Articles Posted in Product Liability

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While the 1990’s saw a string of very large settlements from class actions against various individual tobacco companies and the tobacco industry in general.  One class action settlement in particular involved hundreds of millions of dollars paid to state governments that sued the tobacco industry for the hundreds of millions in Medicaid funds that the states paid to provide medical care for victims of lung cancer and others illnesses caused by smoking.

But what about individual plaintiffs?  Can they still sue a tobacco company if they feel that their lung cancer or other types of cancer was caused by smoking?

The technical answer is that anyone can file a lawsuit against anyone else, at almost anytime, for anything.  The civil justice system provides that wide access for good reason – -so that no one can be ‘shut out of court’; and so that the average person can take on huge, deep-pocketed defendants.  So that injured victims can take on automakers, dangerous product manufacturers, chemical companies, etc.  Our constitution and system of justice guarantees us all that right.  But the right to file a suit agai9nst someone – and the likelihood of winning that suit – are anything but the same thing.  In fact, they’re world apart.

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In Part One of my post on this subject, I discussed what Roundup is, what the history of these cases is, how cases are being brought to the courts, and what the possible values of these cases might be for people who have been exposed to it and have developed Non-Hodgkins Lymphoma (NHL) or similar types of cancer.  Let’s proceed to whether or not someone who has been exposed to Roundup and has been diagnosed with NHL, might have a legally actionable claim for damages.

How Do I Know If I or A Loved One Has a Case Against Roundup?

One big misunderstanding that all the TV and internet ads about Roundup litigation have created is the idea that anyone who has ever bought and used Roundup, and who now may “not feel good”, has a valid claim. Not true. Plaintiffs who present valid Roundup injury claims, are typically people who have had long-term exposure to Roundup, and later developed Non-Hodgkin’s Lymphoma or other cancers. Those types of plaintiffs typically are:

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A good number of my clients have called in to ask me about the Roundup cases that they’ve seen either on TV ads, or on the internet & social media.   It seems that anyone who has ever used this product has a lot of questions about it, so I’ll try to address them in the most accurate, efficient way that I can, given current case law and clinical information on this product.

First, what is Roundup?

Roundup is primarily a weed killer, an herbicide, and it has become the most widely used herbicide in the world. It’s used wherever weeds grow:  Lawns, farms, gardens, greenhouses, parks and more.  It is used commercially by professionals in the farming, landscaping and agricultural sectors, and by homeowners as well.  Monsanto makes Roundup, (though Bayer recently bought Monsanto), and this product earned more than $6 billion in revenue annually in recent years. More than 250 million pounds of it is used each year globally. The ingredient that many believe causes non-Hodgkin’s Lymphoma and other types of cancers is called glyphosate, and in 2015, the World Health Organization (WHO) termed glyphosate a “probable human carcinogen”.

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I’ve blogged previously on the topic of the potential dangers of “energy” drinks. Still, seemingly every supermarket I shop in these days, I see these drinks proliferating left & right. Without doubt, these drinks and similar products can potentially injure you. Very high levels of caffeine can cause serious health problems such as cardiac arrhythmias (irregular heartbeat,) anxiety attacks, dangerously blood pressure and, in some cases, even sudden death. The obvious reason: They’re packed full of high-concentrated caffeine. High concentrate caffeine isn’t limited to energy drink products – it’s also marketed in powdered form, pills, and is widely available online. Hospital ER visits caused by high concentrate caffeine and energy drinks doubled over the past four years – from 10,000 to 20,000.

Aside from adults, an enormous number of teenagers and college kids consume the drug in these drinks. And yes, caffeine is a drug – and a highly addictive one, at that. Ever tried talking with someone who hasn’t had his/her morning fix? So, just how concentrated is this stuff? The U.S. Food and Drug Administration (FDA) has reported that a single teaspoon of powdered caffeine is equal to the amount of caffeine contained in a stunning 28 cups of coffee: That’s approximately 1,600 milligrams of caffeine — equal to about 70 cans of Red Bull!  How much caffeine is safe? The FDA recommends a maximum daily limit of 400 milligrams of caffeine (about 5 8 oz. cups of coffee) to minimize safety risks.

So, can you sue if you’ve suffered physical or emotional harm from them? First, remember the maxim that anyone can file a suit over anything – that’s a constitutional right. The salient questions is, would you win? The answer to the last question, is “It depends”

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I wrote in this blog recently of the many suits filed in the past few years against Johnson & Johnson alleging that its famous baby powder products cause cancer in women. That fight remains ongoing. But J&J’s legal woes over its products aren’t in any way limited to over-the-counter consumer goods like talc or baby powder. Many of the lawsuits it has faced involve its prescription drugs.

One of those drugs is Levaquin, which was developed by J&J as a type of antibiotic. Levaquin belongs to the fluoroquinolone class of antibiotics, and was marketed by J&J to treat relatively minor infections, such as sinus infections and urinary tract infections (UTI’s.) Sounds admirable enough, except that plaintiffs’ suits in several states, including Pennsylvania and New Jersey, allege that the giant health and pharmaceutical company very aggressively marketed Levaquin, while knowing that the antibiotic could cause a dangerous medical condition called peripheral neuropathy – a very serious nerve disorder. Often times, this dangerous disorder can become permanent – resulting in loss of nerve sensation and partial paralysis. Many of these suits allege not only that Levaquin is a defective medical product, but that J&J knew about this while it was marketing the drug to doctors, and intentionally failed to warn doctors about the risks of neuropathy to their patients. Continue reading

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At this stage, more than 5,000 lawsuits have been filed against the iconic baby powder manufacturer Johnson & Johnson, most alleging that cases of ovarian cancer and mesothelioma were caused by asbestos contained in the pharmaceutical giant’s baby powder & talc products.

There is even a new shareholder lawsuit that was filed February 9 in federal court in New Jersey, on behalf of investors who purchased J&J shares between February 2013 and February 2018—alleging that J&J “has known for decades that its talc products, such as its Baby Powder, include asbestos fibers and that the exposure to those fibers can cause ovarian cancer and mesothelioma.” The tentative class action suit alleges that J&J harmed its stockholders by allegedly concealing the truth claimed in hundreds of other lawsuits and articles contending J&J’s talcum powder products contain asbestos.

Seems even investors are smelling something suspicious here. The investor suit, filed by one Frank Hall, named J&J as defendant along with J&J CEO Alex Gorsky and J&J CFO Dominic Caruso.

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As many people have read or heard in the past few months, a rapidly growing number of cases have been filed by women who have contracted ovarian, uterine and vaginal cancers that they claim were caused by an ordinary, everyday item found in almost all homes in the United States:  Talcum powder (“talc”), or baby powder.

In August, a jury in Los Angeles found Johnson & Johnson (one of largest companies and most famous names in over the counter health products,) liable for a woman’s ovarian cancer.  The jury ordered that J&J pay a record $417 million in damages to the victim, Eva Echeverria.

The verdict marked the highest sum that a jury has awarded so far in a series of talcum powder cases against Johnson & Johnson in courts throughout the U.S.  The plaintiff in this case, as in other cases around the U.S., alleged that Johnson & Johnson did not adequately warn consumers about the cancer risks that were connected with the use of talcum powder. The plaintiff in the California case testified that she applied the giant company’s baby powder daily, for decades beginning in the 1950s.  She was diagnosed with ovarian cancer in 2007, and claimed that she developed ovarian cancer as a ‘‘proximate result of the unreasonably dangerous and defective nature of talcum powder.” Continue reading

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In my previous post on this subject, I discussed how a dedicated Boston anesthesiologist by the name of Amy Reed, a wife and mother of six, died due to uterine cancer spread by a medical device known as a power morcellator.  These new surgical devices were thought to offer a superior method over conventional surgery, in removing uterine and ovarian cysts.  The medical term for such procedures is laparoscopic uterine hysterectomy and myomectomy.

Tragically, power morcellation, as it came to be known, wasn’t a superior method to treat these conditions. Continue reading

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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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