Articles Posted in Product Liability

A decade ago heralded an exhilarating time for medical scientists: The sequencing of the human genome – the foundation for all human life; the genetic “instruction manual” from which each of us is created. This historic effort ushered in a new, supposedly more accurate platform of prenatal screening tests, which are primarily designed to determine if a fetus has inherited a debilitating or fatal genetic disease.

Hundreds of thousands of newly-pregnant women have taken these tests in the past couple of years – through an everyday blood sample taken in their doctor’s office. Many women have considered this process “no big deal.” But a recent investigation by the New England Center for Investigative Reporting has discovered that companies manufacturing these tests have been overselling and overstating their accuracy, while simultaneously doing little to inform expecting parents, or their doctors, about the serious risks that these tests can produce ‘false alarms.’

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This post is intended to discuss something that is so prevalent in our society that we just assume is designed to be safe, and never really think otherwise: The guardrail.

Anyone who has ever driven on the Massachusetts Turnpike, Route 128 or Route 495 is familiar with the metal guardrails on the highway; they’re even used on side roads. But instead of safety devices, have you ever thought of them as dangerous structures? Probably not.

A guardrail is there for your protection. Its first order of business is to protect your car from dangerous structures or conditions – such as trees on the side of the road – or sharp drop-offs or slopes on the side of the road. They are aslo designed to prevent motor vehicvle impacts with manmade obstacles such as utility poles. Its primary purpose – and perhaps its most important role — is to deflect your vehicle away from an at-risk area (i.e., a sharp sloping at roadside, a tree or dangerous structure of some kind, or a body of water) if the vehicle comes into contact or impact with the guardrail. Properly-manufactured guardrails are designed to deflect your vehicle away from what is beyond the guardrail, help the vehicle to slow down, and “guard” the occupants of the vehicle from the hazard that the guardrail is protecting vehicles from. Ideally, a well-made gaurdrail will prevent serious injuries or fatalities in Massachusetts motor vehicle accidents.

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Almost everyone these days knows someone who has had a hip replacement; this type of surgery has become very common.

The problem is, many of the hip implants that were manufactured for this surgery, were defective and caused unwitting patients to suffer serious complications. Certain implants were recalled due to patient safety issues, and class action litigation on behalf of injured patients was commenced a couple of years ago against the manufacturer of these defective hip implants, known commonly as “Stryker implants.” The corporate name of the manufacturer is Howmedica Osteonics Corp. (“Stryker.”)

Last November 3, 2014, Stryker announced the formation of a National Settlement Program for affected patients who had received selected Stryker implants, and who met certain criteria. Stryker invited patients who had received the “Rejuvenate” and “ABG II” hip systems to participate in the settlement program, but also required that substantially all other eligible patients participate. Stryker offered the settlement program only to patients who have had their Stryker implant removed prior to November 3, 2014; who registered with the program online by December 16, 2014; and who enroll in the program by a deadline was extended to March 30, 2015.

Just about everyone who lives in suburbia has a lawnmower. It is as commonplace as a driveway. But that’s where things can get a little deceptive. What most people don’t realize is that lawnmowers are extremely dangerous. This year, more than 70,000 people will be injured due to a lawnmower accident of some kind. Yes, that beautiful summer day when you decide to manicure your lawn, under a warm sun and gentle breeze – can turn into a nightmare of the worst kind. Proven by an unexpected trip to the Emergency Room.

Here are some unbelievable statistics:

According to the U.S. Consumer Product Safety Commission, in 2010, more than 235,000 adults and 17,000 children in the U.S. were injured by lawn mowers. And here’s where gender counts: Boys usually have 80% of lawnmower injuries, which most often occur on their arms or their hands.

Over the past few days, a lot of people have asked me about “What’s going on with all these automotive safety recalls?” There’s been a lot of media buzz about this subject, so let me give you a quick explainer.

Both GM and Toyota have been the subject of government and consumer organization investigations into deaths and injuries caused by defects in its motor vehicles. The defects in GM’s motor vehicles surround ignition switches, and with Toyota the defect involved driver’s side floor mats that caused a sudden acceleration in the vehicles. These types of product safety defects are legally known as defective product cases or product liability litigation. The deaths and injuries that were caused by these defects have occurred in several states. What makes this such a big deal, you might ask? Do manufacturing mistakes not happen, innocently? No large manufacturing organization is perfect, is it? Yes, innocent mistakes do happen, to everyone. And true, no corporation is perfect. But it’s not those points that are making the news with GM and Toyota.

No, it’s the same-old, same-old: Big business trying to cover up its mistakes, while unknowing consumers who buy the products that the company knows are defective, become injured or worse. You see, it’s become apparent, so far at least, that both GM and Toyota separately knew about the respective defects in certain of its cars, yet said and did nothing. Why? Why did Ford say nothing in the 1970’s when it knew that its now-famous Pinto model was a rolling time-bomb, with a defectively designed and shockingly unsafe gas tank? Why did the tobacco companies say nothing when they knew they were manufacturing a dangerously unsafe product with their addictive cigarettes? While many words can answer this question, one word strikes to the heart of it: Profit. These huge corporations quietly conduct their own cost-benefit analyses, and they determine that if they go public and release information about the defect, they will suffer more revenue losses in decreased sales, than they will if they’re sued here and there. So they say and do nothing.

By now, most people have heard about the tragic suffocation deaths in a hope chest of two young siblings in Franklin, MA. It really is heartbreaking: A brother and sister, Lexi Munroe, 8, and Sean Munroe, 7, died after climbing into a hope chest Sunday night and without knowing it, locked it shut with no way out. It seems they were playing what almost all children that age do: Hide and seek. Autopsy results have yet to be officially released, but all signs point to accidental asphyxiation as the cause of death. The Norfolk County District Attorney’s Office is reportedly confident that no criminal issues are presented here.

The hope chest involved was manufactured by Lane Furniture, a popular Virginia furniture maker, in 1939. On a legal or evidentiary level, this is important because both Lane and the federal Consumer Product Safety Commission have confirmed that Lane recalled hope chests manufactured from 1912 through 1986 specifically due to the threat that small children could become trapped inside the chest and suffocate. Millions of these hope chests manufactured in these years were recalled. The lids of these chests were locked from the outside, upon closing. There were no locks or latches on the inside of the chest, to allow it to be opened from the inside, once closed. An exterior button or latch needed to be pressed or manipulated to open the lid. Federal product safety officials had, for years following the 1996 recall of the chest, warned that several of these dangerous products might still be somewhere in circulation. However, in 2001 Lane was issued a $900,000 fine by the government for failing to report the entrapment risk in a timely manner.

Lane Furniture had recalled 12 million “Lane” and “Virginia Maid” cedar chests, advising the chests needed to have the locks on them replaced due to reports of children becoming trapped inside. Heritage Home Group acquired Lane’s assets in November 2013. Heritage issued a statement that it “extends its deepest condolences to the family that has suffered this unthinkable tragedy. We wish them comfort at this most difficult time.” The company also stepped up its efforts to notify the public of this risk, and is offering free lock replacement kits for the affected chests.

Readers of this blog know that I’ve written previously about the dangers associated with defective hip implants. Most of these dangers arise from very small metal fragments in these hip implants, some microscopic, which are absorbed into a patients’ bloodstreams. These metal fragments can migrate into surrounding tissues and eventually into the bloodstream, due to the fact that several of these hip implants involved metal-on-metal joint components. The physical illnesses and injuries that can result from this exposure, can be extremely severe.

Most of the defective hip implants producing these problems were made by either Stryker Orthopedics, or DePuy Orthopedics, which is a division of Johnson & Johnson. Stryker’s “Rejuvenate Modular Hip System” and the “Stryker ABG II Modular Neck” were both voluntarily recalled by in July 2012 due to the health risks to implant patients. Many lawsuits followed – so many that these suits, along with suits against medical manufacturer Johnson & Johnson, were consolidated into federal court, to more efficiently handle the volume of these particular cases. Just a few days ago, Johnson & Johnson announced that the company had reached a settlement deal with plaintiffs’ lawyers who were representing a wide class on injured patients. J&J will pay for a $2.5 billion settlement fund, which will be used to pay damages to injured patients in an estimated 8,000 lawsuits in the consolidated litigation. Those cases involved injuries that range from modest, to much more serious. The settlement agreement will also include an additional $475 million to pay for the most severely injured plaintiffs.

As a Boston hip implant attorney, I know that it’s this kind of financial punishment that makes our civil justice system work. Without the ability to bring these kinds of lawsuits – without the ability of the average American to hold corporate giants accountable for their errors –no one who buys any kind of product in this country would be safe. The reason is obvious” With little fear of being punished financially or legally, corporations would automatically place profits before people, money before safety – and our country would be a lot worse for it.

If I asked you what “punitive damages” are, would you be able to tell me? As a Boston injury lawyer, I have found that a great many people don’t. That’s unfortunate, because they are a VERY important part of our civil justice (tort) system.

Okay: Let’s define this as briefly as possible without getting into a law school lecture: There are different types of damages that may be awarded in any lawsuit. But in general, they can be broken down into two very broad categories: Compensatory and Non-compensatory. Compensatory damages do just what the term implies: They compensate the victim for the victim’s losses – whether those losses are economic/financial (such as lost income or medical expenses) or non-economic (such as pain and suffering and loss of consortium, meaning the loss of someone’s active presence and enjoyment in their life). Non-compensatory damages include punitive damages: These damages are awarded to a plaintiff not to compensate them for something they have lost or suffered – economic or non-economic – but instead to punish the defendant wrongdoer in the case, when that conduct has been egregious (i.e., especially offensive or unconscionable).

The ability of a court to award punitive damages is extremely important, for the obvious reason that it punishes (hence “punitive”) the wrongdoing defendant for his/her/its conduct – thus providing a disincentive for similar defendants (such a big corporations,) from engaging in similarly wrongful conduct. It’s easy to see how punitive damages serve an extremely important legal and social goal, whether in a Massachusetts personal injury case, or a different type of case.

I’m not someone who faults people or organizations for making mistakes. We all make mistakes. But what I find appalling, is the continued and unabated nature of so many businesses – usually big business – to ever learn from those mistakes – and to deal honestly with the consuming public and the government about defective products they have manufactured.

While there are legions of examples of corporations who designed, manufactured or marketed dangerously defective products, Exhibit A in this list has always been Ford Motor Company. If you’re wondering why, think of this word: Pinto. Some forty years ago, Ford manufactured a small, 2-door coupe with a 4 cylinder engine, called the Pinto. Not too bad a car, except for one glaring problem, unknown to the car-buying public: The gas tanks on this car were built dangerously close to the rear bumper, which was only cosmetic to begin with. There were bolts that were placed immediately behind the rear bumper, which with the slightest impact (as low as 5 MPH,) would puncture the gas tank like a nail gun. The result? An extremely high risk that the gas tank would explode, turning the car into a fiery death trap. Subsequent lawsuits and a government investigation later proved that Ford knew about this dangerous product defect, yet made a conscious ‘business decision’ to do nothing about because correcting the problem would have cost it ‘too much money.’ USA Today talks about the history of the Pinto here.

That was about 40 years ago. You’d think that corporate culture and safety practices would change over almost a half century, right? Wrong.

File this under “Some Things Never Change”: For years, everyone has been aware that long ago, (in 1971 to be exact,) the U.S. government banned cigarette manufacturers from advertising on TV. Much later, as part of a Master Settlement Agreement for tobacco liability in 1998, and the Family Smoking Prevention and Tobacco Control Act of 2009, additional bans against cigarette advertising were enacted, as follows:

• No cigarette advertising in media with substantial youth audiences.

• No use of cartoons in packaging, promotion, ads, or labeling.

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