Articles Posted in Products Liability

Not long ago cars were death traps. Then Ralph Nader, a trial lawyer, wrote a best seller called, “Unsafe at Any Speed: The Designed-In Dangers of the American Automobile“, published in 1965. The book detailed the resistance of the auto industry to investing in safety features, such as seat belts.

Then great trial lawyers brought a slew of products liability lawsuits against the auto manufacturers. The automobile industry responded by designing safer cars, featuring seat belts and then airbags, to avoid shelling out millions to mangled auto crash victims.

But the auto industry kept getting sued because lawyers kept arguing the vehicles could be made still safer, which spurred a leap-frogging of safer and safer designs. As a result, we now have side air bags, crash-resistant chassis, seat belt alarms, anti-lock brakes, etc.

Sometimes when I read the newspaper and see what greedy corporations are capable of, well, it makes me sick. This blog post is about a greedy corporation that literally made people sick.

The recent Meningitis outbreak you’ve been reading about is caused by contaminated spinal steroid injections. Many of my clients have had this type of steroid injection for back pain. A batch of steroid contaminated with a type of black mold called Exserohilum is causing the Meningitis. The manufacturer, “New England Compounding Center” in Framingham, Massachusetts caused the contamination by allowing dirty, sloppy conditions to prevail in the steroid production process

Cutting safety corners, in this case simple rules of hygiene, is always unacceptable, but when the product you are selling is getting injected into your customers’ spines?! Come on!!

Yes, there actually is an annual “Wackiest Warning Label” contest, no kidding. This year’s entries include:

• An electric razor that warns “never use while sleeping” (comment: I’ve heard of sleep walking, but sleep shaving?! Talk about light sleepers . . .)

• A decorative seven-inch globe that warns: “Globe should not be referred to for navigation” (comment: I’m hooking this baby onto my dash and tossing my GPS!)

I always chuckle a bit when I read that a manufacturer or distributor is “voluntarily” recalling one of its products for safety concerns. From my perspective as a Central and Syracuse New York products liability lawyer, companies never “voluntarily” recall anything. In fact, left to their own devices, most corporations wouldn’t even recall an exploding toy, as long as its sale is turning a profit.

Why not? Because a “corporation” is a legal creature designed for one sole purpose – to maximize profit. Nothing else matters. All that counts is the bottom line. Corporate boards are duty-bound to maximize their shareholder’s dividends and share value, and morality is completely outside, even contrary, to their duty.

So why do manufacturers and distributors of dangerous or defective goods sometimes “voluntarily” recall them? Because they have no choice. They are required to report safety concerns about their products within a short period of time (days) subject to significant sanctions if they don’t. Then, if they don’t recall the product, the Consumer Protection Safety Commission (CPSC), or a similar government safety agency, will start proceedings against them or simply “mandate” the recall. (The CPSC, by the way, is charged with protecting the public from injury or death from unreasonably dangerous consumer products.)

All metal hip implants, the newest line of artificial hips, are failing all over the U.S., the New York Times reported today. The FDA (Food and Drug Administration) has received more than 5,000 complaints since January about the “metal-on-metal” implants (both the artificial ball and cup are made of metal). As a result, many recipients of all-metal hips must undergo replacement surgery after only a few years (artificial hips should last about 15). Some patients have suffered injuries from minute pieces of chromium and cobalt shedding from the metal hips. In such cases pain, rashes and inflammation are common.

Hip replacement has come to be one of the most widely performed medical procedures in the United States. As a result, there are an estimated 500,000 patients who received all-metal replacement hips. Many of these hips were sold without testing in patients.

Because of the high rate of failure of the metal-on-metal hips, most surgeons are going back to the old metal-and-plastic ones.

Drop-side cribs should have been dropped a long time ago. Why? Because they kill. I blogged about drop-side crib deaths last year. The drop-side sometimes created a gap between the mattress and side rail where babies got caught, suffocated and died. About 40 babies have been strangled to death since 2000. This of course led to product liability lawsuits in New York and around the nation.

Are drop-side cribs convenient? Yes. A lifting side rail allows parents to easily place and pick up their baby. But in a convenience-versus-safety match, especially where babies are concerned, safety should win out.

And finally it did. This week the Consumer Product Safety Commission (CPSC) is finally banning drop-side cribs, even at yard sales! Now, all four sides will be fixed, and so will the problem of baby strangulation.

As every New York prescription drug lawyer knows, prescription drug suppliers don’t always do a stellar job warning their customers about risks associated with their products. In fact, sometimes they do a plainly lousy job. And that can cause serious injury, or even death, to prescription drug users.

But every wrong has a legal remedy, right? Who could disagree with that?

The Supreme Court of the United States, that’s who. Last Thursday the U.S. Supreme Court, by a 5 to 4 vote, in a case called Pliva v Mensing, , ruled that the makers of generic drugs (as opposed to brand-name drugs) may not be sued for faulty or inadequate warning labels. This is surprising, to say the least, since two years ago the same Court, in Wyeth v Levine, reached an opposite conclusion regarding the makers of brand-name drugs.

So what rights would we New Yorkers have to compensation in the event of a New York Nuclear Power Plant Catastrophe?

Let’s assume that Oswego’s Nuclear Power Plant suddenly broke down and started spewing out dangerous radioactivity, just like in Japan. Let’s assume your family ended up sick, or dead, and that you had to move out of your home — forever — and that its market value was reduced to zero dollars. Can you sue the Power Plant owner? If so, for how much?

Well, I’ve got some bad news for you. Even though under New York common law principles you would be able to sue the power company for every penny of compensation you were entitled to for all those catastrophic losses, a not-well-known federal law trumps New York law, and would probably force you to accept pennies for every dollar you would otherwise be entitled to.

I just read about a bicycle accident case from Texas that teaches New York riders a BIG lesson. The lesson? Preserve the evidence! Read on.

The biker recently filed a products liability suit against Trek Bicycle Corporation, the bicycle manufacturer, claiming his 2002 Trek roadbike’s steering fork cracked, causing his handle bars to collapse, which in turn caused him to hit the pavement and suffer a severe brain injury. The poor guy has been in a coma ever since. (His family filed suit on his behalf). You can read about it here.

That’s all I know about the case, but I can already tell you what Trek’s defense will be. Either: (1) the biker misused or altered the bike, thus causing the crack in the steering fork at some time before the accident, or (2) the biker lost control of the bike, fell, and the crash itself caused the steering fork to crack and the handle bar to collapse.

I have been a Central and Syracuse New York personal injury lawyer for many years now. So I have been around the block a few times. I am steeped in our civil justice system. And I have news for you: It works just fine. It ain’t broken, so don’t fix it. No “tort reform” needed, thank you.

Here’s an example of how our civil justice system automatically weeds out frivolous lawsuits without the need for tort reform.

The other day I went to visit a farmer whose arm had recently been ripped off by a piece of farm equipment. I went to inspect the machine to see if the manufacturer was to blame. If the design was unreasonably dangerous, and the dangerous machine caused the accident, the farmer would have had a good New York products liability claim to compensate him to the tune of several million dollars.

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