Articles Posted in Personal Injury

The scandal surrounding defective auto airbags manufactured by the Japanese company Takata got worse this week. According to a story just published by the New York Times “Honda Motor Co. said Friday that it would recall 5.7 million cars worldwide in the latest round of recalls involving Takata Corp. air bag inflators that can explode and hurl shrapnel into the vehicle.”

The paper reports that about 2.2 million of those vehicles are here in the United States. That’s on top of the 24 million units from Honda and other companies that were already on the recall list in the United States alone – and tens of millions more worldwide. It is a scandal that has only grown over the last year. According to the Times 11 deaths and at least 139 injuries have been inked to the shrapnel-laden airbags..

The latest recall notices came just days after senators Edward Markey of Massachusetts and Richard Blumenthal of Connecticut “called on the Obama administration in a letter to force the recall of every Takata airbag that uses a propellant that contains a compound called ammonium nitrate, which can degrade over time and become unstable,” according to a separate Times article published earlier in the week.

Last week the United States Chamber of Commerce released its annual “Lawsuit Climate Survey” – a report the Chamber has published since 2002. The Survey is worth examining because its conclusions can tell us a lot about both the Chamber as an organization and about big business’ priorities and views of our justice system.

According to the website Public Justice, the Chamber’s “report summarizes the answers of a ‘nationally representative sample of 1,203 in-house general counsel, senior litigators or attorneys, and other senior executives who are knowledgeable about litigation matters at companies with annual revenues over $100 million.’” It is, in short, a survey designed to gauge the views of big business toward our courts, and to rank those courts in terms of their favorability toward large companies and their legal agendas.

According to Public Justice, the Chamber finds that state courts are generally more favorable toward companies than federal courts, and that they have become steadily more business-friendly over the last decade, albeit at a slow pace. “In 2003, Corporate America’s lawyers gave the state courts a score of 50.7; in 2015 they gave them a score of 61.7,” the website reports. In assigning letter-grades to states based on the ‘business-friendly’ record of their courts 52% of all state courts were awarded either an ‘A’ or a ‘B’.

An article published recently by The Oregonian on workplace deaths makes sober reading on this Labor Day Monday. It notes that “altogether 41 men and 5 women died from workplace accidents and injuries” in our state last year. “The number includes both Oregon and out-of-state residents who perished within the state’s borders, but excludes at least 28 others who died on the job from suicide, heart attack, stroke or other natural causes unrelated to their work.”

As the newspaper notes, the rate of workplace deaths both in Oregon and in the country as a whole has declined dramatically over the last three decades. Moreover, while Oregon’s workplace death rate of 2.9 per 100,000 workers is lower than the national average of 3.3 per 100,000 it is noticeably higher than the rates in neighboring California (2.4) and Washington State (1.7).

One can speculate why this might be the case. As I have often documented on this blog, Oregon has an unusually large number of people who work in relatively dangerous occupations – such as logging and truck driving. Whatever its cause, the fact that our state’s workplace fatality rate is unusually high by regional standards is a clear cause for concern.

A party line vote in the Senate Commerce, Science & Transportation Committee this week marked a big win for industry lobbyists and loss for consumers. According to a report in the Washington Post the approved legislation, which now heads to the full Senate, “brims with industry-sought provisions that would block, delay or roll back safety rules.”

The newspaper’s account focuses in particular on auto and rail safety. According to the Post the bill “would block a new Department of Transportation rule requiring that trains hauling crude oil are equipped with electronically-controlled brakes that affect all cars at the same time.” It would also delay rules requiring both freight and passenger trains to have “positive train control” safety systems, despite the fact that most observers believe the recent fatal Amtrak crash near Philadelphia could have been avoided if a PTC system had been in place on the train in question.

On our roads, the bill would roll back measures intended to curb car accidents here in Oregon and around the nation by increasing the size of the fines the National Highway Traffic Safety Administration can assess against auto makers. Those fines are currently capped at $35 million – a relatively small sum for any big global carmaker – at a time of record-shattering auto recalls. The NHTSA had sought the authority to levy fines of up to $300 million, believing that the higher number would give car companies more incentive to put safety first. The committee reduced that to $70 million.

Portland residents began to get some sense this week of how the “street fee,” the proposal to help fund city roads and maintenance that has been debated all summer, may eventually help to improve health and safety around our city.

According to an article published this week in The Oregonian, “the (city’s) Transportation Needs and Funding Advisory Committee (this week) produced the most detailed list to date of potential transportation projects.”

Though explicitly described as a “wish list,” – a fact designed to indicate that not all of the projects listed in the report will be funded, and that some may be funded at different levels from those recommended in this report – the document does offer some sense of how city leaders would like to allocate the revenue raised by the Street Fee.  According to the newspaper “The list included an estimated $109 million in dozens of specifically identified sidewalks, pedestrian crossing, bicycle and other safety projects.” The estimate is “based on roughly $35 million annually in net revenue for a six year period.”

A mini-documentary and accompanying article posted on the New York Times’ website last week are a timely reminder of the importance of both accurate reporting and of the role our courts play in helping ordinary Americans get the justice they deserve, even when facing off against large, deep-pocketed corporations.

The piece, part of the Times’ “Retro Report” series examining older stories people may only half-remember, focuses on the famous McDonald’s coffee case from the early 1990s. Note that I wrote “famous” not “well known”, because, as the documentary outlines, most of what people think they know about this case is wrong.

In the popular imagination the McDonald’s case is evidence of a personal injury law system run amok: an elderly woman collecting a lottery-sized settlement from McDonald’s after spilling coffee on herself. In many popular versions of the tale she suffered the burns while also driving the car with the coffee cup between her legs. As the documentary outlines the car was parked, the victim was in the passenger’s seat and her burns were severe enough to be life-threatening. The large settlement awarded in the initial trial was reduced by more than 80 percent on appeal. Perhaps most shocking, as the newspaper notes, “she was not one isolated case of scalding, there were hundreds – which amazingly did not move McDonald’s to change their policy on the temperature at which to keep the coffee.”

With barely two weeks to go until election day voters in Washington won a victory this week even before they go to the polls to decide the fate of Initiative 522. According to an article published Friday in The Oregonian a major opponent of the GMO-labeling initiative bowed to pressure from the Washington State attorney general and agreed to disclose the names and contributions of major donors to an anti-522 campaign.

Washington State Initiative 522 would require the labeling of foods produced using genetically modified organisms, also known as GMOs. A similar ballot initiative in California failed in 2012 after a strong ‘vote no’ campaign funded by the food industry. With Washington voters scheduled to go to the polls on November 5 the Grocery Manufacturers Association, a trade group, “agreed to make public a long list of donors to its anti-labeling campaign after being sued this week by Washington Attorney General Bob Ferguson. He charged that the Association violated the state’s disclosure laws by setting up an internal fund that solicited money from its members to fight the initiative,” the newspaper reports.

According to The Oregonian, the GMA has put over $7 million into the anti-522 campaign, with almost half of that coming just from Coca-Cola, Pepsi and Nestle.

This blog often highlights things that go wrong – instances of negligence and irresponsibility at the end of which someone gets hurt and our legal system is called upon to offer justice, and some measure of solace, to victims and their families. An article that appeared in The Oregonian this week, however, is a reminder that the opposite of recklessness and negligence lies in proper training, having proper equipment and displaying professional responsibility.

The story that brought all this to mind concerns a Southeast Portland man whose life was saved on board an airplane last April when he suffered a heart attack while on a flight from Portland to Dallas. According to the newspaper the man’s wife became worried when she found him suddenly looking gray and acting unresponsive in the seat next to her. The woman’s “distress got the attention of those around her” the paper reports. Within moments a doctor and nurse, both from the Oregon Health and Science University Hospital but who were traveling separately, sprang to the man’s aid as flight attendants rushed to get the portable defibrillator that is now standard equipment on most commercial aircraft.

The doctor managed to revive the patient using hands-only CPR, the paper reports, with the patient showing signs of life just as the defibrillator was being activated. The doctor sent word to the pilots that the plane needed to land as soon as possible, leading to an emergency stop a short time later in Salt Lake City. As paramedics removed the man from the aircraft fellow passengers applauded.

State and federal lawsuits filed last week in California are seeking to change current legal thinking and make it harder for medical device makers to avoid responsibility for defective products. According to an analysis published in the Wall Street Journal the suits “could challenge the broad liability protection that medical device makers have enjoyed since a key Supreme Court ruling in 2008.”

The target of the suits is St. Jude Medical, the maker of the Riata line of defibrillators. According to the Journal, the plaintiffs in the suit claim “that problems with the manufacturing and oversight of Riata defibrillator ‘leads’ injured or killed more than 30 patients. Faulty leads, which connect the heart to defibrillators that zap irregular heart rhythms back to normal, caused the devices to fail or needlessly deliver blasts of electricity, the suits allege.”

It might seem obvious that here in Oregon, in Washington or anywhere else in the country companies have an obligation to ensure that the products they sell are safe and function properly, but manufacturers of unsafe medical devices gained unprecedented liability protection via the Supreme Court’s 2008 Riegel v Medtronic case. That ruling, as the Journal reports, granted medical device makers immunity from state unsafe product liability laws on the grounds that medical device safety is a federal issue.

An editorial published last month by the New York Times raises important questions about the legal and moral responsibility medical device manufacturers have, or ought to have, concerning their products.

The newspaper focused on all-metal hip implants in general and the actions of DePuy Orthopaedics in particular. DePuy is a division of pharmaceutical and medical supply giant Johnson and Johnson. The paper writes that “about 93,000 patients around the world” received DePuy’s all-metal Articular Surface Replacement (ASR) model hip implant until it was recalled in 2010. However, the paper notes, “documents show that as early as 2008 DePuy executives were told by a number of surgeons, including its own consultants, that the device appeared flawed.” The article goes on to note: “That was never disclosed to doctors who were putting the device into patients, nor were other unfavorable internal studies.”

In response DePuy’s president wrote to the Times this week to take issue with the editorial, noting that the ASR had been approved by federal regulatory authorities and that when data indicated that numerous patients were requiring early replacement of their implants the company “recalled the product and immediately supported patients with a reimbursement program for their medical costs.”

50 SW Pine St 3rd Floor Portland, OR 97204 Telephone: (503) 226-3844 Fax: (503) 943-6670 Email: matthew@mdkaplanlaw.com
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