissible.  Bell v. Wolfish, 441 U.S. 520 (1979).

Cell Phone Distraction

In the United States, over 35,000 people died in motor vehicle accidents in 2015 alone. Currently, cell phone distractions are causing accidents in epic proportions. The National Safety Council’s Annual Injury and Fatality Report found that one out of every four accidents was caused by drivers distracted due to cell phone usage. While a study from Cambridge Mobile Telematics (CMT) found over half of all automotive accidents in the United States, a full 52%, occurred due to some form of cell phone distraction.

The automotive industry has attempted to curtail cell phone related accidents by introducing voice-to-text applications and hands-free cell phone options in new vehicles. However, these attempts to make cell phone usage safer in vehicles may be in vain. A study performed by the Texas A&M Transpiration Institute found that there is no evidence, at this point, to prove that voice-to-text applications offer real safety advantages over manual texting. Driver response times were significantly delayed regardless of whether the individual was manually texting or using a voice to text application. While the individual felt safer using the voice to text application, the driver’s performance suffered equally for both methods.

photo_10166_20090419-150x150You pay your insurance premiums for years, on time, every month, every year.  When you pay your premiums, you hope you never need your insurance because that means something bad has happened – a car wreck, a tree has fallen on the home, a water pipe has burst and flooded your home, a hurricane has wrecked your home, an illness or death has struck your family.  Yet you take comfort in knowing that your insurance company will uphold their end of the bargain and pay your claim when tragedy does strike.  Unfortunately, many Alabamians have found out the hard way that insurance companies don’t always uphold their end of the bargain.  Despite paying premiums for years, people are sometimes left stranded by their insurance companies when they need them most.  Fortunately the law has a way to handle this situation, though it is often not easy or quick.

In Alabama there are two causes of action against insurance companies when they wrongfully deny a claim.  You can sue for breach of contract, and you can sue for bad faith.  Breach of contract is pretty straightforward.  You have a contract and the insurance company did not uphold their end of it.  There is good and bad news for consumers about this.  The good news is that if the claim involves your home, you get to not only ask for the claim to be paid, but you get to ask for extra damages for mental anguish and emotional distress.  These are legal terms for the aggravation, stress and hardship you have suffered by having an insurance company leave your home unrepaired.  The bad news is that claims for breach of contract for any other type of insurance are limited to simply asking for your claim to be paid.  This often leaves people out significant amounts of money or without a way to go to court because they either have to pay a lawyer to take their case to court, or it does not make sense to hire a lawyer to handle the claim if the amount is small.

Fortunately, Alabama also recognizes insurance bad faith.  Bad faith can be proven when an insurance company either refuses to investigate a claim or uses questionable methods for denying coverage.  If an insurance company makes up a reason to deny a claim or uses ambiguous language in the policy to deny a claim, they can be liable for bad faith.  Insurance policies are often drafted in ways that make it difficult for consumers to understand them.  Insurance companies are supposed to interpret their policies in such a way as to find coverage when it could possibly be available.  However, insurance companies often take advantage of the complex language in their policies to deny coverage and leave people in a real bind.  The good thing about insurance bad faith is that people can sue to have their claim paid, they can sue for mental anguish and emotional distress, and they can also sue for punitive damages to punish companies for acting against their policyholders’ interests.

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