Products Liability

Supreme Court Rules that Federal Law Preempts State Wrongful Death Lawsuit Over Asbestos Exposure: Kurns v. Railroad Friction Products Corp.

October 12, 2012 | Lebowitz & Mzhen

The U.S. Supreme Court recently considered an appeal of a products liability and wrongful death claim arising from alleged asbestos exposure in railroad equipment. The decedent worked in locomotive repair for decades and died of cancer years later. The defendants argued that the federal Locomotive Inspection Act (LIA) preempted the plaintiffs’ state tort claims, and the trial court and appellate court agreed. The Supreme Court affirmed the lower courts in a 6-3 decision in Kurns v. Railroad Friction Products Corp., 132 S. Ct. 1261 (2012).

The decedent, George Corson, worked for the Chicago, Milwaukee, St. Paul & Pacific Railroad for about twenty-seven years, from 1947 to 1974. His job as a welder and machinist involved locomotive brakeshoe installation and insulation stripping on locomotive boilers. He allegedly came into contact with asbestos during this time. He was diagnosed with malignant mesothelioma in 2005.

Corson and his wife sued fifty-nine defendants, including Railroad Friction Products Corporation (RFPC) and Viad Corp in a Pennsylvania state court in 2007. The lawsuit alleged that RFCP distributed brakeshoes, that Viad was the successor-in-interest to a manufacturer and distributor of locomotives and locomotive engine parts, and that all the products in question contained asbestos. The plaintiffs asserted products liability causes of action for defective design and failure to warn. When Corson died, his executor, Gloria Kurns, joined as a plaintiff with Corson’s wife.

Federal Circuit Court of Appeals Affirms Dismissal of Claim for Injury Benefits Under Vaccine Act

September 4, 2012 | Lebowitz & Mzhen

The estate of a woman who died from vaccine-related complications may recover death benefits, but not injury benefits, under the federal Vaccine Act, according to a ruling by the Federal Circuit Court of Appeals in Griglock v. Secretary of Health and Human Services. A Special Master found that the woman’s death was attributable to an influenza vaccination, allowing the death benefits claim to proceed, but also found that the statute of limitations for an injury benefits claim had expired. The Court of Federal Claims and the Federal Circuit affirmed that decision.

The decedent, Sophie Griglock, received a vaccination for influenza on October 6, 2005, when she was seventy years old. In late November 2005, a neurologist diagnosed her with Guillian-Barré Syndrome (GBS), a disorder in which the immune system attacks the nervous system. It can cause paralysis and death due to an inability to breathe. Griglock died of GBS-related respiratory failure on May 11, 2007.

Griglock’s estate filed a petition for compensation with the Secretary of Health and Human Services (HHS) in April 2009. HHS did not contest the question of whether the vaccine caused Griglock’s GBS. It recommended death benefits of $250,000, the maximum amount allowed by the Vaccine Act. The estate also requested injury benefits under the Vaccine Act to compensate for Griglock’s medical expenses. The case went before a Special Master, who determined that the vaccine caused Griglock’s GBS and her GBS-related death. While this gave the estate standing to claim injury benefits, the Special Master determined that the claim, filed in 2009, was barred by the statute of limitations.

CPSC Imposes $1.5 Million Fine on Retailer Selling Children’s Clothing with Drawstrings

August 23, 2012 | Lebowitz & Mzhen

The U.S. Consumer Product Safety Commission (CPSC) announced that the retailer Burlington Coat Factory (BCF) has agreed to pay $1.5 million in civil penalties for violating regulations affecting children’s upper outerwear, such as jackets and sweaters. The CPSC regulates, and largely prohibits, the sale of children’s outerwear with drawstrings. This is due to the high risk of serious injury or death when drawstrings have caught on other items. The penalty to BCF is reportedly the largest one ever assessed by the CPSC for this particular regulation.

The CPSC issued its first set of guidelines regarding drawstrings on children’s upper and lower outerwear in 1996, which it included in a set of voluntary standards the following year. According to the CPSC, since the voluntary standards took effect, the number of deaths caused by children’s upper outerwear drawstrings has declined by seventy-five percent, and it has not received reports of any deaths from waist-level drawstrings.

The primary risk of upper outerwear drawstrings comes when a drawstring is caught on another object. The CPSC states that it has received twenty-six reports of cases where children were killed after a drawstring became tangled in an object. These included school bus doors and playground slides, among others. Drawstrings around the neck present a risk of strangulation, and waist drawstrings have resulted in children being dragged by vehicles when they are caught in doors. In the six-month period from November 2011 to May 2012, the CPSC says it issued eight recalls of products involving drawstring hazards. It has recalled a total of 130 drawstring products.

Proposed Unique Identifier System for Medical Devices Could Improve Patient Safety

August 8, 2012 | Lebowitz & Mzhen

A new rule proposed by the U.S. Food and Drug Administration (FDA) would require most medical devices in the country to include a unique device identifier (UDI). This is a unique code system assigned to medical devices that, according to the FDA, would allow the agency to track problems with devices and develop more effective regulations to protect patient safety. Congress passed legislation, the Food and Drug Administration Amendments Act of 2007, that requires the FDA to promulgate regulations to implement a nationwide UDI system. The proposed rule will be open to public comment until November 7, 2012.

The FDA describes a UDI as a “unique numeric or alphanumeric code” assigned to a device. The UDI includes identifiers for the specific device and the device model, as well as production information including the serial number, the lot or batch number, and, if applicable, the device’s expiration date. The FDA is reportedly developing a database of “basic identifying elements” in UDIs that the public can access and review. A device’s UDI, the FDA says, will not include any personal identifying information about the person using the device.

Sewing Needles Found in Sandwiches in Airplane Meals, One Passenger Injured

July 19, 2012 | Lebowitz & Mzhen

A bizarre discovery in several airplane meals has left one person injured and launched a two-country investigation. Passengers on several Delta Airlines flights found sewing needles in sandwiches included with the in-flight meals. The flights all originated in Amsterdam and were bound for the United States. Police in both the U.S. and the Netherlands are investigating the matter, as is Delta Airlines. All investigators are reportedly looking at the catering company that provided the meals.

Multiple Delta flights leave Amsterdam’s Schipol Airport for the U.S. every day. On July 15, 2012, it had seventeen such flights, and at least four of them had unpleasant surprises in the in-flight meals. On a flight bound for Minneapolis, a passenger bit into a hot turkey sandwich and reported feeling a “sudden jab” in the roof of his mouth. He said he thought it was a toothpick holding the sandwich together at first, but when he pulled it out of his mouth, he saw it was a one-inch long needle with sharp points on each end. A passenger and an air marshal on two different flights to Atlanta found needles. A needle turned up in a sandwich that had not been served to anyone on a flight to Seattle. The man on the Minneapolis flight, who declined medical treatment, appears to be the only injury.

“Failure to Warn” Claim Against Pharmaceutical Company Dismissed by Washington DC Judge

July 12, 2012 | Lebowitz & Mzhen

A federal district judge in Washington, DC has granted a pharmaceutical company’s motion for summary judgment in a lawsuit brought by a patient alleging the failure to warn of certain risks associated with the company’s drug. In Patteson, et al v. AstraZeneca, L.P., et al, the plaintiff allegedly suffered debilitating complications from prolonged use of the company’s anti-psychotic medication Seroquel. She filed suit against the company and her treating physician. The court granted AstraZeneca’s motion for summary judgment on the grounds that the company’s duty to warn of risks applied to the doctor, not the patient.

The plaintiff, Kay Patteson, sought treatment from Dr. John Maloney, also a defendant in the lawsuit, in May 2006, according to the court’s ruling. She complained of “anxiety, depression, chronic insomnia, and serious alcohol abuse and dependence.” After other drugs did not alleviate her insomnia, Dr. Maloney prescribed the anti-psychotic drug Seroquel for off-label insomnia treatment. Patteson’s symptoms improved at first, but then began to worsen in April 2007. She began to suffer “progressive weakness in her lower extremities and difficulty walking.” Several physicians could not determine the cause of her condition, although Dr. Maloney reduced her Seroquel dosage during this time. Most doctors attributed her symptoms to the large number of stressors in her life.

New National Safety Standards Issued for Children’s Play Yards

July 5, 2012 | Lebowitz & Mzhen

New safety standards set by the U.S. Consumer Product Safety Commission (CPSC) affecting “play yards,” portable playpens for infants and toddlers, will begin in December. Play yards are currently subject to voluntary safety standards, but the new standards will be mandatory for all manufacturers. During the four-year period ending in December 2011, according to the CPSC, play yards were involved in the deaths of over sixty children and injuries to nearly two hundred more. Play yards have reportedly been the subject of over twenty recalls during a twenty-five-year period. The new standards are part of a comprehensive set of reforms to children’s product safety known as Danny’s Law, named for a child who died due to a play yard collapse.

A typical play yard is a portable crib or playpen composed largely of mesh. In addition to acting as a crib for infants and toddlers, it can provide them an enclosed area in which to play. Children have died when a collapsing play yard traps them, while trapped under a mattress or other component, or by strangulation from straps attached to the sides. Some deaths resulted when children climbed out of a play yard and drowned in a nearby pool. The most common incident, according to the CPSC, involves a side rail collapse. In addition to the danger of a child getting out of the play yard after a collapse, it can also cause strangulation if a child’s neck is caught in the side rail. Side rail collapses account for up to ninety percent of reported play yard incidents and as many as one-third of play yard-related deaths. A side rail collapse reportedly caused the death of Danny Keysar, the namesake of Danny’s Law, in 1998 in Chicago.

FDA Issues Warnings About Dog Treats Causing Illness

June 21, 2012 | Lebowitz & Mzhen

The U.S. Food and Drug Administration (FDA) has issued a series of warnings about dog treats imported from China. Complaints of illnesses began coming in to the FDA in November 2011. It has now received more than one thousand reports relating to imported “chicken jerky” products. The situation presents a clear issue of products liability, since one or more manufacturers are producing goods that are not fit for their intended purpose. It also raises a question of damages. The most direct victims are family pets, but the possible damages generally do not match the loss a dog owner would feel if a pet gets sick or dies due to a contaminated or defective product.

Chinese-made pet products were at the center of another crisis in 2007, when pet food manufacturers reportedly used wheat flour contaminated with melamine. Thousands of dogs became ill or died, tons of dog food were recalled, and several pet food executives in both the U.S. and China faced criminal charges. When reports of sick dogs started coming in November, the FDA began testing chicken jerky treats for melamine and other contaminants. It issued a “cautionary update” to consumers at the time, identifying the possible symptoms and noting that some reported illnesses might be unrelated to the chicken jerky. By February 2012, the FDA had received more than five hundred reports of sick dogs.

In April, when the total number of illnesses had exceeded six hundred, the FDA sent inspectors to China to visit the plants that produced chicken jerky products. The agency had already conducted extensive chemical and microbial tests but reportedly had not isolated a cause for the illnesses. Pressure continued to mount through the spring to find a solution.

Complaints from pet owners and veterinarians have reportedly led to three brands: Waggin’ Train, Canyon Creek Ranch, and Milo’s Kitchen. The first two brands, according to MSNBC, come from a company in Nanjing, China. Both companies maintain that their products are safe. Milo’s Kitchen has reportedly acknowledged settling a claim after a customer complained about a sick dog. The American-based companies are the most likely targets for litigation. Even though companies in China might be more directly liable, U.S. courts have little to no authority over them.

CPSC Announces Nationwide Recall of Inflatable Pool Slides, Citing Danger of Sudden Deflation Causing Injury or Death

May 29, 2012 | Lebowitz & Mzhen

https://www.youtube.com/watch?v=mnoqiV2ysnkAn inflatable pool slide designed for use with in-ground pools is subject to a nationwide recall, according to a recent announcement by the U.S. Consumer Product Safety Commission (CPSC). The pool slide, described as a “Banzai in-ground pool water slide,” poses a risk of injury to users because of sudden deflation and instability. At least one person died from injuries sustained when a slide deflated suddenly, and several more suffered severe neck injuries.

The pool slide has a blue base and a yellow slide. It has the words “Banzai Splash” on either side in a wave-shaped orange, blue, and white logo. The slide inflates to a height of six feet. A hose can attach to the top of the slide so water runs down the slide surface. It is designed to sit on the side of an in-ground pool, so users can slide into the water. This pool slide model was sold nationwide at Wal-Mart and Toys R Us stores between January 2005 and June 2009, with a typical retail price of $250. Hong Kong- based Manley Toys manufactured the slides in China. Toys R Us and Wal-Mart have agreed to accept returns of the product and will provide a full refind.

Federal pool slide safety standards require a slide to be able to support at least 350 pounds without any deformation. The recalled slide reportedly deforms under considerably less weight. This may cause the air in the slide’s base to displace, making the slide unstable. It could tip over or even deflate as a result. The slide allegedly did not undergo sufficient safety tests when it was imported to the United States.

Football Player Who Suffered Severe Head Injury Settles Lawsuit Against School District for $4.4 Million

May 16, 2012 | Lebowitz & Mzhen

A former high school football player, Scott Eveland of San Marcos, California, has settled his lawsuit with the school district over a head injury he sustained in a 2007 game. The injury has left him confined to a wheelchair, able to speak only through the use of an iPad or computer keyboard.

The issue of traumatic brain injuries in football has gained attention in recent months, with multiple lawsuits seeking damages from both athletic organizations and equipment manufacturers. Eveland had previously settled a products liability claim against the helmet manufacturers, and the remainder of the case focused on the liability of the school’s coaching staff.

Eveland was a senior at Mission Hills High School in San Marcos, located north of San Diego. He played linebacker for the varsity football team. According to the lawsuit, on September 14, 2007, he went to the athletic trainer to ask to sit out the first quarter because of a headache, which he claimed was so bad he could not focus his eyes. Eveland had already reportedly missed parts of practice due to headaches. The trainer went to the head coach who told the trainer, according to a student trainer who claimed to have witnessed the exchange, “You aren’t a [expletive] doctor,” and that the coach would decide who would play in the game. Both the trainer and the coach denied having this discussion in their depositions.