Articles Posted in Products Liability

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A delicious home made salsa pico de gallo with tomato, red onion, lime, cilantro, and jalapeno pepper.

People often ask me, “Mike, what kinds of NY personal injury cases do you take”?  My answer is simple:  Cases I can win.  I don’t mind if they are tough to win, but at least they must be winnable.  I want to help my clients, and taking an unwinnable case does the client no favor.  Tough for me to get paid on unwinnable cases, too, since I operate almost exclusively on a contingency fee basis.

Funny that no one ever asks me what kind of cases I don’t take.  Glad you asked.  I just read about a case that is the poster child for a case I would not take:  A Texas entrepreneur, Henry Riojas, recently sued a tortilla manufacturer claiming bad tortilla chips caused him to have a stroke.

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This summer, a 28 year-old man was driving along Owasco Street in Auburn, New York when, for no apparent reason, he drove off the road and smashed into a tree.  When the police arrived on the scene and interviewed him, they learned what had caused the crash.  Was he talking on his cell phone?   Nope.  Texting?  Guess again.  Answer:  He was playing “Pokemon Go”.  Completely immersed in the game, he forgot he was driving a car and crashed into the tree.

For those of you who don’t know about Pokémon Go, it is a HUGELY popular game among Millennials played in “virtual reality” on a smart phone.  The game allows its users to travel around looking for “Pokémons” (the name in Japanese means “pocket monsters”), capture them, and then use them to conquer Pokémon “Gyms” (arenas). Players hatch Pokémon “eggs” by walking while playing.  Players need to go near “Pokéstops”, which are landmarks where they can pick up things to advance in the game.

The car accident made national news and was a wake up call to local police regarding the dangers of the new “hit” game (pun intended). In the wake of the crash, Auburn police offered the following advice to Pokemon Go players:

donald trumpIn the TV smash hit “The Apprentice”, Donald Trump famously trumpets the words “you’re fired” when dismissing a contestant for failing to live up to his high job performance expectations.

Well, Trump isn’t the only one. Honda yesterday uttered those same words to Takata, the Japanese maker of the infamous defective shrapnel-shooting airbags.

Maybe it was “you’re fired” or maybe “Sayonara”.  But by any measure, Takata had a bad day yesterday. Longtime customer Honda dumped the company right after the National Highway Traffic Safety Administration (NHTSA) slapped Takata with a $70 million penalty for failing to promptly disclose the dangerous defects in its airbags.

juryOur jury system is in trouble, big trouble, and that’s no small matter.  It’s a Constitutional matter.  The right to a civil jury trial is enshrined in our Constitution’s Seventh Amendment as part of the Bill of Rights.

But that right is under siege, as explained in a recent series of New York Times articles. Who is assaulting this important right? Corporate America.  Corporations are tucking away arbitration clauses into the contracts their customers and employees are routinely required to sign. These arbitration clauses state something like this: “The company may elect to resolve any claim by individual arbitration”. With these simple words, corporations are depriving millions of Americans to their Seventh Amendment right to a jury trial.

Examples abound.  Do you have a credit card, a cell phone, or internet service? Then you have given up your right to a jury trial in any dispute with those companies.  In the fine print of your service contract lies a hidden a requirement that you “arbitrate” any disputes at a forum pre-selected by the corporation. The same is true in many employment contracts you might sign. Think your boss has discriminated against you? No jury.  No Court.  Arbitration.

20130402_151224Duck_tour_londonThe photo on left is of my then 16 year-old son and me a few years ago as we were about to board the Duck Boat for a tour of Boston and its harbor. The “Duck Boat” – for those that don’t know — is a six-wheeled amphibious vehicle originally used as U.S. military landing craft during World War II, but later adapted for tourists in cities with a harbor, river or lake such as Boston, London, Philadelphia and Washington.

It was a cool ride!  We drove around B-Town, then drove right into the Harbor and kept going.  The tour guide — Duck Dude —  joked all the way through the tour while sharing useful and sometimes not-so-useful but sure-as-hell entertaining information.

But there is sad news this week for Duck Boat lovers. A Seattle Duck Boat crashed into a charter bus full of college kids. Terrible accident sending 50 people to the hospital.

treadmill accident.jpgLast week, Sheryl Sandburg’s (Facebook’s second-in-command) suffered a big loss. Her husband, David Goldberg, died after cracking open his head in a fall off a treadmill. Dave Goldberg was a Silicon Valley giant in his own right, too (digital-music entrepreneur, Yahoo executive). You can read about him here.

But I am not blogging about Mr. Goldberg or his famous wife. Instead, I am blogging about the cause of his death: A treadmill.

Treadmills are the most popular piece of exercise equipment today. Go to any Y or health club and you will see row upon row of them. More than 50 million Americans use them. I am one of them.

chairlift.jpgAs an avid skier, I was distraught to read about another terrible chairlift malfunction at Sugarloaf Mountain in Maine. The chairlift suddenly started moving swiftly backward. Seven skiers were pretty seriously injured, some of them because they removed their skis and jumped to “safety” from the chairlift, fearing that they would be more severely hurt if they wound up getting spun through the chair housing unit at the bottom. More than 200 people were later evacuated from the chairlift over a 90-minute period.

This isn’t the first time a chairlift malfunctioned at Sugarloaf. In December of 2010, a chairlift cable derailed, dropping 5 chairs violently to the ground. Five adults and three kids were injured in that accident. That time Sugarloaf was at fault for negligent operation of the lift. Sugarloaf paid out-of-court settlements to the victims.

This time the manufacturer of the chairlift – Partek Ski Lifts — is to blame. Engineers believe a design flaw prevented a safety system from locking the chairlift in place after a mechanical failure caused it to begin moving in reverse.

Reid.jpgIt’s all over the news: Seventy-four year old Senate Minority Leader Harry Reid’s power workout “backfired” on him. Literally.

In a freak accident, the senator was using an “elastic exercise band” to do some kind of exercise in his bathroom, with the band attached somehow to his shower door. As he “flexed”, the band “snapped” and sent him flying across his bathroom floor where his face met some cabinets. He suffered such severe facial injuries that he risks losing the sight in one eye. He also broke a number of bones around his right eye and four ribs. See photo!

Ouch!

xarelto.jpgA couple of years ago, I developed arterial fibrillation, more commonly known as “afib”, which is not uncommon with people 50 and older. My dad had it from the time he was 50 until he died at age 86. It’s not life threatening, but does raise the risk of blood clots, which can lead to strokes.

The treatment? Blood thinners. “Thin” blood can’t clot so easily, and thus prevents stokes. My dad used the blood thinner of his era – Coumadin (warfarin) – for 35 years. The problem with Coumadin was it was not user friendly. Dosage depended on diet, age, and other medications being taken. With Coumadin, patients had to get blood tests monthly or more often and watch their intake of vitamin K, which could lessen the effectiveness of warfarin.

Coumadin – with all those hassles – is now considered “old school”. I am using a new generation blood thinner called “Xarelto” (rivaroxaban). The advantage of Xarelto over Coumadin is that one size fits all. Almost anyone can take 20 miligrams and be protected from blood clotting, and thus protected from strokes. No need for monthly blood tests. Just pop the pill once a day and your good.

Honda.jpgMaking big auto companies self-report to the government fatal accidents and injuries caused by their vehicles is kind of like having the fox report to the farmer how many hens he ate. The fox is likely to under-report.

Same with Honda. And as a result, the “farmer” (the National Highway Traffic Safety Administration — our top federal auto safety agency) has fined Honda a record $70 million for its gross under-reporting.

The penalty is double the one slapped on General Motors just last year for being slow to identify safety problems.

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