Articles Posted in Unsafe Products

Amid all the discussion surrounding this week’s government shutdown a lot of attention has been paid both to large budget issues and to the daily inconveniences – and, in some cases serious troubles – the suspension of government services involves for many Americans.

One of the most potentially hazardous areas of the shut down may prove to be consumer safety. As an article this week at Boston.com (the website of the Boston Globe) explains, as part of the broader shut down the Consumer Product Safety Commission “is only announcing recalls that pose an imminent risk to the public.”

As though to demonstrate what exactly that might mean, on Thursday the CPSC recalled “some 15 million surge protectors sold for a decade at some of the nation’s largest retailers… after more than 700 reports of the strips overheating.” It is, of course, very good to see the CPSC still at work, even in a much diminished form, but one also must ask whether this is the bar that product recalls must cross for as long as the current government funding crisis continues.

Relatives of a Bend man who died in 2010 while using an inversion therapy table have filed a lawsuit in federal court in Eugene against the Washington-based manufacturer of the table, according to a recent article in The Oregonian.

According to the newspaper, the lawsuit alleges that the 64-year-old Oregon man “was using the table when he became trapped in the inverted position and was unable to return to the upright position or to remove himself from the machine.” The manufacturer “promotes the product on TV and online as a way to relieve back pain, improve joint health and build muscle tone,” the paper reports.

The Oregonian cites a representative from the Oregon Medical Examiner’s Office reporting that the man died from asphyxia. The coroner ruled the death accidental, but this suit raises important product safety issues. The suit alleges that the victim was unable to get himself back into the upright position despite “effort over a prolonged period” to do so.

We all know that lobbyists carry a lot of weight in Washington, Salem and other state capitals nationwide, but the lack of political will currently on display in Salem is especially hard to watch.

At issue is House Bill 3160. According to a recent article in The Oregonian, this modification to Oregon’s Unlawful Trade Practices Act would allow “Oregonians to sue companies for not paying claims promptly, denying coverage for losses or medical bills, and other reasons.” It would, in short, end the inexcusable exemption the insurance industry has long enjoyed from public accountability for its worst excesses.

The newspaper notes that “unlike similar laws in other states, House Bill 3160 would also allow third-party defendants to sue. For instance, an auto body shop would be able to sue a customer’s car insurance company even if it wasn’t the policyholder.” Put another way: by allowing third parties who have been wronged by insurers to sue the legislation would make it harder for large insurance companies to push ordinary Oregonians around. Protections like these are absolutely necessary after the many, many excesses of the insurance industry. The Oregonian notes that similar legislation was passed at the federal level in 2007, though that law specifically exempts health insurance companies.

It would be fair to say that when renting a car most of us assume the car is safe. Car rental companies make you sign a document acknowledging any visible damage to the vehicle and are known to check returned vehicles carefully before sending them back out with new renters.

Did you know, however, that if the car or truck you’re renting is subject to a recall notice no law prevents a rental company from sending you out on the road in that vehicle? As a basic measure of consumer protection it sounds amazing, but, according to a recent article in the trade publication Automotive News, it is true.

Not only that, but major figures in the industry are fighting to retain their right to send customers out in unsafe vehicles. Automotive News reports that earlier this month “major automakers and auto dealers told a Senate panel… that they remain opposed to legislation that would prohibit rental car companies from renting or selling vehicles that are subject to a federal safety recall.” (car rental companies generally sell their vehicles after a year or two of use)

The really surprising thing about the BMW recall announced this week is not the fact that some older models in the German carmaker’s line had what USA Today describes as “potentially shrapnel-producing airbags.” Rather, it is that the recall has taken this long to be initiated granted everything else we know about the airbags in question. According to the newspaper, in the recalled vehicles “the passenger airbag could explode too forcefully and send metal or plastic shrapnel flying at the passenger.”

As the newspaper reported on Tuesday, BMW has recalled its 2002 and 2003 3-Series cars because of the airbag issue. The recall order is thought to effect about 42,000 vehicles here in the United States and 220,000 worldwide. According to USA Today the air bags and related assemblies for these vehicles “were supplied by Takata, which also supplied potentially shrapnel-producing passenger bags that forced Toyota, Honda, Nissan, Mazda and General Motors to recall some 3.4 million vehicles worldwide last month.” This raises a basic question: if five other automakers using the same company’s products recalled them for this issue why did BMW – or any other manufacturer who may have used the air bags in question – wait at all to participate in the recall?

Even more troublingly, as the newspaper makes clear, this critical unsafe products issue has been on the auto industry’s radar screen for quite some time. According to USA Today, Takata air bags “were blamed for two deaths in Hondas in 2009.” Moreover, the paper reports: “Takata has had problems going back to the 1990s. It supplied faulty safety belts that triggered a recall of more than 9 million vehicles in the U.S. in 1995, a near-record at the time.”

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.

Following up a story I wrote about earlier this week, today’s New York Times reports that a Los Angeles jury has “ordered Johnson & Johnson to pay more than $8.3 million in damages… in the first of more than 10,000 lawsuits pending against the medical products maker” and its subsidiary, DePuy Orthopedics.

The lawsuits stem from allegations that DePuy knew of problems with its all-metal Articular Surface Replacement (ASR) hip implant long before the product was formally recalled in 2010, yet failed to act.

Of key interest for unsafe medical product victims here in Oregon or elsewhere are some of the legal technicalities of the jury verdict. According to the Times the jury award, which was announced Friday, does not include punitive damages because the jury found that DePuy “did not act with fraud or malice.” As the paper goes on to explain, however, it is not immediately clear how this will impact the thousands of other ASR-related legal actions. Though the article does not say so, this is partly because today’s case was decided by a state court in California. Different courts in other cities or states may view the matter differently, and state laws on medical product liability also vary from place to place. Another ASR-focused trial is scheduled to begin next week in Illinois. All that said, it is important for anyone suffering from what they believe to be an ASR-related injury to understand the details of the California jury’s award. According to the Times the jury ordered Johnson & Johnson to pay the plaintiff, a former prison guard from Montana, “$338,000 to cover his medical expenses. It also ordered him to be paid $8 million to cover his pain and emotional suffering.”

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.”

An Associated Press story published yesterday on The Oregonian’s website should grab the attention of many Oregon motorists concerned about both Oregon traffic safety and Oregon defective products issues. According to the news agency, the federal government’s National Highway Traffic Safety Administration “says it will investigate problems with stalling or surging engines in nearly 725,000 Ford cars and SUVs.”

According to the article the investigation covers 2009, 2010 and 2011 models and applies to the following vehicles:

➢ Ford Escape SUV

The Oregonian noted this afternoon that the FBI is asking people across the United States to contact it regarding illnesses traceable to tainted peanuts.

The case began in 2009 with an investigation by the Food and Drug Administration which found a Georgia plant run by Peanut Corporation of America (PCA) to be “filthy, with dead rodents and droppings, and that the company sold tainted products and sometimes had them retested after a positive salmonella test,” the newspaper reports. The FBI statement comes one day after four top executives from Peanut Corporation of America were indicted on federal conspiracy, wire fraud and obstruction of justice charges, a legal move that goes far beyond what is normal in federal cases of this type.

The FBI statement (see link below) asks victims of the tainted food to fill out a confidential form so that they can be kept notified of developments in the case. The newspaper notes that in a highly unusual move, “the ad does not limit itself to patients, either. It asks anyone affected by the outbreak – which could include the hundreds of companies that recalled products – to respond.” According to the newspaper’s report, 700 people, including 15 here in Oregon, became ill after eating tainted products traced to the factory. Among those sickened, nine deaths were also reported.

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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