Boston Accident Lawyer Blog

Consumers and product safety advocates won a victory recently, with a decision from the U.S. Court of Appeals for the 1st Circuit. This court is the federal appellate court for Massachusetts and surrounding states; it hears appeals from the U.S. District Court in Boston, and other federal District Courts in this immediate area. Because this is a federal decision, it will hold significant precedential weight in similar cases filed throughout the United States in the future.

The case began when a construction worker suffered a severe injury to his hand when using a bench-top table saw. The saw’s blade cut into his hand, causing permanent injuries. The saw was a Ryobi Model BTS 15 bench-top table saw, purchased at a Home Depot. Following the injury, the plaintiff sued the manufacturer, Ryobi Technologies, Inc., in U.S. District Court in Boston, seeking damages for his injuries. His suit claimed negligence and breach of the “implied warranty of merchantability,” which is a Massachusetts law that regardless of what a manufacturer’s written warranty may expressly state, the product carries an “implied” warranty, that it is “merchantable,” (safely usable,) and that it is fit for a particular purpose.

“Negligence?”, I’m sure you ask. “Why should a saw manufacturer be held liable if someone using the saw suffers an injury from the blade?” Why? Because, as a Boston, Massachusetts product liability lawyer I can assure you, there’s always a story behind the story – and there’s a story behind this one. Which is: It seems as though Ryobi Technologies was aware of a certain technology that had become known as a flesh-detection system called “SawStop.” This device basically stops the saw blade immediately whenever it senses some kind of flesh pressing against the spinning blade. At trial before the U.S. District Court in Boston, the plaintiff argued that as manufactured and sold, the saw was defectively designed, unsafe, and that the “SawStop” technology represented a reasonable and viable alternative design. Supporting this argument, the plaintiff presented testimony of his expert witness, the man who invented “SawStop” in 1999. That inventor testified that he had presented SawStop to several major saw manufacturers, including Ryobi, in 2000. All had refused to adopt the new safety technology, despite the fact that it worked. And why? The plaintiff argued that it was due to a “silent agreement” among several manufacturers that if even one of them adopted the safety system, the others would be forced to do the same, or face heightened liability exposure to liability if they didn’t. That’s called a “conspiracy of silence.” Typical corporate America.

The District Court jury awarded a verdict of $1.5 million for the plaintiff. Ryobi appealed, and that’s what led to the 1st Circuit Court of Appeals’ decision.

At appeal, Ryobi argued that the plaintiff had failed to present adequate evidence that the flesh-detection technology met the test for a “suitable alternative design”, under a 1978 Massachusetts Supreme Judicial Court (SJC) decision in the area of product liability law. That decision, Back v. Wickes Corp, established five factors to be considered in determining whether a product could have been made safer using a “suitable alternative design.” Ryobi argued those tests had not been met, and thus the jury that previously found in favor of the plaintiff, never should have even heard the case.

Not so, according to the 1st Circuit Court of Appeal, affirming the verdict of $1.5 million.

The court wrote that “As a matter of law, we do not find support for [Ryobi’s] suggestion that a plaintiff asserting a design defect claim must present an alternative design that meets all the … Back factors prima facie. Quite the opposite, all Massachusetts law requires is that ‘competing factors should be balanced when deciding reasonableness of design.”The bottom line of this decision is that dangerous products, such as table saws and other dangerous products, will now be made safer by manufacturers. They won’t be able to hide behind onerous legal requirements that prevent injured plaintiffs from essentially saying, “This product as you manufactured it is unreasonably dangerous. You knew that you could have made it safer, but you chose not to, basically to save money, and you should be held liable for the injuries that would not have resulted if you manufactured your product in a safer way.” That’s a victory for consumers suffering a Massachusetts personal injury due to an unsafe product, and for anyone who’s ever been injured by a callous corporation.

The decision is Osorio v. One World Technologies, Inc., et al.

Usually, most of the legal stories giving rise to posts on this blog originate in or have to do with cases and legal issues in Massachusetts. However, a tragic incident at Yale University earlier this week, illustrates the importance of product liability law, and the impact it can have on making products safer for the Americans who use those products.

Scituate, Massachusetts resident Michele Dufault, a bright Yale University student, was killed earlier this week in a horrific incident involving a lathe at a machine shop on campus. Dufault, a senior at the Ivy League school who was majoring in physics and astronomy, was found at Yale’s Sterling Chemistry Laboratory at around 2:30 AM Thursday by other students in the building. The students immediately called New Haven police, but it was too late. A statement from Yale University president Richard C. Levin did not reveal whether Dufault died in the lab or later at a hospital. Nor was there a statement as of Friday evening, April 15, as to whether Dufault had been alone in the lab, or not.

This incident must have been absolutely horrific. I remember working on a lathe in high school machine shop. When I look back on those times, I’m surprised that I wasn’t injured, as well -- this machinery is very powerful, and extremely dangerous. For those unfamiliar with machine shop equipment, a lathe is a machine that is used to shape usually straight lengths of metal or wood by spinning it at extremely high speeds. (So fast that when spinning in the lathe, the length of wood or metal would look like a blur to the naked eye.) Carving tools are applied to the edges of the spinning wood or metal, to shape the material. By all available accounts of the incident, Ms. Dufault’s hair became caught in the lathe, pulling her head into the machinery.

Right now, Dufault’s family is deep in grief. The idea of losing a daughter or son at this tender moment in life, when all the promise in the world awaited her, is too tragic to adequately describe. Friends of Ms. Dufault have universally described her as brilliant, widely admired and a good friend. At Noble & Greenough School in the next town over from my Westwood office, in Dedham, Mass., headmaster Robert P. Henderson Jr., characterized Dufault as precocious and “Simply brilliant. She was a true intellectual,’’ Henderson said of the 2007 graduate. Dufault was also a student at an institution that I am very familiar with from my boyhood summers in Falmouth, Massachusetts - the Woods Hole Oceanographic Institution. Dufault worked with scientists to design and operate undersea robotics.

The incident has triggered federal and internal university investigations of campus safety protocol. According to University President Richard Levin, until those reviews are completed, the university will limit undergraduate student access to school facilities with power equipment, and will also place additional personnel as monitors in the laboratories at all times. I'm sure Levin has spoken with Univeristy lawyers, as that is a smart immediate move.

But just as investigators from the federal Occupational Safety and Health Administration (OSHA) are presently trying to piece together the details of this accident, the question will eventually loom larger: Was this accident preventable, and if so, were there failures on the part of either the lathe manufacturer or the school – failures which, had they not been present, would have prevented this tragedy? In the case of machine shop equipment such as a lathe, several legal questions come to mind:

1) Were there unmistakably prominent and noticeable warnings on the machinery, advising that all loose clothing be secured, and keep clear of the moving parts of the machine?

2) More important: Were there equally prominent signs warning that any long hair worn by the user must be tied back and kept away from the machinery at all times? Warnings regarding loose clothing are common, but were there warnings about anyone using the machinery that had “long” hair, bangs, or hair in excess of shirt collar length?

3) Were there safety guards in place, to prevent loose clothing or hair from being accidentally caught in the machinery?

4) Was there an automatic, emergency braking system, when any foreign material became entangled by the equipment? Note: Similar emergency “braking” detectors have been developed and placed in use by manufacturers of circular saws and table saws. Ultra-sensitive detectors can actually sense if flesh or blood has suddenly been pulled or brought into the equipment. In that event, and emergency brake is activated to halt the equipment’s moving parts immediately.

5) Were the equipment and the University machine shop in compliance with all relevant and applicable OSHA regulations and standards?

It is far too soon for the Dufault family to consider these questions. But, eventually, these questions will need to be asked. Whether a product liability suit or possibly a wrongful death suit is called for against the manufacturer, designer or distributor of this equipment has yet to be determined. Product Liability is the area of law that governs the rights of persons who have been injured or even killed due to defective products. The “defect” in a product, could have occurred at several stages in the life of the product: It could be found to be in the design, manufacturing, distributing, advertising or even marketing of a product. This can be a broad definition, but in general, a product will usually be found to be “defective” if the danger the product posed could have been reasonably foreseen by either the manufacturer, or someone in the chain of production, distribution or marketing.

The process of investigating the forensic details of this horrible accident will be disturbing, to say the least. But if accidents like this are to be prevented in the future, or at least made less likely, this inquiry needs to be made. It is because of tort law and the right of citizens to sue for personal injuries and deaths caused by dangerous or defective products, that so many products in the U.S. are now made safer. The list runs on and on, but includes not only power equipment such as saws and nail stud guns, but cars, baby cribs, baby pajamas, electrical appliances, furnaces, and on.

My thoughts and prayers go out to Ms. Dufault’s family.

While this post is about product liability law, it’s also about the age-old story of corporate greed and deception. Ever hear of on over-the-counter cold remedy called Zicam? Most people have. - Matrixx Initiatives Inc. and Zicam L.L.C., were jointly the developers, manufacturers and distributor of this product. Zicam was marketed with the claim that it could shorten the symptoms of the common cold, if taken at the onset of symptoms. The zinc gluconate formulation generated approximately 70% of the company's sales. While the product used to be manufactured and sold as a nasal gel, it’s now sold as an oral spray. There’s a reason for that. And that leads us to a typical story of corporate deception.

It seems that in the late 1990’s, Matrixx became aware from several sources (it’s alleged,) of a very serious side effect of using Zicam. That serious side effect is called “anosmia”, which is the medical term for loss of the sense of smell. In 1999, it’s alleged that a Matrixx staffer was told by the neurological director of a research organization called the Smell & Taste Treatment and Research Foundation, Ltd. that a "cluster of patients" had suffered anosmia after using Zicam. Three years later, as reports of these side effects grew, Matrixx’s Vice President for Research and Development contacted a scientist at the University of Colorado Health Sciences Center , allegedly was told of the results of previous studies linking zinc sulfate [a slightly different zinc compound] to loss of smell. This scientist later buttressed these initial reports, by forwarding to Matrixx with further abstracts, confirming zinc’s toxicity.

About a year later, a colleague of that scientist (from the University of Colorado Health Sciences Center,) observed 10 patients suffering from anosmia following Zicam use. These scientists then prepared a poster for display at a meeting of the American Rhinologic Society, in connection with a substantive presentation they were going to make at this medical association meeting. After learning of the scientists’ plans, Matrixx warned them that they were not allowed to use the Matrixx company name or the product name (Zicam.) As a result, the scientists deleted this information from their posters and presentation.

Shortly following these events, two patients sued Matrixx in a products liability lawsuit alleging Zicam-related anosmia; the number of cases increased steadily since then. On June 16, 2009, the FDA advised consumers to discontinue use of three nasally administered versions of Zicam Cold Remedy, due to the serious risk of anosmia with them. In total, hundreds of legal claims have been brought due to the medical harm this product caused, resulting in tens of millions ofm dollars in settlements.

In this week’s U.S. Supreme Court decision brought by a group of investors in Matrixx, the plaintiffs’ had alleged that Matrixx responded to reports that its product caused this medical harm, with a series of public statements that were misleading, and that essentially amounted to securities fraud. In essence, the plaintiffs in this case were alleging a corporate cover-upb by Matirxx. The court agreed with the investors, essentially confirming that Matrixx sought to withold damaging medical data from the public. While the court’s opinion dealt primarily with legal issues relating to securities law, the court affirmed the underlying allegations made by the plaintiffs that Matrixx knew or should have known that their product was dangerous and presented unreasonable safety risks to the consuming public, yet did little to correct or cure the defect.

Does the same story never end with big corporations? Whether it was the Ford Pinto gas tank litigation 40 years ago, the Dalkon Shield litigation, or the banking and mortgage crisis that is still plaguing our economy, the story never seems to change: Big business, in its relentless drive for profits, puts earnings first, and places safety far behind. The stories of products liability that can fill those two end points – from the 1970’s to present, are so numerous it’s hard to fathom. As a Boston, Massachusetts product liability lawyer, I can assure you that if our tort system – the same one tort “reform” would dismantle – didn’t exist as it does, injured consumers would have little to no redress. Imagine what that would be like: Corporations operating in a legal environment where they can operate with little regard for public and consumer safety, insulated from serious legal and financial liability Not a pleasant scenario.

At the Law office of William D. Kickham and Associates, we know how to deal with violations of Massachusetts product liability law. We know what to look for, how to present these cases, and how to secure the maximum financial recovery for our clients. If you think that you or someone you care about has been harmed by a defective product, call us for a free consultation. We know how to guide you through this complicated area of law. Free advice: Do not go to a general law firm about this kind of problem. This area of law is highly specialized, and requires a specialist who has lengthy experience and expertise in it. We can provide you that specialized expertise, and get you the best legal result possible. Contact us for a free consultation.

I love to report and comment on stories like this: A Massachusetts personal injury case that results in solid justice to the plaintiff.

Readers of a certain age and above will remember that back in the late 1970’s and early ‘80’s, tobacco companies would literally give away samples of their cigarettes to the public. They had been doing this since at least the early 1960’s. I’m dating myself here, but in the mid-‘70’s, I can clearly remember riding the Green Line into and out of Boston during those years, and seeing young, healthy looking men and women standing outside subway entrances at peak commuting hours, handing out small sample packs of cigarettes to almost anyone who walked by. These tobacco company “hawkers” (usually college kids or recent grads trying to make a few bucks,) would hold trays of cigarettes samples (usually containing 4 or 5 cigarettes,) out in front of them, held by a strap around their necks. While downtown locations were usually the best fishing grounds for this activity, these hawkers could also be found outside nightclubs on weekend evenings, and at beach locations in the summer. Usually very attractive young women who could double as models, these hawkers conveyed beauty, youth, and health.

There was just one problem: What they were promoting was anything but healthy, and anything but beautiful. In point of fact, they were legal drug pushers, pushing a deadly, addictive product, for free, just to get people hooked on the nicotine. It was literally like handing out cocaine samples for free – and worse, they pushed these deadly products on anyone and everyone who walked by – usually without regard to age. If you were a twelve-year-old who looked 15, you got cigarettes. Fast forward about 35 years: A woman in her mid-40’s, Marie Evans, is dying of lung cancer. She remembers when her addiction began: At age nine, when these healthy-looking, tray-carrying cigarette hawkers regularly handed out samples of Newport cigarettes to her and other kids. She files suit against the manufacturer of those cigarettes, Lorillard Tobacco Co., of Greensboro, North Carolina, shortly before her death in 2002. This past month, in December of 2010, a Suffolk Superior Court jury awarded her estate $50 million in damages for negligence, and awarded her son $21 million, for her death due to lung cancer. Days later, the jury added another $81 million to the verdict, for punitive damages, bringing the total verdict against Lorillard Tobacco Co., to $152 million.

The case is unique by being the first to claim that a tobacco company intentionally targeted minority communities with samples of cigarettes. Lorillard Tobacco makes the Newport Cigarettes brand, a menthol brand known to be very popular among black communities. The jury found the cigarette company was negligent in passing out samples of cigarettes to Evans and other black children when they lived in the Orchard Hill housing development in the Roxbury section of Boston. Evans testified that “pretty white ladies” would pass the cigarettes out, attracting children her age. “They seemed to be there waiting when we got out of school,” Evans said. The verdict is also unusual in that even though tobacco companies’ marketing practices have been criticized by government agencies, jurors historically haven’t sided with smokers who bring lawsuits against tobacco companies, preferring instead to hold the smoker partly responsible. This jury here believed that Evans was too young at the time she was given the cigarettes to know anything about them, and that once she was addicted, she couldn’t quit.

A Lorillard spokesman denied the plaintiffs’ claims, and announced that the company will appeal the verdict.

Earlier this week, lawyers for the plaintiffs asked a Massachusetts Superior Court judge to order Lorillard Tobacco to place $270 million aside in capital reserves to pay what the jury’s award could eventually amount to, with interest, as the appeal moves forward. The plaintiffs’ lawyers requested this order, because $270 million is what the final award could amount to, after adding statutory pre-and post-judgment interest. Without that order, Lorillard Tobacco Co. would have been able to essentially transfer all of its working capital to another corporate subsidiary, (Lorillard Inc.,) which would be beyond the court’s jurisdiction. Before any pro-business fans bemoan this judgment, bear this in mind: Lorillard’s own expert testified at trial that Lorillard Tobacco earns $16 million per day in revenue. Believe it or not, when judge Elizabeth Fahey asked Lorillard’s attorney how an order to reserve enough cash to pay the judgment would harm Lorillard, its attorney said, “The harm to Lorillard Tobacco Co. is going to be some adverse effect on its credit,’’ quoting from a transcript of the hearing. Thankfully, the judge wasn’t buying it.

As a Massachusetts product liability attorney, this verdict for me is sweet music. Not because I’m in any way connected to this case, but because predatory businesses like the tobacco companies should be punished swift and hard for all their dishonest and unethical marketing practices – no matter how far back those practices occurred. That opinion applies also to present predatory types of businesses such as banks and fast-food manufacturers. (Yes, “Big Food”, embodied in companies like McDonald’s, Burger King and KFC, specifically manufacturer their products to be habit-forming. Don’t believe it? Look at the obesity of the average American).

Product liability can arise from a variety of products that cause injury to an end-user, including automobiles, power tools, baby furniture, toys, food products, swimming pools, appliances and several other categories. If someone you care about has been injured in connection with the use of a product, contact us. We’re experienced in this field of law, and we’ll provide you a free initial consultation to let you know what your legal options might be.

Most people who know me, know that as a Massachusetts product liability lawyer, I have a natural mistrust for big business. I’ve seen too many examples of their disregard for consumers’ safety and related interests, whether dealing with insurance companies, big banks, auto manufacturers or drug manufacturers. If anyone doubts that, take a look at the U.S. Consumer Product Safety Commission’s work.

Today’s post reveals yet another chapter in how “Big Pharma” so often puts the bottom line first, and consumer interests, a distant second. To wit: Recent news that eleven drug manufacturers have agreed to a preliminary settlement in the United States District Court in Boston, within a lawsuit that alleged the companies artificially inflated the wholesale prices of approximately 200 separate drugs. The effect of this artificial price-spiking was (you guessed it) to increase the co-payments and full payments that consumers (as well as others) paid. The preliminary settlement amounts to almost $21.8 million dollars, which would be distributed to eligible consumers who paid either increased prescription drug co-payments, or full price for the prescription, from January 1, 1991 to March 1, 2008. Qualifying claimants would receive a minimum of $35 dollars back. The reason that the average payment to each claimant is so low, is that over 17 years, there are millions of persons who could qualify for the settlement distribution.

As part of standard practice within such settlements, the defendant companies denied any wrongdoing, but agreed to settle the claims “to resolve the litigation and avoid any further expenses and inconveniences” in continuing to contest the charges. (You can smirk now.) When will industries like “Big Pharma”, insurance companies, banks and others, be satisfied to make hundreds of millions in profits, without cheating the American consumer in the process? One may as well ask when will the sun stop rising in the east.

Today is Thanksgiving Day, and so if this post can offer anything to be grateful over, perhaps you can say that you’re grateful you weren’t injured or killed by the negligence of the people who built Boston’s famous Big Dig tunnels. (You know, the same tunnels which ended up leaking millions of gallons of Boston Harbor water into the tunnels, due to more negligence and graft than I care to cover right now.)

One of several dangerous defects in the design and construction of those tunnels, centers on the guardrails/handrails that were designed and installed at the sides of the tunnels. The rails were placed there to protect tunnel employees who would regularly be walking at the sides of the tunnels, from falling into traffic. The rails are slightly more than 3 feet off the ground, about the same height of a motorcycle seat or car window - extremely low. The dangerousness of these tunnel handrails was first brought to light last February 2010, when The Boston Globe published a story on how many injuries and fatalities had resulted by drivers literally being sliced to death after being caught in the rails. Between 2005 and 2008, a total of seven motorists and passengers were killed after striking the handrails which line the Big Dig tunnel system. Most of the seven victims who died were dismembered by the rails in the accidents; one other person lost an arm but survived. Four victims were riding motorcycles and three deaths involved people in vehicles.

One of those victims was a Massachusetts state police trooper, Vincent Cila, who was killed on duty when he lost control of his motorcycle, and was dismembered by the guardrails. Cila’s family sued the Massachusetts Turnpike Authority (now known as the Massachusetts Department of Transportation,) and several private contractors involved in the design and construction of the tunnels and the guardrails, alleging negligence in the design and installation of these particular guardrails.
This past week, the attorney for the Cila family announced that the case had settled before going to trial, for $9 million. The lawsuit filed by Cila’s family focused on the design of the railings, alleging that their faulty design led to Cila’s death. Cila’s widow argued that her husband’s death might have been avoided if the Big Dig had used a common rail design with rounded, pipe-like vertical posts and rounded horizontal runners. While most such railings are round and tubular, the tunnel’s railings have rectangular posts, about three-quarters of an inch wide. The suit argued that the squared-off edges of the posts acted like the cutting blades in a paper cutter, slicing off Cila’s left arm at the shoulder. Cila, 45, was on duty when his Harley Davidson motorcycle struck the handrails on July 22, 2005; he was driving about 35 miles an hour. Ambulance and rescue personnel who responded to Cila’s and the other guardrail accidents dubbed the rails the “ginsu guardrails,’’ after the TV ads known for sharp knives.

So often, what happens after a case like this is filed, is that somewhere down the road in the long process of discovery, the proverbial smoking gun is found: Evidence that the defendant(s) knew that what they were manufacturing, or selling, or recommending, or installing, was dangerous or defective – yet they did nothing to correct the problem. Why? In almost all cases, it’s either pride or greed: Pride, in the sense that their individual or corporate egos can’t admit that they were making a mistake, or greed, in that they knew that their product or a design was dangerous, but didn’t want to spend the money to correct the defect or problem.

And true to form, that’s exactly what happened here. The smoking gun in this case, turned out to be newly obtained documents the attorney for Cila’s family filed this summer in the lawsuit, which revealed that federal highway officials had previously warned Massachusetts officials overseeing the tunnels construction, that the rails might be dangerous and should be crash-tested. The result? The recommendation was declined.

Donald E. Hammer, division administrator of the US Department of Transportation’s Federal Highway Administration, wrote to Peter Zuk, the Big Dig’s project director in 1992, that “We have reservations regarding safety considerations of these designs. Our concern is that the ornamental railing may be dislodged or be poorly maintained, and, thus be a potential piercing object.’’The reply from Zuk, project director of the Mass. Highway Department’s Central Artery/Tunnel project, was completely dismissive. “It is not the intent that [the handrails] participate in vehicle collisions,’’ Zuk said, adding the rails were only for pedestrian use, and were placed so they would not be struck by vehicles. “As such, we fail to see the wisdom or the need to expend money to crash test this rail,’’ added Zuk. Arguably because of this decision, 7 people have been killed.

As part of its story back in February, The Boston Globe contacted three roadside barrier and accident reconstruction experts who said the railings were flawed. These experts all said that the railings’ railings should have been placed higher, so that it would be less likely that motorcyclists or car passengers who were ejected in a collision would be snared by the railings. These experts also said that the horizontal runners on the railings were spaced too wide apart, making it more likely that a driver whose vehicle struck the barrier would get entangled and then slammed into a horizontal post.

When this settlement was announced earlier this week, a Massachusetts Transportation Department spokesman expressed regret for Cila’s death. At the same time, however, the department referred any comment on the case to the insurer covering the project, AIG. AIG had no comment to offer.

No amount of money, in this case or other cases, whether auto accidents, wrongful death or construction site accidents, can replace the death of a loved one. From my view as a Massachusetts personal injury attorney who specializes in Product Liability cases, the chief benefit of these kinds of large settlements (or verdicts, in cases that go to trial,) is obvious: They punish the parties responsible for the negligence that led to the injuries or death involved, and send a message to similar players. That legal process is what makes America safer – safer in the products people buy, the buildings they occupy, the cars they drive, the clothes they wear, the food they consume, and on. This settlement will instantly broadcast to other states and private contractors everywhere, that guardrails of the type used in these tunnels must be redesigned, and cannot be used. If not, the parties involved in this kind of construction risk even higher financial penalties. These changes are inevitable once verdicts or settlements like this are announced. They’re driven by the resulting market exposure to legal liability. That’s what makes our tort system so great.

Aside from the Massachusetts Turnpike and Bechtel, the other defendants include: Parsons Brinckerhoff Quade & Douglas Inc., Bechtel/Parsons Brinckerhoff, Gannett Fleming Inc., Modern Continental Construction Co., Tuttle Aluminum & Bronze, and Saugus Construction Corp. Hopefully, these and similar companies will get the message from this settlement, and never repeat this “mistake” again.

Prior to this week, state officials have always insisted that the design of the handrails is safe and complies with federal and safety standards. Odd, I don’t hear them saying this anymore. I don’t hear AIG saying anything. There’s another sound not being heard today, either: The sound of Vincent Cila – and six other victims- enjoying a happy Thanksgiving today, or any day. And no amount of money will ever fix that.

Almost every other day, it seems, we hear of another case in the news where someone has been “tasered” by police or security personnel. The modern suspect-control device has grown in popularity with many police departments across the United States, as well as U.S. military and some private security agencies. The device’s advocates, led by its manufacturer, Taser International, argue that the device is safer than using mace or pepper spray, because mace can miss its target and harm bystanders since it’s applied in aerosol form, while a Taser stun gun can’t harm anyone other than the person who is tasered. As a matter of physics, that may be true, but the electric charge that most Taser stun guns are set at, can’t be altered on-site just prior to use, resulting in a standard electric shock being administered to most suspects being shocked. Unlike the old Star Trek TV series, Captain Kirk doesn’t give out an order to preemptively adjust the guns on a "stun" or "kill" setting, depending on the threat level.

The devices are in theory designed to temporarily stun someone, just long enough for police or security personnel to subdue and handcuff or restrain the suspect – but theory and practice exist in two different worlds, and it doesn’t take a genius to see that this one-size-fits-all approach was eventually going to cause some tragic results.

Four years ago, a Watsonville, California man was shocked with a Taser stun gun by a police officer in that city. The victim, Steven Butler, 49, was tasered by an officer using a Taser X-26 device, after Butler reportedly became combative with the officer when asked to get off a bus he was riding on. Butler was alleged to have been drunk and off his psychiatric medication in October 2006 when the incident occurred. After being tasered, Butler went into cardiac arrest and stopped breathing. It took medical personnel 18 minutes to resuscitate him and, as a result, Butler suffered an anoxic brain injury (loss of oxygen to the brain.) Butler was left with substantial brain damage and has no short-term memory. Additionally, he suffered a loss of mobility and the loss of his motor skills. As a result of the injury he will require around-the-clock care for the rest of his life, and cannot be left unattended, according to pleadings filed in the suit.

Recently, in an important legal development as far as setllments (vs. jury verdicts) in product liability cases are concerned,Taser International agreed to pay $2.85 million to settle Butler's suit against it. This settlement is important, because prior to this case, Taser International had never agreed to settle a case brought against it – and they had never lost a jury trial. Legally, a Product Liability suit is brought when evidence exists to suggest that the manufacturer of a product designed, manufactured, or marketed its product in a manner that was likely to cause an unreasonable risk of injury or harm to a foreseeable user of that product. This type of suit is subset of typical negligence suits, such as a Massachusetts personal injury case, in that different legal standards apply to a manufacturer or distributor of products. More on the law of Product Liability can be learned at my website, by clicking on that link in this sentence. In defending this suit, Taser claimed that Butler had several pre-existing cardiac and health conditions that contributed to his injury. Also, in previous, similar lawsuits against Taser, the company had always presented extensive “medical” and “scientific” studies claiming that its product was “safe and effective”. (Effective, yes – but “safe”?)

Given all those factors in Taser International’s favor, why would it settle this case? Legally, for two principal reasons: 1) In this (the Butler) case, the plaintiffs’ lawyers were about to expose the fact most of the “scientific and medical research” about adverse effects of electric shock from a stun gun, has been directly or indirectly financed by Taser International - hardly an objective source of authority. 2) Even more critically, the plaintiff’s legal team in the Butler case was assisted by Pasadena, California attorney John Burton, who had previously won the first lawsuit ever against Taser International. That suit was actually against the city of Salinas, California and Taser on behalf of the family of a man who died as a result of being shocked by a Taser stun gun. Attorney Burton’s client, Robert C. Heston Jr., died after being stunned multiple times by a police officer armed with a Taser device in February 2005. This victory, in 2008, marked the first time a stun-gun victim had won a product liability jury trial against Taser International. However, at the time of Steven Butler’s injury in 2006, Taser had never lost a lawsuit in front of a jury. Attorney John Burton’s 2008 jury victory changed Taser’s thinking enormously, leading to this $2.85 million pre-trial settlement in the Butler case. Taser came to see that they were vulnerable in court. With the Butler case, the plaintiff’s legal team compiled investigation, discovery, pleadings and research that filled 11 oversized boxes. The team was prepared to go to trial in the spring, but the case was postponed and then settled.

What makes the Butler settlement even more interesting is a ruling the judge made after the settlement agreement was reached between the parties. Settlement agreements involving negligence and liability suits typically contain nondisclosure, or secrecy, clauses, providing that the terms of the settlement agreement shall remain confidential to all except the formal parties to the suit. These provisions, coupled with a standard disclaimer of any and all liability on the part of the defendant(s), are common practice, and are usually agreed to by the parties without much dispute, but they must first be reviewed and approved by the trial judge overseeing the case. Such was the case with the Butler settlement: Both parties in the case agreed to confidentiality provisions, without major dispute. But a funny thing happened on the way to the secrecy file: The judge in the case refused to allow the details of the settlement remain confidential, and ordered the file to remain unsealed, citing the “therapeutic value” in allowing the public to see the details of this agreement. Judge Jeff Almquist ordered this done, over the objections of Taser’s lawyers. This was quite unusual. Now, whoever wants to review the terms of this settlement agreement and how much money was paid, can see the truth. In fact, the judge’s ruling is the principal reason why media and legal bloggers like me are reporting on this settlement.

As a Boston personal injury lawyer, I don’t have a problem with settlement agreements, in principle. But I do believe that greater public disclosure should be encouraged, and even ordered, in many liability settlement agreements. Otherwise the negligence that individual defendants can engage in, and more importantly that corporate defendants so often engage in, will never see the light of day. This is so whether the case involves corporate product liability, Massachusetts nursing home neglect and abuse (which I emphasize in my practice,) or Boston car accident injuries. That discourages accountability; it discourages changes for safer products and improvements in risk management. And in the end, that’s bad for everyone.

Whether it’s Big Finance, Big Insurance, Big Tobacco or Big Pharma, overall, Big Business never seems to “get it” when it comes to acting ethically and obeying the laws they’re required to operate under in this country. This time the focus is on Big Pharma, though that’s nothing new.

Pfizer, Inc., that giant of the pharmaceutical industry, was found by a jury in U.S. District Court in Boston last week, with violating the federal Racketeer Influenced and Corrupt Organization Act (RICO,) a law designed to thwart and punish a variety of illegal activities dealing with financial transactions. Oddly enough, (or not so oddly,) RICO was first passed by the U.S. Congress in response to organized crime’s (read: The mob’s) activities in transferring and hiding financial transactions across state lines. Now, Pfizer’s been found to have violated the Act.

What was Pfizer up to? It seems that for the past ten years, Pfizer embarked on a targeted campaign to promote their epilepsy drug, Neurontin, for officially unapproved uses. Kaiser Foundation Health Plans, Inc., and Kaiser Foundation Hospitals, alleged that over the course of ten years, Pfizer consistently promoted Neurontin to it for unapproved uses, representing to its doctors that Neurontin could effectively treat a number of different medical conditions, including migraines and bipolar disorder. Neurontin was approved by the FDA in 1993 to treat epilepsy, and nothing more. According to Tom Sobol, a lawyer for Kaiser ,”The jury found that Pfizer engaged in a racketeering conspiracy over a ten-year period. That bodes well for future (similar) cases.” The jury deliberated for two days before finding Pfizer guilty of violating RICO. They determined the damages owed Kaiser to be $47 million, but under RICO, the damages are tripled. Hence, the total cost to Pfizer is $142 million. The federal trial was based in Boston, as U.S. District Court Judge Patti Saris is charged with overseeing a number of federal lawsuits from across the United States, targeting Pfizer with personal injury claims and allegations of fraudulent marketing of this drug. These injury claims would take the form of Product Liability suits, rather than Medical Malpractice.

When will Big Business get it? When will they cease their relentless quest for profits, no matter what the cost to society at large, or to themselves? Do they never learn from the shameless corporate fools that went before them? The terms “Ford Pinto”, “Asbestosis”, “Predatory Mortgages”, “Tobacco Cancer” and “Corporate Greed” all ring loudly. Does it not shame the leadership of this global company that they have been found guilty under a statute originally passed to police and defeat organized crime?

And remember, readers:: It’s these very kinds of companies and industries that want “tort reform” -- Big Business. They'd just love to shrink your legal rights and expand their profits. Don’t let them do it.

It’s no secret among people who know me, that, as a Boston Massachusetts product liability lawyer, I’m one of the sharpest critics in the legal community of the pharmaceutical industry, and particularly, pharmaceutical advertising. Yes, I’m fully aware of the societal value that pharmaceutical companies can and do bring to bear, in addressing a number of diseases and medical conditions. And I believe that they are entitled to make a healthy profit in so doing. But what I’ve – and we’ve – all witnessed in the last 10 or 12 years, is the way that pharmaceutical companies pimp their products to the general public through television, radio, and print advertising. It is often obscene, and in my opinion ought to be legislated as illegal. However, there’s a sticky little thing called "commercial free speech”, which delves into an entirely separate subject of First Amendment issues, which I won’t distract my readers with right now. Not that it isn’t very important, but I’ll save that for another day.

Long gone are the days when pharmaceutical company sales reps solely called on – of all things – doctors’ offices - to sell their products. No, they got around that. Their thinking: “Why rely on doctors to write prescriptions for our products, when we can generate demand at the consumer level? Yeah, we’ll flood print and broadcast media with ominous-sounding ads showcasing all kinds of diseases and medical problems, and in the process, get millions of people to march into their doctors’ offices, and demand to be given prescriptions for our products.” This seemed like an even surer bet than taking doctors out to lunches and dinners, and hosting them with everything from golf outings to “professional seminars” at warm, sunny destinations. (Which they still do, but that practice has been gradually dropping, as regulators see more and more how incestuous and unethical a practice it obviously is.)

Take a little test: The next time you’re watching a TV show (ideally during prime time, (8:00-11:00 PM,) keep a pen and paper next to you. Write down the number of advertisements that you see about any kind of drug or health product. Ninety per cent of the time, it's a pitch from a pharmaceutical company, talking about the horrors of this or that medical condition, and urging you to “Ask your doctor about_______.” Do the same thing the next time you’re reading a newspaper or a magazine. Or listening to the radio (except when driving.) Chances are you’ll realize that the average viewer, reader or listener is inundated, constantly, by drug companies trying to get you to “Ask your doctor” about whether you “might have” some medical problem or condition, and whether their product “might help you.” Not only are ads in newspapers across the country regular fare, but full page ads. Any idea what a full page ad in an average major city daily newspaper goes for, say, Monday through Friday? About $10,000.00 – and more on weekends. Hawking everything from Aspirin to Zithromax, for every condition from high cholesterol to depression to heart disease to smoking, they never cease their constant drumbeat to “Ask your doctor about ______.”

Not quite the harmless commercial activity it’s claimed to be (at least by the pharmaceutical companies.) You see, in the mad frenzy to get drug companies’ products to market so they could hawk them in this way straight to the general public, science and sound practices took a back seat. “Clinical Studies” were skewed. “Scientific research” became less important than scientific fact, and profits became the driving force in research and development. It doesn’t take a genius to see what flows from all this.

One glaring example of this is what happened with a diabetes drug manufactured, and quite forcefully marketed, by GlaxoSmithKline. The drug, Avandia, has become well-known for causing serious injuries in persons taking the drug. About 13,000 former Avandia users in the United States have suffered heart attacks and other serious injuries while using Avandia, and many of these users have filed suit against GlaxoSmithKline in state and federal courts. Product liability lawyers across the United States have known for years that this drug was dangerously defective and posed an extremely elevated risk of harm to those who used it. Now, a Harvard University study has shown that Avandia creates more than double the risk of heart attack in users, compared with other diabetes drugs. The study is slated for publication soon by the American Diabetes Association.

GlaxoSmithKline’s own study of Avandia, conducted with i3 Drug Safety, an independent drug safety firm, found that Avandia users have a 35 percent to 41 percent increased risk of heart attack over users of Actos, Avandia’s main competitor. The Harvard study analyzed clinical data from the medical records of 26,375 patients at several Boston area hospitals and clinics associated with Harvard Medical School. All the records reviewed involved a diagnosis of diabetes and the use of at least one oral diabetic medication used between 2000 and 2006. The researchers then scoured the records to find all patients who suffered “myocardial infarction” or heart attack. The incidence of heart attack was more than double for Avandia compared with its main competitor, Actos.

A company spokeswoman was unavailable for comment Wednesday. No surprise there. The 13,000 people who have filed suits against GlaxoSmithKline, are distributed across the United States, and the suits are filed in both federal and state courts. In California alone, almost 3,000 suits have been filed in state Superior Court. All of the suits accuse GlaxoSmithKline of falling to warn patients about the increased risk of heart attack, strokes and heart failure, and of aggressively marketing Avandia in the face of clear evidence of this elevated risk. On the federal court level, thousands of cases have been consolidated, initially into three bellwether test cases. Medical negligence is one thing. Negligence by definition involves an unintentional act. But from all indications in the Avandia case, GlaxoSmithKline intentionally hid damaging clinical information from the public, all in the name of higher sales and fatter profits. Nothing new there.

When will corporate America wake up and realize that the viral corporate greed that has previously infected so many companies, whether automobile manufacturers, tobacco companies, or toy manufacturers, doesn’t pay? When will they break out of their frenzied drive for more sales and profit at any cost, and place the interests of their customers first? When does this all end? The best and, in the real world – only answer to these questions is “When they get hit so hard in court, that none of them will ever think of it again." That’s why the tort system in this country is so critical. The day the average citizen loses his right to hold corporate America accountable for its misdeeds, is the day we will all suffer a loss that can not be replaced. Remember that the next time that some pro-business type tells you that "tort reform" is a good idea.