Articles Posted in Products Liability

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When parents with young children purchase a new vehicle, they may pore over data regarding the vehicle’s safety ratings, including its safety in side-impact collisions. Unlike that new car, van, or SUV, the car seat carrying those same parents’ young child may not have undergone similarly rigorous side-impact crash testing. When a car seat fails to perform as it should in a crash and a child is injured, the law allows those families to seek compensation, and they should contact a knowledgeable Oregon child injury lawyer right away.

Late last month, the National Highway Traffic Safety Administration announced a new rule that modified the existing “Federal Motor Vehicle Safety Standard No. 213,” which is the rule covering child car seats. For decades, federal regulations required manufacturers to put their car seats through crash simulation testing that replicated a “30-mph frontal impact.” The new amendment “establishes a side impact test that replicates a 30-mph side collision, commonly known as a T-bone crash. ”

This amendment to the rule is a welcome addition, but it was a long time in coming. Congress initially called for the addition of side-impact standards to the rule more than 20 years ago, in 2000.

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The video is horrific. It shows two toddlers playing on a Peloton treadmill, apparently without adult supervision. The younger of the two, a boy, tries to place a ball on the treadmill’s moving belt and is almost immediately pulled underneath the still-running machine. He manages to extract himself only to be pulled back in a few seconds later – this time further underneath the machine and with his neck bent at a frightening angle.

The whole thing lasts about a minute and at the end the small boy frees himself again before walking out of the picture. The video was posted to the internet by the Consumer Product Safety Commission more than two weeks ago. According to CNN “the agency issued an ‘urgent warning’ for users of the machine. At the time the CPSC said it was aware of at least 39 accidents involving the treadmill including ‘multiple reports of children becoming entrapped, pinned and pulled under’ the device.”

Peloton initially pushed back, calling the CPSC warning “inaccurate and misleading” according to CNN, but reversed course last week, agreeing to recall some 125,000 of the treadmills. Meanwhile, updated CPSC data now indicate that at least one child has died and 70 others have been injured by the devices, which cost between $2500 and $4300.

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Few would disagree that today’s cars are safer than cars built in 1967. Still, it is astonishing to discover that a key safety standard applied to virtually every vehicle on America’s roads has not been updated in all that time. The feature is seatback strength, and, as a recent article in The Oregonian’s business section outlines, the standard by which the government assesses it has not changed in 53 years.

Seatback strength is something few car buyers think about. But even if they did, fewer still are in any position to assess it. Auto manufacturers assure customers that car seats meet or exceed all federal safety requirements, without adding that the requirements themselves are so out of date “that a lawn chair could pass it” according to the consumer advocacy organization FairWarning, which authored The Oregonian article.

The organization says engineers who have studied the issue regard the National Highway Traffic Safety Administration (NHTSA) standards for car seats as “laughably weak… In actual rear-end collisions, the seat pushing forward against the weight of a person in the front seat can cause the seat to collapse, sometimes throwing the driver or passenger head-first into the back or out of the rear window, and also endangering anyone in the back seat.”

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A recent Associated Press article about the deaths of two workers building a new luxury hotel in the Orlando area caught my eye because it is relevant to workplace safety discussions that often take place here in Oregon.

According to the news agency, “two construction workers fell to their deaths when scaffolding collapsed as they were pouring concrete on the seventh floor or a 16-story hotel under construction near Disney World.” A fire and rescue spokesman is quoted saying that the scaffolding “gave way” for reasons that are still under investigation, “sending two workers plummeting to the ground below.” The hotel being built was a Marriott, and it was a spokesman for the Marriott corporation who addressed the media in the wake of the accident. As is often the case in the hotel industry, however, actual ownership of the building lies elsewhere. According to the AP the building is actually “owned and developed by DCS investment holdings, a private equity group based in West Palm Beach, Florida.” DCS is also managing the construction project itself, according to the news agency.

While the article does not explicitly make this point, it is also fair to assume that a number of subcontractors are also involved. We do not know for certain whether one of those might be a scaffolding company, but such an arrangement would be the norm throughout much of the construction industry.

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Over the last five years I have written about the danger posed by Takata airbags on more than half a dozen occasions. Recently, an article in the Washington Post brought the issue back into focus.

As the newspaper chillingly puts it: “ten years after the biggest safety recall in US history began, Honda says there are more than 60,000 vehicles on the nation’s roads equipped with what experts have called a ‘ticking time bomb’”: defective air bags. As the Post explains, the bags were installed in “37 million vehicles built by 19 automakers. At least 22 people worldwide have been killed and hundreds more permanently disfigured when the airbags that deployed to protect them instead exploded and sprayed shrapnel.”

The company that manufactured these deadly air bags, a Japanese firm called Takata, was once one of the largest car parts suppliers on earth. In the years since the scandal emerged it has acknowledged that it knew about the dangers of its air bags for years before publicly acknowledging them and faced a $1 billion fine from the US Justice Department. Three of the company’s top executives face federal indictments here in the US but have not been extradited from their native Japan.

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Lawsuits filed in Tennessee and South Carolina against a guardrail manufacturer whose products are used throughout the country are drawing attention to a potential hazard on highways nationwide. The different reactions of the states where the suits were filed, however, also requires our attention because of the potential legal issues it may create in the months and years to come.

According to a recent article in Claims Journal the lawsuits “accuse the Omaha, Nebraska based Lindsey Corporation of negligence in the design of X-LITE guardrails. Instead of telescoping to absorb impact when vehicles hit them, the guardrails pierced through vehicles, killing one woman and injuring another so severely she had to have a leg amputated, according to the complaints.”

Though Claims Journal reports that the company maintains “that their guardrails still meet federal guidelines” it’s obvious that Lindsey faces serious legal consequences for making and selling a product that many users now believe is defective. But the different responses from Tennessee and South Carolina also deserve our attention. According to Claims Journal “scrutiny of the guardrails has prompted Tennessee and other states to remove them from their roadways, but South Carolina transportation officials said they would leave the rails in place until they are damaged or outlive their lifespan.”

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Last week a jury in St. Louis became the fourth in a year to award substantial damages to a plaintiff who believes that consumer goods giant Johnson & Johnson’s talcum power is linked to ovarian cancer. According to a Bloomberg News report, the Missouri jury awarded the woman $110 million in damages. This follows three jury verdicts of $55 to $72 million in similar cases last year (the company has won one case during the same period, according to Bloomberg). Appeals are expected in all of the cases.

The agency quotes the attorney for the plaintiff in the St. Louis case saying: “Once again we’ve shown that these companies ignored the scientific evidence and continue to deny their responsibilities to the women of America… they chose to put profits over people, spending millions in efforts to manipulate scientific and regulatory scrutiny.” In addition to the millions in damages from J&J the jury also Imerys Talc America, a separate company that manufacturers talc sold under the J&J label, to pay $100,000 in damages.

Bloomberg reports that more than 1000 cases alleging a link between J&J’s talc and ovarian cancer have already been filed. Though J&J is headquartered in New Jersey many of these cases have been filed in Missouri because that state’s laws allow for suits like these to be filed in its courts even when the plaintiff has no connection to the state (last week’s $110 million verdict involved a woman from Virginia). But is it necessary for all these cases to head for the Midwest? Are the product liability laws here in Oregon adequate to address cases like this?

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2016 saw “the largest number of children’s product recalls in more than a decade,” according to the Chicago Tribune and a report published earlier this month by the non-profit watchdog group Kids in Danger.

The unusually high total was driven by two especially high-profile recalls: IKEA’s withdrawal of its Malm collection dressers and chests of drawers (click here for the blog I wrote on the subject after a $50 million settlement in the case was announced late last year) and McDonald’s move to recall millions of activity watches after the wristbands were found to cause skin irritations. The Tribune reports that each of these incidents accounted for around 29 million units out of a total of nearly 67 million units of children’s products pulled off the market in 2016.

The executive director of Kids in Danger, speaking to the newspaper, summarized the problem succinctly: “This is not a regulatory problem,” she said. “This is a problem with companies not acting quickly enough to take what is a dangerous product out of use.” The IKEA case is a particularly striking example because the now-recalled dressers had been on the market for many years. One death linked to them took place in 1989.

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Last week the Associated Press reported on a terrible house fire in Riddle, in rural Douglas County, that left four children dead and their parents and a sibling in critical condition at a Portland hospital. According to the news agency the cause of the deadly house fire was a space heater.

AP cites a Facebook post by the local fire chief in which he explains that “a component of the family’s fireplace that circulated heated air back into the house had malfunctioned several days before. The family bought the space heater to stay warm until they could get the fireplace repaired. Four children ages 4 to 13 died in the blaze.”

As a 2014 article in the Vancouver Columbian noted: “the Federal Emergency Management Agency reports that while only two percent of home fires involve portable heaters, they account for a disproportionate 25 percent of fire fatalities.” The paper added a warning for consumers that “it’s easy to miss a recall notice.” Indeed, it is easy to miss precisely because there are so many of them. A search of the Consumer Product Safety Commission’s recall database turns up page after page of heater recalls. Every few months some model or other is pulled from the market. This situation has continued for years.

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The announcement last month that furniture giant Ikea will pay $50 million to the families of three children killed when its dressers tipped over on top of them may bring closure for families of the victims. The broader question is whether it will lead to long-term changes in the company’s behavior.

As a recent article in The Washington Post outlines “the children, no more than two years old, died when Ikea dressers toppled over with crushing force. In all cases the lethal furniture was one of Ikea’s Malm dressers, a line of popular assemble-it-yourself chests.” The newspaper adds that “such a payout may be among the largest-ever settlements of its type.”

In looking at Oregon’s laws concerning dangerous products and injuries to children large corporations often take solace from ORS 30.910. This states that “it is a disputable presumption in a products liability civil action that a product as manufactured and sold or leased is not unreasonably dangerous for its intended use.”

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