Florida Personal Injury Blog - Defective & Dangerous Products

Profit Over Safety -- A $20 Decision

John Hopkins — Tue, 01 Dec 2009 10:04:27 GMT

A 46 year old woman is paralyzed when her sport utility vehicle rolls over and the roof collapses onto her. The manufacturer knew their SUV was prone to rollovers and in the event of a rollover, the roof was insufficiently reinforced to prevent the very injuries suffered by the woman. In the case, the woman alleges that a fix to the roof stability would have cost the SUV maker approximately $20 per vehicle.

This story sounds a great deal like a car prone to catching on fire and exploding when rear ended at relatively low speeds. In those cases, the auto maker consciously chose not to spend the money to recall and retrofit the vehicles. That decision unnecessarily cost many lives.

Oh, yeah, in both instances it was Ford. In the earlier case it was a little car called the Pinto and in this most recent case, a little SUV called the Explorer.

It boils down to making “business decisions” in the best interest of stock holders is what Big Corporations say. They are forced to weigh their overhead against the need for design modifications. They are charged with answering to stockholders who have hitched some portion of their financial future to these very decisions.

It boils down to making decisions that do not place profits over safety is what I say. Sorry Corporate America, but it should not be acceptable to place the public in peril of life or limb for $20. In fact, it should not be OK with anyone to have a 46 year old woman and mother of two children who will never walk again because it was not expedient or economical to either, first design or second retrofit a product to make it as safe as possible.

When Ford was hit with this jury verdict amounting to over $350 million for both compensatory and punitive damages, they appealed. The courts reduced the jury verdict to $82 million, for both compensatory and punitive damages. Ford cried foul and appealed; arguing that they made reasonable judgments in the design of the SUV and they should not be responsible for punitive damages.

When Corporate America demonstrates a conscious disregard for the safety of consumers, punitive damages are appropriate. When an industry makes billions marketing a 3000 pound object that moves at 70 mph “reasonable judgments” that include the failure to spend $20 additional for safety most certainly justifies these damages.

Originally posted at InjuryBoard by John Hopkins

Stork Craft Drop-side Crib Recall Highlights Flaw in Preventing Defective Products

K.C. Bouchillon — Tue, 24 Nov 2009 09:35:52 GMT

The Consumer Product Safety Commission has finally recalled more than 2 million Stork Craft drop-side cribs that have caused numerous injuries and deaths to babies for more than a decade.

The head of the CPSC admitted that the government watchdog for product safety failed to move quickly enough to recall the deadly cribs, which have been on the market since 1993.

Unfortunately, too many consumers assume that just because a product has not been the subject of a recall, it is not defective. That is far from the truth. As the crib recall demonstrates, it sometimes takes hundreds of incidents and years of attention before the government finally acts.

The lesson: be your own watchdog, particularly when it comes to your loved ones. Manufacturers often cut corners to increase profits, which puts you at risk. Inspect products with a critical eye. See if the parts function properly with heavy use. Look for cheap materials used in construction of the product. Do online research to see if there have been reported incidents with the product, or lawsuits pointing out defects in the product.

The crib recall is a classic example: by using cheap plastic parts that easily break and deform, dozens of infants have been injured, and many killed, after getting trapped and suffocating in these cribs, which were also sold under the Fisher-Price logo. Despite scores of reported incidents, the manufacturer did nothing, except continue to rake in profits while more children were injured and killed.

Don't assume that a product manufacturer is looking out for your best interest. If you or someone you know has been injured or killed as a result of a defective product, give me a call.

Originally posted at InjuryBoard by K.C. Bouchillon

Big Tobacco Caught in the Back Draft of its Scorched Earth Litigation Strategy

Cal Warriner — Fri, 20 Nov 2009 09:20:46 GMT

Big Tobacco's pants are aflame today after suffering a 300 million dollar verdict in yet another defeat in its Florida litigation war. You see, knowing it has imposed more death and suffering than modern war, pestilence and aids combined, Big Tobacco's mantra has always been millions for defense and not a dime for restitution (and a few extra hundred million thrown in for political payola and advertising). Historically the strategy has worked. The big bully with its army of well healed, silver tongued lawyers could outspend, outmaneuver, and overwhelm wheezing customers and their lawyers. Tire them out, grind them into the dust, argue every issue, appeal every ruling and intimidate lawyers into not taking up the cause. No matter the cost, Big Tobacco had to make suing it so distasteful that smokers would just die and go away quietly. I mean, what would happen if all the sick smokers sued us at once? Right?

Today however, as Phillip Morris arrogantly thumbed its nose at yet another former customer who sat in the courtroom on oxygen, the strategy cost Phillip Morris 300 million dollars. Having once again turned its back on the opportunity to settle for for less than it paid one defense expert, Phillip Morris placed its fate in a gaggle of highly skilled cigarette lawyers from Chicago and San Francisco. The juries verdict, millions for restitution, to hell with your million dollar defense.

You see, the tide has turned in Florida. Instead of unleashing its army and unlimited resources on one poor smoker, Big Tobacco faces almost 8000 filed cases that are all proceeding concurrently. The cases arise from years of class action litigation in which a jury and ultimately the Florida Supreme court finally put an end to decades of Big Tobacco's dismiss, distract, deny and deceive strategy. No longer are Tobacco's slick litigators allowed to come to court ready to contest whether nicotine is addictive or whether it causes lung disease and cancer. Nor can the companies argue that their products were not defective or that they were not guilty of negligence and fraudulently lying to the consuming public about the dangers of cigarette smoking. Remember, as late as 1994 every tobacco company CEO stood before Congress and swore that nicotine was not addictive and that there was no medical proof linking cigarette smoking to cancer. Swallow lye to perpetuate the lie, no problem. Nope, the issue for the jury to decide in Florida is now what it always should have been. Is it the smoker's fault for buying the defendants' product and using it exactly as intended (quite ironic) or is it the product's addictive qualities manipulated so adeptly by Tobacco chemists that resulted in the smoker's disease? For the first time in the history of tobacco litigation, it's a fair fight. Recent history teaches when Big Tobacco can't poke, bite or hit below the belt, it is losing its shirt.

Since members of the now decertified Florida class have been trying their cases against Big Tobacco, the smoker has won eight of ten trials many in the multiple millions of dollars with today's 300 million dollar verdict being the largest. In each case, Tobacco has flatly refused to discuss settlement many times rejecting settlement offers of as little as $10,000. As a result, all of the smoker's litigation costs and attorney's fees are being tacked on to the verdict. Tobacco already faces over fifty trials next year with more being set every day. If past is prologue, the nicotine purveyors are in for disastrous 2010.

As the saying goes, all good things must come to an end. In Florida at least, the courts have put an end to traditional Tobacco defenses. When then will the companies spin to the financial industry about its exposure in Florida tobacco litigation end. The Florida Supreme Court's Engle decision is flawed, this verdict is an aberration; we intend to appeal; we feel good about our chances on appeal; we have plenty of resources to defend ourselves; lawyers will lose interest and Engle cases will just go away like the flight attendant second hand smoke cases did. Hogwash.

With this verdict, it's time that the financial markets woke up smelled the coffee. They need to start asking probing, hard questions. Can an industry that sells an addictive product that has killed millions and continues to kill hundreds of thousands each year cheat the fates indefinitely? Will the American public stand to have its children and its children's children addicted and killed by this evil industry?

Ironically, the litigation strategy that has served Big Tobacco so well for so long has exposed its biggest weakness. Tobacco cases are very winnable. They are even more winnable when filed en masse by just a fraction of its victims. Juries no longer buy Tobaccos' lies. Ironically, for less than the cost of corporate jet fuel, Big Tobacco could have resolved the entire Florida litigation. Now, it must live with the consequences of an archaic philosophy, hatched moons ago by dead men, each made rich by the very cigarettes that ultimately killed them.

Originally posted at InjuryBoard by Cal Warriner

Tobacco Held Responsible for Placing Profits Ahead of...Everything

Brenda Fulmer — Thu, 19 Nov 2009 17:16:34 GMT

Philip Morris suffered yet another blow in the latest post-Engle tobacco trial. A Fort Lauderdale jury rendered a verdict on November 19, 2009, for $300 million against the tobacco manufacturers on behalf of a living smoker who suffers from severe emphysema. The verdict included $246 million in punitive damages.

This verdict is one of a number of verdicts that have been entered in completed jury trials in Broward and Escambia Counties this year.

More than 8,000 claimants and their survivors have individual lawsuits pending in courts throughout Florida. These claims stem from the Engle class action which was filed in 1994 and resulted in a verdict of more than $145 billion after one of the longest trials in history. Currently, there are dozens of trials scheduled for 2010 in Miami, Fort Lauderdale, Bronson, Jacksonville, Gainesville, Bradenton, Tampa, Pensacola, and Daytona Beach.

Thousands of additional smokers and their survivors are hopeful that the current scheduling and budgetary problems facing the Florida court system are overcome so that they may have their day in court in the not too distant future.

Originally posted at InjuryBoard by Brenda Fulmer

FDA Warns About Pain Pumps -- Manufacturers Knew

John Hopkins — Mon, 16 Nov 2009 09:14:20 GMT

Sometimes law and science do not make close bed fellows; particularly where one or the other is trying to understand their respective meaning.

The FDA has come forward to warn about continuous intra-articular infusion of pain medication. This is the practice of using a pump to provide continuous infusion of pain medication to a surgical site. These devices began being used in abdominal surgeries and, predictably, that singular use did not provide manufacturers with sufficient market availability (profit). So, many manufacturers such as Breg, Strytker and IFlow began to promote the use of the pumps in shoulder, knee and ankle surgeries.

The explanation given by the manufacturers was that providing continuous pain medication to the place where you just operated gave the patient an easier recovery time. Doctors do, in fact, care about their patients and, so this manufacturer explanation had real attraction to doctors. Some of the manufacturers went further and demonstrated to doctors ways in which they could code the procedures and receive additional compensation if they used a pain pump. To doctors who often are forced to fight with insurance companies for a fair payment, this, too, seemed attractive.

What manufacturers “forgot” to tell doctors is they had not conducted competent testing of the use they were promoting. The manufacturers forgot to tell doctors that the FDA required clinical trials before use of the pain pumps intra-articularly could be permitted. The manufacturers forgot to tell doctors that no clinical testing had been done on the very tissue, cartilage, into which the pain pumps would be injecting medication.

When pain manufacturers saw the first study come out potentially linking destruction of cartilage to the use of pain pumps, they quickly retreated from their recommended application and circled the wagons. They knew that because they had sponsored no meaningful research of their own, interest would quickly evaporate for studying the problem if they stopped recommending intra-articular use. After all, why study something that will not happen anymore?

Pain pump manufacturers also hoped that the lack of research would shield them from liability by arguing to courts that insufficient scientific evidence existed to relate use of the pain pumps with complete destruction of joints in relatively young people. Sadly, by using a legal theory called “Daubert”, some courts have, in fact, bought into the manufacturers’ ingenuous arguments. Manufacturers argue that courts should ignore, as insufficient, the testimony of surgeons who, for 30 and 40 years, have seen no destruction of cartilage until they started using pain pumps in the way recommended by manufacturers.

Originally posted at InjuryBoard by John Hopkins

Correcting Injustice--The Medical Device Safety Act

John Hopkins — Mon, 26 Oct 2009 10:26:43 GMT

The decision in the Supreme Court case of Riegel v Medtronic created special protection for medical device manufacturers that defied all logic and contradicted 30 years of experience in medical device regulation. The Riegel case set forth that lawsuits against medical device manufacturers were preempted where the manufacturer had properly submitted the device to and received approval from the food & Drug Administration. This decision ignored real world issues. Nearly everyone knowledgeable at the FDA will tell you they have neither the time nor the budget to conduct sufficient independent analysis of every medical device. Largely, their approval relies on the truthfulness and sufficiency of the testing reported to them by the device manufacturer. By necessity, the FDA’s process is somewhat like the fox guarding the henhouse, in situations where the manufacturer has failed, intentionally or negligently, to put the medical device through the testing that would best evaluate the product’s safety. The Medical Device Safety Act, currently in Congress, would seek to correct this error and place consumers back on level footing with medical device manufacturers. US Representative Henry Waxman summarized the situation well when he said:

"As the Supreme Court affirmed in its Wyeth decision yesterday, lawsuits by injured consumers play a critical role in helping to ensure safety," said Chairman Waxman. "The Court noted that these lawsuits 'uncover unknown drug hazards and provide incentives for drug manufacturers to disclose safety risks promptly.' The same is true for medical devices. We must act quickly to enact this important legislation that will restore the ability of patients injured by defective medical devices to seek compensation, and realign the incentives for manufacturers to ensure the ongoing safety of their products."

The bill has now garnered support from many organizations including:

AARP

Center for Justice & Democracy

Consumer Federation of America

Consumers Union

Homeowners Against Deficient Dwellings

National Association of Consumer Advocates

National Consumers League

OWL - The Voice of Midlife and Older Women

Progressive States Network Public Citizen

U.S. Public Interest Research Group

The New England Journal of Medicine

National Conference of State Legislators

National Research Center for Women & Families

What can you do?

Call your legislators and ask them to do the correct and just thing—vote in favor of the bill.

Go here to find contact information for congressional members!!

Originally posted at InjuryBoard by John Hopkins

Are Manufacturers Liable If I am Injured by Their Product?

Sandy Grinnell — Mon, 26 Oct 2009 09:23:18 GMT

Injured by a piece of equipment or product you were recently using? Then you might be eligible to bring a product liability suit against the manufacturer, supplier, or retailer depending on where you got the product. Product liability is the area of law that holds these businesses liable for the injuries that their products cause to the public. Most product liability cases are based of negligence, strict liability, breach of warranty, and consumer protection claims. These laws vary from state to state and from claim to claim. There are three major types of product liability claims: a manufacturing defect, a design defect, and a failure to warn or a marketing defect.

Strict Liability focuses on the product itself. Under this theory the manufacturer is liable if the product causes injury regardless of whether the product itself was defective. The courts look for facts in individual strict liability cases which characterize warranty from the manufacturer to the consumer, be it an expressed or implied warranty. Expressed warranties are those which are noted on the product during purchase whereas implied warranties are those which are common to all products in that category. Strict liability, unlike negligence, does not require the manufacturer itself to be negligent in production. In negligence the plaintiff must prove that the manufacturer or distributor fell below a standard of care. However strict liability focuses only on the product itself.

States are also enacting consumer protection statutes for specific remedies in regards to product defects. Statutory remedies are enacted for products that do not necessarily cause injury but simply are defective or unusable but still cause an economic loss. This only allows the consumer to recover for the economic loss of the product but no damages to their person.

No consumer should ever be injured by a product that a manufacturer holds out to be safe for public use. If you or anyone you know has been injured from a recent purchase or product they were using, please don’t hesitate to contact someone for legal representation.

Originally posted at InjuryBoard by Sandy Grinnell

Chinese Drywall Contamination Prompts Meeting Between US and China

Joe Saunders — Fri, 23 Oct 2009 11:50:17 GMT

Officials from the Consumer Products Safety Commission plan to meet with their Chinese counterparts and seek their assistance and cooperation in dealing with the Chinese drywall contamination problem that has plagued US homeowners. According to CPSC Chairman Inez Tenenbaum, Chinese officials have a duty to engage in finding solutions to the problem.

“All we’re asking is for them to realize that in the global economy everyone has to be responsible to the end user, the consumer. We’re asking them to participate in this in ways that are just and fair.”

Tons of contaminated Chinese drywall, also known as gypsum or wallboard have been imported into the US in order for contractors to keep up with the housing boom that took place earlier this decade. The contaminated drywall has cost significant damage to homes, particularly in the southern United States where the drywall has corroded electrical wiring and outlets.

Originally posted at InjuryBoard by Joe Saunders

Gardasil and Lou Gehrig's Disease - Two Cases

Eddie Farah — Mon, 19 Oct 2009 23:31:59 GMT

Researchers believe that two separate cases of Lou Gehrig’s Disease in young girls that progressed rapidly following the Gardasil injection may be related to the cervical cancer drug.

More than seven million young women and girls have been given Gardasil vaccine in a three-shot series to protect against two types of virus that cause cervical cancer and two that cause genital warts.

In both cases the young women died and amyotrophic lateral sclerosis or ALS, also known as Lou Gehrig's Disease progressed rapidly. Merck, the maker of Gardasil does not believe the events could have been caused by Gardasil.

Here’s what we do know. Jenny Tetlock was 14-years-old. Months after her third and final booster for Gardasil, she tripped in gym class. Soon both legs and her arms became weak. She began to limp and had trouble gripping objects and she felt pins and needles in her feet. Her muscled atrophied.

Her parents tell her story on their web site Jenny’s Journey hoping others may report similar cases to them so they can make sure the cases are registered with the federal government.

Within a year Jenny was paralyzed, a quadriplegic and used life support to help her breath. The degenerative disease did not harm her mind, which Web MD reports was as sharp as ever before she died.

Another girl, 20-years-old, saw her ALS progress the same way within four months of her first Gardasil shot. She died 28 months later.

The link between the symptoms and the shot is very suspicious to researcher Dr. Catherine Lomen-Hoerth at the ALS Center at University of California San Francisco Medical Center.

First the symptoms progressed very rapidly, more so than in a typical ALS patient. Both girls had an inflamed spinal cord she said to doctors at the American Neurological Association.

More work is to be done. Young ALS patients will be compared to these girls. The adverse events reports will be combed further to see if there are any young women who reported ALS symptoms following Gardasil. So far there are none reported.

Jenny’s parents, Phil and Barb, both college professors, are asking anyone who visits their Web site in their daughter’s honor to forward any cases of muscle paralysis following a Gardasil injection to their Web site so they can make sure that it is registered on the federal VAERS (Vaccine Adverse Events Reporting System) Web site. They fear cases are underreported since VAERS is not generally known or easy to navigate.

And one doctor says he will now ask his young ALS patients if they received the Gardasil vaccine. He didn’t think to ask before, he says.

Our sympathies go out to the friends and families of these two young women.

Jenny was 15 when she lost her battle with the rapidly degenerative neurological disease on March 15, 2009. #

Originally posted at InjuryBoard by Eddie Farah

Theme Park Injury Caught on Video

Ed Normand — Mon, 19 Oct 2009 09:00:00 GMT

Knott’s Berry Farm in Buena Park, California, billed as "America’s 1st Theme Park" was the site of another ride accident in mid-September, 2009. Riders were struck with debris and two passengers were injured, after a cable on the ride snapped. Luckily, no one else was injured during the accident. Incredibly, the entire ordeal was caught on video! A 12-year-old boy suffered lacerations on his leg, and an adult male complained of back pain afterwards. In the video, you can clearly see the point in the video where the cable breaks, and the ride starts going backwards. The fear and confusion on the eyes of the riders is evident, especially once smoke starts emanating from underneath the ride. The riders begin to panic at the end of the video, as they realize they are strapped into the ride, and unable to get out. The video, posted on Youtube, provides an eye-opening insight as to what happens when a ride malfunctions.

www.youtube.com/watchhttp://www.youtube.com/v/6EGHHjN0bQs&hl=en&fs=1&"> name="allowFullScreen" value="true">http://www.youtube.com/v/6EGHHjN0bQs&hl=en&fs=1&" type="application/x-shockwave-flash" allowscriptaccess="always" allowfullscreen="true" width="425" height="344">

Originally posted at InjuryBoard by Ed Normand