Central New York Injury Lawyer Blog

Cover-ups. Personal injury lawyers here in Syracuse, Central New York, and everywhere, love them. We play them for all they are worth. Think about those big tobacco lawsuits. Would those smokers have rung the bell with those big pain and suffering verdicts without evidence that the tobacco industry had covered up what they knew about smoking and cancer? Nothing makes a jury madder than a cover up. And nothing pushes the size of a personal injury verdict up more than raw anger.

This blog post is about the Toyota defective pedal dilemma. But first, let me digress (again!).

In a Syracuse New York personal injury lawsuit I handled a few years ago, the insurance company hired an expert witness, an orthopedic doctor, to testify that my client's lower back injury was pre-existing and therefore not caused by her slip and fall on the defendant-restaurant's wet floor. He based this opinion in part on the fact that my client had not complained about lower back pain until two weeks after the fall. He was wrong and I knew it. My client had reported back pain at the emergency room. I noticed, when I looked at the list of records the doctor claimed to have reviewed in reaching his opinion, that a key record was missing --- the emergency room records. So my cross-examination of the doctor was all about a "cover up". I insinuated that the insurance company had "covered up" this ER report, that they had deliberately hidden it from the doctor. Maybe they didn't. Maybe it was an innocent mistake. But the cross-examination was brutal, and the insurance company lawyer knew it. A large personal injury settlement soon resulted.

My point: Cover-ups piss juries off!

Now back to Toyota (finally!). Congress has apparently gotten its hands on "secret" Toyota documents from a turncoat former Toyota lawyer. Apparently, these secrete documents show that Toyota's own investigators had knowledge of the sticking pedal defect yet covered it up.

A cover-up is a game-changer for a personal injury case. The main issue becomes, what did they know and when did they know it? If Toyota can show it made efforts to investigate the sticking-pedal problem, and then to resolve it, and did not drag its feet, and especially that it did not cover up its findings, it will fair much better in court. But if the jury smells a cover up, all bets are off. Toyota can expect a string of large verdicts against it, maybe with punitive damages to boot. So, Toyota, if you have "covered up", get ready to "pay up"!

Surprise, surprise. Toyota is getting sued. Just this past Monday, a grieving Texas widower filed a wrongful death lawsuit against Toyota, claiming that a defective accelerator pedal in a 2009 Corolla caused his wife's death. There have been about 10 lawsuits filed in the U.S. and Canada so far for injuries allegedly caused by the sticking-pedal problem.

Some of Toyota's most popular models, such as Corolla, Camry, Tundra and Rav, are subject to a Toyota recall, mainly for vehicles built between 2008 and today. But even as Toyota has already recalled about 6.5 million vehicles, some people are getting hurt, and they are suing.

When you manufacture a car whose pedal tends to stick in the down position, either because it just sticks, or because a dangerously designed floor mat catches it and makes it stick, you should expect to get sued. Under New York products liability (defective products) case law, which is similar in most states, a manufacturer or distributor of a defective product can be held liable even if it was careful in designing and manufacturing the product. The only thing that counts, really, is if the product ends up, for whatever reason, being "unreasonably dangerous". If it is, then the manufacturer and distributors must generally pay for the harm in a New York defective product liability lawsuit.

An accellerator pedal that stick is sure a good candidate for "unreasonably dangerous".

But still, I was feeling sorry for Toyota. After all, they gave us the Prius, a nice green-step forward. And they made good, reliable cars.

Then one of Toyota's former lawyers, Dmitrios Biller, hit the news waves claiming that Toyota had tried to suppress evidence of the pedal-sticking defects, and that it had ignored safety concerns that could have prevented fatal accidents. (Sound familiar? How about tobacco litigation?)

But even then I was still in Toyota's corner, at least a little. Weren't they the little guys of the 60's who made it big in the 80's through sheer guts and competitive spirit?

But then Biller, the whistle-blowing former Toyota lawyer, told ABC News that "Toyota in Japan does not have any respect for our legal system. They did not have any respect for our laws".

Now that got to me. Our U.S. legal system not good enough for you, you say? Well, then, we'll just teach you a lesson with some good'ol U.S. lawsuits.

Child safety is a major personal concern of mine. I have five children; three grown, and two not quite. As such, I know first-hand the worries of a parent about dangerous or defective toys. Although toys are not always safe in the U.S., I believe we have the safest toys in the world. Why?

The most potent engine in America for protecting consumers from dangerous and defective products, including toys, is the products liability lawyer. Defective product attorneys in Central New York and elsewhere have saved thousands of lives by forcing manufacturers of dangerous or defective products to make their products safer or else pay the consequences by way of large jury verdicts for pain and suffering, lost wages, wrongful death and medical expenses.

The second most powerful engine in the U.S. for making consumer goods safer is arguably the Consumer Product Safety Commission (the CPSC). It is the U.S. agency charged with protecting consumers from dangerous and defective products. The CPSC decides when "recalls" of products are required. In this year alone (2009) the CPSC recalled 466 products. For example, the CPSC recently ordered the recall of Roman shades and roll-up blinds after the shades had already caused five deaths and 16 near-strangulations. The agency monitors the safety of about 15,000 products, including household goods, sports equipment, furniture and toys. (Other Federal agencies are charged with monitoring, and recalling if necessary, dangerous automobiles, food, beverages, pesticides and cosmetics).

But the CPSC does not always put safety first. Although a 2008 congressional overhaul of the CPSC put more emphasis on childhood safety and increased the CPSC's budget for this purpose, the agency's commissioners voted last week to delay, for a second time, requiring certification and independent third-party testing of lead in children's products. Lead in children can cause, among other harms, permanent brain damage. The agency appears to have bowed to pressure from manufacturers who were worried about the business cost of the new requirement. In another compromise of safety, the CPSC commissioners voted to permit manufacturers and importers to rely on lead testing from the suppliers of zippers, paint, buttons and other parts that are used in toys, clothing or other children's products, rather than have them test the entire finished product.

What does this mean for you, the consumer? You still can't trust that the toys and other products you buy for your kids are lead-free. Be careful about what your infant or toddler puts in his or her mouth.

This holiday season, hundreds of central New Yorkers will unknowingly purchase dangerous defective toys in malls and stores in Syracuse, Rochester, Auburn, Geneva, Waterloo and other upstate cities. Dangerous Toys Lead to Injury, Death and, eventually, to defective product Lawsuits.

According to the most recent U.S. Consumer Product Safety Commission data, last year, 2008, defective toys caused the deaths of 19 children and resulted in more than 82,000 emergency room visits by children under age 5. Many of these injuries and deaths lead to product liability lawsuits in which the injured or killed children's parents alleged that the toys were defective or overly dangerous.

Despite all the bad publicity dangerous toys bring to their manufacturers, toy makers continue to make some toys that are unreasonably dangerous for children, especially small children.

The U.S. Public Interest Research Group (PIRG) recently released its 24th annual "Trouble in Toyland" report. Once again, the three most dangerous characteristics of the toys on its list were: (1) choking hazard; (2) excessively loud; (3) contained toxic chemicals.

CHOKING HAZARDS: This is the number one cause of toy-related deaths. The danger is mostly for children three years old or younger. The good news: You can easily learn to identify a choking hazard. Check toys to see if they have small parts that can fit into a toilet paper tube. If they can, the toy is a choking hazard. Also, avoid small balls and round objects for small children. Balls should be at least 1.75" in diameter. Also, be aware that balloons, and pieces of balloons, can completely block a child's airway. Children under 8 years of age should never be given balloons.

NOISE HAZARDS: Children's ears are more sensitive than adults', and thus are vulnerable to noise-induced hearing loss. If a toy seems too loud for an adult's ears, it is surely too loud for a child's. Most toys should be no louder than 85 decibels at 10 inches away. If the toy seems too loud, cover the area emitting the noise with duct tape to reduce the volume.

TOXINS: Children are more vulnerable than adults to harmful chemicals because of their young, developing systems. The two most important chemicals to avoid are lead and phthalates. Lead is still often found in costume/novelty jewelry. Young children who tend to put things in their mouths should not be given such "toys". Lead exposure in children can lower IQ, delay mental and physical development, and even lead to death. The other chemical mentioned, phthalate, is linked to reproductive defects, genital abnormalities and early puberty. Phthalates are used to make plastic softer. A 2008 federal law banned them in children's products. When buying soft plastic toys, look for toys labeled "phthalate-free." Avoid plastic bath toys or bath books, unless they have the label.

PIRG has also made available a new interactive tool that can be accessed by computer or smart phone to help parents avoid dangerous toys. Parents can also report an unsafe toy on the site, which PIRG will then investigate.

Buy safe toys. Have a happy and safe holiday season,

In a New York product liability case, the jury recently awarded $8.75 Million to a pedestrian whose leg was crushed, and later amputated, when he was hit by a 1987 Volvo 740 wagon. The car did not have a "clutch starter safety switch", which requires the clutch to be pressed all the way down before the standard transmission car can be started. This safety device prevents a driver from accidentally starting the vehicle while in gear, thus causing the car to lurch forward, which is exactly what happened in this case. Volvo did not start installing these devices in its vehicles until the year 2000. One of the representatives for Volvo admitted, under oath, that the safety switch was available back in 1987, but that the company had declined to install it on cars sold in the U.S. In finding Volvo liable for this decision, the jury considered the fact that the safety device would have cost Volvo only $5 to install. This large New York defective product award includes compensation for medical expenses, lost earnings, and past and future pain and suffering.

This case demonstrates an important principle of product liability law: Whether a product is deemed "defective" often depends on whether a safer design existed at the time of its manufacture. If the safer design would have been relatively cheap to implement, when balanced against the dangers of not implementing it, a jury will often find that the manufacturer's product was defectively designed, which means that it was UNREASONABLY dangerous. Sure, all cars are SOMEWHAT dangerous; they are heavy machines designed for travel at fast speeds. But why make them more dangerous than they have to be? That is the whole purpose of product liability law; to hold manufacturers responsible for the harm they cause when they produce products that are more dangerous than they need to be. This jury, and juries like them, help make the world a safer place for all of us. Volvo and other manufacturers will think twice the next time they decide whether to omit a safety device that would cost them only $5 per car to install.

On Tuesday, November 24, I took my two children (Sebastian, 12 and Nico, 10) to get their H1NI flu vaccination at the Bristol Field House at Hobart William Smith College in Geneva, Ontario County, New York, where we live. Although I firmly believe this was the right decision, I can never just "relax" when my kids are getting medical treatment, especially a new and relatively untested treatment such as this vaccine. A nagging voice in my brain always asks, "what if the authorities make a mistake, for example, give them the wrong doses?" This "what if" thinking haunts me more than most parents because of what I do all day long; I review and handle, among other types of personal injury cases, medical malpractice cases, in Geneva, Phelps, Penn Yan, Seneca Falls, Waterloo, Auburn, Weedsport and Syracuse, New York, and in a lot of other places in New York State as well. I see a lot of medical mistakes. I am therefore perhaps overly wary of them.

Maybe that little voice in my head wasn't so off base. I just read today that the Center for Disease Control and Prevention alerted residents of Needham, Massachusetts that a vaccine wrongly labeled H1N1 was administered to 47 residents. The residents were instead vaccinated against another strand of the flu. This happened on November 24, the same day my kids were getting vaccinated! The Massachusetts Health Department contacted all 47 recipients to inform them that they had gotten the wrong flu shot. Fortunately, no one got sick. The recipients are simply immunized against a more common seasonal flu and not immunized against the swine flu.

What if one of them contracts the swine flu and dies before he has the opportunity to get the REAL swine flu vaccine? In my opinion, the estate of that person would have a slam dunk lawsuit against who ever made the error. If it was a doctor or hospital, the case would be framed as a medical malpractice case. If it was a pharmaceutical company, the suit would be brought as a products liability case. Either way, I cannot think of a single defense that would defeat such a claim.

On the other hand, if the recipients of the wrong flu vaccine do not now diligently seek out the "real McCoy" swine flu vaccine, and then contract the swine flu and die, the defense could argue both that the deceased "failed to mitigate her damages" (legalize for "you could have prevented or minimized the harm to you but chose not to") and that the deceased''s own decision to not pursue the available swine flu vaccine caused her death rather than the pharmaceutical or medical error that occurred earlier.

My advice to those 47 Massachusetts residents: Go get that HINI flu shot as soon as you can.