Articles Posted in Product Liability

My wife loves to eat Nutella. She’s constantly on a diet, but every Saturday night she takes half a low-calorie English muffin, toasts it, and smears it with the chocolate-hazelnut spread. A constant dieter, she indulges in this once-a-week treat with a rapture reminiscent of a shipwreck survivor who hasn’t eaten a decent meal in weeks. But Debbi knows all too well that she can’t eat this product every day and still maintain her 112-pound weight. Just two tablespoons of Nutella have 200 calories, 100 of which are fat calories. And the list of ingredients includes sugar and palm oil as its first two ingredients – and these are certainly not the healthiest choices for anyone. Interestingly, the jar of Nutella claims that a nutritious breakfast is made of up a glass of OJ, and Nutella smeared on whole-wheat bread. Debbi would be the first to tell you that if you start eating this every day for breakfast, you’ll wind up in Fat City — despite your goals to be on the road to Sveltesville.

The legal system has also agreed that Nutella isn’t that healthy. Having it marketed increasingly as a balanced breakfast for American children has gotten its manufacturer, Italy’s Ferrero Group (which also makes Ferrero Chocolates and Tic Tacs), into trouble with US courts.

Advertised as a way to get children to eat a healthy breakfast, Ferrero insinuated that Nutella was healthy when, in fact, it has about as much nutritional value as a candy bar. Or so claimed several consumers – mothers — who sued the company’s US unit. As part of its settlement of two class-action suits, Ferrero U.S.A. Inc. has reimbursed consumers for up to five jars (at $4 a jar). In addition, Ferrero agreed to modify the Nutella label, modify certain marketing statements about Nutella, create new television ads, and change the Nutella website.

Here are two words every consumer needs to remember: product liability. What does this term mean? It means that if you are injured or harmed by using a particular product – be it a defective swimming pool slide, a defectively manufactured car, or a certain kind of food that might have dangerous particles in it — you have the right to sue the manufacturer for product liability. “Product liability” is a legal term, and it’s used interchangeably with “defective products.” Here’s a recent development in Massachusetts in this area of practice:

A Fall River, Massachusetts food manufacturer has recalled 4,000 pounds of soup because consumers apparently found pieces of plastic in various cans of soup. The U.S. Department of Agriculture reported that soup products that were made by Blount Fine Foods, and which were sold at Wegmans supermarkets in Massachusetts, Maryland, New Jersey, New York, Pennsylvania and Virginia, were being recalled for safety reasons.

The following products, which all carried the Wegmans Food Markets private label, are being recalled:

Just imagine this scenario. You’re driving your Ford Maverick, or your Ford Escape, and you need to slam on the brakes. Only you hit the brakes and you find that your gas pedal is sticking, so instead of slowing down you speed up, and the next thing you know, you’re the victim of a serious car accident.

As a Westwood accident lawyer, I’ve seen this happen far too often. Concerning Ford Motor Company vehicles, the National Highway Traffic Safety Administration has received 68 complaints about the Ford’s sticky gas pedals on its Escapes and Mavericks, which have caused 13 crashes, nine injuries and one death.

That’s why Ford is right now recalling almost 485,000 Escapes and Mavericks – vehicles from the 2001 to 2004 years that are powered by 3-liter V-6 engines. It’s the third recall in two weeks for the Escape, which is the top-selling Sports Utility Vehicle (SUV) in the United States. Just one week ago, Ford recalled 11,500 of its 2013 models, because it found that the fuel lines can possibly crack and leak gasoline, which in turn can cause fires. And just a few days before that, Ford recalled 10,000 2013 Escapes so it could fix the carpet padding that could interfere with braking. This is an example of “defective products.”

As a Westwood and Boston Massachusetts injury lawyer, I see an ongoing business practice occur time and time again, and it annoys, frustrates and angers me. What is that? It’s big pharmaceutical companies – which now market themselves directly to the consumer in ads on TV and in print – putting patient safety on the bottom of their list. In other words, they look for profits, profits and more profits, more than anything else, when patient safety should be Priority One. But patient safety is rarely Big Pharma’s Number One Priority. Profit – enormous profit – is. I’ve blogged about pharmaceutical marketing practices before, and I haven’t spared my thoughts.

This past week GlaxoSmithKline agreed to plead guilty to misdemeanor criminal charges brought by the U.S. Government. The pharmaceutical giant will wind up paying $3 Billion to settle what may be described as the largest case of healthcare fraud in U.S. history. Let me say that again – this may be the LARGEST case of healthcare fraud in U.S. history. This settlement includes $1 billion in criminal fines and $2 billion in civil fines. Generally, the money goes to the U.S. Treasury, and some state treasuries, and would be spent accordingly. The state of Massachusetts Medicaid program is slated to receive approximately $35 million in the settlement.

Allegedly, in committing this fraud, the British drugmaker broke all kinds of United States laws in the marketing and development of its pharmaceuticals. First among those violations, the company targeted its antidepressant Paxil to patients who were under age 18 – when in fact, the drug was approved for adults only.

One thing I can’t stand these days, is the growing proliferation of pharmaceutical advertising. Whether on TV, radio, or in print, it seems one can’t go anywhere or listen to anything without being bombarded by some usually laughable or ridiculous ad, (not uncommonly depicted with cartoon-like drawings,) pushing the latest offering by some pharmaceutical company. And with each and every one, comes the push “Ask your doctor about ___________.” Worse, recently, pharmaceutical companies have adopted the “Coupon Approach”: “Yes, you, too, can get a FREE sample of _________ if you present this coupon to your doctor!”

Years ago, it used to be that the pharmaceutical industry marketed their prescription drug products solely to the dispensing/prescribing end of the sales process: Doctors. That all ended about 15 or so years ago. The drug companies finally got wise to the gullibility of the average American, and saw the light: “Hey, instead of just hawking our products to doctors, who may or may not end up prescribing them to their patients, why don’t we just create demand at the patient level by marketing prescription drugs directly to consumers?” So now, taking advantage of the dumbing down of America, you can watch commercials depicting walking stick figures made of plumbing pipes for bladder control, amorous couples exchanging “that” look for Viagra tablets, and wind-up dolls for depression. In each and every one of these commercials and print ads, is buried some nonchalant “warnings” about “possible side effects,” that are communicated with an insouciant whisper of (“But this would never happen to you“).

Amidst the stampede of this new marketing world for the drug companies, has come a lot of results that should have been expected: Serious prescription drug injuries, including death. One drug in particular took the prize for being the most litigated for prescription drug product liability: Reglan. Reglan is a drug made by Schwarz Pharma and is generically known as metoclopramide. It is used to relieve symptoms caused by slow stomach emptying in people who have diabetes — (and, of course, the number of people who have diabetes has exploded in recent years, due to the nauseating obesity epidemic in this country, but that’s another subject.) The drug was first approved for use in the U.S. in 1985 and comes in the form of injections, tablets, and syrup. Class action lawsuits against the manufacturers of Reglan have been brought due to the very serious side effects caused by the medication, many of them fatal. These side effects have included agranulocytosis, which causes low levels of white blood cells, which can be fatal if left untreated. Aldosteronism is a condition causing excessive production of hormones and low blood potassium levels. Other side effects of Reglan include depression, suicidal thoughts, hallucinations, seizures, jaundice, severe allergic reactions, tachycardia, and tardive dyskinesia. Reglan can also result in NMS, or neuroleptic malignant syndrome, which causes muscle rigidity, fever, and delirium. Like so many other Reglan side effects, this can be life threatening.

Here’s yet another example of how a product snuck through the system, and has caused so much damage in women that there now exist hundreds of medical product liability lawsuits aimed at its manufacturer.

Surgical mesh has been used in surgery for awhile. So when a new type of plastic mesh needed to be approved by the Food and Drug Administration, it apparently got fast-track approval, without the tests that the FDA typically requires for first-of-its-kind devices. The upshot? Johnson & Johnson, the manufacturer of the plastic surgical mesh, now plans to stop selling its surgical mesh implants that are used to treat women, because the mesh implants have been linked not only to injuries, but hundreds of lawsuits. So, this past Monday, J&J said that it plans to phase out four mesh products over the course of the next three to nine months.

The plastic mesh implants were used to strengthen a woman’s pelvic wall in cases of pelvic organ prolapse – a condition that happens when the bladder or other reproductive organs slip down into the vagina. Last year, it is estimated that about 75,000 women had received the mesh implants, although there is another type of surgery that can correct this problem, using a simple incision in the abdomen. Last year the FDA reported that these mesh implants were associated with higher rates of pain, bleeding, and infection than the traditional surgery that simply used stitches. One Miami woman, Lana Keeton, who had the plastic mesh implanted back in 2001, has undergone 17 – that’s correct – 17 surgeries to remove the implanted mesh. She even founded a group called Truth in Medicine, which has lobbied the FDA about the harmfulness of mesh. She has described the synthetic mesh as resembling “the cut edges of a window screen,” to show how harmful and sharp the mesh is, and to demonstrate how painful it makes sexual intercourse.

Getting exercise is important. Especially since statistics warn that in about 12 years, 42% of the American population will be obese. That is one scary statistic. That said, I’m all for everything that gets men, women and children out there, exercising.

Jumping on a trampoline can be a great way to stay in shape. Unfortunately, the U.S. Consumer Product Safety Commission just this week recalled about 92,000 Sportspower BouncePro 14′ trampolines that were sold exclusively at Walmart. The hazard is that the netting that surrounds these trampolines can break, allowing children to fall through the netting and suffer a personal injury.

Already, Sportspower has received reports of 17 of the nets breaking, resulting in 11 injuries that include broken bones, back and neck injuries and contusions. Any customer who owns a Sportspower defective trampoline should stop using it immediately and contact Sportspower to receive replacement black netting for it. The recall hotline is (888) 965-0565.

The world of Cinnamon Spice, Pink Basket Case, and Rum Raisin may not be so rosy.

Welcome to the world of lipsticks, nail polishes, and blushes. Women use these products all the time; and most women love them. In fact, cosmetics is a $7 billion-dollar industry – that’s the amount that women in the USA spend on cosmetics annually.

Yet, cosmetics are not regulated by the U. S. Department of Agriculture or the U.S. Food and Drug Administration. Which means that it’s really up to the consumer to decipher which cosmetics are good and bad for you. Cosmetics are filled with all kinds of ingredients, including chemicals, color, and minerals, and unless you’re a dermatologist, it’s hard to figure out the good, the bad, and the ugly. One way to decipher the details might be to read websites devoted to cosmetics safety such as the Beautypedia website published by Paula Begoun, the “Cosmetics Cop. ” Ms. Begoun, who quotes from all of the dermatology and biology trade journals, rates all brands of comsetics and tells her readers what to try and what to avoid, based on their ingredients. (Note: I’m not endorsing Ms. Begoun’s website here, only noting its availability.)

Summer – it’s almost here. That’s when everyone enjoys summer barbecues, lemonade, and pool parties galore in the backyard.

I’ve written in this blog previously that swimming pools bring with them inherent risks. The risks of injury are very high. Depending on the type of swimming pool injury involved, an area of law known as “premises liability” or “product liability” will usually be involved. Whether the pool is an in-ground/built-in, or an above-ground portable pool, as a Boston/Dedham Massachusetts injury lawyer, I can assure you they can be very dangerous – if not fatal. Whatever type of pool is involved, numerous safety and liability prevention measures should be taken by all property owners who have a swimming pool on their premises.

Just last week, a Massachusetts judge upheld a $20 Million verdict that was returned by an Essex County Superior Court jury last fall in a swimming pool product liability case. The jury awarded the sum to the family of a Colorado woman who died after a Toys ‘R Us inflatable pool slide partially collapsed, as she attended a pool party in Andover.

Think that your child is safe and secure when tucked away in a warm cozy crib?

Think again.

Baby cribs are a relatively common type of product that is typically subject to recalls, due to defects, along with toys and child car-safety harnesses. Just this week the U.S. Consumer Product Safety Commission announced a recall of Rockland Furniture Drop-Side Cribs, manufactured by Nan Far Woodworking Company of Taiwan. They are sold at J.C. Penney. The hazard is that each crib’s drop side can detach, malfunction or otherwise fail, causing part of the drop side to fall out of position. The very serious problem that occurs with this product, is that a space is created in the side of the crib, into which an infant or toddler can roll and become wedged or trapped, which can lead to the child’s suffocation or strangulation.