July 26, 2010

Illinois Product Liability Rules to Evaluate Product Dangerousness Given By Appellate Court

A recent Illinois Appellate court decision on a product liability claim reviewed the elements needed to prove strict liability in an Illinois product liability claim. In Charles Salerno v. Innovative Surveillance Technology, Inc., No. 1-09-1402, the plaintiff appealed the trial court's decision to grant the defendant's motion for summary judgment. The Appellate Court affirmed the trial court's decision, but for different reasons.

Cargo%20van%201.jpgThe basis of the product liability claims in Salerno are centered around an injury the plaintiff sustained while working in a surveillance cargo van manufactured by the defendant. The van contained a video periscope system. The plaintiff's injury occurred when he tried to stand inside the cargo van and struck his head on the metal periscope. According to the plaintiff's product liability complaint, his severe head trauma and resulting seizures could have been avoided if the defendant's product had not been unreasonably dangerous and defective.

The trial court granted the defendant manufacturer's motion for summary judgment on the grounds that the risk of being harmed by the periscope was open and obvious and that the defendant had no duty to protect the plaintiff from any resulting injuries.

Upon review, the Appellate Court was critical of the trial court's reason for dismissing the Illinois product defect lawsuit. In a prior decision the Illinois Supreme Court decided that a product's open and obvious risk of harm does not constitute an absolute defense in a strict liability count. While this defense may be considered as part of the risk-utility analysis it can not constitute the only factor.

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July 13, 2010

Cook County Car Crash Leaves Teenage Girl a Quadriplegic: Settlement Reached

A Cook County personal injury lawsuit involving an Illinois auto accident that left a 19 year-old girl a quadriplegic recently received a $6.05 million settlement. The bulk of the settlement in Perez v. Baeza, et al., No. 09 L 3958 came from Sparco, a distributor of race car seats that was involved in the case under product liability claims. Sparco contributed $6 million, which was the full extent of its insurance policy.

Spine%20Xray%20A%201.jpgThe events leading to the case began in 2005 when Perez's boyfriend, Baeza, was driving them home from a quinceañera, i.e. a coming of age celebration for a 15 year-old girl. Baeza had been drinking and was speeding along when his car left the roadway and struck a tree. He was later charged with an aggravated DUI.

At the time of the Illinois car crash Perez was a passenger in the front seat. Baeza had modified the front seats of his car, replacing the factory-installed seats with race car seats distributed by the California-based Sparco Motor Sports, Inc. Perez was left a quadriplegic as a result of the auto accident.

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July 2, 2010

Illinois Worker’s Claim Against Employer for Spoliation in Product Liability Claim Denied - Gerard v. ConAgra Foods, Inc.

An Illinois worker sued his employer for negligent spoliation of evidence, claiming that it had breached its duty to preserve evidence from a work site forklift accident in Gerard v. ConAgra Foods, Inc., No. 06 C 6163 (April 28, 2010). The plaintiff's lawsuit was based on his claim that his employer's negligence in preserving evidence from the accident prevented him from winning an Illinois product defect lawsuit against the forklift manufacturer. Based on its review of the case facts and relevant case law, the court held that plaintiff did not demonstrate that ConAgra Foods had breached its supposed duty to preserve evidence.

Forklift%202.jpgWhile working at one of ConAgra's warehouses a forklift hit the plaintiff from behind. The force of the impact knocked the plaintiff to the ground, where the forklift ran over his right leg. The forklift in question was one of four machines that ConAgra had rented for use at its St. Charles, Illinois warehouse.

In order to make a viable Illinois product defect case against the forklift manufacturer the plaintiff needed to know which of the four forklifts had hit him. Without being sure which forklift was involved in the accident it would be difficult for the plaintiff to claim that the accident was caused by the forklift's malfunction as a result of a product defect.

However, while ConAgra did make an investigation into the accident it never document which forklift was responsible. Furthermore, ConAgra had already returned at least on of the forklifts to the leasing company by the time the plaintiff began to investigate the workplace accident on his own. Therefore, the plaintiff was never able to discover which forklift ran him over and consequently was unable to prove his product defect case against the forklift manufacturer.

The plaintiff sought restitution from his employer on spoliation of evidence claims. In response, the defendant ConAgra filed a motion for summary judgment stating that given the relevant facts that it owed no duty the plaintiff on the spoliation issue.

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June 30, 2010

Drop-Side Crib Recalls By Federal Regulators Due to Death and Injury

The U.S. Consumer Product Safety Commission (CPSC) has issued a recall on over 2 million drop-side cribs. Drop-side cribs are baby cribs whose sides raise and lower in order to make it easier for parents to lift their baby out of the crib. However, numerous reports injury or deaths resulting from repeated malfunctions of these movable sides has led to the widespread recall of drop-side cribs.

DropSide%20Crib%201.jpgAccording to reports, these cribs' product defect seems to result from a product design defect that allows the baby to slip into the gap that opens up when the movable sides separate from the crib. There have been reports of over 30 babies in the U.S. alone who have died as a result of the malfunctioning cribs and over 250 consumer reports of defective sides during the span of 2000 to 2009. The inherent dangers in these types of cribs has prompted a spokesperson from Kids in Danger, a Chicago-based advocacy group, to warn parents not to use a drop-sided crib.

A 2007 expose by the Chicago Tribune can be credited with first exposing the dangers that can result from the crib's product defect. To date there have been approximately 9 million cribs recalled. For more information on the specific cribs included in the recall, visit the U.S. Consumer Product Safety Commission's website.

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June 11, 2010

Auto Defect Case to be Reviewed by Illinios Supreme Court

The Illinois Supreme Court will hear an Illinois product defect case to determine whether to affirm or remand a $43 million jury verdict against Ford Motor Co. in Jablonski et al., etc. v. Ford Motor Company, No. 11096. The Illinois product liability lawsuit included claims that the auto manufacturer negligently installed a rear axle fuel tank, which caused injuries to the plaintiffs following a high-speed, rear-collision auto accident.

Trunk%201.jpgThe Illinois Appellate Court has already affirmed the lower court's ruling, but Ford Motor Co. brings its arguments before the Illinois Supreme Court in an attempt to reverse the trial court's rulings and resulting product defect jury verdict. Jablonski was filed after the plaintiffs were involved in a rear-end auto accident where their 1993 Lincoln Town Car was struck by a Chevrolet Lumina at 60 mph. The force of the collision propelled a pipe wrench laying in plaintiffs' trunk through the trunk's walls and into the fuel tank, which resulted in a fire that left the husband dead and the wife severely burned.

The 1993 Lincoln Town car was one of the four vehicles, including one designed for police, that was built with a fuel tank behind the rear axle. Plaintiffs allege that Ford was not only negligent in locating the fuel tank in that position, but it also failed to guard against and warn of the dangers of locating the fuel tank behind the rear axle.

Rather than filing a strict liability lawsuit, the plaintiffs' brought a negligent design claim against the car manufacturer. While strict liability and negligence claims both require the plaintiff to prove that there was a design defect, the negligence claim also requires that the manufacturer knowingly failed to exercise reasonable care. Because there is an additional burden of proof under manufacturer negligence claims most product liability lawsuits include strict liability, not negligence claims.

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June 4, 2010

GlaxoSmithKline Avandia Case Settles: First of Many Cases Set For Trial

The first Avandia case set for trial against drug manufacturer GlaxoSmithKline (GSK) settled for an undisclosed amount. The pharmaceutical litigation case was brought against GSK after new studies of Avandia revealed that using the drug could increase the risk of heart attacks and strokes.

Avandia%201.jpgNo details of the settlement or the terms were announced except a statement indicating that the details of the settlement were to remain confidential. And while GSK would not indicate how many plaintiffs were involved in the recent settlement, according to reports by Deutsche Bank, as many as 5,000 claims for damages were reportedly consolidated in this Philadelphia case.

If the alleged number of settled claims is correct, then this could mean that GSK has settled almost half of the pending Avandia claims. Analysts have been evaluating the progress of GSK's Avandia lawsuits and had originally estimated there to be around 13,000 claims against GSK that would take around $6 billion in total to settle. While GSK has yet to confirm the actual numbers in any of the Avandia cases, according to a recent Reuters's article by Ben Hirschler, the recent developments indicate that GSK's final payout would be considerably less. New estimates indicated that the final payout might be close to $1.1 billion instead of the $6.6 billion originally anticipated.

It will be interesting to see whether GSK plans to settle the next set of claims, which is scheduled for an October 2010 trial in Philadelphia. To date it has not settled any of its multi-district litigation claims that are pending in federal court.

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May 28, 2010

Recall of Children's Tylenol Subject of Congressional Hearing Entitled "Johnson & Johnson's Recall of Children's Tylenol and Other Pediatric Medicines"

Yesterday the House Committee on Oversight and Government Reform launched a Congressional hearing regarding "Johnson & Johnson's Recall of Children's Tylenol and Other Pediatric Medicines" in order to further investigate McNeil Consumer Healthcare/Johnson & Johnson's recall of numerous children's medicines.

Congress%201.jpgSince its April 10, 2010 voluntary recall, Johnson & Johnson has recalled around 136 million bottles of more than 40 different types of popular medicines. A complete list of all the recalled children's Tylenol products can be found at the company's website. The list of drugs recalled by McNeil include Infants’ Tylenol, Children’s Tylenol, and Children’s Benadryl, and Children’s Motrin.

The massive recall of children's Tylenol products was the result of manufacturing defects and poor quality control at McNeil's manufacturing plants that caused the medications to contain either too much of the active ingredients, inactive ingredients that failed to meet testing standards, or metal specks within the medications.

The House committee's investigation was set into motion by Chairman Towns and Darrell Issa (R-CA) earlier this month due to the large number of medicines included in the Tylenol recall. McNeil Consumer Healthcare could face a number of repercussions from the Food and Drug Administration (FDA), including seizures of its current products, criminal penalties, and/or additional sanctions.

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March 22, 2010

Illinois Product Liability Claim Underscores the Importance of Filing a Well-Drafted Complaint

In the recently-filed Illinois product liability case of Padilla v. Hunter Douglas Window Coverings, Inc., No. 09-cv-1222 (Jan 19, 2010), the Northern District of Illinois Court reviewed the Plaintiff's Complaint to determine whether the plaintiff's complaint set out sufficient claims of liability against the three defendants. While the court ultimately decided that there were sufficient claims for potential negligence and liability on behalf of the defendants, if it had ruled that the plaintiff had not established a sufficient claim then the Illinois product liability claim would have been dismissed.

Blinds.jpgThe review of the complaint in this lawsuit was prompted by the defense filing a Motion to Dismiss pursuant to the Federal Rule of Civil Procedure 12(b)(6). Under the Federal Rule 12(b)(6), the Court examines the Complaint to ensure it satisfies the following requirements:

• provides a clear and concise claim showing that the plaintiffs are entitled to receive relief from the defendants and that the defendants had fair notice of the underlying problem;

• a set of facts that are sufficient to support its arguments of liability on behalf of the defendant(s).

The Illinois product liability lawsuit was filed after the plaintiff's toddler died after becoming entangled in a metal cord at his home's mini blinds. The complaint was direct towards product's manufacturer, Hunter Douglas Window Covering, and two industry trade groups involved in reviewing the safety of the mini blinds in question. Defendant WCMA is a window covering industry trade group responsible for the development and implementation of manufacturing standards. Defendant WCSC is a coalition of window covering manufacturers set up to correct the strangulation hazard posed by window coverings, such as those involved in Padilla.

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March 8, 2010

Illinois Product Defect Case Reviewed By Illinois Appellate Court: Lower Court Ruling on Product Defect-Chain of Distribution Reversed

An Illinois product defect case was reviewed by the Illinois Appellate Court to determine whether the Illinois trial court had erred in granting summary judgment in favor of the defendant transporter company. In Graham v. Bostrom Seating, Inc., et al., No. 5-08-0409, the Illinois Appellate Court evaluated issues of whether the transporting company was involved in the distribution of the defective truck and thereby whether they could be held liable for the Illinois defective product lawsuit.

Driver%20Seat%202.jpgGraham involves a plaintiff who was injured in an International truck that was equipped with a defective seat. The truck involved in the case was owned by the defendant, Cassens Transport Company. In Graham, the plaintiff alleged that Cassens was liable for the the defective seat under Illinois product liability principles because the company served as a distributor and seller of the truck.

The plaintiff's liability claims revolved around their claims that Cassens “was in a position to make the truck reasonably safe,” and was “aware at all times . . . of the defects and/or potential for injury arising from the placement of the truck in question into the stream of commerce.” The plaintiff further alleged that Cassens profited directly from the truck's sale, or by channeling of savings for profits to its affiliated corporations or its board of directors/stockowners.

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March 1, 2010

Wyeth v. Levine Used to Reverse Pre-Emption of Chicago Pharmaceutical Litigation Case Against Glaxo Smith Kline (GSK)

An Illinois prescription drug case that originally had been dismissed due to issues of federal preemption, has been reinstated by the 7th Circuit Court of Appeals in Chicago. This case, Mason v. SmithKline Beecham Corp. d/b/a Glaxo SmithKline, No. 08-2265,___F.3d___, 2010 WL 605922 (7th Cir. Feb. 23, 2010) may be the first decision that addresses preemption with respect to prescription drugs.

Rx%20Warning%201.jpgThe original Illinois prescription drug lawsuit was brought by the parents of 23 year-old Tricia Mason after she committed suicide just two days after being started on the prescription drug Paxil. The Illinois prescription drug lawsuit alleged that Paxil increases the risk in suicide in children and young adult, which the manufacturer should have known and therefore had a duty to warn its users.

The lawsuit alleged that GSK violated Illinois law by choosing not to warn Tricia Mason on its label that Paxil increases the risk of suicide for children and young adults. Two years after the decedent's suicide, Paxil added a label warning of an increased risk of suicide among children taking the drug.

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February 5, 2010

Toyota Recalls Reaches New High As Models Expand to Include Prius and Other Hybrids

Toyota recently announced another recall in the long line of Toyota recalls instituted since Toyota's September 2009 recalls. In the past year around 8 million Toyota vehicles have been recalled and now over 400,000 of their hybrid vehicles, including the high selling Prius, have been recalled.

Prius%201.jpgThe unusually large number of recalls due to potential product defects have caught the attention of the top safety officials at the U.S. Department of Transportation. Transportation Secretary Ray LaHood and other top auto safety officials have made requests for information from Toyota since November, but the manufacturer has yet to comply with the requests.

It has been suggested by a senior American Transportation official that executives at Toyota were "dragging things out" and that the U.S. officials have had it with the automaker's lack of corporation regarding its auto product defects. The official goes on to state that they "were getting excuses [from Toyota] that didn’t make sense anymore.”

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November 9, 2009

Could Product Defect Be at Fault? Toyota and Lexus Cars Reported to Have Numerous Sudden Acceleration Accidents

According to the Chicago Tribune, since 2001 over 1,000 Toyota and Lexus owners have reported that their cars having suddenly accelerated on their own. Sometimes these runaway cars were found after crashing into trees, parked cars, brick walls, and other obstacles. In fact, some of these crashes have resulted in death with as many as 19 deaths directly related to sudden accelerations reported over the last ten years.

toyota_logo%201.jpgTo date there have been no less than eight investigations into the sudden accelerations in Toyota and Lexus cars by the National Highway Traffic Safety Administration (NHTSA) over the last seven years. NHTSA investigated the cases from all angles, including whether there was any product defect responsible for the occurrences.

Toyota recalled around 85,000 vehicles in response to two of those inquiries, but the federal agency closed six other cases without finding a defect. Some of those cases closed by federal officials were those in which drivers said they were unable to stop runaway cars even trying to stop by using their brakes. In spite of the NHTSA closing some of these cases, fatal crashes involving Toyota cars have continued to rise.

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September 28, 2009

Chicago Area Hydroxycut Lawsuits Pending In Illinois

Since this May, when the U.S. Food and Drug Administration (FDA) reported that Hydroxycut product users could suffer from adverse liver disease, numerous lawsuits have been filed around the country, including several in the Chicago area.

Pills%20gold%201.jpgOn May 1, 2009, the FDA announced that it had been made aware of 23 reports of adverse liver effects that occurred in the course of normal Hydroxycut usage. The reports included injuries that ranged from general liver damage, the need for a liver transplant, and to death. At that time the FDA warned consumers to immediately cease using Hydroxycut products.

Signs and symptoms of liver damage from Hydroxycut usage can include fatigue, malaise/ tiredness, loss of appetite, nausea, jaundice, blurry vision, abdominal itching, abdominal pain, and/or dark colored urine. Hydroxycut has also been known to cause drug-induced hepatitis and liver failure.

In response to the FDA's warning, Iovate, the owner and distributor of Hydroxycut products, agreed to recall its remaining product from store shelves. Hydroxycut was generally sold throughout the United States and Illinois at stores such as Wal-Mart, Walgreens, and CVS Pharmacy, among others.

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August 5, 2009

FDA Warns Consumers on Body-Building Products Sold As Nutritional Supplements

Increased reports of medical problems associated with certain nutritional supplements has prompted The Food and Drug Administration (FDA) to issue a public health advisory on body building supplements. These supplements may contain steroids or steroid-like substances and may be associated with kidney failure and liver failure in men.

Pills%20C%201.bmpWhile the FDA has not specified exactly how many products fall into this category, it advised that consumers not to purchase and use products labeled with words such as “anabolic” or “tren” or phrases like “blocks estrogen” and “minimizes gyno”. In addition, the FDA cautions consumers to be wary of body-building products claiming to enhance or diminish the effects of hormones like testosterone, estrogen or progestin.

Of those products that the FDA did specifically name, those included MASS Xtreme, TREN-Xtreme, ESTRO Xtreme, HMG Xtreme, AH-89-Xtreme, MMA-3 Xtreme, TT-40-Xtreme, and VNS-9 Xtreme, all of which contained hidden and potentially dangerous steroids. The FDA has taken action in the form of sending a warning letter to these drugs' manufacturer, Americell-Labs, stating that the company should produce products that are in compliance with federal regulations.

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July 20, 2009

Automotive Product Liability Claims Against General Motors Will Continue To Stand Even After Bankruptcy

The U.S. government has struck a deal with General Motors (GM) that requires the car manufacturer to assume responsibility for any automobile product liability lawsuits filed after GM emerges from bankruptcy as a new, government-owned company. This requirement even applies to claims regarding vehicles manufactured by the old GM.

GM%20Logo%201.jpgThis agreement is much better for the general public than GM's original plan, which would have barred any new product liability lawsuits being filed against the new company. However, lawmakers had a problem with leaving the American public without any legal recourse for personal injuries resulting from car and truck product defects. The deal that resulted in the present requirement resolved this problem that could have stalled GM’s plan for a quick restructuring program.

And while future vehicle product liability claims are protected, it appears that previously filed product liability claims will likely remained tied to the old GM and therefore be tied to its bankruptcy proceedings. Typically, after a company files for bankruptcy the courts and bankruptcy protection allow that company to leave any legal claims behind so that they can emerge from bankruptcy with a clean slate.

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May 29, 2009

Illinois Hydroxycut Users Showing Symptoms Described by FDA

The U.S. Food and Drug Administration (FDA) advised consumers that products sold under the Hydroxycut branded name could cause liver and heart problems. The FDA Hydroxycut advisory stated that "although liver damage appears to be relatively rare, FDA believes consumers should not be exposed to unnecessary risks.” The results were that its products were recalled.

Pills%20B%202.jpgChicago and Illinois residents have reported symptoms of adverse affects from taking Hydroxycut, which range from stomach and abdominal pain, excessive fatigue, recurring headaches, excessive weakness, vomiting, loss of appetite, to kidney failure and liver damage severe enough to require a liver transplant.

Hydroxycut products are dietary supplements that were marketed for weight loss as fat burners, energy-enhancers, low carbohydrate diet aides, and for water loss. The brand names are marketed by Iovate Health Sciences, Inc., Iovate Health Sciences USA, Inc., Muscle Tech, among other brand names.

The FDA has asked that healthcare professionals and consumers report any serious adverse or side effects from the taking of these products.

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May 14, 2009

Illinois Product Liability Lawsuit Against Gun Company Prevented by State Supreme Court

When the Protection of Lawful Commerce in Arms Act (PLCAA) was enacted in 2006 it provided protection to firearm manufactures from the majority of lawsuits being brought by victims of a shooting. Under the Act shooting victims were barred from suing firearm manufacturers in both federal and state courts under a wide range of circumstances.

Handgun%201.jpgHowever, the PLCAA does permit product liability lawsuits if the injury was caused by “a defect in design or manufacturer of the product.” The statute also goes on to state that if the circumstances involve “a volitional act that constituted a criminal offense, then such act shall be considered the sole proximate cause of any resulting death, personal injuries or property damage.”

An Illinois case asked the Illinois Supreme Court to clarify the circumstances under which PLCAA applies. The Illinois product liability lawsuit against Beretta USA Corp. involved a 13-year-old who had been adjudicated delinquent for accidentally killing his friend with a Beretta semiautomatic because he mistakenly believed that removing the clip of bullets completely unloaded the handgun.

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May 7, 2009

Hydroxycut Diet Aid Recalled Nationwide For Causing Heart Problems and Kidney Failure: Chicago Area Health Stores Pull Products From Shelves

The Food and Drug Administration (FDA) has reported that it has received 23 reports of adverse health effects in persons who have used the weight-loss product, Hydroxycut. Reported complications from using Hydroxycut include heart problems and a kind of muscle damage that could lead to kidney failure. One person suffering from severe side effects of Hydroxycut even required a liver transplant.

Pills%20A%201.jpgOn May 1, 2009 the FDA issued a warning to consumers to stop using Hydroxycut. According to the FDA warning the manufacturer, Iovate Health Scientists of Oakville, Ontario, Canada and its American distributor, are recalling Hydroxycut. All in all, lovate is recalling 14 of its product line. This recall will not affect its products Hydroxycut Cleanse and Hoodia, which have different ingredients than the other products.

The Hydroxycut brand has been widely sold at national stores including Vitamin Shoppe and GNC. The product is sold in a form of pills, drinks and powders which is designed to increase energy, burn calories and fat, and control appetite. According to the FDA about nine millions units of the product were sold in 2008. Vitamin Shoppe and GNC reportedly are removing Hydroxycut products from their websites and stores.

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April 14, 2009

Extraction Of Defective Medtronic's Sprint Fidelis Cables Causes Deaths

Medtronic, the maker of Sprint Fidelis, a heart defibrillator cable, has taken its product off the market. But the problem with it still being used by some 150,000 people around Illinois and the country has resulted in several deaths in removing the defective cable.

Heart%202.jpgMedtronic estimates that the cable has failed in a little more than 5% of patients after 45 months of being implanted. But as a preventive measure, some patients with working cables are having them removed.

Already 4 patients have died during extractions. It is feared that the toll could quickly rise if such procedures are not performed by skilled doctors at medical centers that have performed many of these operations.

“I think we are seeing the tip of the iceberg,” said Dr. Charles J. Love, a cardiologist at who specializes in cable extractions. For many patients around Illinois, the big issue is who is skilled enough to remove these defective heart implants. It is thought that some surgeons removing the cables do not have the required skill level.

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March 17, 2009

Illinois Product Liability Case Involving Product Defect Hastened by Illinois Supreme Court Decision

In a recent Chicago product defect case, the pace of settlement negotiations were perhaps hastened because in November 2008 the Illinois Supreme Court ruled that defendants in negligence suits who settle prior to trial, should not be named on jury verdict forms for the purpose of apportioning liability (Ready v. United/Goedecke Services, Inc., et al., WL 5046833).

Money%20Dollars%202.jpgThe recent Illinois product liability case involved involving a punch press operator and settled for over $5 million. Both of the worker's arms were amputated after a punch press malfunctioned and part of the machine crushed both arms.

Seven years ago a U.S. District Court judge approved a $1.1 million settlement in this same Illinois product defect case, which released one of the manufacturers of the machine that caused the injury. However, the case wasn't over as there two remaining manufacturer parties still involved in the Illinois product liability case.

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March 6, 2009

Medical Device Malpractice Changes: Congress Makes Efforts to Restore a Patients Right to Sue In Reaction to Riegel v. Medtronics, Inc.

A February 2008 decision by the Supreme Court stands as a barrier to patients who desire to sue for medical device liability. The Supreme Court ruling in Riegel v. Medtronic, Inc. holds that patients or their surviving heirs would be barred from suing makers of complex medical devices like the Medtronic's heart device product, if the Food and Drug Administration (FDA) approved its sale.

FDA1.bmpSince that ruling, judges nationwide have applied the Supreme Court decision to a wide range of cases where manufacturers was being sued. The most recent dismissal was just last week by the Wisconsin Supreme Court.

But now members of Congress want to change the law. Lawmakers and patient advocate groups say that that February 2008 Supreme Court decision left patients legally powerless against the FDA's oversight of products.

Continue reading "Medical Device Malpractice Changes: Congress Makes Efforts to Restore a Patients Right to Sue In Reaction to Riegel v. Medtronics, Inc." »

December 8, 2008

Chicago Plaintiff's Medical Device Lawsuit Denied by Illinois U.S. District Court Judge

U.S. District Court Judge Virginia M. Kendell denied a Chicago woman's medical device liability claim that her left knee injuries were caused by her knee replacement device. The complaint was removed to the federal court from Chicago's Cook County Circuit Court and contained claims of negligence, strict liability and breach of warranty based on Illinois law.

Knee%20xray%201.jpgJudge Kendall granted summary judgment in favor of the the manufacturers, Zimmer Holdings, Inc., Zimmer U.S., Inc., and Zimmer, Inc., in a lawsuit brought by the plaintiff, Joyce Link.

After reviewing the case facts, Judge Kendell held that Ms. Link's claim against Zimmer for their manufacturing of the Natural Knee II was preempted under the Medical Device Amendments (MDA) to the Food, Drug and Cosmetic Act. Per Judge Kendall's ruling this act “imposed detailed federal oversight onto the introduction of new medical devices onto the introduction of new medical devices onto the market”. Judge Kendall credited her interpretation of Riegel v. Medtronic, 128 S.Ct. 999 (2008), as partial basis for her opinion.

In addition, Judge Kendall cited 21 U.S.C. § 360(c), which states that as part of the oversight states and their subdivisions are barred from implementing their own requirements concerning medical devices, such as the Natural Knee II. The federal act specifically preempts any state requirement regarding a medical device “which is different from, or in addition to” a requirement imposed by the MDA.

In Judge Kendall's opinion, the state requirement is not preempted unless it also “relates to the safety or effectiveness of the device or to any other matter” covered by the MDA. Kendall held that Ms. Link's claim was just the kind that Congress intended to preempt under the MDA.

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December 5, 2008

Product Liability Case Reversed When Illinois Supreme Court Upholds Risk-Utility Design Test

The Illinois Supreme Court reversed a $27 million jury verdict award and ordered a new trial after applying the risk-utility test of Illinois product design liability in favor of the defendant. This is a new application of the risk-utility test, which typically falls in favor of the plaintiff.

Driver%20Seat1.jpgIllinois' strict design defect theory applies one of two tests to determine whether a product is unreasonably dangerous. The first test is the “consumer expectation” test, under which the plaintiff must show that the product is more unreasonably dangerous than a typical consumer would realize when purchasing it.

The other test is the “risk-utility”, or “risk-benefit” test. Under the risk-utility test the consumer must prove that the danger associated with a product outweighs the product's benefits. Under the risk-utility design the product manufacturer may also prove that the product's benefits outweigh the risk of danger inherent in the product's design.

In Mikolajczyk v Ford Motor Co, 2008 W.L. 4603565 (Ill.Supp.Ct. 2008) , the Supreme Court applied the risk-utility test to determine whether the product was defective under Illinois law. In Mikolajczyk, the plaintiff died of injuries sustained when another vehicle crashed into the rear end of his Ford Escort. His widow brought a claim regarding the defective design of the driver's seat against the Ford Motor Company and Mazda Motor Corporation.

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November 3, 2008

Illinois Attacks Distributor of Defective Baby Cribs

Last week Illinois Attorney General Lisa Madigan filed a lawsuit against SFCA, Inc., a distributor of baby cribs, bassinets and playpens, claiming that SFCA continues to sell and distribute the subject bassinet, even after voluntarily recalling 1,000,000 of the products in 2007.

Bassinet%201.jpgThe bassinet allegedly has design flaws. Federal regulators warned consumers that the bassinet caused the death of two infants. The bassinets are equipped with sides that drop down for easy access to the baby. Unfortunately the design creates a gap that the baby can slide through. The two infants that died did slide through and hung to death.

SFCA is not taking responsibility regarding the product liability claim for the defective bassinet, which is manufactured and marketed through Simplicity, Inc., a subsidiary company of SFCA, Inc. SFCA maintains that it wasn’t responsible for the items produced by Simplicity because it only just bought the Simplicity brand in August 2008. Yet closer examination reveals that SFCA bought the Simplicity brand bassinets, but then shipped them from its own facility using the same design of the products that killed the 2 infants.

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September 16, 2008

Goodyear Tire Defect in Motorcycle Accident Case Decision Stands: Illinois Court Allows Expert Opinions Without Pinpointing Precise Cause of Crash

An Illinois federal judge upheld a jury verdict for a woman permanently disabled in a motorcycle crash even though her expert witness did not pinpoint the exact cause of the crash. McCloud v. Goodyear Dunlop Tires N. America, Ltd. WL 2323792 (C.D. Ill. June 2, 2008).

Motorcycle%20Wheel%201.jpgTrish McCloud was severely injured in 2002 when the rear tire blew out on her Honda Gold Wing motorcycle. Her expert witness narrowed down the tire defect to three possible manufacturing errors by defendant, Goodyear. Based on his testimony the jury awarded her damages under her Illinois product liability claim.

Goodyear asked for a new trial, in part because it felt that McCloud's expert had not adequately proved that its product was defective. McCloud's expert had testified that the blowout was the result of a nylon cord getting embedded in the tire's innermost layer rather than the layers of rubber, which was where it belonged. This then caused a bubble to form in the sidewall layer of the tire, which eventually burst. Her expert posed three different ways this Illinois product defect could have occurred during the manufacturing process, but did not pinpoint which one specifically was the cause.

In response, Goodyear reasoned that the blowout was the result of the tire being overloaded and under-inflated. It argued that the motorcycle itself was overweight, which would have contributed to this blowout, and further cited inadequate checking of the tire pressure by the owner. Furthermore, the fact that none of its other customers had reported a similar problem was a factor to be considered.

Continue reading "Goodyear Tire Defect in Motorcycle Accident Case Decision Stands: Illinois Court Allows Expert Opinions Without Pinpointing Precise Cause of Crash" »

August 28, 2008

Blanco v. Baxter Healthcare Corp.: Court Upholds Medical Device Preemption Clause

A California Appellate Court supported a trial court's ruling that the Medical Device Amendments (MDA), Title 21 USC §360k(a), preempts any state law imposing safety requirements on manufacturers of a medical device. So even though the medical device did not pass all of the state's safety requirements, in Blanco v. Baxter Healthcare Corp. the plaintiff's claim was denied because the medical device in question met all the FDA requirements. As we see again and again, the MDA's preemption claim is making it increasingly difficult to seek legal recourse for a faulty medical device. Of course, this would hold true for our cases in Chicago and around Illinois.

Human%20Heart%201.jpgClaudia Blanco was diagnosed with mitral valve stenosis and needed to have her natural valve replaced with an artificial one. During surgery a bileaflet mitral heart valve manufactured by Baxter-Travenol Laboratories was inserted. A year after Blanco received the valve Baxter suspended marketing of its product due to reports of possible valve failures.

However, Blanco didn't receive any notice of the valve problems for another five years. And while the notice advised her of the potential problems it did not advise her to have the valve removed or replaced. Less than ten years later Blanco's artificial valve failed and she was rushed to the hospital for an emergency valve replacement, but died. After her death a representative from Baxter evaluated her valve and determined that the failure was in fact caused by a faulty valve.

But despite the evidence that the product was faulty Blanco's claim was denied by both the trial and appellate courts. Because the medical device had passed a "rigorous" approval by the FDA it was protected from litigation for product liability. Also, because the device's warnings were also approved by the FDA a claim cannot be brought for failure to warn.

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August 13, 2008

Injured at Work? Illinois Workers Could Have a Product Liability Case

Consider the following scenario. You work at a Chicago manufacturing factory. One day the machine you operate becomes jammed. In order to try to remove the jammed material you remove the machine's guard and place your hand inside. But as you do this the machine starts up and crushes your hand. You are now permanently disabled and unable to do your job. What are your legal options?
Machine%20Warning1.jpg Because of Illinois worker's compensation law you are limited to recover against your employer in the Illinois Industrial Commission and cannot bring a separate civil lawsuit directly against your employer. But if your injury at work involved a machine or product then you may be able to recover damages from the manufacturer in a product liability claim brought as a separate civil suit.

The most common product liability claim from work-related injuries is due to the product's lack of safety features, such as a guard or an automatic shut-off that is activated when the guard was removed, or a release lever that kills the power instantly. When a product fails to include a reasonable safety feature that makes it unduly dangerous to its user then the manufacturer can be held liable for any injuries sustained while operating the machine.

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August 8, 2008

Illinois Hip Replacement Product Defect Suit Survives After Statute of Limitations Runs: Re-Evaluation of When Discovered Injury

Chicago's 7th U.S. Court of Appeals reversed a federal district judge's ruling that barred the Illinois product liability claim of Lenore Aebischer. In 1997 at age 44, Lenore underwent a hip replacement. But the prosthetic hip manufactured by defendant Stryker Corp. allegedly failed due to structural defects, and Lenore required a second replacement surgery as a result of the Illinois medical device liability.

Hour%20Glass.jpgStryker Corp. moved to dismiss the complaint filed by Lenore because the 2-year statute of limitations had run when the case was filed in Chicago in 2005. In Illinois, typically the statute of limitations begins running from the date that the claimant should have known that there was a problem with the defective medical device. The Chicago district court found that in 2002 Lenore was aware that her hip problems were caused by a manufacturer's defect.

In 2001, Lenore saw her orthopedic surgeon for left hip pain and was told that her hip replacement might last 15-20 years. In 2002, the same doctor determined that her pain was caused by osteolysis and from particles of plastic that had broken loose from the prosthetic hip. In 2003, the surgeon performed a second hip replacement surgery to replace the failed original prosthesis. After the surgery, the surgeon told Lenore that the osteolysis was worse than he had originally thought and that the original hip device had "advanced or catastrophic failure".

Because of her surgeon's discoveries during her procedure in January, 2002, the Illinois federal district court said that the plaintiff was on "inquiry notice" that her injury might have been wrongfully caused based on the surgeon's explanation of the osteolysis and that particles of plastic from the prosthesis had gotten between that device and her hip bone.

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July 29, 2008

Collapsed Seat In Dodge Caravan Found Unsafe and Cause for Infant's Death

The parents of 8-month-old Joshua Flax filed suit against DaimlerChrysler after their son was killed in a car accident involving their 1998 Dodge Caravan. The wrongful death case centered on the allegedly defective design of the minivan's front seat backs. Jeremy Flax, et al. v. DaimlerChrysler Corp., et al.

Minivan%20Seats.jpgJoshua Flax was in the back seat of the minivan when it was rear-ended. The impact caused the front seat to collapse and its passenger to strike Joshua in the head, fracturing his skull. No other passengers were seriously injured and all parties agreed that Joshua was only fatally injured because of the product liability of the collapsed seat.

In late 2004, a jury found DaimlerChrysler's seats to be defective and unreasonably dangerous, awarding a total of $105,500,000 to Joshua's parents. This amount was later reduced, but the verdict was upheld all the way through the Supreme Court.

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July 16, 2008

Product Liability Litigation Avoided by Cook County Car Dealership: Illinois Appellate Court Clarifies Product Defect Statute

1flag%20car%202.jpgDefendant Mancari's Chrysler Plymouth dealership in Cook County lucked out with an ideological “get out of trial free” card in a product liability case involving a car sold at his dealership. Murphy v. Mancari's Chrysler Plymouth, Inc. 2008 WL 927727.

The Illinois Appellate Court's clarification of section 2-261 of the Illinois Code of Civil Procedure makes it easier for non-manufacturers to be dismissed from strict product liability cases in Illinois. The relevant section states that

"A court shall not enter a dismissal order relative to any certifying defendant or defendants other than the manufacturer . . . where the plaintiff can show . . . That the defendant had actual knowledge of the defect in the product which caused the injury, death or damage". 735 ILCS 5/2-621(c)(2).

So if plaintiff could prove that the defendant knew about the product defect then the defendant could not be dismissed from case. However, Murphy takes this interpretation a step further to determine whether it is enough that defendant just knows about the alleged defect or whether they need to know that the defect makes the product unreasonably dangerous, too?

In Murphy, Plaintiff Joseph Murphy claimed that he was paralyzed in a rollover accident because his Sebring lacked a roll bar safety device. He alleged that Mancari’s Chrysler Plymouth sold him a Sebring that was unreasonably dangerous because it lacked a roll bar. Mancari confirmed that they knew that the vehicle did not have a roll bar, but still claimed that this did not make them directly responsible.

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July 7, 2008

NHTSA's Roof Crush Standard: Opponents Decry as Ineffective and a Smokescreen for Stripping Consumer's Legal Rights

NASCAR driver Michael McDowell walked away from a violent rollover car crash during a race at the Texas Motor Speedway earlier this year. After skidding into a wall and flipping across the track several times he climbed out of his crashed vehicle unhurt. This complete lack of injury is unimaginable in your typical car, but NASCAR vehicles come equipped with roll bars to prevent roof crush in rollover crashes.

Unfortunately your typical street car doesn't come equipped with as stringent safety standards as those enforced by NASCAR. Currently the roof crush standard in the United States requires that the roof must be able to withstand pressure of at least 1.5 times the vehicle's weight. This is the same standard which was established in 1973 and has remained unchanged since its inception. In 2005 Congress proposed that the National Highway Traffic Safety Administration (NHTSA) upgrade its standards in an effort to reduce injuries and fatalities from rollover crashes.

XC90-rollover-test-resized_1.jpgRecently NHTSA came to Congress with a proposal for increasing the weight ratio to 2.5. The minimal increase has drawn a lot of controversy with its opponents calling the increase ineffective. In 2007, over 10,000 people died in rollover crashes. In Illinois there were over 5,000 rollover accidents in just 2006. Yet the NHTSA estimates that its proposed increase would only result in 13 to 44 fewer rollover fatalities a year. Senator Tom Coburn (R-Oklahoma) stated, "If we have a little increase in roof strength that doesn't result in a major decrease in injuries and fatalities, we've done nothing."

And while the ratio change is minimal and drawn criticism as being ineffective there is another controversy surrounding the bill. Possibly worse yet the NHTSA proposal has a throw in; the agency inserted language which would preempt car accident victims from suing any manufacturer who met the minimum standard.

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June 13, 2008

Attorneys Lobby for Consumer Rights Stripped Away in Riegel v. Medtronic, Inc.

U.S.%20Capitol%20Bldg.jpg

The American Association for Justice (AAJ) is lobbying for the rights of consumers injured by defective medical devices. In Riegel v. Medtronic, Inc. the U.S. Supreme Court ruled that manufacturers of medical products weren't liable for damages if their device received premarket FDA approval (see 03/01/08 post for more details). It is up to Congress to restore the rights of the consumer.

The Medical Device Safety Act of 2008 is set to mimic the 1976 Medical Device Act (MDA), which is what the U.S. Supreme Court relied on for its decision in Riegel v. Medtronic, Inc. The new act seeks to add the following language to the section titled "No Effect on Liability Under State Law":

Nothing in this section shall be construed to modify or otherwise effect any action for damages or the liability of any person under the law of any State.
By adding this language the new Act ensures that civil suits can be filed under state law even if the device was approved by the FDA.

In order to ensure that the new act protects the rights of consumers the AAJ is actively lobbying, uniting attorneys from across the country in their common goal. If you, too, feel strongly about this bill it is vital that you contact your member of Congress and voice your support for the bill.

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March 1, 2008

US Supreme Court Holds Medical Devices Exempt from Liability in Riegel v. Medtronic

In the case Riegel v. Medtronic, Inc. the U.S. Supreme Court ruled that the manufacturer of the medical device could not be sued under state law when the device causes an injury. What this means for patients is that it is now harder to file an Illinois product liability lawsuit against a maker of medical device that is FDA approved.

FDA recall video of the leads used in Medtronics pacemakers.

In its decision the Supreme Court relied on the Medical Device Amendments of 1976 (MDA) which holds that a state cannot establish regulations that are different than established by the FDA, or that are in addition to the federal requirements. Nor can state regulations supersede those laid out by the FDA regarding safety and effectiveness.

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