Chicago Personal Injury Lawyer Blog

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.

The 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.

Continue reading "Illinois Attacks Distributor of Defective Baby Cribs" »

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).

Trish 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 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 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" »

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.

Claudia 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.

Continue reading "Blanco v. Baxter Healthcare Corp.: Court Upholds Medical Device Preemption Clause" »

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?
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.

A product could also be faulty due to a product design or manufacturing defect. A design defect is when the product's design contains a hazard that could have been made safe by altering the design itself. For example, ladder that doesn't contain a latch to keep its position locked in place is a design defect. Whereas a manufacturing defect occurs when there are no problems with the design itself, but the defect is caused by faulty manufacturing. If there were poor quality controls in place, or improper materials were used it could result in manufacturing flaws.

Additionally, if there was a lack of warning on your product then it could also be considered defective. This can apply both when there is no warning whatsoever and also when the warning is in a poor location that renders it likely that the user wouldn't see it.

Lastly, the product you are using can be defective if it malfunctions, meaning that it did not work as it was designed. For example, a product arrives and contains broken glass on which you then cut yourself. The fact that the product is broken on arrival is not a design defect. But because the machine was delivered in a dangerous condition, the injury suffered could be proved to be caused by the unreasonably dangerous arrival condition of the machine.

There are a lot of ways in which a product can be defective and result in a product liability lawsuit. To determine whether or not you have a case requires an inspection of the existing product by an expert who can then qualify the defect. Ideally this inspection can occur immediately after the injury. It's always best to consult with a lawyer as soon as possible under these circumstances. Should the machine be altered, lost or damaged after the injury, it makes proof of the condition at the time of the injury much harder if not impossible.

Continue reading "Injured at Work? Illinois Workers Could Have a Product Liability Case" »

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.

Stryker 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.

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

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.

Joshua 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 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.

Evidence showed that the seat in question had been failing crash tests for over 20 years. Since the '80's Chrysler had been getting complaints that the seats were collapsing and injuring children. In fact, a former employee testified that he had investigated the seats in the '90's because of all the complaints. He was fired after expressing that he wanted to bring the issue to federal regulators.

In its opinion the Supreme Court stated that the evidence showed that not only had Chrysler ignored customer's warnings and failed to redesign their minivan, but they also hid the evidence. In addition, they marketed their minivan as a vehicle that put safety first.

The minivan has been a symbol of modern American families. When Joshua Flax's family strapped his car seat in they felt confident in the safety of their minivan. But they found out all too soon the error in their perception was from the deception by Chrysler.

Continue reading "Collapsed Seat In Dodge Caravan Found Unsafe and Cause for Infant's Death" »

Defendant 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.

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

NASCAR driver Michael McDowell walked away from a violent rollover 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.

Recently 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 accident victims from suing any manufacturer who met the minimum standard.

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

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.

Continue reading "Attorneys Lobby for Consumer Rights Stripped Away in Riegel v. Medtronic, Inc." »

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 a 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.

In Riegel v. Medtronic, the Riegels sued the manufacturer after a Medtronic catheter burst in Charles Riegel's coronary artery during heart surgery. The relevant catheter had premarket FDA approval. In their claim against Medtronic the Riegels alleged that the device was designed, labeled, and manufactured in a manner that violated New York common law. However, because their claim was based on violations of New York law and not federal law, the court dismissed the Riegels' claim.

So despite the fact that the medical device had caused severe and permanent injuries to Riegel there is no legal recourse for them. As long as the device in question adequately meets all federal regulations and has federal approval then your legal options are limited.

Continue reading "US Supreme Court Holds Medical Devices Exempt from Liability in Riegel v. Medtronic " »