Articles Posted in Products Liability

vehicle rollover.jpgVehicles like the Ford Bronco II, Ford Explorer and 15-passenger vans are designed with an unreasonable risk of rollover. Although there are many things manufacturers can do to prevent rollover accidents, rollover accidents will occur in vehicles considered safe. Knowing this, manufacturers should implement safety features designed to limit rollover accident injuries.

Although rollover accidents constitute 1.74% to 6.3% of all accidents depending on the type of vehicle involved, they account for 33% of all serious injuries and death.

Amazingly, the federal government does not require manufacturers to conduct rollover accident testing. The consequence of this is a gap in knowledge in how best to prevent rollover accident injuries and many vehicles lacking available equipment to optimally protect occupants in a rollover.
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law books.jpgA statute of limitation is an enactment in a common law legal system that sets forth the maximum time after an event that legal proceedings based on that event may be initiated. Most people are familiar with the concept.

Far less familiar to the general public, and even to some lawyers, is the legal concept known as statute of repose. Like a statute of limitation, a statute of repose (sometimes called a nonclaim statute) limits the time period in which a civil action may be instituted.

A products liability case is a legal action for injuries founded on the defective design, manufacture, distribution, or sale of personal property. Examples of products found to be defective are tires, motor vehicles, drugs, and surgical hardware. In Florida, defective products cases are subject to a statute of limitation and a statute of repose.

The statute of limitation in Florida with regard to injuries caused by defective products is four years. (Florida Statute 95.11(3)(e)). (Caveat: When death results from a defective product, Florida’s Wrongful Death Act imposes a two year statute of limitations.) This means that a lawsuit founded on a defective product must be filed within four years or two years of when it is known or should have reasonably known what caused the accident.

Sometimes, however, the statute of repose effectively limits the time allowed under the statute of limitation and, in some instances, bars altogether a claim from being brought.

An actual case example will help illustrate this point:

Our law firm was recently hired by a gentleman who was severely injured by a defective forklift. Through discovery conducted in his workers’ compensation case, we learned that the manufacturer originally sold the forklift in 1996, more than fourteen years before the accident.

Even though we were prepared to file a products liability complaint well within the two year statute of limitation period, we were prevented from doing so by the statute of repose.
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From time to time, I will list in this blog recent important information regarding manufactured products used by American consumers. Today’s entries:

Darvocet and Darvon: Popular prescription pain medications, go by the generic name propoxyphene. FDA studies show that the drug puts patients at risk of potentially serious or even fatal heart rhythm abnormalities. Propoxyphene is an opoid. Safety concerns were raised as early as 1978. Warnings were placed on boxes in 2009 of the dangers of overdoses. Now, the manufacturer, Xanodyne Pharmaceuticals, Inc., has agreed to withdraw the drug from the U.S. market.

DePuy Hip Replacement Parts: Some component parts in the DePuy Hip replacement system are feared to be the cause of a high rate of repeat surgies in those who have received the parts. Johnson & Johnson and DePuy Orthopaedics, its subsidiary, have announced that it is recalling the parts.

EBIce Cold Therapy: This is a cryo-therapy (“Cold Therapy”) device typically prescribed by orthopedists and podiatrists after a surgical procedure. Poor use instructions have resulted in serious nerve and skin damage similar to frost bite.

Fosomax: Manufactured by Mreck, this is a class of drugs called bisphosphonates. It is commonly used in tablet form to prevent and treat osteoporosis in post-menopausal woman. The Journal of Oral and Maxillofacial Surgeons recently reported a link between bisphosphonates and serious bonce disease called Osteonecrosis of the Jaw (ONJ), a disfiguring and disabling condition of the jaw bone that causes infection and rotting of the jaw bone.
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In the November, 2010 election, Republicans gained additional seats in the Florida House and Senate, making their previous solid majorities even stronger. Combined with the election of pro-big business Republican Governor Rick Scott, individuals should expect to see their rights at seeking redress from large corporations dramatically curtailed.

One of the first orders of business for the Republican legislature will be to eliminate the “enhanced injury” doctrine. As I discussed in a previous blog, the enhanced injury doctrine is a principle of law that allows civil courts to hold corporations accountable for damages caused by their negligence that exceed the damages due to the initial fault. A clear and simple example of the principle in application comes from the seminal case on the doctrine, D’Amario v. Ford Motor Company, 806 So.2d 424 (Fla. 2001). D’Amario involved a minor passenger in a vehicle that struck a tree. Following the impact, a fire began that ended in an explosion, causing the minor to lose three limbs and suffer burns to much of his body. The minor and his mother sued Ford alleging that a defective relay switch in the automobile caused the fire. They alleged that but for the defective switch, the fire would not have started and the minor’s injuries would have been limited to those from impacting the tree. Consistent with the enhanced injury doctrine, they limited their claim for damages to those caused by the fire. The case went to trial and was ultimately appealed to the Florida Supreme Court. The Supreme Court held Ford Motor Company responsible for the enhanced injuries, thus establishing the doctrine.
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Fifteen-passenger vans, especially those manufactured before 2004, are, by design, inherently unstable and unsafe, making them prone to roll over during tire blowouts and quick maneuving at higher speeds. People are being severly injured and killed when the vans roll over. Sadly, federal regulators and auto safety experts have known for years that these vans are unfit to transport people, yet they continue to be manufactured.

These vans were originally designed to carry cargo, not people. Those designed before 2004 lack even the most basic safety improvements and NHTSA-required warnings and advisories. However, even the newer models are unstable.

Federal law prohibits the sale of 15-passenger vans for the school-related transport of high school age and younger students, yet they continue to be rented for family use by the major rental agencies.

More than 500,000 of these vehicles are in use in the United States.
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Allergan, Inc., the maker of wrinkle-smooting Botox, has agreed to pay $600 million to settle a year-long federal investigation into its marketing of the top-selling, botulin-based drug. The investigation, involving charges of paying kickbacks to induce physicians to inject Botox for off-label uses and teaching doctors how to bill for off-label uses, including coaching doctors how to miscode Botox claims leading to millions of dollars of false claims being submitted to federal and state programs, was started by a whistle-blower complaint. The Justice Department says the company will plead guilty of one misdemeanor charge of “misbranding.” (Allergen also reached an agreement with the Department of Health and Human Services’ Office of the Inspector General that requires the company to submit compliance reports, and to post on its website any payments to doctors, such as honoria, travel or lodging.”

Manufacturers are prohibited from promoting drugs for unapproved, or “off-label,” uses. Botox is approved by the F.D.A. to treat uncontrolled blinking; crossed eyes; certain neck muscle spasms; excessive underarm sweating; and stiffness associated with muscle spasticity in the elbows and hands. It also is approved for cosmetic purposes — to smooth lines between the eyebrows – and two weeks ago, ironically, it was approved as a treatment to prevent chronic migraine headaches, one of the charges for which it agreed to pay the $600 million.

The misuse of prescription drugs, both purposely and through negligence, happens frequently and often has dire consequences. If you or a loved one may be the victim of such misuse, please contact our office for a free, confidential consultation to discuss your case.
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Workplace forklift accidents are common in Florida and often result in catastrophic injuries or death. Our law firm is currently handling two forklift accident cases, each involving serious injuries.

Employees injured in forklift accidents should be eligible to receive workers’ compensation benefits through the employer or its insurance company. The workers’ compensation benefits will consist of medical benefits and lost wages. Because of Florida Statute 440.11, these are the only benefits that will be available from the employer in most cases. There will be no compensation [from the employer] for pain and suffering, and only a remote chance of being indemnified for the loss of future earning capacity.

To be compensated for these damages, the injured worker must be able to make out a case of negligence against a third party, such as the forklift manufacturer or an outside forklift maintenance company. This is our strategy in one of the two forklift cases, in which the forklift failed to slow when it was being operated in reverse, causing the operator’s foot to be crushed between the forklift and a wall. In our other forklift case, we have eliminated third party liability as the cause.
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Federal law requires all cars sold [to the public] in the United States to meet the Federal Motor Vehicle Safety Standards (FMVSS). It sounds good, but it’s not.

The FMVSS are minimum standards for vehicle safety. Many of the standards applicable today were issued in the 1960s and 1970s, cover only a limited number of car safety and performance aspects, and manufacturers are allowed to self-cerfity compliance (in contrast to the approval of new drugs by the FDA, which has demanding requirements before drugs can be put into the hands of consumers), while the creation of better standards is subject to political pressure, with rule making through the National Highway Traffic Safety Administration (NHTSA) being a quasi-legislative process. Changes, if any, come in tiny increments at a snail’s pace.

In concept, market forces were expected to encourage manufacturers to produce vehicles that exceeded the minimum safety standards. Sadly, this has not occurred with enough frequency and consistency to be considered a success story. Rather than battle for a competitive advantage, most manufacturers settle for the least common denominator in safety and performance.
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In a previous blog, I wrote about the “enhanced injuries” doctrine in Florida. The doctrine stands for the proposition that a wrongdoer can be liable for damages extending beyond those resulting from the initial negligence. The example I used was of a simple car accident that triggered a defect in the victim’s vehicle, which caused a fire and catastrophic injuries well beyond the minor injuries resulting from the initial impact alone. Today’s blog is about the common characteristics associated with enhanced injury cases in the context of motor vehicle accidents and the various defects leading to those accidents.

Common characteristics include:

  • One or a few occupants are catastrophically or fatally injured while others have minor or no injuries;
  • Minor collisions resulting in catastrophic injury or death – see example in first paragraph;
  • Severe damage to or failure of a localized area of the vehicle (examples: roof crush or seat belt collapse);
  • Seat-belted occupants who are seriously injured or who are partially or fully ejected.

Typical Reasons for Enhanced Injuries:

Post-Impact Fuel Fed Fire Defects
Auto engineers agree that an occupant who survives the crash forces should not be injured or killed by a subsequent fire. Fire causing defects include:

  • Fuel Tank Location & Shielding. Fuel tanks placed in positions of risk to crushing or compromise, or not adequately protected against puncture damage.
  • Siphoning, Filler Tube & Fuel Line Failure: Excessive post-accident fuel leaks caused by failing to install inexpensive check-valve devices.

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tire_blowout.jpgThere is more to tire safety than adequate tread depth and proper inflation levels. Age alone is a major factor in tire safety. As tires age, the rubber dries out and makes them more prone to blowouts and tread separation. This applies to new-old-stock tires as well as to used tires.

No laws in the United States restrict the age of tires. In states with inspection laws – Florida is not one of them – all that is tested is tread wear. A tire has a useful life of six years. Accordingly, for consumers to get at least two years of useful life from a tire, it should be no more than four years old at the time of purchase.

Unfortunately, retailers can sell tires that are more than six years old. Many are much older, sometimes 15 years and above. These tires are accidents waiting to happen.
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