Product Liability

Published on: June 15, 2009

Mattel Settles CPSC Lead Paint Violation Allegations with $2.3 Million Fine

Toymaker Mattel has agreed to pay $2.3 million to settle allegations that it imported and distributed toys that contained lead levels in paints that were in excess of federal standards.

The Consumer Product Safety Commission announced the penalties, the highest ever for importation and distribution regulation violations by the agency, on its website. Mattel and its subsidiary Fisher Price, have been charged with importing toy that contained lead levels that were higher than the .06 percent by weight, mandated by federal laws. Mattel was charged with importing 900,000 toys that were non compliant with the standard, while Fisher Price, according to CPSC allegations imported more than 1.1 million toys that did not comply with those safety standards. With the fines, Mattel has put those allegations to rest.

The lead toy recall crisis of 2007 has had several positive effects – Congress moved to equip the generally-regarded-as toothless CPSC with more powers to prevent such crises. This led to the implementation of the Consumer Product Safety Improvement Act, which sets standards for lead in children’s products including toys, among other standards.

Published on: June 9, 2009

Bausch and Lomb Settles Hundreds of Eye Infection Lawsuits

by Robert N. Katz, Esq.

After Bausch & Lomb Inc. went private in 2007, the contact lens maker conducted a quiet recall of its ReNu with MoistureLoc solutions, without much fuss and away from the public glare.

As it now turns out, the company also quietly settled nearly 600 product liability lawsuits brought against it by contact lens wearers across the country, who contracted a fungal eye infection called Fusarium Keritatis. These persons claimed that the infection, which left some of them with permanent eye damage, was the result of using the ReNu with MoistureLoc multi purpose solution. Fusarium Keratitis is an extremely rare infection which means that when these cases of infection began to show up in 2005, ophthalmologists were not able to diagnose the infection correctly and treat it properly. As the result, 60 people suffered enough eye damage to require a cornea transplant, and at least 7 people lost an eye.

Several of these injured users have had their lives impacted dramatically by the infection. One race car driver in Colorado had to give up his passion for racing after he suffered severe eye damage. A Broadway actress who suffered scarring in her eye was also one of those who filed a product liability lawsuit against the company.

Published on: May 29, 2009

Chrysler Bankruptcy Proceedings Could Leave Product Liability Lawsuits in the Cold

by Robert N. Katz, Esq.

Automaker Chrysler’s bankruptcy proceedings are leaving more than dealers and workers worried. There’s another class of people who have much to lose if the automaker goes under, and little attention has been paid to their plight.

We are talking about the people who have pending product liability lawsuits against the company. These people will find that their dreams of justice are shattered when the spoils are distributed. Plaintiffs who have filed product liability lawsuits against the company fall in the unsecured creditors’ group. While secured creditors include people who have collateral, unsecured creditors include plaintiffs and other corporations. These creditors are low on the pecking order when it comes to payouts. The secured creditors will get first preference, leaving the remainder of the funds to be distributed among the unsecured creditors. Corporations that are included in the unsecured creditors’ group are likely to demand priority for their funds; leaving plaintiffs with peanuts after all other debts are paid.

According to the New York Times, it’s still not clear how these pending lawsuits will be dealt with. They could be sent back to the original courts for a decision, after which the plaintiff who have won or settled may be able to go to the bankruptcy court for their money.

Published on: May 15, 2009

General Motors Announces Recall of Vehicles for Auto Defects

by Robert N. Katz, Esq.

General Motors and the National Highway Traffic Safety Administration have announced a set of three recalls for the new Chevrolet Camaro as well as several other models of pickup trucks and sports utility vehicles, because of auto defects.

The recalls involve a total of 43,824 vehicles. The Cadillac Escalade, Chevy Avalanche, Suburban, Tahoe, Colorado, the GMC canyon and Yukon are included in the first recall of about 27,118 cars. These vehicles have a faulty seal in the fuel control system that allows water to leak through, leading to short circuits, possible engine failures or stalling of the engine. The second recall involves 15,393 Traverse SUV’s for brake system compliance failure. The third recall involves 1,243 units of the 2010 Chevrolet Camaro. The problem relates to a positive battery cable that can wear away, causing the vehicle to stall at the least, or cause an engine fire.

All three recalls have to do with serious safety problems in these vehicles. The Camaro in particular, is a highly anticipated model that seems to have already run into safety problems. There have already been at least four reports of problems with the worn out cable in these V-8 powered cars, although none of these incidents have resulted in injuries.

Published on: May 8, 2009

FDA Warns Against Using Weight Loss Supplement Hydroxycut After Reports of Liver Injuries

by Robert N. Katz, Esq.

In a month in which at least 34 weight loss products of a New York-based company were recalled by the FDA, the agency has issued another warning, this time to consumers who use popular weight loss supplement Hydroxycut, to stop using these immediately. The warning comes because of reported liver injuries in persons who took these products, including at least one death.

Hydroxycut has a lion’s share of the weight loss supplement market with close to 9 million bottles reportedly sold last year alone. The supplement is popular with people on a diet because of its appetite suppressing properties. Besides, it is used widely by bodybuilders to define muscle tone. According to the FDA, some of the Hydroxycut products also have a serious side effect – they cause liver injuries. At least one person’s death has been linked to the weight loss supplement. A 19-year-old man reportedly died in 2007 from liver injuries. Also one person has had to undergo a liver transplant procedure after he suffered liver damage from using the product. According to the FDA, it has received at least 23 reports of liver injuries caused by the supplement.

The company that makes Hydroxycut, Canada based-Iovate Health Sciences has agreed to recall all Hydroxycut products, even though the FDA has linked only about 14 Hydroxycut products to liver injuries. The company however denies that the sole death was linked to its product in any way.

Published on: May 1, 2009

DeKalb County Ford Explorer Accident Trial Begins

by Robert N. Katz, Esq.

A Ford Explorer trial involving a young woman, who suffered spine injuries in an accident involving a Ford Explorer, began in DeKalb County last week. Jessica Mundy, who was 22 years old when the accident took place, is claiming damages from Ford, alleging that a transmission design defect in her Explorer caused the SUV to suddenly shift from park to reverse. The accident left Mundy a quadriplegic.

Mundy claims she put her car in park, and got out to mail a package. The car ran over her, leaving her with a fractured spine. In January 2005, Ford had issued a repair service bulletin involving a transmission problem, and the alert covered a number of vehicles, including Mundy’s SUV. Her lawyer insists that the transmission repair which was conducted on her Explorer, could have contributed to the problem. The bulletin at the time warned owners, that transmission fluid could lead to their vehicles experiencing “delayed/harsh reverse engagements,” and asked owners to get a transmission fluid additive installed to correct the problem at their dealer. Another letter sent on April 2005 again reminded vehicle owners that if the vehicles were left to operate with the original factory-installed fluid, the danger of transmission shifting would actually increase.

More than 200 Ford owners have complained to the National Highway Transport Safety Administration about the transmission defect in the Explorer. In most of the complaints, there is a delay when the Explorer is shifted from park to reverse or from another gear to reverse. Other complaints have involved the vehicle slipping from park to gear, although Ford continues to deny that the complaints say any such thing.

Published on: April 26, 2009

States Moving to Crack Down on Sale of Defective Old Tires That Can Cause Accidents

by Robert N. Katz, Esq.

States Moving to Crack Down on Sale of Defective Old Tires That can Cause Accidents

An ABC News investigation last year revealed that thousands of motorists may be at risk for automobile accidents because their vehicles are fitted with aged tires that are older than the recommended age limit for tires. The investigation by “20/20” caught some of the biggest retailers in the country selling outdated and aged tires. Now, states across the country are taking steps to ensure that retailers and dealers don’t fob old and weak tires on an unsuspecting motoring public.

The risk of a tire becoming dried out and prone to blowouts that can cause accidents increases after six years of age. The investigation, however found tires including some sold by Goodyear that were made in 1999 and 2002. Other investigations by ABC news affiliates around the county found outdated tires dating back to 1999 and 2001 sold at Wal-Mart. Old tires were also found at Wal-Mart stores in Florida, as well as Sears in New Jersey. Similar stories came in from across the county. The retailers including Goodyear and Wal-Mart insist that the age of the tire should not be taken as the most important factor in judging its safety.

Published on: April 24, 2009

Toy Company to Pay $1.1 Million to CPSC to Settle Defective Toy Allegations

by Robert N. Katz, Esq.

The Consumer Product Safety Commission (CPSC) has announced that Mega Brands America Inc. will pay a $1.1 million civil penalty to settle allegations that the company failed to inform the government about the dangers posed by its Magnetix building sets.

The defective toys were the subject of a recall in 2006 after a 22-month-old child died after swallowing tiny magnets that had come loose and fallen out of the toy. The first indication that Kenny Sweet’s parents had that Kenny was sick was flu like symptoms. and shallow breathing. When he was taken to the hospital, his condition rapidly deteriorated, and he suffered a cardiac arrest. His left lung collapsed, and Kenny died soon after. His parents asked for an autopsy to find out what had happened to their precious little boy. The report arrived the next day, and the results were shocking. The coroner had found eight small magnets in Kenny’s intestine. When Kenny’s horrified parents who suspected that the magnets could only have come from the Magnetix toys, checked the toy, they found several magnets missing.

In 2005, Mega Brands which was then known as Rose Art Inc reported Kenny’s death to the CPSC. However, the company failed to provide any information about how the tragedy had occurred, and instead, claimed that the magnets probably fell out because of aggressive use of the toy. On February 1^st 2006, the company again submitted a full report which did not mention any complaints it had received of the loose magnets falling out of the toy. In March, the company recalled close to 4 million units of the toy. The CPSC later discovered that when Rose Art had first reported Kenny’s death in December 2005, it has already receive more than 1,100 complains of magnets falling out of several magnetic toy models. These complaints had included at least one report of a child being injured after swallowing the magnet. By the time the company acted to recall the toys, the number of complaints had grown to more than 1,500 across 65 different models.

Published on: March 26, 2009

Calls for FDA to Split Grow Louder

by Robert N. Katz, Esq.

Food and drug safety advocates and Georgia product liability attorneys have long called for a division of the Food and Drug Administration into separate agencies, each in charge of food and drug safety.These calls have gotten louder since the salmonella poisoning scandal earlier this year that’s been linked to contaminated peanut butter. It’s obvious that the agency is over burdened, over stressed, and simply unable to handle the responsibilities of making sure that the food and medical products that Americans consume are completely safe to use.

Hopes for a split of the agency into separate divisions for food and drug safety received impetus last week when President Barack Obama named two health experts to top positions at the FDA. The President has tipped former New York City Health Commissioner Margaret Hamburg to be the agency’s new commissioner. Joshua Sharfstein, a pediatrician has been picked by the President to be deputy commissioner. Sharfstein has long been a strong critic of health issues, including the safety of children’s cold medicines. FDA insiders believe that the President’s choice of 2 respected health experts points to his being in favor of dividing the agency into two. The President has also appointed an advisory group which will be re-evaluating archaic American food safety laws, many of which are several decades old.

The FDA has traditionally focused on drug safety as its primary responsibility, and critics have complained that the issue of food safety comes up at the agency only when there is a crisis like the recent salmonella epidemic. It has been apparent even to a casual observer that the FDA has too many responsibilities and too few resources. The drug industry is reportedly in favor of a split agency because it would lead to quicker drug approvals. Besides, having a single drug safety agency will mean better oversight over drug approvals, and more stringent following of approval processes.

Published on: March 6, 2009

Democratic Lawmakers Introducing Legislation to Overturn Immunity for Medical Device Companies

by Robert N. Katz, Esq.

Democratic lawmakers are planning to introduce legislation that would overturn a Supreme Court decision in February 2008 barring injured patients from suing a medical device company if the device had already received Food and Drug Administration FDA approval. In effect, the legislation promises to return patients their right to sue medical device makers for injuries sustained after using their products.

In February 2008, the Supreme Court ruled that injured patients or their survivors could not sue companies that manufactured medical devices that had FDA approval. Since the ruling was passed, judges around the country have thrown out several hundreds of lawsuits that were filed by patients and their families against manufacturers of defective medical devices. Now Henry A Waxman, Democrat from California and Frank Pallone Junior Democrat from New Jersey, have plans to introduce legislation that would overturn the Supreme Court decision. The Supreme Court ruling was based on the premise that approval by the FDA took preemption or precedence over product liability laws in individual states. Judges around the country have cited the Supreme Court decision as the reason for their dismissal of several medical device product liability lawsuits.

Since the Supreme Court ruling was passed, Atlanta product liability attorneys, pharmaceutical injury experts and patients’ advocates have been vocal in their opposition to the law which essentially cuts off individual rights to justice in the event of an injury. It is important to understand how serious some of these injuries are. Defective Medtronic defibrillators have resulted in a massive shock being delivered to patients’ heart, and there have been other serious injuries including burning and scarring injuries caused by malfunctioning joints and other devices. These injured victims used devices that were approved by the FDA, but can hope for little justice as long as the Supreme Court decision rules. The FDA has time and again failed in its duty to make sure that medical devices entering the market are free of defects. It has severe critics both within and outside the organization who are concerned about botched approval procedures, and even corruption at the agency. If the new Democrat-sponsored legislation passes, patients can hope for justice again.