Articles Posted in product liability claims

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Women and children have long used talcum powder as part of their personal hygiene routine as a way to stay fresh and clean after a shower, and as safe way to prevent diaper rash. Products manufactured and distributed by Johnson & Johnson and other talc producers have recently come under scrutiny after the first talcum powder lawsuit alleged that baby powder could place users at a heightened risk for ovarian cancer. Deane Berg, the plaintiff in the lawsuit Berg v. Johnson & Johnson Consumer Companies, Inc., U.S. District Court, District of South Dakota, Case No. 09-4179, is the first to allege that the use of asbestos-free talcum powder can lead to ovarian cancer. Like many women before us, Deane Berg was a faithful user of Johnson’s Baby Powder and Shower-to-Shower products. After 32 years of use, Deane Berg was diagnoses with ovarian cancer in 2006 at the age of 49. The plaintiff in the body powder lawsuit alleges that Johnson & Johnson and other manufacturers not only should have known that their products are potentially cancerous but that they failed to warn consumers of the known dangers. The jury in the Berg v. Johnson & Johnson case found that the defendant failed to warn consumers about the known link between talc powder and female hygiene use creating a heightened risk for ovarian cancer. In failure to warn cases the manufacturer often argues that the injured plaintiff failed to follow the instructions or ignored the warning. Here, the manufacturer of the talc powder instead of warning the public Johnson & Johnson chose to promote the safe female hygienic use with products such as Shower to Shower and Baby Powder.

While new studies have come to light that strongly suggests that talcum powder acts like a carcinogen, these harmful side effects have been well known. The Johnson & Johnson website states the safety of a product in use for over 100 years. Also stating that the U.S. Food & Drug Administration and the National Toxicology Program, which is part of the U.S. Department of Health and Human Services, have concluded in the past that talc is not a carcinogen. However, more recently the American Cancer Society has suggested that while there is not enough data to definitely conclude whether or not talc powder should be considered a carcinogen, it has advised women to consider an alternative product, specifically cornstarch-based cosmetic products instead of their talc alternative. The International Agency for Research Cancer part of the World Health Organization classifies talc that contains asbestos as “carcinogenic to humans” and uses of talc-based body powder especially near the genitals as “possibly carcinogenic to humans.” More information and more studies will be required before the true safety of talc is revealed.
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Surgical mesh was originally designed for hernia repair procedures, but in 1990 Johnson and Johnson (“J&J”) developed, manufactured, and began marketing surgical pelvic mesh implants as a way to treat Pelvic Organ Prolapse and Stress Urinary Incontinence in women. According to the U.S. Food and Drug Administration (“FDA”) in urogynecologic procedures a surgical mesh is permanently implanted to reinforce the weakened pelvic wall, or to support the urethra, or bladder neck. For many women after childbirth, or as a part of aging, the pelvic floor weakens or over stretches allowing for organs to bulge into the vagina and in some extreme cases organs can bulge into the vaginal opening. Organs normally associated with pelvic organ prolapse include the uterus, bladder, intestine, and rectum. Pelvic organ prolapse affects 30 to 50 percent of women with only about 2 percent developing symptoms. Stress urinary incontinence also treated with surgical mesh surgery involves the unintentional leakage of urine caused by sneezing, laughing, coughing, or physical exertion. If you or a loved one were injured as a result of a failure to warn of known complications associated with surgical pelvic mesh implants, a licensed Pennsylvania and New Jersey personal injury attorney may be able to assist you in recovering just compensation for your injuries.

A rather alarming article ran last week in the Philadelphia Business Journal entitled, “Johnson & Johnson accused of destroying records in product injury suits.” The article references a group of advocates and lawyers calling on the U.S. Department of Justice to investigate the alleged destruction of thousands of documents by Johnson & Johnson (“J&J”) in connection with the development of its pelvic mesh implants. This comes on the heels of last months ruling in West Virginia where U.S. District Court Judge Cheryl Eifert held that J&J had destroyed thousands of documents relating to the development of its pelvic mesh implants, but that there was no evidence proving that the act was done intentionally. Corporate Action Network, a nonprofit group that highlights businesses wrongdoings and seeks to hold them accountable, was one of the advocacy groups that wrote to Attorney General Eric Holder asking him to look into J& J destruction of pertinent information regarding the safety of its pelvic mesh implants. Corporate Action Network alleges that J&J knowingly destroyed evidence relating to a federal probe and further obstructed justice. Thousands of cases are pending where women allege that Johnson and Johnson knew that their surgical pelvic mesh implants caused serious complications that they never warned of prior to the implant.

Since the introduction of surgical mesh Johnson & Johnson has developed, manufactured, and marketed several vaginal mesh devices under the subsidiary Ethicon, Inc. Ethicon’s previous versions of surgical pelvic mesh were Gynecare TVT, Gynecare Secur, Gynecare Prosima, and Gynecare Prolift. Currently, Ethicon’s website does not mention any pelvic floor repair products or procedures on their consumer website. One link under women’s health conditions lists uterine prolapse but then takes you to a page about hysterectomies. Interestingly enough on the website geared towards healthcare professionals two pelvic floor repair products are advertised, Artisyn Y-Shaped Mesh and Gynecare Gynemesh PS Prolene nonabsorbable. A recent FDA Safety Communication on Surgical Mesh updated March 18, 2014 warns that while rare, frequent complications associated with surgical mesh used to treat Pelvic Organ Prolapse and Stress Urinary Incontinence, include infection, pain, urinary problems, erosion through the vagina, scaring, and pain during sexual intercourse.
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Vehicle crashes, according to the National Highway Traffic Safety Administration, are one of the leading causes of death for children between the ages of 1 and 13 years old. With the vast array of car seats and manufacturing design options for passenger cars, SUVs, trucks, and vans, it is understandable why child car seats and installation can be viewed as challenging. Even the Duke and Duchess of Cambridge were recently scrutinized in their car seat performance after bringing their infant son home for the first time. While car seats in the United States have saved the lives of approximately 9,600 children aged four and younger during the span of 1975 to 2010, many more lives and life altering car crashes can be avoided by proper use and installation of child car seats. If you or your child were injured in a car crash and you suspect that your car seat malfunctioned, the experienced products liability attorneys at the Philadelphia based law firm, Rosenbaum and Associates, may be able to assist you.

Even among those who do install car seats in their vehicle, a recent study found that nearly three out of every four car seats did not meet proper use and installation standards. As many who have attempted the cause know, after reading the car seat instruction manual and your vehicle’s owner’s manual on car seat installation, it can still be difficult to try and install the car seat while insuring that the lower anchors or LATCH system is being fully engaged. Couple that with the dreaded seat belt that never wants to lock in place and you have fully executed a frustrating jam-packed afternoon. There is hope for parents and caregivers alike, many local fire and police stations offer free seat checks. There are people specifically trained to inspect the installation prior to you intrusting the car seat to protect your infant or child, for free. The website http://www.nhtsa.gov/apps/cps/index.htm will direct you to the closet trained inspector locations. For those that prefer the do it yourself approach, how-to-videos have been posted to the website www.SaferCar.gov/therightseat.

For those still on the fence about whether or not to implement a three-phase car seat approach for your growing child (a rear-facing car seat or car bed typically for premature babies, then a forward-facing car seat, followed by a booster seat), consider that the American Academy of Pediatrics and the National Highway Traffic Safety Administration found in a recent 2009 study that children in booster seats had nearly half the injury risk as children who wore seat belts alone. The study also found that children involved in side impact crashes, the second most common type of car accidents typically known as a “T-Bone” crash, derived the largest protection when using a properly installed booster seat. The reduction in risk produced approximately 68 to 82 percent decline in risk of injury. The same study also found that there was no detectable difference in the risk of injury for children who were seated in a backless booster seat versus those seated in a high-back booster seat. Regardless of the length of a car trip, safety must always be a priority as car crashes can occur at any time. Lastly remember child passengers, typically those under the age of 13, should not rely on airbags as a safety measure as airbags can severely injure or even kill children involved in a car crash that would have otherwise been survivable.
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Eastern District U.S. Judge Cynthia Rufe granted the motion of two health insurers to remand their Avandia pharmaceutical cases to the Philadelphia Common Pleas Court. She ruled that the GlaxoSmithKline removal to federal court had been premature.

Rufe’s decision doesn’t prevent the lawsuits from ever being removed to a consoldated ongoing Avandia Multidistrict litigation in federal court. For now, the complaints are returning to the civil justice division in Philadelphia thanks to a technicality.

Humana Health Plan Inc. and UnitedHealth Group Inc., the plaintiffs in the cases, were seeking remand because the lawsuits were started with the filing of a praecipe to issue writ of summons to take pre-complaint interrogatories, which is basically a pre-litigation tactic that portends litigation. However, the writ isn’t a complaint, per se. In Rufe’s April 17 memorandum, she came down on the side of the health insurers with her decision that removal of both lawsuits to the federal courts was premature.

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As a Philadelphia injury lawyer, I was interested to see a state Supreme Court decision that makes it a little easier for injured people and their families to win cases involving defective products. In Reott v. Asia Trend et al., the Pennsylvania Supreme Court ruled that if a defendant in a products liability case wants to argue that the plaintiff was highly reckless, the defendant must plead it as an affirmative defense. This puts the burden of proof on the defendant, the court said, rather than on the plaintiff to prove that he or she was not reckless. The plaintiffs in this case were Duane Reott, who was seriously injured while using a tree stand, and his wife, Patty Reott. The defendants argued that Duane Reott was highly reckless in his use of the tree stand, and the jury agreed. On appeal, however, the high court said the defendants didn’t adequately prove that claim.

The tree stands at issue are tree-mounted platforms that allow hunters to sit in trees and watch for deer, so they are installed high above the ground. Duane Reott bought two tree stands through his brother, and used one without incident multiple times. He brought the other one, still new in its box, to another brother’s house to install in a tree there. He climbed 25 feet and cinched the locking strap of the platform around the tree, then bear-hugged the tree and gave a small jump on the platform in order to remove any remaining slack from the strap. Reott had done this “setting the stand” many times without problems, but this time, the strap broke and he fell, crushing a vertebra and breaking his wrist. He and his wife sued four entities involved in manufacturing and selling the stand, alleging a manufacturing defect because the strap was merely glued on, rather than both glued and stitched like a seatbelt.

At trial, the court granted a directed verdict on the issue of the defect itself, but sent the issue of whether the defect caused Reott’s injury to a jury. The defendants argued that Reott was highly reckless in “setting the stand,” however, and the jury agreed. Reott appealed to the Superior Court, saying the defendants should not have been permitted to present evidence of recklessness as a rebuttal because it left him with the sole burden of proof. The Superior Court agreed, saying the evidence should have been presented as an affirmative defense, and ordering a new trial on damages. Defendants appealed.

The Pennsylvania Supreme Court agreed with the Superior Court that recklessness should best be presented as an affirmative defense in product liability cases. It drew a comparison between the established affirmative defense of assumption of risk; the less well-established affirmative defense of product misuse; and the closely related reckless conduct. However, it noted, such a defense could be incorrectly entangled with contributory negligence. Thus, it held that if a defendant wishes to plead highly reckless conduct, it must do so as an affirmative defense. Thus, the burden of proof is in the defendant to show that the recklessness was the sole or superseding cause of the injuries, the court said. It affirmed the Superior Court.

This ruling does not take away a defendant’s ability to argue that a plaintiff was reckless in using a product–but it puts the burden of proof for that assertion on the defendant, where it should be. Putting it on the plaintiff would force the plaintiff to show that he or she was not reckless, and it’s difficult to truly prove a negative. That’s why, as a Philadelphia accident lawyer, I’m pleased by this ruling.
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As a Philadelphia accident lawyer, I handle many cases of auto accidents. In the majority of auto accident cases, one or both drivers caused the crash by negligently failing to pay attention or make good decisions. But every now and then, a case comes along in which the fault lies with the automobile itself, or one of its parts — which means real responsibility for the crash can be assigned to the company that made the defective part. That was the allegation in Bender v. Mazda Motor Corp., a decision from the Eleventh U.S. Circuit Court of Appeals. Peggy Bender of Alabama alleged that a defective airbag in a Miata caused the death of a family member. Mazda attempted to remove the case to federal court on diversity grounds, but the federal court denied the motion and the Eleventh Circuit affirmed. In this ruling, the Eleventh says an intervening decision did not change its mind.

For federal courts to have diversity jurisdiction, the amount of money being asked for must exceed $75,000. In opposing the motion to remove the case, Bender alleged that there was no evidence that the amount in controversy reached that much. In its answer, Mazda cited a similar case, Roe v. Michelin North America, in which the federal court found that even if the amount in controversy was not pleaded in court, it was “clear” and “readily deductible” that it would exceed $75,000. Mazda asked the district court to follow this ruling, or in the alternative, stay the case until an Eleventh Circuit ruling in Roe. The district court denied this and moved the case back to state court. After the Eleventh Circuit’s ruling in Roe, which ultimately stayed in the federal courts, Mazda moved in district court to reconsider in light of the new decision. The district court denied this on the grounds that the case was out of its hands, remanded back to state court. Mazda appealed.

Before the Eleventh Circuit, Mazda argued that under a 1987 Eleventh Circuit case, Ritter v. Smith, the district court should have granted its motion to bring the case back to federal court. Bender counter-argued with another Eleventh Circuit case, 1992’s Harris v. Blue Cross/Blue Shield of Alabama. The Eleventh found Harris most persuasive. That case cited 28 USC sec. 1447, which says in part that orders to remand are not reviewable on appeal or otherwise. In Harris, the Eleventh expressly found that district courts may not review their own remand orders. This trumps the motion to reconsider filed by Mazda, the appeals court found. The appeals court further found that the outcome of Roe did not matter in this case. Even if the remand to state court was legally erroneous, it said, review by the district court or the Eleventh Circuit is still barred by sec. 1447: “The case has been removed to state court, and that is where it will stay.” Thus, it affirmed the district court’s refusal to reconsider.

As a Philadelphia personal injury lawyer, I am familiar with cases in which large, well-funded companies pull out all the legal stops to avoid liability. This is common because large companies generally have the money to fight cases all the way up to federal appeals courts, when necessary. Because facing legal liability can be very expensive in the long run — and because fighting a case in appeals courts is expensive for individual litigants like Bender — it actually does make sense for defendants with a lot of funding to fight small issues to death. This tactic does not give defendants a better argument on the facts, of course — it helps defendants dodge legal liability by removing facts from consideration.
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As a Philadelphia accident lawyer, I was saddened to read about a ruling against a family struggling with a serious brain injury. In Covell v. Bell Sports Inc., David W. and Margaret Covell of Philadelphia sued a helmet manufacturer on behalf of their adult son, David F. Covell. The younger David Covell was riding a bicycle to his job as a schoolteacher when he was hit by a car at the entrance to the school’s parking lot. He suffered such serious brain injuries that he is now disabled and his parents have been appointed as his legal guardians. On his behalf, they sued Bell Sports, the maker of his bicycle helmet, alleging that it was defectively designed and defectively failed to warn users about the risks of a blow from the edge of the helmet.

The appeal turned in part on the instructions given to the jury. Many states use a privately published standard called the Restatement of Torts, a collection of caselaw that states can voluntarily adopt in order to keep current with new decisions. Pennsylvania uses the Second Restatement of Torts, which was published in the 1950s. However, the law on products liability — the cause of action in the Covells’ case — has seen so many changes since then that a Third Restatement of Torts: Products Liability was published in the 1990s. Importantly for this case, the Third Restatement allows manufacturers to defend themselves by arguing that their products meet applicable standards. Pennsylvania has not formally approved the Third Restatement, but the judge in the Covells’ trial instructed the jury according to the Third Restatement.

On appeal, the Covells argued that the judge should not have used the Third Restatement, since it has not been adopted in Pennsylvania, and that federal safety standards for bicycle helmets were in any case inadmissible. The Third Circuit disagreed on both counts. In 2009, the Third decided in Berrier v. Simplicity Manufacturing Inc. that Pennsylvania will eventually apply the Third Restatement, making that the correct standard. It declined to overturn that, dismissing an argument the Pennsylvania Supreme Court’s dismissal of a relevant case means it does not intend to take up the Third Restatement. The Third then addressed the Covells’ other argument, that federal bicycle helmet standards used at trial are not admissible because they are not described in the admissible portions of the Third Restatement. Again, it disagreed, saying that the federal standards described issues like testing and labels that are within the admitted part of the Third Restatement. Thus, it affirmed the district court’s judgment and ended the Covells’ case.

At oral arguments in this case, the Legal Intelligencer reported, Third Circuit judges acknowledged that the situation is not at all settled for Pennsylvanians involved in products liability cases. That’s why, as a Philadelphia injury lawyer, I would be very interested in clear input from the Pennsylvania Supreme Court. The Supreme Court is supposed to adopt or not adopt new standards, but the Third did it in Berrier because the state high court expressly declined to. Thus, it’s possible that the court will ultimately come to the opposite conclusion, which would mean the Covells could have won their case if they had brought it later.
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As a Philadelphia accident lawyer, I was disappointed to see a recent federal appeals court ruling denying an injured man a chance to pursue fair compensation from the company he says is to blame. In Roth v. Noralfco, David Roth sued a chemical supply company for various causes of action claiming it had a duty to design safer acid tank cars. Roth had a job at a York, Penn. paper company that included unloading tanks of sulfuric acid sent by Noralfco by rail. He suffered chemical burns to his face in 2004 when he attempted to unload a tank that was under pressure. The federal trial court granted summary judgment to Noralfco, saying the bulk of the claims are expressly preempted by the federal Hazardous Materials Transportation Uniform Safety Act of 1990, and the Third Circuit affirmed.

The HMTA regulates interstate commerce involving hazardous materials, giving buyers and sellers uniform regulations even between states. A section of the HMTA explicitly says that “Unless authorized by another law of the United States, a law… of a State… that is not substantively the same as a provision of this chapter… is preempted.” It then goes on to list the areas of regulation that are preempted, which include what is a hazardous material, how the materials are packed and labeled, their shipping documents, notice of any spills and their shipping containers. The Third Circuit found that all of Roth’s tort claims fall under the HMTA’s purview, and were thus expressly preempted by the law. It dismissed Roth’s arguments that his job was not “in commerce” and thus the HMTA did not apply, saying unloading is expressly part of the HMTA. Thus, it upheld the trial court’s decision to grant summary judgment to Noralfco.

This decision is disappointing, because it means Roth cannot pursue compensation for what sound like some very serious injuries. In making this ruling, the Third Circuit did not rule on the merits of the case; it simply said there was no case because federal law has taken away the state-law remedy available to him. This leaves Roth and anyone else involved in shipping hazardous materials without recourse if they happen to be injured by dangerous materials like sulfuric acid while they are at work. As a Philadelphia injury lawyer, I believe our society can and should do better for the people who do this kind of dangerous job and rely on supervisors, colleagues or suppliers to stay safe.
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A bill was announced in Washington D.C. last December that would fine merchants who knowingly sell defective, recalled toys and would ban their use in day care facilities next year. Defective toys and dangerous toys are often the cause of injury to children and, in some cases, can also result in death.

The new bill aims to help reduce the number of defective toy injuries in children in Washington D.C., and throughout the country. The bill was announced by Brian Moran under the name Del. Brian Moran’s Toy Safety Act. At first, specifically, it would direct the common wealth of Virginia to develop standards for toys sold in Virginia stores. Bills like this could come to Philadelphia, Pennsylvania and elsewhere.

Del. Moran stated that “no parent should worry about their child going to the emergency room because of a toy they received Christmas morning. The federal government has failed to provide needed protection for our families.”

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Recent concerns about elevated mineral oil levels contained in food packaging made of recycled cardboard have caused several food companies to begin testing and even changing their packaging.

Originating in Europe, this concern involves companies all over the world including the UK, Switzerland, and the United States. Some researchers feel that the elevated levels of mineral oil in recycled cardboard packaging could be transferring into the food that is packaged in it, leading to possible unsafe consumption levels of mineral oil for those in Philadelphia and around the world.

According to a recent BBC report, a scientist from Switzerland has suggested foods like pasta, rice and breakfast cereals might contain up to 100 times more mineral oil than the limit agreed for food safety.

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