Articles Posted in Defective products

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The state supreme court in California has ruled that makers of brand name medications first of all owe a duty of reasonable care to make sure product labels have adequate warnings (regardless of whether the end user is exposed to the brand name drug or the generic version) and also that liability for failure to warn could be found even if the product maker stopped making the drug and no longer owns it.defective product lawyer

That ruling, which relied on a previous decision by a federal appellate court, could have big implications for product liability litigation in California. Although it doesn’t directly impact Florida cases, it’s common for state supreme courts to rely on their sister courts’ reasoning when faced with similar dilemmas. The decision is likely to open the doors to more product liability lawsuits against brand name drug manufacturers.

The case involves a woman who was prescribed a generic version of the brand name drug Brethine, which is prescribed to curtail premature labor. She was pregnant with twins at the time. The drug was originally an asthma medication, but was given for the off-label use of halting or slowing the potential for preterm labor. Both boys were born seemingly fine, but were diagnosed with developmental delays at age 3. By age 5, they were diagnosed with autism. A lawsuit filed on their behalf against the brand name drug manufacturer, Novartis, alleged the company was aware or should have known about the drug’s potential risk of adverse effects to fetal brain development.  Continue reading →

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Several years ago, Florida lawmakers decided to enact a measure that would alter F.S. 90.702 (testimony by experts) and F.S. 90.704 (basis of opinion testimony by experts), forgoing the so-called “Frye standard” (so named for the 1923 case of Frye v. U.S.) and instead adopt the more stringent and widely-used “Daubert standard”(so named for the 1993 U.S. Supreme Court ruling in Daubert v. Merrell Dow Pharm., Inc.). Then earlier this year, the Florida Supreme Court in the per curiam ruling of In re: Amendments to the Florida Evidence Code, decided NOT to adopt the Daubert standard – even though the legislature had passed a law enacting it – for two reasons:

  • Concerns regarding the constitutionality of the amendment;
  • Procedural concerns with the law creating a section that isn’t part of the state’s evidence code.injury lawyer

So why does any of this matter when it comes to your personal injury lawsuit? The truth is, it may have a significant impact in the type of evidence you are allowed to present in your case. The federal courts and most other states now follow the Daubert standard, while Florida is one of the few states that still follows Frye.  Continue reading →

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While the majority of auto accident injuries are the result of negligence by one or more motorist involved, crash victims shouldn’t overlook the possibility that a vehicle defect may have been a contributing factor, if not the sole cause.car accident attorney

The auto industry hasn’t garnered a great deal of public trust in recent years, as numerous class action lawsuits have revealed a long-standing pattern within the industry to conceal vehicle defects from unsuspecting members of the public. Last year, as noted by Automotive News, auto makers recalled a record 53.2 million vehicles for defects ranging from seat belt failures to malfunctioning airbags to non-working breaks. These are serious deficits that, even if they don’t cause a crash, may result in one suffering injuries that far worse than they otherwise would have been.

Now, we receive news of the latest reported problem, which involves an alleged defect wherein Chrysler Pacifica vans are shutting off suddenly in mid-travel. The New York Times reports one man in San Francisco was driving at 70 mph down the highway in his brand new van when the vehicle shut off without warning. As she explained, “It just died.” In the middle of a congested highway, the van slowed to a crawl with no power steering or electrical power. The driver edged his way over as far to the right as he could, trying desperately to get to the shoulder with what little juice was left as vehicles whizzed by. He was barely missed by a semi-truck that laid on the horn and was forced to swerve.  Continue reading →

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Comparative negligence is the legal theory that a plaintiff is at least partially to blame for his/ her own injuries. In some states, that fact alone can prohibit a person from collecting any damages whatsoever (pure contributory negligence). In other states, a plaintiff’s own negligence can’t be more than the negligence of other parties (modified comparative fault). In Florida, which follows a pure comparative negligence standard, any amount of comparative negligence won’t bar the claim, but it will proportionately reduce damages (per F.S. 768.81).car accident

Recently, the South Carolina Supreme Court weighed a case that asked whether the doctrine of comparative negligence applied in a crashworthiness product liability lawsuit against a vehicle manufacturer. That state follows a modified comparative fault model.

Although this is an out-of-state case, it’s worth examining because state supreme courts will often consider the rulings of sister courts in weighing similar circumstances. In this case, the court ruled that comparative negligence does not factor in a crashworthiness case. Further, public policy in that state doesn’t prohibit a plaintiff who was allegedly intoxicated at the time of a crash from bringing a claim of crashworthiness against the manufacturer of the vehicle. Continue reading →

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A federal appeals court reversed a $3 million judgment in favor of a personal injury plaintiff who alleged a defective vehicle caused him to suffer serious injuries in a 2012 car accident. The court ruled that expert witness testimony pertaining to the speed control cable should not have been admitted. Specifically, the appellate court ruled, the precedent set in the 1993 case of Daubert v. Merrell Dow Pharmaceuticals meant the trial court had a duty to perform certain gatekeeping functions with regard to its expert witnesses, and yet the court failed to do so.gavel

According to court records from the U.S. Court of Appeals for the Fourth Circuit in the most recent case, plaintiff was driving his pickup truck, which he had recently purchased, on a road in West Virginia. He was traveling about 50 mph when he realized he was unable to slow down when he let up on the accelerator pedal. He tried to slow the pickup by applying the brakes, but this did not work. In order to avoid hitting anyone else, he turned the truck off the road, drove over a curb and crashed his vehicle into a brick wall of a local business. The tires continued spinning for about half a minute after the engine shut down.

There was no indication the vehicle previously had problems with the accelerator, throttle or cruise control.  Continue reading →

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A federal product liability lawsuit has been filed against the manufacturer of Physiomesh, a medical device surgically implanted in patients suffering from hernias. woman

Plaintiff in Quinn v. Ethicon, Inc. and Johnson & Johnson, before the U.S. District Court for the Middle District of Florida, is seeking more than $75,000 in damages for serious and disabling personal injuries suffered after she was implanted with this hernia mesh. Not only was her underlying condition not remedied after the May 2014 surgery, but her condition actually steadily worsened. She suffered from persistent abdominal pain, diminished bowel motility and bowel obstruction.

About a year after the initial surgery, plaintiff underwent corrective surgery. What should have been a quick procedure ended up lasting two hours as the surgeon tried to remove all parts of the defective Physiomesh. The surgeon was unable to get it all out. Plaintiff says now she never would have agreed to undergo the procedure with Physiomesh had she known of the potential complications.  Continue reading →

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It seems such a common-sense measure for rental car companies: Don’t rent out vehicles that have been recalled until they’ve been repaired. drive7

But until June 1, 2016, there was no law stopped from them from doing so. Many rental car companies routinely rented to customers vehicles they knew were unsafe. Very few faced any consequences for it.

Then in 2004, two sisters, ages 20 and 24, picked up a rental car they assumed was safe. Little did they know, it had actually been recalled for leaking steering fluid. They were the fourth customers to rent the vehicle after the recall was announced. As they were driving, the steering fluid began to leak. The sister who was driving lost control of the car and slammed into a semi-truck before the car burst into flames, killing them both. Since then, their mother has been fighting to hold the rental car company accountable and to enact legislation that would ensure this never happened again.  Continue reading →

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Johnson & Johnson, along with its subsidiary DePuy, recently lost a $500 million lawsuit in a consolidated case of five Texas patients who suffered serious injury as a result of defective hip implants. sadness2

The patient accused the company of concealing the design flaws and dangers of its Pinnacle artificial hip implants. Plaintiffs alleged these metal-on-metal implants:

  • Failed prematurely
  • Caused tissue death
  • Resulted in bone erosion
  • Left them with high levels of metal in their blood

Although the manufacturing company was aware of the shortfalls of its products, plaintiffs alleged, it continued to market them aggressively. These artificial hips were touted as being best-suited to younger patients and those with more active lifestyles.  Continue reading →

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A Naples man has filed a product liability lawsuit against the manufacturer of an electronic cigarette (or e-cigarette), which he said he was using normally when it literally exploded in his face. His eyebrows were burned off and flames were sent shooting into his mouth, quickly burning his throat and lungs, he says.smoke

Emergency medical responders had to heavily sedate the 21-year-old so they could keep him breathing, as the burns on his esophagus and lungs were such that there was a serious risk of his airway being closed. As his air passages swelled, his life was in danger. The only reason he didn’t die, according to a lawsuit detailed in the Daily Business Review, is that he was intubated, meaning a machine was breathing for him.

According to the filing, the culprit in the explosion was a lithium battery. Defendant is a California company that is accused of using this volatile component without accounting for its incendiary properties or warning consumers of the potential danger it posed.  Continue reading →

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The Florida Supreme Court has reinstated a $6.6 million verdict in an asbestos liability lawsuit, quashing an earlier ruling by the Third District Court of Appeals that reversed a trial court’s judgment. homeconstruction

The case, Aubin v. Union Carbide Corp., is one of a string of lawsuits against the Texas-based producer and purchaser of a chemical called ethylene. A number of its products produced at its plants from 1945 to 1980 contained various types of asbestos, including Calidria chrysotile asbestos. Exposure to asbestos is the only known cause of a terminal cancer known as mesothelioma.

While many have decried the fact that the wave of asbestos litigation has clogged courts and forced companies into bankruptcy, these arguments gloss over the fact that these firms were aware of the danger posed by their products, and failed to warn or protect their workers or consumers. In fact, in the case of Union Carbide, evidence produced in a 2012 jury trial in Los Angeles that resulted in a $37.5 million judgment revealed an internal memo that proved the company knew asbestos exposure caused cancer. Continue reading →