Articles Posted in Product Liability

Illinois product liability attorneys should be aware that Avandia, a diabetes drug, is now linked to a higher risk of heart attack and heart failure according to a report released by the Senate Finance Committee on Feb. 20, 2010. The report authored by the committee chaired by Senators Baucus and Grassley concluded:

The totality of evidence suggests that GSK (GlaxoSmithKline) was aware of the possible cardiac risks associated with Avandia years before such evidence became public….Based on this knowledge, GSK had a duty to sufficiently warn patients and the FDA of its concerns in a timely manner. Instead, GSK executives intimidated independent physicians, focused on strategies to minimize findings that Avandia may increase cardiovascular risk, and sought ways to downplay findings that the rival drug ACTOS (pioglitazone) might reduce cardiovascular risk.”

According to recently released reports by the FDA if every diabetic taking Avandia were instead given a similar drug named Actos, about 500 heart attacks and 300 heart failures would be averted every month because Avandia can hurt the heart. Dr. David Graham and Dr. Kate Gelperin of the FDA stated in a report: “Rosiglitazone (Avandia) should be removed from the market.”

Illinois product liability attorneys should be aware that yesterday the Yamaha Motor Corp. recalled about 120,000 utility terrain vehicles (UTVs), namely the Rhino models 450, 660 and 700 models. The four wheel side by side Rhino manufactured by Yamaha has become one of the most popular UTVs sold in the U.S. The design flaws that prompted the recall include a top heavy design resulting in a high center of gravity and a track width that is too narrow.

The United States Consumer Product Safety Commission (CPSC), has announced a free repair program to address these issues. Of the more than 50 incidents investigated by the CPSC more than two thirds involved rollovers, many of which involve turns at relatively low speeds on level terrain.

Utility Terrain Vehicles have fallen within a regulatory crevice. These vehicles were introduced to the market and have been sold to consumers without having to meet government safety and performance standards. It is critical that federal and/or state state safety agencies act to protect consumers from the growing number of fatalities and severe injuries

Illinois product liability lawyers are encouraged by the verdict returned November 17, 2008, in the Circuit Court of Cook County awarding $16.6 million in damages to the estate of a 38 year old Cicero woman who died of a fatal dose of the powerful narcotic fentanyl. The suit alleged that the defendants, New Jersy based Janssen Pharmaceutica Inc. and California based ALZA Corp. knew about problems with the Duragesic patch that allowed it to leak fentanyl in doses large enough to kill pateints. Both defendants are subsidiaries of Johnson & Johnson.

The defendants maintained that the decendent death was caused by “polypharmacy”- a mix of potentially incompatible medications. The jury disagreed. The verdict is the fourth trial loss since 2006. FDA had issued prior warnings about improper use of fentanyl patrches.

Post trial motions and a possible appeal are down the road, but multiple juries have now concluded that some of these Duragesic (fentanyl) patches are unreasonably dangerous. Unfortunately, federal preemption (see blog of Oct. 31, 08) may yet provide a opportunity for defendants to escape liability. Civil jury verdicts are pointing the way for FDA action.

Product liability lawsuit preemption by federal regulation is scheduled for oral argument before the U.S. Supreme Court on November 3, 2008. In 2000 a state court jury in Vermont awarded Diana Levine $6.5 million in a product liability lawsuit against Wyeth Pharmaceuticals. The outcome of Levine’s case will have major ramifications for drug makers and consumers. The U.S. Supreme Court is expected to decide whether people can sue under state law or are pre-empted from doing so- for harm caused by a drug approved by the federal Food and Drug Administration.

In 2000 Diana Levine was prescribed an “IV push” of Phenergan to combat nausea brought upon by migraine headaches and pain killers she was taking. Unfortunately the “IV push” of Phenergan punctured an artery, causing her right arm to become gangrenous. After several weeks her right arm was amputated.

Levine sued Wyeth contending that the label of Phenergan should have more clearly warned about the danger of giving the “IV push.” Combating an upset stomach with a method that can end up causing limb loss is an “unfathomable benefit-risk ratio” according to Diana Levine.

Tires older than 6 years old should not be used on motor vehicles since it can lead to tread separation and catastrophic failure. Since 2001 the British Rubber Manufactures Association (BRMA) have recommended: “BRMA members strongly recommend that unused tyres should not be put into service if they are over 6 years old and that all tyres should be replaced 10 years from the date of their manufacture.” This is incredible since BRMA includes all the tire manufacturers who also sell in the United States. No such warnings have been given by tire manufacturers and retailers to consumers in the United States. Retailing giants in the U.S. like Walmart and Sears routinely sell tires as new in their stores that are routinely older than 6 years and sometimes as old as 17 years. This is unconscionable!

Like any other rubber product, tires have a limited service life regardless of tread depth and use. Tire age can be determined through decoding of the required DOT number printed on the side of a tire, but it is of no help to consumers because you must know the code to interpret when the tire was manufactured. Experts that I have worked with say that tire age is a silent killer because a consumer can purchase a brand new tire from a reputable retailer or outlet and have no idea that at the time of purchase the tire is already defective.

Ford Motor Company added a 6 year tire replacement recommendation, regardless of tread wear, to all 2006 owner’s manuals. Finally, on June 2, 2008, the National Highway Transportation Safety Administration (NHTSA) issued a Consumer Advisory warning that aged tires, regardless of tread use, are subject to greater stress increasing the likelihood of catastrophic failure. Recent investigative reports point to corporate neglect and government inaction as the root cause of American consumers buying new tires that are defecive at the time of purchase.

A products liability suit in a rollover accident was not preempted by federal regulations according to a recent decision by the Fifth Circuit Court of Appeals. This decision rejects a common defense used by manufacturers in defending product liability claims brought by injured consumers claiming injuries from defective products. Plaintiff brought suit in a Texas state court against GM alleging serious injuries when she was partially ejected from the passenger side window of a Tahoe. The complaint alleged common law theories of strict liability and negligence for the defective design, manufacture, and marketing of the Tahoe’s side windows. Plaintiff claimed GM’s use of tempered glass in the side windows was unreasonably dangerous and that the use of advanced glazing would have decreased the likelihood of passenger ejection. GM removed the action to federal district court based on diversity jurisdiction.

The Fifth Circuit Court of Appeals succinctly stated the issue: “This appeal is about whether FMVSS 205, which governs motor vehicle safety, preempts a common law suit alleging that GM’s use of a permitted glazing technology was unsafe. We are the first appellate court to rule on this question.” O’Hara v. GM, (slip opinion at p. 6) (2007). GM argued that a 2002 decision to leave the existing standards regarding glazing intact (FMVSS 205) embodies a federal policy regarding motor vehicle glazing would be frustrated by a Texas common law rule requiring advanced glazing in side windows. GM contented thatGeier v. American Honda Motor Co., 5529 U.S. 861 (2000), which found that FMVSS 208 (the NHTSA safety standard for occupant crash protection) compelled preemption of state common law claims. Plaintiff contended that FMVSS 205 differs significantly from FMVSS 208 and that NHTSA’s decision not to require advance glazing in side windows left FMVSS 205 intact as a “minimum safety standard” that does not preempt state tort actions. Plaintiff further argued that NHTSA’s decision not to require advance glazing in side windows is similar to the Coast Guard’s decision not to require propeller guards, which was held to be non-preemptive inSprietsma v. Mercury Marine, 537 U.S. 51 (2002).

Conflict preemption was discussed with the Court stating: “Even where Congress has not completely displaced state regulation in a specific area, state law is nullified to the extent that it actually conflicts with federal law. Fid. Fed. Sav. & Loan Ass’n. v. de la Cuesta, 458 U.S. 141, 153 (1982). Federal regulations can have a preemptive effect equal to that of federal laws. Conflict preemption can arise in one of two ways, either when compliance with both federal regulations and state regulations is a physical impossibility or when state laws stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress. The second form of implied conflict preemption is at issue here.”O’Hara v. GM, (slip opinion at p. 7) 2007.

In Sprietsma, The U.S. Supreme Court held that nothing in the Coast Guard’s official explanation for not requiring propeller guards on all boats “would be inconsistent with a tort verdict premised on a jury’s finding that some type of propeller guard should have been installed on this particular kind of boat” and that it did not “convey an authoritative message of a federal policy against propeller guards.” Sprietsma v. Mercury Marine, 537 U.S. 51, 67 (2002).
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Illinois Wrongful Death Act now allows jurors to award damages for “grief, sorrow, and mental suffering.” The law in Illinois since 1867 has been that in wrongful death actions, there is “no recovery for bereavement” and “nothing can be given as solatium.” Chicago & A.R. Co. v. Shannon, 43 Ill. 338, 1867 WL 5039 (1867).

Jury instructions in wrongful death actions arising before the effective date of this amendment, May 31, 2007, have and will include Illinois Pattern Jury Instruction (Civil) IPI 31.07. This instructions states: In determining “pecuniary loss” you may not consider the following:
(1) The pain and suffering of the decedent;
(2) The grief or sorrow of the widow and next of kin, or (3) The poverty or wealth of the widow and next of kin.

Needless to say this was and is a powerful argument that defendants, their insurers and attorneys make to jurors at the trial of a wrongful death action to limit the amount of damages awarded. Sometimes the only significant loss widows and next of kin sustain is the “grief, sorrow, and mental suffering” associated with the wrongfyl death of a family member.
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An Illinois product liability verdict against Ford Motor and Mazda Motors for defective design of driver’s seat was affirmed, but the damage award of $27 million was reduced by an appellate court in Chicago on Nov. 22, 2006. On Feb. 4, 2000, decedent was a driver stopped at stoplight when he was rear ended by a drunk driver. On impact decedent’s seat flattened backwards and he was ejected toward the rear of the car causing injuries that led to his death three days later.

Decedent’s estate filed a product liability lawsuit in Chicago alleging that driver’s seat was defectively designed with inadequate strength making it unreasonably dangerous. The driver’s seat was co-designed by Ford and Mazda and was a “yielding seat” meaning that when force applied it yielded in the direction of the force. This “yielding seat” met federal safety standards. However, plaintiff’s expert testified that compliance with federal safety standards does not make a seat safe. Expert testimony revealed that a “rigid seat” transfers the energy forward in a rear end collision.

Estate expert witnesses testified the a “rigid seat” was feasible and would have protected decedent from his fatal injuries. Specifically, experts opined that risk of severe to fatal injuries was 10 to 25 times greater with a “yielding seat.”
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A Chicago product liability suit that I tried recently resulted in $1.8 million verdict to a 40 year old Chicago man whose leg was crushed on an assembly line. Many interesting legal issues arose including who should be placed on the jury verdict form regarding apportioning fault among defendants, third party defendants, and plaintiff (see previous post regarding this issue). In 2002 plaintiff was working on an assembly line that produced laminated boards for use as countertops and cabinets. At the end of the laminating line there was a scissors lift table which received the completed boards and which was operated by a foot switch.

While guiding boards onto the scissors lift plaintiff accidentally stepped on the foot switch causing the table to lower while his foot was underneath. The boards and table weighed over 1,500 lbs. and crushed his right leg. Plaintiff sustained fracture of tibial plateau, bimalleolar fracture of ankle requiring six surgeries and ultimately fusion of his knee. Plaintiff, a former drug user, complicated his medical condition by injecting Oxycontin into his right arm in an unsuccessful attempt to relieve pain, thus leading to osteomyelitis in his right leg.
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An Illinois wrongful death verdict arising out of a construction accident where a scaffold collapsed was reversed by the appellate court in Chicago. The Court did rule that the defendants had waived any right to challenge the award of $14,230,000. The issue as framed by the Appellate Court:

Is a defendant who settles with the plaintiff prior to trial still a “defendant sued by the plaintiff” within the meaning of section 2-1117 of the Code of Civil Procedure (735 ILCS 5/2-1117)? If we answer this question in the affirmative, then all defendants sued by the plaintiff, including those who settled prior to trial, may be included on the jury verdict form so that the fact finder can assign each defendant their degree of fault, if any. If we answer this question in the negative, then only those defendants who remain when the case is submitted to the fact finder may be included on the verdict form.

Ready v. United, 367 Ill. App. 3d 272, 854 N.E. 758, 2006 WL 2434935 (2006).
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