Tampa Bay Personal Injury Lawyer - Defective & Dangerous Products

Defective Product Accountability for Foreign Manufacturers

Joe Saunders — Mon, 14 Sep 2009 08:44:10 GMT

The Foreign Manufacturers Legal Accountability Act of 2009 (S. 1606) is a good consumer protection bill that's been introduced in the US Senate by Senators Dick Durbin, Sheldon Whitehouse, and Jeff Sessions. Essentially, the bill aims to hold foreign companies accountable for defective products that injure US consumers.

Presently, foreign manufacturers who export defective products into the US that injure American are not held accountable because it's difficult to hold foreign companies accountable in US courts. The new legislative proposal would accomplish the following:

Requires manufacturers to have an “agent” located in at least one state where the company does business that would accept service of process for any civil and regulatory claims.
Companies would consent to state and federal jurisdiction, holding foreign manufacturers accountable to those judicial standards.

According to the American Association for Justice, "

"The legislation covers products regulated by the Consumer Product Safety Commission (CPSC), such as children’s toys; the Food and Drug Administration (FDA), including prescription drugs and medical devices; and the Environmental Protection Agency (EPA), like pesticides.

'Finally, foreign corporations will be on notice that their products must meet our standards and be subject to our legal system,' added Tarricone. 'Not only will American businesses be on a level-playing field with foreign corporations, but consumers will now have the added security that our civil justice system offers.'

Aside from the toxic drywall produced, this legislation would cover imported products seen in the news like poisonous toothpaste that contained diethylene glycol, children’s toys and jewelry coated with toxic levels of lead paint, and pet food that contained melamine, a compound used to make plastic."

Originally posted at InjuryBoard by Joe Saunders

New Bill Proposes to End Foreign Manufacturer Tort Liability Loopholes

Don Greiwe — Wed, 09 Sep 2009 14:34:18 GMT

Each year, many people in the United States are injured by defective foreign products imported into the United States. Loopholes in the law give foreign manufacturers ways of delaying lawsuits against them in the United States – but that may be about to change. Currently, when a foreign manufacturer’s product injures someone in the U.S. because of a defect, and the victim files suit against that manufacturer, serving the foreign defendant can take months or even years. As just one example, the recent Chinese-made drywall fiasco is faced with this sort of issue. Foreign manufacturers often seek to avoid judicial consideration of their actions by asserting that United States courts lack personal jurisdiction over their companies. New legislation, however, seeks to make it easier for plaintiffs to establish service and get the lawsuit moving.

In many cases today, serving process on foreign defendants is complicated and time consuming, thanks to international law ratified in the 1960s. Plaintiffs must translate the papers into the manufacturer’s native language, sent to a “central authority” (someone appointed by that country), then serviced per the laws of the country. This can cause huge delays, from a few months to over a year. Newly proposed legislation sponsored in early August by Senators Sheldon Whitehouse, (D-RI), Jeff Sessions, (R-Ala), and Richard Durbin, (D-Ill) called the Foreign Manufacturers Legal Accountability Act of 2009 addresses this problem with a two-pronged solution:

Foreign manufacturers will be required to have an “agent” in at least one state, which is designated to accept service on the company’s behalf.
Foreign companies consent to state or federal jurisdiction where their registered agent is located upon receiving service.

Obviously, this bill will not affect whether the manufacturer is liability for an injury or make the legal burdens on foreign manufacturers any greater than those imposed on domestic manufacturers. It simply makes service of process work as though the manufacturer were American.

Despite bipartisan support, though, the bill has not passed yet. But it is important that this important legislation get passed to finally end the loopholes which have allowed foreign manufacturers to delay lawsuits. Foreign companies that import products into the U.S. should not be able to avoid liability simply because of difficulties relating to serving process upon the company.

Originally posted at InjuryBoard by Don Greiwe

Baseball's Maple Bat Controversy - Does Someone Have to Die?

Matthew Leeth — Tue, 21 Jul 2009 15:18:53 GMT

Maples bats are a clearly dangerous hazard that MLB will continue to ignore until someone is killed or seriously injured. Strong language, I know, but MLB’s actions thus far can only be summarized as a grossly negligent policy only lacking a significant injury.

First, some history. MLB bats were historically made out of ash wood. Maple bats were officially sanctioned in 1997, but it was Barry Bonds hitting 73 home-runs with a maple bat in 2001 which put it on the map. From there on, most players were convinced that maple bats provide greater hitting power. In 2005, MLB had a man named Jim Sherwood test this theory. Mr. Sherwood reported that there was no advantage to using maple bats.

Undeterred, maple bats have become increasingly popular and are the bat of choice with almost every major league player. Baseball players are often described as a superstitious bunch, and while there is no actual benefit to maple bats, players often report that it just “feels” harder.

Even with no real benefit (I’m not sure if I’ve stressed that enough); there is a significantly dangerous drawback. While ash bats crack when broken, maple bats will either splinter or shatter into pieces. Sometimes a shard breaks off at the barrel, sending it flying into the stands. Sometimes, it breaks at the handle.

The MLB says they are “looking into it.” Yeah, right. The reality is that the players union has a negotiated agreement with the MLB as to the composition of their bats. And since players are convinced the maple bats will give them a competitive edge, they (as a whole) demand it. MLB PR seems to stall the media by saying they are investigating, but really they appear to just be avoiding the situation. But they won’t be able to avoid explaining to a victim’s family that an unproven alternative to ash was more important than fan safety.

Words can only say so much, though. Here’s more than enough proof that it’s time for the MLB to make the right decision by banning maple bats.

Here's Nick Green almost getting impaled at the short stop (sorry, can’t embed this). Nick Green said after the game “I don’t use maple… they say they’ve fixed it or whatever but that obviously didn’t fix [it]”)

And there are thousands of more of these images on the net. But rather than create a 15 page blog post filled with pictures, I suggest those interested read into this issue some more. This probably isn't the first time you've heard about maple bat controversy, especially if you follow baseball. But I can garauntee you it won't be your last time, either.

Thanks to Billy @ Clubhouse Cancer for compiling the pictures.

Originally posted at InjuryBoard by Matthew Leeth

Medical Device Liability Bill: Undoing Injustice

Don Greiwe — Tue, 19 May 2009 10:25:09 GMT

Last week, the new Medical Device Liability Bill was up for debate within Congress’ House and Energy Subcommittee. This new legislation is intended to undo the U.S. Supreme Court’s decision in Riegel v. Medtronic, Inc. In Riegel, the Supreme Court immunized certain manufacturers of medical devices by protecting them from state law product liability claims. This precludes approximately 10 million patients from claims against the manufacturer of their implanted devices when the devices were approved by the FDA.

Expectedly, pro tort reform associations such as American Tort Reform Association (ATRA) have begun marketing against passage of the new bill. In their latest press release, ATRA makes several bold claims, including: (1) the legislation’s intent is to only further trial lawyer fees; (2) this bill will allow claims that could bankrupt reputable companies; and (3) the bill would undo “longstanding law”. As a proponent of the bill, it’s clear to me that these claims are without merit.

First, the argument that pro-consumer legislation is really just pro-trial lawyer legislation is incredulous. This is nothing more than ARTA’s attempt to play to the stereotype of a trial attorney as reason to prevent victims from being made whole. Trial lawyers have, directly and indirectly, brought about increased safety measures and forced manufactures to be more conscientious of consumer safety.

Second, ATRA claims that the bill could allow excessive claims that would bankrupt the industry. The intention of product liability lawsuits, like most all other forms of personal injury litigation, is to make the injured victim whole again. Often people will hear of lawsuits with huge punitive damage awards. These punitive damages are sometimes greater than the compensatory damages themselves, and are intended to do as its name implies – punish the defendant. However, they are only available in extreme cases. In other words, the vast majority of product liability cases results in compensating the plaintiff for their injury, and are not intended to “bankrupt” any company (or for that matter, actually do bankrupt such a company).

Third, to call the decision of Riegel “longstanding” is beyond a stretch of the imagination. Riegel was decided February 20, 2008. In the decision, the Medical Device Amendments of 1976 was construed to spare medical device manufactures from claims of flawed design or labeling. While the decision has already precluded at least 1,400 lawsuits against manufacturers, the decision has created law that is far from longstanding.

The intent of this legislation is to undo the Supreme Court’s overreach into product liability lawsuits. Riegel has precluded otherwise legitimate claims, a preclusion not consistent with any other tort law. In the more recent decision of Wyeth v. Levine, the Supreme Court held that manufacturers could be held liable for mislabeled or defective drugs regardless of FDA approval.

In contrasting these two decisions, the current state of American law is this: If someone were to be seriously hurt or killed because of an FDA-approved drug was mislabeled, they are allowed to seek compensation. But if this person were injured by a mislabeled FDA-approved medical device, they would be precluded from bringing suit. Where is the consistency, or for that matter, the justice in that?

Originally posted at InjuryBoard by Don Greiwe

FDA Seizes More Dietary Supplements

Joe Saunders — Mon, 18 May 2009 09:24:09 GMT

US Marshals have seized 23,300 bottles of three separate dietary supplements through a court order. The U.S. District Court for the Eastern District of Michigan, Southern Division entered a consent decree for the FDA to seize and destroy diet supplements manufactured by LG Sciences LLC, of Brighton, Michigan. The products were sold as "Methyl 1-D,” “Methyl 1-D XL,” and “Formadrol Extreme XL.” The seizure came after the FDA determined the body building supplements contained active ingredients that have not been tested for safety.

The unregulated world of dietary supplements, body building pills, and weight loss products such as Hydroxycut have been a boon to manufacturers and a bane for consumers who want to maximize the benefits of exercise and weight training.

Originally posted at InjuryBoard by Joe Saunders

Hydroxycut: The Latest Gun in DSHEA’s Wild West

Don Greiwe — Mon, 11 May 2009 09:32:22 GMT

As you probably have heard, hydroxycut has been taken off the market. On April 30^th the FDA warned consumers to immediately stop using all 14 Hydroxycut products. This comes after the FDA compiled a report detailing 23 complaints of serious liver problems ranging from jaundice to liver failure requiring transplant. In one case, a 19-year-old died as a result of the associated liver damage. The manufacturers of Hydroxycut (Iovate Health Sciences) has since recalled all Hydroxycut products from retailers nationwide.

The Dietary Supplement Health and Education Act, or DSHEA, was brought into law the in 1990s under the Clinton administration. Most dangerously, it allows dietary supplements to enter the over-the-counter market without any formal review by the FDA. It even limits the FDA’s power to ensure honest advertising; that duty is delegated the Federal Trade Commission. So despite that 8 pt font statement that “these claims have not been evaluated by the FDA” that’s onscreen when a dietary drug claims it’s a panacea, the FDA doesn’t even yield the power to sue the manufacturers who mislead a gullible consumer base via their the supplement's advertising. Many Americans would be shocked to know of how little regulatory power the FDA has over the dietary supplement market.

Without formal testing of these products, the dangerous propensity of certain dietary ingredients is usually not found until after enough deaths or injuries have occurred to make such a causal link. This could take years, as is the case with Hydroxycut and Ephedrine (now only legal for limited uses).

Some call it a cycle, and would expect another product in the near future to take Hydroxycut’s place in the market. Without change, this product will be untested and unproven. Now is the time for Congress to take action to amend the DSHEA. In the least, the FDA must be given the authority to more closely monitor and regulate the dietary supplement industry.

For more information, see this article. It gives more frightening details into how this latest recall is unfolding. As George Blackburn, M.D., Ph.D. states, "Every time we put a lid on it, as we did when we got rid of ephedra, now comes another round of adulterated products," he said. "Now with Hydroxycut, we have the same type of organ injury and illness, if not mortality, that comes from some unknown ingredient."

Patients should always tell their doctors of any supplements they are taking even if it is not known to be dangerous, because known injury may occur when combined with certain prescription medicines.

Originally posted at InjuryBoard by Don Greiwe

Fitness Balls Burst Causing Injuries

Joe Saunders — Fri, 17 Apr 2009 09:13:04 GMT

More than 3 million fitness balls have been recalled after they burst, causing back and neck injuries to those using them. The balls in question are sold by department stores and sports shops around the country. Brands include Bally, Everlast, Valeo, and BodyFit. They were distributed by EB Brands of Yonkers, NY and made in China.

The fitness balls, the latest fitness craze in the US, are used by many in gyms, fitness centers, and at home. The balls are primarily used for abdominal exercises (crunches) and stability exercises that focus on the core. Fitness ball defects can cause serious injury to the back, neck and extremities.

The recalled fitness balls come in 55-, 65- and 75-cm diameter sizes. The Consumer Product Safety Commission stated that the balls have burst when overinflated. There have been 47 reports of bursting fitness balls thus far.

Originally posted at InjuryBoard by Joe Saunders

New Chinese Food Safety Measures Still Not Enough

C. Todd Alley — Tue, 14 Apr 2009 20:57:14 GMT

The Chinese legislature has passed the Food Safety Law. In effect June 1 of this year, the law outlines major change in the Chinese food market. Changes of particular Interest:

Improved Regulation. The new law overwrites and replaces all previous food safety law in China, in an effort to unify the system and have even enforcement. The Food Safety law still diverts some of its power to other departments within the Chinese government, including health, agriculture, and industry.
Improved Monitoring. First and foremost, the new law does away with the “trusted” company system – where a company deemed trustworthy is left largely unsupervised. In the Sanlu disaster, it was found that many of these trusted companies were not so trustworthy.

Also in terms of monitoring, the new law establishes a risk assessment program which will monitor the industry and determine amendments to the regulation as they deem it necessary. If a product was found to conform to the current laws, yet still posed a significant danger, it is within the ability of the program to amend law in such a way as to prohibit the product.
Improved Enforcement – No Chinese law is complete without a harsh punishment. Those found in noncompliance with the new law are liable civilly up to 10 times the price of the product being sold, and potentially liable criminally for their offense. In the Sanlu case, two executives were sentence to death one received a life sentence.

Experts agree that this will not change the landscape of Chinese food manufacturing immediately, nor does it create any fundamental shift in Chinese law towards food safety and regulation. In contrast, it is simply an effort to centralize Chinese law. Many hoped that this legislation would have enacted an umbrella organization to oversee food manufacturing in China, similar to the Food & Drug Administration here in America.

In reality, this law fails to meet its obligation to not only the Chinese people, but to all countries who import Chinese products. It fails because it gives no real assurance that another disaster will be averted. Supporters of the new law say that it is “impossible” to eliminate the threat of another disaster, which is certainly a true statement. The law doesn’t address the concern, though, that with the outrageous number of factories and manufacturing plants in China, enforceability is difficult at the central government level except when a “risk” rises to an unspecified level. Even more basic, the law does not affect any food not intended for humans, such as pet food. Cases such as tainted pet food go unaffected by this legislation.

All of these changes in Chinese food regulation appear more administrative than substantive. It does little to further protect Americans who consume imported Chinese-manufactured food and additives.

Finally, perhaps to put things in perspective when comparing Chinese food safety to our own, the Shanghai Daily tells its readers, “when choosing food, be cautious if the products take on an unnatural glow.”

Originally posted at InjuryBoard by C. Todd Alley

Taser Back in the News

Joe Saunders — Sat, 07 Feb 2009 11:24:02 GMT

A few weeks ago, Taser International was ordered to pay $1,423,000 in attorney fees as a result of a product's liability verdict in California. On June 7, 2008, the jury in the case of Heston v. City of Salinas, et al., N.D. Cal. Case No. C 05-03658 JW (United States District Court for the Northern District of California (San Jose)) found in favor of the family of Robert C. Heston. Specifically, the jury found that Taser International failed to warn of the risks of prolonged deployment of the stun gun. Heston suffered cardiac arrest and later died as a result of the Taser deployment.

The attorney fees decision was based on California Private Attorneys General Statute California Code of Civil Procedure §1021.5. According to the statute, in order to obtain attorney fees in such a case, the lawyers had to prove four things: 1) a plaintiff must be a successful party in an action resulting in the enforcement of an important right affecting the public interests, 2) a significant benefit, whether pecuniary or non-pecuniary, must have been conferred on the general public or a broad class of persons, 3) the necessity and financial burden of private enforcement must transcend the litigant's personal interest in the controversy, and 4) such fees should not, in the interest of justice, be paid out of the recovery.

The federal judge in the case, James Ware found "notoriety of Plaintiff's first-of-its-kind verdict, in some circumstances, has prompted a number of TASER customers and prospective customers to consider the risk of repeated and prolonged Taser electrical charges on individuals in an excited or delirious state.” This satisfied the significant benefit clause according to the Judge.

Originally posted at InjuryBoard by Joe Saunders

Kugel Mesh Hernia Patch Recalls and Patient Safety

Joe Saunders — Mon, 13 Oct 2008 10:37:19 GMT

The Kugel Mesh hernia patch recall has caused untold suffering among those who thought they were having a routine hernia repair surgery. If they received the Kugel hernia patch in their hernia repair surgery, the nightmare was just beginning. Instead of experiencing relief from their hernia, many have had to undergo multiple follow-up surgeries to remove the defective hernia patch as well as complications caused by the broken Kugel mesh patch. The memory recoil ring in the Kugel mesh patch is subject to breakage when placed inside the abdominal cavity. The breakage can lead to bowl perforations and/or chronic intestinal fistulae.

Many of my Kugel mesh clients continue to suffer from the abdominal pain and intestinal fistulae after having surgeries to correct the problem.

Unfortunately, Davol underreported the number of adverse incidents it had received from doctors using the Kugel Mesh patch. The FDA has criticized Davol for its slow response to the medical device defect. Davol didn't issue its first Kugel Mesh device recall until December 2005. This is after it had already received 10 reports of device failures including a fatality involving the Kugel mesh patch.

Originally posted at InjuryBoard by Joe Saunders