Articles Posted in Defective Product

Our Atlanta product liability attorneys are following recent news about Honda’s recall of 126,000 motorcycles with malfunctioning brakes, the second such recall done. These vehicle recalls show product defects in vehicles could potentially cause accidents, injuries, and even deaths.

The recalled motorcycles include GL-1800 motorcycles from 2001 through 2010, and those from 2012. Honda issued an initial recall of these motorcycles in December 2011, but continued receiving complaints. Honda told the National Highway Traffic Safety Administration that the reason for the problharley davidsonem was undetermined, and they were still investigating the cause.

Through July 24 of this year, Honda received 533 complaints about problems with the bikes. It turns out the secondary brake master cylinder can cause the rear brake to drag, which in turn can cause a crash or fire. The complaints include reports of eight small fires; luckily, no reports of crashes or injuries related to these brake problems were received.

A 2008 salmonella outbreak caused by tainted peanut butter is the subject of a trial currently underway in Georgia. The outbreak, which sickened 700 people and killed at least nine more, led to one of the largest food recalls in US history. Our Atlanta product liability attorneys have been following the case, which made the news again this week.

file4761299722009The 76-count indictment (see our previous blog post about the trial here) names Michael Parnell, the owner of Peanut Corporation of America, Mary Wilkerson, the plant’s quality assurance manager, and another former manager, Samuel Lightsey. The indictment accuses the company of shipping tainted products and hiding lab tests that showed they contained salmonella. Wilkerson is also charged with obstructing justice.

Lightsey pled guilty in May, agreeing to testify for the prosecution in exchange for a lighter sentence. In six days of testimony, Lightsey spoke of how the Peanut Corporation of America shipped contaminated products with falsified documents stating they were free of salmonella, and of the presence of mold and mildew within the plant. He also told the court of how employees used a pellet gun to shoot birds that got inside the plant.

Our Atlanta product liability lawyers are following the frightening story about GM’s defective products in their cars. This story of the dangerous defects in GM cars came to national attention partly because of cases like the lawsuit over the death of a Georgia woman in 2010.

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Brooke Melton, a pediatric nurse, died on her 29th birthday when her 2005 Chevrolet Cobalt’s ignition switch went from “run” to “accessory” while she was driving, which caused the engine to die suddenly. The Melton’s settled with GM last year, but now mounting evidence of the defects in their cars has become more and more apparent. The Melton’s asked GM to rescind their settlement but were refused and have filed a new lawsuit against GM and a Georgia car dealership in Cobb County, claiming that GM fraudulently covered up evidence and its corporate representative committed perjury in their first case. The Melton’s say if they knew what they know now, they would never have settled the case. They claim that it was fraudulent to deny anyone at GM knew of the problem with the ignition switches. A GM engineer testified he did not know about a design change in the switch, which GM has since admitted is false as the company admits to knowing about the problem for more than ten years. GM denies any fraud in dealing with the Melton’s though, so the Melton’s stated, “The response by GM and its lawyers validates our decision. We are hopeful that this new lawsuit will uncover who at GM knew about the design change and why Brooke was never told.”

Since the Melton’s first case, GM recalled 2.59 million vehicles with this problem, and just this week announced the recall of 2.4 million more vehicles. This brings the total amount of GM cars recalled this year for a variety of problems, including faulty seat belts, transmissions, and air bags as well as fire hazard issues, to 13 million vehicles, which is more than the total number of vehicles GM sold in 2013. GM so far admits that the problem caused 13 deaths, but does not count Brooke Melton’s death among that number. The 13 admitted deaths were front crashes where the airbags didn’t deploy, while Brooke’s car was hit on the side after her engine cut off.

Our Atlanta product liability lawyers read about a product liability case, Ford Motor Co. v. Conley, involving Ford and a Georgia family who suffered in a single car accident in April 2006.

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In December 2007, Renee and Jordan Conley filed a product liability lawsuit against Ford Motor Company in Cobb County for the single-vehicle rollover accident. Jordan was a child at the time of the accident and was severely injured in the crash. Renee is his mother. The lawsuit is also for Renee’s mother, and Jordan’s grandmother, Martha Pendelton, who died in the accident. During the trial in 2009, Ford objected to questions about its insurance coverage, saying only that it had sufficient resources to cover any reasonable judgment. The jury in that trial found in favour of Ford.

But then two years later, in June 2011, Ford disclosed it had excess verdict insurance coverage from several different carriers during the trial of a different product liability case. Upon learning this, the Conleys filed an extraordinary motion for a new trial based on the lack of information about insurance coverage at their trial, which prevented them from questioning jurors about potential connections to insurers. They claimed this lack of knowledge prevented them from having a fair and impartial jury hear the case. The Conley’s motion was granted, finding that Ford intentionally misled the Conleys and that they had not waived their right to qualify the jury. The Court of Appeals was divided 5-5 on the question and the case went to the Supreme Court of Georgia where oral arguments were heard on October 21, 2013. Ford argued that the Conleys were not materially harmed by its answers and that it properly objected to questions about possible liability insurers because the automaker had sufficient resources to cover any reasonable judgment.

Our Atlanta product liability lawyers know that products in your own house can be dangerous, especially to children. A news story last week talked about a Georgia family’s saga with a home elevator, which caused their young son to become disabled.

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Michael and Brandi Helvey invested $20,000 for a National Wheel-O-Vator Destiny elevator in their home to help Michael’s 80 year old mother who moved in with them. It worked so well they recommended it to neighbors. But on Christmas Eve three years ago the elevators dangers became apparent. The Helvey’s have a son, Jacob, who was three years old at the time and curious about his surroundings. The parents thought they had been careful with child gates in their home. But Jacob stood on his tip toes and managed to open the elevator’s swinging outer door. That swinging outer door closed and latched, and trapped Jacob against the inner door on the elevator car. Brandi Helvey heard noises and pushed the elevator button from upstairs, and when it started the elevator dragged Jacob. They put the elevator back down once again, but the movement shoved Jacob feet first into the elevator shaft, trapping his chest tightly in the small space. The family tried to get him out for 10 minutes with no success. When the emergency crew finally arrived, he had nearly suffocated to death already. Jacob survived, but he suffered terrible injuries. He has brain damage from lack of oxygen to his brain, he cannot speak, and he is now a quadriplegic.

Jacob Helvey and the Helvey family are not alone, sadly. These swinging door elevators have become more popular in homes in recent years, particularly to help elderly family members. At least seven children have died due to accidents with these kind of elevators since 1995. Despite this, most who install these elevators don’t know of the dangers. “We never had any idea this could happen,” said Michael Helvey. “But we found out that the industry knows all about this. There are other cases. My son was just the only one we know of who survived.” He and his family settled a lawsuit this year against National Wheel-o-Vator and their parent company, ThyssenKrupp Access.

Our Atlanta product liability attorneys have been following the on-going cases involving transvaginal mesh litigation (see a previous post on the issue here) around the country. The big federal case in Georgia is against Mentor Corp. A recent news story discussed the case against Ethicon, a subsidiary of Johnson & Johnson, for their Prolift mesh product. There are currently more than 10,000 civil cases pending against Ethicon for this product. The Ethicon case is in a federal district court in West Virginia, where civil lawsuits were consolidated. The cases will have impacts across state borders, and all these various cases will likely impact each other even though they are in different courts. Aside from this case and the Georgia Mentor Corp. case, there are four other multidistrict federal cases on-going, all involving similar products and allegations. Each of the cases has to be around a common factual basis and then it is coordinated by a single federal judge to oversee discovery and make it more efficient. If the cases go forward to trial they will be sent back to their original courts, in whatever state that may be.

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The product liability claims for these transvaginal mesh cases comes from women who have been injured when the implants they received for conditions like stress urinary incontinence and pelvic organ prolapse began to malfunction. Serious health problems include organ perforation, vaginal bleeding and scarring, abdominal pain, painful sexual intercourse and infections, as well as chronic pain in the pelvis. These symptoms have prompted doctors to advise removing the devise from these women, who sometimes have to undergo multiple surgeries to fix the damage and still have health problems afterwards.

In West Virginia, the first case of this litigation will go to trial on August 19, 2014 according to a recent order by Judge Joseph R. Goodwin at the US District Court. Which case specifically will go first will be decided among six lawsuits that the parties will have to agree on by January 6, 2014. It has been agreed upon that the plaintiffs side and defendants side will each pick three of the six cases. Some individual cases have already gone through the trial phase. One of the early cases against Ethicon from litigation in New Jersey ended with an $11.1 million award for the plaintiff, Linda Gross, in February 2013, which Ethicon appealed. In California, a victim of a different company, C.R. Bard, received a $5.5 million verdict. These cases show the momentum towards helping those injured by these products, and our product liability lawyers will keep an eye on how these various cases progress and how it will impact cases in Georgia.

Technology seems to be progressing at a crazy pace these days. Think of all the gadgets and things we take for granted now. So when our Atlanta product liability lawyers saw an article about driverless cars, it seemed like something that could possibly be not too far in the future of our lives. Google has a fleet of driverless cars and Audi and BMW are investing in the new technology too. Driverless cars are already being tested in some parts of the US.

Most car accidents are due to some kind of human error, whether negligent or reckless or otherwise. It is the number one cause of road accidents and as much as 90 percent of fatal car accidents are due to a human mistake. So theoretically, new driverless cars could save thousands of lives by reducing the risk of many accidents. It could especially counter the more extreme forms of dangerous driver behavior, such as road rage. And of course it could also impact drunk driving, as well, if those intoxicated could mainly, or someday entirely, depend on their car to drive them home.

The new question that will be faced once these driverless cars are on the roads is who will be liable in a car crash. The auto industry knows that there is a high likelihood of product liability law being more prevalent in car crash cases in the driverless future, although industry experts note that there will still, at least in the foreseeable future, be drivers in the car, just with less active driving than now. This is an issue that will have to be addressed and sorted out. Last year, Arizona introduced a law to cover driverless cars. Nevada and California have laws on the books about driverless cars, too, including a provision that requires a licensed driver to be in the car ready to take over driving at any time. So that driver would still have the potential for liability in crashes involving these new cars, as they do with regular driver-operated cars. It won’t be long before most states will have provisions to face this new technology. Jeff Dial, who introduced the Arizona law, said, “The more you deal with this issue, the more the issue grows and grows.” One other idea to confront the product liability issue is to model driverless car liability after the way vaccine liability is handled. Congress created a special way to handle these cases in the 1980s, and now the cases go to special hearings and victims are paid through funding provided by a tax on vaccines.

Medical procedures already carry with them dangers and risks, and this is worsened when medical products are defective. Our Atlanta product liability lawyers have been following a story about dialysis solutions and the lawsuits being filed around the country, including those in Georgia. Last year, the Food and Drug Administration (FDA) issued a recall for the particular solutions in question, Naturalyte Liquid Acid Concentrate and GranuFlo (powder) Acid Concentrate. The products were manufactured, distributed, and used by Fresenius Medical Care during dialysis. The company is the largest operator of dialysis clinics in the U.S. and also manufactures dialysis solutions and equipment. The FDA recall notice reads, “This product may cause serious adverse health consequences, including death.” toxic.png

Lawsuits have been filed in 37 cases in federal courts, including one involving a patient in Georgia. The plaintiffs claim that the aforementioned dialysis products caused the patients to suffer a cardiac arrest, heart attack, or sudden death, either during the dialysis treatment or within 48 hours thereafter. The various lawsuits allege that Fresenius failed to provide warnings to doctors about the importance of monitoring bicarbonate levels among patients during dialysis. The solutions contain an element that transforms into bicarbonate at levels that are often too high, leading to cardiac arrest or sudden death. The lawsuits claim that Fresenius knew as early as 2010 that their GranuFlo patients died at rates six times higher than those occurring with competing products. In 2011, the company clarified to doctors at their own dialysis centers about the problems, but didn’t issue any information or instructions outside their centers until March 2012. This led the lawsuits to claim the company knew, or should have known, about these fatal consequences of the dialysis solutions.

The deaths allegedly connected to the products occurred between 2010 and 2012. These cases involve patients from across the age spectrum, from 23 years old to 89 years old. An internal review by Fresenius found that at 667 of their dialysis centers, there were at least 941 cases of patients suffering cardiac arrest during dialysis in 2010 alone. This information is what prompted the FDA recall last year.

Our Atlanta product liability lawyers, like many around the country, have followed the gun control debate that has become particularly heated since the December Newtown shootings. And the national debate on this issue will impact Georgia and Georgia’s laws.

California Representative, Adam Schiff, a former prosecutor and member of a Congressional task force on gun violence, said recently that he will introduce a bill in Congress to lift the legal immunity of gun manufacturers and dealers. He has had some success in passing crime related bills, as the President just signed his bill encouraging the collection of DNA profiles of arrested felons. His new bill on immunity is called the Access to Justice for Victims of Gun Violence Act, and he believes that Americans have reached a tipping point on gun violence after the Newtown shootings. Currently, there is the Protection of Lawful Commerce in Arms Act from 2005 on the books, which gives gun dealers immunity from most product liability and negligence lawsuits. But Representative Schiff says it isn’t needed. He said, “Good gun companies don’t need special protection from the law. Bad companies don’t deserve it.” He also noted that other industries do not benefit from protection under the law, and that the gun industry shouldn’t be given a blank check. Guns are currently the only consumer product not subject to federal safety regulations, as well.

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His proposal, if passed, would allow federal and state courts to move forward lawsuits that could prove gun manufacturers or dealers were negligent. This would include negligence in failing to protect weapon merchandise and selling guns to convicted felons. Representative Schiff is working with the Brady Center on the legislation. Both he and the Center claim that not only is the current law unnecessary, but that courts have interpreted the law too broadly. The law as applied protects gun sellers from liability when selling hundreds of weapons to dealers who then sell them to customers with no background checks. Representative Schiff says, “When someone makes a dangerous product or acts negligently, they ought to be held liable otherwise it encourages irresponsibility.”

There is a nationwide problem with metal on metal hip replacements, and patients may need to be tested for higher cobalt or chromium levels in their blood, the best indicator that their hip replacement is failing according to recent sources. Our Atlanta product liability lawyers will be interested to see how the cases across the country progress, particularly the case in Georgia’s Federal Northern District Court.

The pending Georgia case, Wright Medical Technology, Inc., Conserve Hip Implant Products Liability Litigation, is being handled by Judge William Duffy. It is in the discovery phase, and in September the judge ruled that plaintiffs have access to documents citing complications with a particular product, the Wright Profemur hip neck stem. Plaintiffs had argued that this neck stem was an integral part of the design flaw of the hip replacement. Judge Duffy’s discovery order stated, “The Court finds that information regarding the Profemur neck is relevant to the claims in this action and reasonably calculated to lead to the discovery of admissible evidence.” It also said that the plaintiffs should get information and documents about the neck’s design and function and any notice or investigation by the manufacturer of any defects, like corrosion, fretting, or failure.

There are also cases going through the federal courts of several other states, including Texas, Ohio, California, and New Jersey. The defendants are most of the major medical device manufacturers in the United States. Aside from Wright, they include DePuy, Stryker, Biomet, and Zimmer. It is not only an American problem either. Some European health agencies have done studies suggesting that some of these devices have a failure rate of almost 50 percent in some circumstances. The British Hip Society and British Orthopaedic Association issued a joint statement on the matter. And the US Food and Drug Administration has looked into the issue, as well.