Articles Posted in Defective products

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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 →

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An adult portable bed handle is defective, and has proven fatal in at least three instances. Yet since the Consumer Product Safety Commission announced the recall in May 2014, there has been a response rate of under 1 percent. hospitalbed2

Approximately 113,000 of these devices were sold from 1994 through 2007. The purpose of the handles is to attach to bedsides in order to help people roll over, sit up or stand. The problem with these devices is that when they are attached to the side of an adult’s bed without the use of safety retention straps, the handles can slide out of place, resulting in a dangerous gap between the side of the mattress and the handle of the bed. The result is a major risk of entrapment, strangulation or death.

Many product recalls unfortunately have a low response rate. However, given the severity of potential injuries and the possibility of death, the CPSC made the unusual move of re-announcing the recall.

Of the three women who died as a result of use of this product, one was disabled and two were elderly. All three of them were residing in group facilities (i.e., nursing homes and assisted living centers). Continue reading →

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The General Motors ignition switch defect linked to 124 deaths and many more injuries resulted in a criminal case by the U.S. Department of Justice, which is now being settled for $900 million.ignition1

That may sound like a lot of money, but those who have lost loved, were injured or even faced felony charges for crashes they did not actually cause, say it’s of little solace. Primarily, their issue is not so much with the dollar amount, though it is 25 percent less than the $1.2 billion Toyota agreed to pay last year for the fatal flaws in its vehicles. Rather, the issue is the fact that no one with the company will face criminal charges.

In fact, the DOJ has agreed to defer prosecution of the company for three years. If the company abides by the terms of the agreement – which include an independent safety practices monitor – the company will walk away with a clean record. Continue reading →

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Treestand ratchet straps are one of the leading causes of injury to hunters. A 2014 study published in the World Journal of Clinical Cases revealed tree stand falls were a persistent cause of neurological injury while hunting. The study period lasted eight years, and revealed this to be a significant problem in the hunting community.hunter

Tree stands allow hunters to have better sight and increased protection. However, as the study noted, they can frequently result in injury when they aren’t properly used or when they aren’t properly instructed. The most common injury is head trauma and damage to the central nervous system.

In the recent case of Bradley v. Ameristep, Inc., plaintiff suffered serious injuries after falling off a tree stand. He later sued the manufacturer of the device, alleging strict product liability, negligent design and manufacture, failure to warn, loss of consortium and violations of state consumer protection laws. Continue reading →