Eight Powerful Reasons to Hire a Local Attorney

Court Allows Claims For Emotional Distress After Alleged Breach Of Contract To Continue

Wal-Mart Limits Subrogation Rights Against Workers

Pennsylvania Worker recovers for fall from ladder bought at Home Depot

$2 Million Verdict for Foreman Injured by Pipe Plug

Third Restatement of Torts Tops High Court's Agenda

Ten Worst Toys

Recalled products Jan 1, 2008-Nov. 13, 2008

Total Recalled products –354

From the United States—52 or 15%

From China – 201 or 57%

From foreign countries –302 or 85%

This is significant because foreign manufacturers can set their prices lower because they are not subject to the equal prospect of restitution as U.S. manufacturers face if a consumer is injured by their product.  Also, foreign manufacturers often face huge discrepancies in product liability insurance rates.  Without the prospect of being held accountable through the U.S. civil justice system, a foreign producer has little incentive to maximize product quality and safety.   We have more information on this issue with a release we put out on a paper on the topic, see http://www.justice.org/cps/rde/xchg/justice/hs.xsl/4771.htm .

Superior Court Holds that Restitution Is Not Covered By Insurance

Jury awards $20.5M Obstetrician, CMC held liable in botched birth

Consumer, plaintiffs' groups seek to end limitations on lawsuits

The Wall Street Journal (11/3, Timiraos) reports that in "a new aggressiveness by the plaintiffs' bar after years on the defensive," both "plaintiff and consumer groups, buoyed by prospects of a Democratic president and expanded Democratic majority in Congress, are preparing a big push for legislation that would roll back limitations on personal-injury and class-action lawsuits." They seek to limit s on "companies' use of federal regulations as a shield from litigation under state law, and laws to end mandatory arbitration in consumer contracts." In fact, "The centerpiece of the AAJ's agenda is its opposition to 'pre-emption." While "President Bush often complained about excessive lawsuits choking the American economy...many of his proposed changes -- limits on fees and big payouts -- were often stymied by trial lawyers." Now, "pro-plaintiff groups see an ally in Sen. Obama."

   
     Business said to favor McCain on lawsuit limits. 

Washington Times (11/1, Ramstack) reported, "The Chamber of Commerce has called for legislative curbs on lawsuit abuse, or tort reform, for years," and now "John McCain and Barack Obama have added their voices to complaints about how lawsuits have gone too far." However, "business groups tend to support Mr. McCain's proposals on lawsuit abuse more than Mr. Obama's ideas." Obama's "record on tort reform consists more of statements in favor of it than votes on the issue, compared with Mr. McCain, who has had a much longer legislative career." Lisa A. Rickard, president of the Chamber's Institute for Legal Reform, said "When it comes to issues of legal reform, McCain is stronger on those issues."

U.S. House Report Further Confirms Bush Administration’s Preemption Plot

Yesterday the U.S. House Committee on Oversight and Government Reform issued a report saying FDA career staff objected to a change in preemption rules, even saying the central factual justifications for the agency’s new positions were false.  The report highlights internal FDA documents which show high-ranking career officials repeatedly warning about the dangers of not allowing drug companies to add additional warnings to their labels without FDA approval.  Prior to this the FDA had asserted through a rule on drug and device labeling that manufacturers should not be held accountable for failing to update their label with additional risks, if the original label was approved by the FDA. 

The report cites Dr. John Jenkins, the highest official in FDA’s new drug review process, writing:

M]uch of the argument for why we are proposing to invoke preemption seems to be based on the false assumption that the FDA approved labeling is fully accurate and up-to-date in a real time basis. We know that such an assumption is false.”

Prior to the rule being issued one FDA career official asserted that the rule “is not as it purports to be, consistent with the agency’s role in protecting the public health…”

A copy of the report can be found at:

http://oversight.house.gov/documents/20081029102934.pdf .

Associated Press story on the issue:

http://ap.google.com/article/ALeqM5h1C2M6_6XJkirIrtYpwjP_02a2pAD944G96G3

LA Times story:

http://www.latimes.com/news/nationworld/nation/la-na-fda30-2008oct30,0,1783486,print.story

Hedge clipper manufacturer not liable for landscaper's loss of fingers, says jury

1.6 million cribs recalled after 2 infant deaths

Both of the suffocations involved infants who got stuck in a gap created when the movable side came off of its guide track.

The incidents, which involved Delta Enterprises cribs, involved safety pegs that are intended to prevent the drop side from lowering too far and slipping off the track. If these pegs are not installed, or if they fail to engage, the drop-side can detach and create a dangerous gap where babies can get stuck.

To see the full article go here at MSNBC.com.

Bush Rule Changes Could Block Product-Safety Suits

Forty-one of the fifty-one rules proposed by NHTSA and FDA Contain Federal Pre-Emption Language

The concept of federal preemption, rooted in the Supremacy Clause of the Constitution, is underlying this bureaucratic version of lawsuit reform. Federal preemption refers to situations in which federal regulation and law trumps state law. The issue at hand is whether or not companies can use the broad preemption language in regulatory preambles to get the case thrown out. An expansive interpretation of the preemption doctrine leaves little room for consumers to sue, and that is what has been taking place recently.

Here is a fact paper offered by the Pennsylvania Association for Justice on Federal Preemption in relation to defective products.

Top Ten Jury Verdicts of 2007 are 25% lower than 2006

Hidden Cameras Catch NY Nursing Home Abuse

On Oct. 7, four employees of the Medford Multicare Center for Living in Long Island, New York were charged with nursing home abuse, based on video obtained with hidden cameras. State investigators placed a tiny camera in the room of an 84-year-old resident and monitored the video feed from January to March in 2007.

Nurses and Health Aides Charged

Two LPNs (licensed practical nurses) and two CNAs (certified nursing aides) were shown on the tape to have violated a number of serious safety regulations regarding patient care. They were arraigned in First District Court in Suffolk County and charged with misdemeanors — endangering the welfare of a physically disabled person, and a felony — falsifying records. For example: 

• A CNA was talking on a cell phone while transferring the patient from a wheelchair to his bed. She bumped his head against the bed railing and failed to turn him to prevent pressure sores. 
  
• Another CNA changed the patient's underwear only once during an 8-hour shift, despite the regulation requiring a change every two hours. 
  
• An LPN did not take the patient's heart rate before giving him heart medication; she also failed to give the patient his medication at times because the Center had run out of the medicine, but she later wrote on the records that the medication had been withheld by a physician. 

According to New York Attorney General Andrew Cuomo, this case is the first in the New York City area to use hidden camera videos for evidence. In upstate New York, 26 convictions had already been obtained based on such technology. Cuomo stated, "We’re going to be using this technology aggressively…it gives us a whole new avenue for making these cases." 

Candy with chemical in Chinese milk found in Conn.

"We're concerned, obviously, there may have been bags sold of these before we got to them," Farrell said.  Anyone who has the candy should destroy it, Farrell said.

The contamination has been blamed for the deaths of four children and kidney ailments among 54,000 others. More than 13,000 children have been hospitalized and 27 people arrested in connection with the tainting.

Melamine, which is high in nitrogen, is used to make plastics and fertilizers and experts say some amount of the chemical may be transferred from the environment during food processing. But in China's case, suppliers trying to boost output are believed to have diluted their milk, adding melamine because its nitrogen content can fool tests aimed at verifying protein content.

Can Seller of Defective Used Equipment be Strictly Liable in New York?

Mario Miquel Jaramillo was injured at work when his right hand was caught between two rollers on a 1964 Flexo Folder Gluer (“FFG”) which his employer, Glenwood Universal Packaging, purchased as used equipment from Weyerhaeuser Company in 1986. The evidence demonstrated that Weyerhaeusar sold an average of 3 used FFG’s per year, owned patents related to technology used in FFG’s, and had a working relationship with FFG manufacturers.

Jaramillo filed a complaint in New York state court against Weyerhaeuser alleging strict product liability. The case was removed to federal district court (S.D.N.Y.) and Weyerhaeusar was granted summary judgment as a casual seller of FFG’s under New York law and, therefore, could not be held strictly liable.

Casual sellers and regular sellers are distinguished in New York case law in strict product liability actions. The casual seller is only liable if it fails to warn the consumer of known defects that are not obvious or easily recognizable. The appellate court also noted that whether strict liability applies to sales of used goods, as in the present matter, is an open question under New York law.

After an examination of similar case law, the Second Circuit determined that it was necessary to have a resolution of the question of whether a seller of used industrial equipment can be deemed a “regular” seller in order to consider the propriety of summary judgment. To answer that question, it was certified to the New York Court of Appeals. The Second Circuit retained jurisdiction pending the outcome of the certification.

Federal Judge Green-Lights Paxil Suit Over Teen's Suicide

The family of a teenager who committed suicide in 2002 after taking the antidepressant drug Paxil is not barred from suing the manufacturer, because the U.S. Food and Drug Administration had not yet taken any position on whether there was a link between the use of such drugs by pediatric patients and an increased risk of suicidality, a federal judge has ruled.

In his 55-page opinion in Knipe v. SmithKline Beecham, Senior U.S. District Judge Ronald L. Buckwalter of the Eastern District of Pennsylvania concluded that a jury must decide whether the drug manufacturer "indeed possessed information, not available to the FDA, upon which it could have unilaterally added a warning to its labeling."

Buckwalter rejected arguments by SmithKline's defense team that the suit was pre-empted by FDA regulations which, at the time, did not call for suicide warnings for pediatric patients on drugs known as SSRIs, or selective serotonin reuptake inhibitors.

To see the entire article from Law.com, click here.

City settles with pre-teens who had oral sex on school bus

Government Officials Confirm Cancer Cluster Within 20-Mile Stretch of Pennsylvania

Officials say people living between Hazleton and Tamaqua are four times as likely to suffer from the rare disease, known as PV, as anyone in the outlying area.

The area 80 miles northwest of Philadelphia is home to several Superfund toxic cleanup sites and a power plant fired by waste coal, though the government report stresses not enough data exists to trace the cancer cluster to a specific source.

Some residents blame a center where paint sludge, waste oils, and other carcinogens were recycled 30 years ago, as well as the power plant.

Go here to see the whole story.

More news on the Whole Foods beef recall

From The New York Times:

Whole Foods Market said Monday it would tighten oversight of its suppliers to keep substandard products out of stores, after recalling ground beef that apparently sickened customers in two states.

After coming under new ownership, Coleman Natural began using a slaughterhouse in Omaha that had received multiple citations and had fought a long-running battle with the Agriculture Department. The government has said the plant was the source of ground beef that has sickened scores of people around the country.

Most of the beef was sold at grocers other than Whole Foods and recalled this summer. An additional 1.2 million pounds were recalled on Friday by the processor after illnesses in several states were tentatively linked to ground beef sold at Whole Foods and other stores.

At least four regional grocery chains — Fred Meyer, King Soopers and City Market, all owned by the Kroger Company, and Dorothy Lane — have also recalled suspect beef packages in recent days.

10 Worst Insurance Companies in America

The American Association of Justice has released a report titled, "The Ten Worst Insurance Companies in America:  How they raise premiums, deny claims and refuse insurance to those who need it the most.

Here they are in all their glory:

1. Allstate

2. Unum

3. AIG

4. State Farm

5. Conseco

6. WellPoint

7. Farmers

8. UnitedHealth

9. Torchmark

10. Liberty Mutual

To identify the worst insurance companies for consumers, researchers at the American Association for Justice (AAJ) undertook a comprehensive investigation of thousands of court documents, SEC and FBI records, state insurance department investigations and complaints, news accounts from across the country, and the testimony and depositions of former insurance agents and adjusters. Our final list includes companies across a range of different insurance fields, including homeowners and auto insurers, health insurers, life insurers, and disability insurers. 

The attorneys at C&C Law deal with most of these insurance companies on a daily basis.  Based upon my experience, I can attest to this list as being quite accurate.  These companies really should be ashamed of themselves.

To see the whole AAJ report in .pdf format, click here to go to C&C Law's Library.