Austin Personal Injury Lawyer - Defective & Dangerous Products

GM Hopes To Use Its Bankruptcy To Avoid Liability For Its Product Defect Claims

Brooks Schuelke — Mon, 29 Jun 2009 17:22:34 GMT

At a critical hearing tomorrow, GM's bankruptcy judge will be asked to approve the current plan for the transfer of assets from GM to the "new" GM. As part of that plan, all existing personal injury claims arising from defects in GM vehicles will be classified as unsecured creditors, and the claims will be discharged.

What does that mean? Injuryboard writer Jane Akre had a wonderful story earlier today about Lexi James. Lexi was a precious young girl who was killed after the 15 passenger van she was traveling on rolled over after experiencing a blow-out. Lexi was ejected from the van during the roll-over despite wearing her seat belt. Lexi's family had filed suit against GM to seek some accountability, but that accountability will be unavailable if the bankruptcy goes through.

If you're opposed to these losses of claims, you can still act by calling the White House (202-456-1414) or sending a fax (202-456-2461) and asking them to intervene on behalf of Lexi and all those others injured by GM's defective products.

Originally posted at InjuryBoard by Brooks Schuelke

Will Retailers Push Toys With Lead Paint This Holiday Season?

Brooks Schuelke — Tue, 18 Nov 2008 17:06:29 GMT

I've been critical of the Consumer Product Safety Commission, but I wanted to give them credit for implementing a new regulation requiring manufacturers and retailers to stop selling inventory that doesn't meet new tougher lead paint standards by February 10, 2009.

Today's Wall Street Journal reports on smaller retailers and manufacturers asking that the requirement be relaxed until they get rid of their current inventories.

But what if the rules aren't relaxed? Then the businesses have a big incentive to get the product off their shelves before the February 10 deadline. I haven't seen any suggestion of this in the press, but it occurs to me that one way for the vendors to meet that deadline is to try and unload the product during the busy holiday shopping season. Perhaps all of us that are parents or otherwise shopping for kids ought to be cognizant of this risk as we go shopping the next six weeks.

I think it also puts the vendors in an awkward liability posture. Through the new regulations, the federal government has essentially said that products that are above the new allowable levels are dangerous. How can a business now know the dangerous levels and continue selling the products that don't meet that standard without risking liability?

Unfortunately, I don't have any answers today, just interesting questions.

Originally posted at InjuryBoard by Brooks Schuelke

Hallelujah! Packaging to Improve

Brooks Schuelke — Sat, 15 Nov 2008 11:51:11 GMT

It's a Christmas or birthday ritual. Your child opens a gift, sees the toy he or she has been waiting for, and then a parent spends the next hour (or two) trying to extract the toy from the ridiculous plastic packaging. Thankfully, retailers are taking note. This year, many companies, such as Sony, Amazon.com, and Best Buy are rethinking the way they package their products to minimize this problem. After an election season where many families, offices, etc were divided, I think we can all agree that this is great news.

But why is it personal injury related and why am I posting it here? About 6,000 Americans each year visit emergency rooms with injuries caused by trying to pry, stab and cut open their purchases, according to the Consumer Product Safety Commission. So not only will this change mean more convenience, but also increased safety. And I think that's good news for all of us.

Originally posted at InjuryBoard by Brooks Schuelke

Two New Studies Regarding Products Liability Claims Are Released Today

Brooks Schuelke — Fri, 14 Nov 2008 09:15:31 GMT

There were two new studies released today, each discussing the need for the civil justice system to address defective products. First, Professor Andrew Popper from the American University, Washington College of Law in DC released Defective Foreign Products in the United States. The premise of the study is:

There is no mystery regarding the flood of dangerous and even deadly consumer products manufactured abroad and sold in the United States. Foreign manufacturers are not naïve. They understand the effect of state and federal laws that limit or eliminate tort liability, known, oddly enough, as tort reform. They understand the difficulty of securing a product liability judgment against a domestic wholesaler or manufacturer – and they understand that as foreign producers, they are not only shielded by tort reform but also protected by the complex web of laws, policies, and practices that make it difficult if not impossible to sue successfully foreign manufacturers in domestic courts. Stripped of the incentive value the tort system provided, it should come as no surprise that domestic consumers have been exposed to tens of millions of defective products produced by foreign suppliers.

Professor Popper looks at the flood of foreign defective products in the US market, the role of products liability claims, the decreased effectiveness of governmental regulators, some issues in suing foreign manufacturers, and some proposed steps for protecting the public.

The second study, Societal Costs of Dangerous Products: An Empirical Investigation, looks at the costs of injuries and fatalities associated with Ford SUVs with Firestone tires, the drug Baycol, and all terrain vehicles (ATVs). These three products created nearly $4.7 billion in medical costs, lost wages, and other costs, excluding the cost of pain and suffering and other extended costs.

These are just two more studies to keep in mind, not only when contemplating traditional tort reform, but also the ill-fated idea of federal preemption.

Originally posted at InjuryBoard by Brooks Schuelke

What Does Obama's Election Mean For Preemption?

Brooks Schuelke — Thu, 06 Nov 2008 12:01:52 GMT

We've spent the last month talking about preemption and earlier this week the Supreme Court heard the critical case of Wyeth v Levine, but was it all for nought? Is it possible that an Obama administration combined with a Democratically controlled Congress will simply pass legislation that will reverse any preemption decisions? That's certainly the thought being bantered about in the blogosphere.

The noted bloggers at Pharmalot stated earlier this week:

This point has been mentioned before, but not very prominently, in the discussions leading up to today’s US Supreme Court review of the Wyeth v. Levine preemption case. As The Legal Times notes, a Democrat in the White House and a Democratic Congress could erase any preemption protection companies have won in the last eight years. Bills are already before Congress to do just that.

They hypothesize that the American Association of Justice's release of its study on preemption (which we covered here) and the release of internal FDA documents criticizing preemption (covered here ) were part of a plan to help pass that proposed legislation.

I hope they're right. I think my views on preemption are well known, and I hope we do get some positive result on that front from an Obama win.

I have also written a post discussing my views on Obama's effect on tort reform, in general, that readers might find interesting.

Originally posted at InjuryBoard by Brooks Schuelke

The FDA Is Criticized For Its Stance On BPA

Brooks Schuelke — Sat, 01 Nov 2008 10:16:19 GMT

Those watching the news have surely heard about the BPA controversy. BPA is a common product used in plastics, including hard plastic water bottles, baby bottles and the linings of soda cans. It has been used for years, but now is under fire for being the potential cause of health problems, including early onset of puberty and cancer.

In August, the FDA released findings that BPA didn't pose an immediate health risk. The FDA's findings contradicted more than 100 studies. Now those findings are now being criticized within the agency. Yesterday, the FDA's Science Committee voted unanimously to accept a report criticizing any findings that BPA is safe and called upon the FDA to consider more studies. The report criticized the FDA for relying too heavily on BPA studies funded by manufacturers.

There are also criticisms that the FDA isn't looking out for the consuming public.

The margins of safety defined by FDA as adequate are not adequate," said Martin Philbert, chairman of a seven-member subcommittee commissioned by the FDA's Science Board to review the agency's findings regarding bisphenol A.

But critics say that more studies only means more time that BPA products are on shelves:

"The FDA is once again taking up the traditional call of the chemical industry that "more research is needed to settle all uncertainties before we take regulatory action" -- delay, delay, delay!" said Frederick vom Saal, a leading expert on BPA and a professor or reproductive biology and neurobiology at the University of Missouri-Columbia.

The Canadian government has already banned BPA in baby bottles, and many U.S. states are considering similar measures. At the same time, many retailers such as Walmart have pulled products containing BPA off their shelves.

In the FDA's defense, they do appear to already be conducting additional tests to address the problems of low-dose exposures to BPA. However, it is unclear about how this issue will go forward.

Again, getting into lawyer mode, this controversy says a lot about complete immunity preemption. It is becoming abundantly clear that the FDA and other federal governmental regulatory bodies do not have the will or capability to fully protect the public. Thus, I would think that people would conclude that state tort claims are a necessary aid to help protect the public. And yet, the Bush Administration and others continue to attempt to expand their form of tort reform by pushing for more preemption claims. It just doesn't make a lot of sense to me.

Originally posted at InjuryBoard by Brooks Schuelke

Halloween Candy Recalled -- Be On The Lookout For Chocolate Pirate Coins

Brooks Schuelke — Tue, 28 Oct 2008 12:09:26 GMT

The problems with Chinese products may come to the public's attention this year as more and more Chinese Halloween candy is recalled. Yesterday I received a belated notice that Sherwood brand chocolate pirate coins were being recalled in Canada because they contained melamine. This morning's Vancouver Sun had an article about the Canadian government's candy recalls.

I have a 5 year old and 8 year old, and frankly, it scares me. I think the best advice parents can take this year is to try and stick to the big manufacturers, who are generally less likely to be importing milk products from China.

Now, forgive me as I go in lawyer mode. I would be remiss if I didn't mention how this affects preemption. The basic premise behind preemption is that a company should get complete immunity from lawsuits if it complies with governmental standards because the government does a good job of protecting its citizens. But this is a perfect example of why preemption doesn't work. This problem was caught by the Canadian government, and as far as I know, the US Food and Drug Administration hasn't done anything. They are simply overworked and don't have the resources to completely protect the public.

Heaven forbid one of your children was poisened by this candy and died. If the Bush Administration had its way, you wouldn't be able to hold the wrongdoers accountable because the manufacturers complied with the existing regulations. That's simply unacceptable to me.

Okay. Off my soapbox. Just be diligent over the next few weeks and make sure that the candy that your kids (and you) are eating is safe.

Originally posted at InjuryBoard by Brooks Schuelke

The Wall Street Journal and the American Association of Justice Show How Timely We Are On Complete Immunity Preemption

Brooks Schuelke — Wed, 15 Oct 2008 12:29:05 GMT

Those of us at Injuryboard have been discussing complete immunity preemption issues for the entire month.

There were two big developments in the federal preemption story today. First, the Wall Street Journal has an article today discussing the Bush administration's efforts to expand complete immunity preemption before the president leaves office. The article states:

Bush administration officials, in their last weeks in office, are pushing to rewrite a wide array of federal rules with changes or additions that could block product-safety lawsuits by consumers and states.

The administration has written language aimed at pre-empting product-liability litigation into 50 rules governing everything from motorcycle brakes to pain medicine. The latest changes cap a multiyear effort that could be one of the administration's lasting legacies, depending in part on how the underlying principle of pre-emption fares in a case the Supreme Court will hear next month.

Unfortunately, these regulations are not something that can easily be undone. Rulemaking is a tedious process that will provide significant immunity to defendants while a new administration works to undo the rules:

These new rules can't quickly be undone by order of the next president. Federal rules usually must go through lengthy review processes before they are changed. Rulemaking at the Food and Drug Administration, where most of the new pre-emption rules have appeared, can take a year or more.

An additional problem with this delay is that new developments come along quicker than regulation changes. For example, assume a manufacturer makes a product that complies with a regulation and preemption applies. Unfortunately, someone discovers a life-threatening feature of the product that is making thousands of children sick. It could take a year or more to get regulations changed to reflect these developments. During the interim, the manufacturer is protected even if it knows that the product is harming the kids because it complied with the outdate regulation. That is simply unacceptable to the protection of our nation's citizens.

I am also amazed at how brazen the administration and industry have been in admittedly going the rulemaking route because they know that Congress wouldn't approve these rules. The article states:

Mr. Lefkowitz [former Bush domestic-policy adviser] said the administration decided not to press its pre-emption agenda in Congress, where it might lose. "There was already authority within federal government statutes and regulations to start the reform process without legislation," he said. "Using that and legal briefs, we proceeded."

A video from the Wall Street Journal discussing the problem is available here:

Not to be outdone, the American Association of Justice also released a report on complete immunity preemption entitled GET OUT OF JAIL FREE: HOW THE BUSH ADMINISTRATION HELPS CORPORATIONS ESCAPE ACCOUNTABILITY. The report is based on numerous Freedom of Information Act requests sent to various regulatory agencies. Though there are numerous conclusions, the most important parts of the study show a top-down coordinated plan on preemption and show the very cozy relationship between many federal regulators and the corporations that they are supposed to regulate.

Until now, the administration has denied that it was seeking a comprehensive plan, and that each agency was left to its own decisions. Not any more. Emails in the report detail how much involvement and coordiation there was among agencies.

Emails also show not only close relationships, but detail how there is a constant flux of employees going from the regulatory agencies to the various industries and vice versa. That's certainly not a situation conducive to protecting the public's rights.

The report concludes:

During the Bush administration, several federal agencies, headed by political appointees, have embarked upon an unprecedented campaign to negate the effect of state laws that protect consumers and injured workers—in effect granting immunity to irresponsible corporations. Without any constitutional authority, and often in direct contradiction to their own prior policies, these agencies have begun claiming that their own rules preempt state laws. Preemption of state law can leave individuals with no restitution for injuries caused by irresponsible corporations and further stacks the deck against American workers and consumers. It is just one part of a campaign by big business lobbyists to emasculate state consumer protection laws, and weaken regulatory scrutiny.

We obviously believe this is a huge problem. The long history of product regulation has been based on the fact that federal regulations and state tort law work in concert with one another to protect members of the public. But now, these preemption issues completely take away your rights. If you want to know more about complete immunity preemption, I also urge you to visit the following injuryboard writers who are talking about this issue:

Lansing, Michigan personal injury lawyers Dave Mittleman and Devon Glass

Cherry Hill, New Jersey lawyers Mike Ferrara and Camryn Hansen

Des Moines, Iowa personal injury lawyer Steve Lombardi

Originally posted at InjuryBoard by Brooks Schuelke

Seat Belt Rules Provide A Timely Example of Preemption

Brooks Schuelke — Wed, 15 Oct 2008 07:55:00 GMT

Last Friday, I wrote a post about preemption by rulemaking, but even I didn't know how timely it was.

Thursday afternoon the National Highway Traffic Safety Administration issued new rules governing seat belt safety. Inserted in the preamble to the rule and the rule itself was a provision stating that the rules preempt state law tort claims related to seat belt injuries. If the manufacturer complies with the rules, whether or not the rules are adequate to protect consumers, then they are off free.

The problems? Historically, litigation has been a key to improving safety, particularly in the automotive industry (remember the Ford Pinto?). Joan Claybrook, the president of Public Citizen and a former administrator of NHTSA states:

The fear of lawsuits is one of the greatest incentives automakers have to build stronger and safer vehicles. For NHTSA to suggest that automakers should have blanket immunity from consumer liability lawsuits means that more defective vehicles will be manufactured, fewer will be recalled, the public will have less information about injury causation and more families will needlessly lose loved ones on our roads each day

And another automobile example shows just how egregious preemption can be. The NHTSA is currently in the process of rewriting rules relating to roof crush safety. Despite the fact that the process was begun in 2005, the agency is telling Congress they need two more months to get a final rule. Amazingly, the existing rule is 35 years old.

"So what?" you ask. The 35 year old standards are just out of date and useless. Clearly, there have been many technological advances that have greatly improved the safety of vehicles. But if preemption applied, manufacturers could argue that no matter the improvements in technology, they still couldn't be held liable because they complied with the 35 year old standards. That's not justice.

Governmental agencies just aren't nimble enough to keep up with ever changing technology. Heck, it's taken three years for the roof-crush process to wind its way from start to completion. What was state-of-the art at the start of that time frame may no longer even be relevant to what's state-of-the art today. And that's not to mention the original 35 year old standards. If manufacturers are only required to comply with such out-of-date standards due to preemption, too many lives will have been lost.

Originally posted at InjuryBoard by Brooks Schuelke

Federal Preemption Part 3: A Products Liability Case Study As Example of Implied Preemption

Brooks Schuelke — Wed, 08 Oct 2008 10:47:32 GMT

As you know, several Injuryboard attorneys are taking the month of October to discuss federal preemption. We started off with an overview of preemption and then posted earlier this week describing how express preemption might apply to claims. Today, we'll look at another case study to provide an example of how implied preemption might occur.

The case we'll use as an example is the 2002 U.S. Supreme Court case of Sprietsma v. Mercury Marine, which involved the design of boat propellors. The statute at issue was the Federal Boat Safety Act of 1971, which gave the Coast Guard the authority to create regulations establishing minimum safety standards for boats. Using this authority, the Coast Guard enacted a host of regulations that provided some mandates about safety equipment that boats must have.

In the late 1980s, the Coast Guard studied a potential requirement that would require recreational boats to provide propeller guards so that boaters weren't cut by propellers. After an 18 month investigation, the Coast Guard decided that it was not going to make such a requirement, and no regulation was adopted.

Sometime after that, Jeanne Sprietsma was killed when she fell out of a boat and was mangled by a boat propeller. Her husband and her estate filed suit against Mercury Marine, the boat's manufacturer, arguing that the boat design was defective because the boat didn't have a propeller guard. According to the plaintiffs, failure to include this available safety device made the boat unreasonably dangerous as defined by Illinois law.

The Illinois Supreme Court ruled that the case was preempted by the Federal Boating Safety Act and the Sprietsmas' claims were wiped out. Fortunately, they appealed to the U.S. Supreme Court, who held that the federal law didn't impliedly preempt the state law claims.

The manufacturer argued for uniformity; it contended that allowing one state to say that no propeller guard was a defect and another to rule that having no propeller guard was okay put them in a difficult position. In rejecting this argument and the implied preemption, the Court noted

The concern for uniformity does not justify the displacement of state common-law remedies that compensate accident victims and their families and that serve the Act's more prominent objective, emphasized by its title, of promoting boating safety.

The importance of this decision was huge. If the decision went the other way, then manufacturers would be off the hook whenever the federal government considered adopting a safety standard and decided not to do it. Lawsuits would have been wiped off the map in several areas, and products and the public would have been much less safe.

But that's not the end of the story. Implied preemption will again be rearing its head this year when the US Supreme Court hands down an opinion in Wyeth v Levine. In that case, a guitarist lost her arm to gangrene allegedly as a result of taking a Wyeth anti-nausea drug. The plaintiff, which won a large jury verdict, contended that Wyeth should have provided better warnings about the potential gangrene as a side-effect. Wyeth claims that federal regulations preempt state law claims, and that because they comply with the federally mandated minimums, they can't be sued. In essence, they are claiming, "look, we complied with the Food and Drug Administration warning requirements so we can't be liable." Generally, courts in the past have held that the FDA requirements were a minimum, but they weren't a ceiling. Thus, states could require other warnings (though tort law or other laws) as long as the requirements don't directly contradict the federal requirements. But this Supreme Court has been more pro-preemption than others so it will be interesting to see how that case turns out later in the year.

We'll have more on this issue later in the month.

Originally posted at InjuryBoard by Brooks Schuelke