Articles Posted in Product Liability

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Apple is at the center of a class-action lawsuit filed by a man who claims that the company was negligent in its failure to implement an anti-distracted driving safety feature that it had patented.

The California man was involved in an accident in which he was rear-ended by a motorist, who was using her iPhone while driving. He suffered back injuries, and also suffered extensive damage to his vehicle.

He has now filed a class action lawsuit against Apple, claiming that the smart phone maker had patented a lockout mechanism which would have helped prevent an accident like his. This lockout mechanism disables smart phones, preventing a motorist from performing functions like texting while driving.  While Apple has patented the technology, it has not added the lockout technology to its best-selling devices.  This decision by Apple was made even though the company was very clearly aware of the dangers of distracted driving.

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A new study finds that an average of two U.S. children every hour are injured when restrained in strollers or child carriers.

Every parent uses strollers, child carriers and other forms of child restraints, trusting that these devices will carry their children safely and securely.  However, that often doesn’t happen. A new study reveals exactly how frequent injuries involving child safety devices really are.

The study was based on a review of data obtained between 1990 and 2010, and found that during this period of time, there were close to 361,000 child injuries involving children below the age of five, who were traveling in a stroller or child carrier.

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For months now, the Takata airbag recall has been making headlines. So far, the faulty airbags have been responsible for five deaths and hundreds of injuries around the world. Currently over 20 million vehicles have been recalled worldwide, including over 11 million recalled in the United States.

The National Highway Traffic Safety Administration (NHTSA) has become involved, urging owners of the affected vehicles to act on the recalls. However, the agency’s powers are limited. In November, the NHTSA called for a national recall of vehicles with affected driver’s side airbags. Takata refused to issue a nationwide recall, although the company said it would cooperate with manufacturers who chose to issue recalls. Honda, Takata’s biggest customer, has issued a nationwide recall in accordance with the request by the NHTSA.

The current recalls by Takata only apply to vehicles in high-humidity areas. Takata justified its refusal by stating that scientific evidence shows the malfunction is only present in high-humidity environments, and that expanding the recall would delay getting parts to those at greater risk. The NHTSA is preparing to take further action.
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Some would say this has been a hard year for auto giant General Motors. Times have been even more difficult, however, for those consumers directly affected by the series of safety issues that have plagued the company, caused car accidents and prompted millions of recalls. The recalls affected several models, including Chevrolet Cobalts, Saturn Ions, Pontiac G5s, Chevrolet HHRs, Pontiac Solstices and Saturn Skys, primarily those manufactured from 2003 to 2007.

Loss in vehicle value aside, an ignition switch flaw in the vehicles has been linked to more than 30 deaths and instances of bodily injury. A federal judge in New York has slated the first of many trials for 2016 and those close to the lawsuit claim there was evidence that certain employees knew about the dangers posed by the ignition switch flaw for the last ten years, a full decade before the recalls were initiated.

According to the announcement finally made by GM earlier this year, the ignition switch may slip out of position when jostled, cutting power to and disabling life-saving devices – including air bags, steering capabilities, and brakes. Plaintiffs’ attorneys hope the ruling in this first case will set a favorable precedent for those to follow.
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Five years ago everything changed for the wife and children of 45-year-old Chris Jones. After motoring his yacht to a Lake Lanier marina in Atlanta, Georgia for engine repairs, Jones made the fatal decision to spend the night on his boat and run the air conditioner using the generator – a practice his family had safely engaged in many times before. This time, however, and a mere few hours later, the husband, father of three and owner of a successful catering business would perish of carbon monoxide poison.

According to the Daily Report , an eight-day products liability claim filed by Jones’ widow in DeKalb County, Georgia against the boat manufacturer has finally culminated in a $10.2 million verdict for the surviving members of his immediate family.

Plaintiff’s product liability lawyer successfully convinced the jury that faulty boat design lay at the crux of the case, and that Defendant Genmar Yacht Group failed to warn consumers of the associated risk that carbon monoxide could back up into the closed cabin, resulting in the asphyxiation of anyone who had taken shelter there. Some of his biggest supporting arguments were that the boat design failed to comply with carbon monoxide standards as established by the American Boat and Yacht Council (ABYC), and that the boat’s alarm system failed to alert the decedent to any danger.
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With recent campaigns to educate the public about the dangers of cigarette smoking, e-cigarettes have been touted as a reasonable, more “healthy” and non-addictive alternative. It’s an electronic device that creates a mist that can be inhaled. They run on batteries and use either heat or ultrasound to have an aerosol effect – giving users the look and feel of smoking, without actual smoke inhalation and nicotine. A report by the Boston University School of Public Health found that the level of carcinogens in electronic cigarettes was almost 1,000 times lower than the level found in regular cigarettes. But, as a consumer recently discovered, e-cigarettes also may harbor a unique risk of their own – a possible design defect that may soon give rise to an increased number of products liability lawsuits.

ABC News reported recently that a man is recovering in a Florida hospital after suffering severe burns when an e-cigarette exploded in his mouth. His wife told investigators that it sounded like a rocket had exploded in the house, and the chief fire inspector who responded to the scene immediately attributed the incident to a faulty rechargeable lithium battery. Product liability attorneys, however, know that the real cause has yet to be determined – and it’s a determination that may one day take place in a court of law. Currently the use of e-cigarettes is not regulated by the Food and Drug Administration (FDA), which means that consumers who opt to use the devices basically do so at their own risk.
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After weeks of anonymity as “Restaurant Chain A” in an investigation into a salmonella outbreak that infected dozens of people in ten states, Taco Bell has been identified as the “Mexican-style” restaurant chain linked to the dangerous infections. The salmonella outbreak, which occurred in October 2011, infected 68 people in total, mostly in Texas, and sent more than 20 people to the hospital, according to a January report by the Centers for Disease Control. Although no deaths were linked to the outbreak, Taco Bell may still be on the hook for possible products liability claims made by those who became ill and suffered personal injury as a result of eating its food products.

While the CDC and Food and Drug Administration officials were unable to pinpoint exactly what food product may have caused the outbreak, the report said “data indicat[ed] that contamination likely occurred before the product reached Restaurant Chain A locations.” It was not until Wednesday that Restaurant Chain A was identified by Food Safety News as the fast food favorite Taco Bell, based on data provided by a health official at the Oklahoma State Department of Health. In that state, 16 people had been infected with salmonella.

In a document provided by the Oklahoma State Department of Health to ABC News, health officials noted that of the 16 cases, at least half of the victims had eaten at Taco Bell prior to their infections. Taco Bell noted in a statement to ABC News that the CDC had not discovered the definitive source of the outbreak and said the department only “indicated that some people who were ill ate at Taco Bell, while others did not.” Accoridng to the statement made by Taco Bell, “We take food quality and safety very seriously.”

The CDC kept Taco Bell’s name out of their report in accordance with long-standing policy of not necessarily identifying restaurants involved in investigations as long as there is “not a public health threat.” According to ABC News, CDC spokesperson Lola Russell stated, “By the time we posted information about this outbreak, it was over.” She also stated, “If it was over, there would have been no public need to disclose it.” Russell added that this latest case hasn’t triggered conversations about changing the policy.
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The death of a new born child in Missouri has lead Wal-Mart stores to pull the brand of powdered bay formula that is possibly connected with the infant’s death from its shelves. Wal-Mart has pulled the formula from its shelves as a precautionary measure, and likely to avoid exposing itself to any possible products liability or negligence lawsuits.

Avery Cornett, a new born from Lebanon, Missouri, who was less than one month old, died on December 18, 2011, from a rare infection. It is believed that Avery may be developed the infection as a result of ingesting powdered baby formula that his parents purchased from a local Wal-Mart store. According to the Washington Post, the powdered baby formula that Avery ingested was Enfamil Newborn Formula. A week after Avery was born, his parents took him to their pediatrician after he showed signs of stomach pain and lethargy. When the pain persisted the next day, his parents took him to the emergency room. That following Sunday, little Avery died as the hospital after being taken off of life support.

As a result of baby Avery’s death, the Food and Drug Administration (FDA) is conducting an investigation in order to determine exactly what caused Avery’s death. The Washington Post reports that not only is the FDA investigation the death, but the Centers for Disease Control and the Missouri Department of Health and also investigating. So far, investigators have collected samples from the family and are testing unopened formula purchased at stores. Public health investigators will look at the formula itself, as well as the water used in preparing it and at anything else the baby might have ingested.

Thus far, it has not been definitively determined whether the Enfamil formula lead to Avery’s sickness and subsequent death. According to the Washington Post, preliminary hospital tests indicated that Avery died of a rare infection caused by bacteria known as Cronobacter sakazakii. The infection can be treated with antibiotics, but it’s deemed extremely dangerous to babies less than 1 month old and those born premature. According to Christopher Perille, a spokesman for Enfamil, which is based in the Chicago suburb of Glenview, the bacteria are “pervasive in the environment. There’s a whole range of potential sources on how this infection may have got started.” Perille is correct in that the bacteria occur naturally in the environment and in plants such as wheat and rice. However, the most worrisome appearances have been in dried milk and powdered formula, which is why manufacturers routinely test for the germs.
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Products liability attorneys know all about the “hot coffee” case. It has been heralded as the quintessential example of a frivolous lawsuit. In 1994, a 79 year-old Texas woman sued McDonald’s after she spilled the entire contents of a Styrofoam cup of joe onto her lap. The details of exactly what happened have been muddled over the years. Some claim the accident was entirely her fault; she was multi-tasking while driving her car and she should have known that the liquid was hot. It was, after all, coffee. It turns out that the prevalent theories may not be quite true.

At least, that is what former Oregon plaintiff’s lawyer Susan Saladoff claims in her new pro-plaintiff’s documentary entitled “Hot Coffee.” The woman wasn’t driving the car, her grandson was. And anyway, the facts show the car was at a complete stop while she was trying to prepare it and its temperature was a whopping 190 degrees. At the time, most other restaurants served their morning beverages at a much lower temperature of 150-160 degrees. McDonald’s claims the high temperature was necessary to maintain “premium taste,” but their own research showed that over 800 people had reported similar experiences – an indication, the judge said, that the company willfully and recklessly conducted its business at the time. As for the plaintiff, she suffered third-degree burns over much of her lower body and spent eight days in the hospital. The case was eventually settled out of court for an undisclosed amount.

While McDonald’s policies have long since been modified, Saladoff felt it necessary to highlight cases like these in her film because, she told the National Law Journal, the plight of the plaintiff is often overlooked. “The other side of this issue has monopolized the conversation because of the amount of money they have,” she said. She decided to make the film after 25 years of practicing law. “After 25 years, the truth is you get sort of worn down,” she said.

As a plaintiff’s personal injury lawyer, I can certainly see where Saladoff is coming from. Oftentimes the defendants do indeed have more resources, especially since they are often large companies with a huge financial backing and an outstanding public reputation. The plaintiff becomes a small fish wallowing in a large pond when it comes to cases like this. Saladoff also points out another interesting view. “…Juries became less sympathetic and winning became harder. It would get me angry that I couldn’t tell my clients that I could get them justice” she says. This film, she hopes, will at least start the conversation that will change everything.
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There’s no doubt that tobacco is a booming business – and products liability issues have no qualms about riding in on the coattails of success. Many consumers’ complaints stem from the assertion that tobacco companies knew about and concealed the risks associated with smoking, and it certainly has been a quarter of a century since the U.S. has seen a significant change to its cigarette packs. The most recent alteration was in the 1980s and mandated a warning label – a small box with black and white text that could easily be overlooked.

Now, says the Associated Press, the Food and Drug Administration has released nine new warning labels that depict “in graphic detail the negative effects of tobacco use” and are sure to make the average consumer take a second look. Among the photos are: the corpse of a smoker, diseased lungs, teeth and gums and a mother holding her baby with smoke swirling around them. The accompanying phrases will serve to highlight the long-term effects of tobacco use, as will the inclusion of the number to a national quitting hotline. The graphic warning labels were required in a 2009 law that gave the federal government authority to regulate tobacco for the first time in our nation’s history, and advocates against smoking, like the American Cancer Society, hope that it will effectively deter non-smokers from picking up the habit. It may have some major implications for personal injury litigation as well.

An experienced plaintiff’s products liability lawyer knows that tobacco lawsuits are already very complex and difficult to litigate. For example, claims for personal injuries resulting from the use of tobacco products that relate to promotional or advertising communications or the adequacy of warnings are subject to the federal Cigarette Labeling and Advertising Act and must be brought under that Act rather than under comparable state law. Even more importantly, assumption of risk has long been a choice defense for tobacco companies and now that the warning on the pack is being made more prominent, it may become even more difficult to litigate such cases – especially when juries feel there were stronger contributing factors to the plaintiff’s illness or are convinced that the plaintiff was made aware of the risks of smoking and chose to accept those risks.

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