Pennsylvania Worker recovers for fall from ladder bought at Home Depot

Third Restatement of Torts Tops High Court's Agenda

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

Three more salmonella cases confirmed in N.J.

From Philly.com:

Health officials yesterday confirmed three more cases of New Jersey residents, two of them children, infected with salmonella linked to tainted tomatoes. The new cases - all involving people who got sick between May 23 and June 3 - bring the state's total to four, including two women in Camden County.

Pennsylvania last week reported five cases, including one each in Bucks and Montgomery Counties, linked to the outbreak that has now sickened more than 600 people nationwide. Officials in Harrisburg could provide no details about the patients' conditions.

Retailer Sues UL for Certifying Defective Heaters

Platt Electrical Supply, Inc. sold electric in-wall heaters manufactured by Cadet Manufacturing Company. The heaters were tested and certified by Underwriters Laboratories (“UL”), a non-profit corporation that formulates safety standards for consumer products. In 1998, the Consumer Product Safety Commission noticed problems with the heaters, and then initiated a safety recall in 1999.

Platt was required to bear part of the cost of the recall. In addition, Platt was sued in a civil class action which it paid over $1 million to settle. During discovery in the class action, Platt, in 2001, obtained records showing that UL had been aware of defects in the heaters since 1989, but had not taken action to remove the UL certification. In 2003, Platt Sued UL alleging that UL negligently misrepresented that the heaters were safe, and fraudulently concealed information that would have alerted Platt to the defective condition. The District Court (N.D. Calif.) dismissed the negligent misrepresentation claim as time barred, and granted UL’s motion for judgment on the pleadings on the fraudulent concealment claim. Platt appealed.

Under California law, there is a three-year statute of limitations for fraud claims and a two-year limit for negligent misrepresentation. A claim accrues when all of the elements are present and the aggrieved party has discovered it or had reason to discover it (”inquiry notice”). In the instant case, Platt became aware of a problem when the recall was instituted in 1999. The Court of Appeals held that at that point Platt was on inquiry notice of its negligent misrepresentation claim. The limitation for the claim expired in 2001. The appellate court agreed that this claim was time barred.

Similarly, the Court reasoned that once Platt became aware that the heaters were defective, it was on notice that UL’s certification of the heaters was factually false. It was at that time in 1999 that Platt first had a basis to question the validity of UL’s representations about safety. Platt’s argument that the running of the statute was tolled by UL’s fraudulent concealment was rejected–Platt knew enough to have asserted the claim in a timely manner. Platt filed its fraudulent concealment claim well past the three year statute of limitations; accordingly, this claim was also barred.

Lastly, Platt argued that the District Court had abused its discretion when it denied Platt leave to amend its complaint. Platt asserted that it could amend its complaint to reflect that it had received information in 2001 during discovery in the class action that UL had intentionally concealed that the heaters were unsafe. The appellate court however stated that amending the complaint would be futile because the claims accrued in 1999, before discovery in the class action.

The judgment of the District Court dismissing Platt’s claims was affirmed.

Federal Court Jury Awards 6.2 Million Dollars in TASER-Related Death

From PRWeb.com:

San Jose, CA (PRWEB) June 8, 2008 -- A Federal Jury returned a verdict late Friday afternoon in the amount of $6,221,000.00 against TASER International Inc., for the wrongful death of a 40-year-old Salinas, California, man, who died following repeated shocks from three TASER electronic control devices ("ECDs").
    
The jury of five women and two men found that TASER International knew or should have known that its M26 model ECD was dangerous because prolonged exposures to the device pose a substantial risk of cardiac arrest to persons against whom the device is deployed. The jury also found that TASER International failed to adequately warn purchasers of its device of the risks associated with its use. It awarded the parents of Robert Heston $1,000,000 in compensatory damages and $5,000,000.00 in punitive damages. The jury also awarded Heston's estate $21,000.00 in compensatory damages and another $200,000.00 in punitive damages. However, it also found Robert Heston 85% comparatively negligent for the incident which ultimately resulted in his death. Only the compensatory damage award will be reduced by his percentage of comparative negligence.
    
On February 19, 2005, Robert C. Heston began acting erratically inside his family's Salinas, California home. Believing his son might be under the influence of drugs, Heston's father called the police reporting his son's bizarre behavior and asked them for help in removing his son from the home. Officers from the Salinas Police Department responded to the Heston home and confronted Mr. Heston. Three police officers used their TASER ECDs repeatedly subjecting Mr. Heston to nearly 75 seconds of continuous TASER discharges as other officers attempted to handcuff Heston on the living room floor. While being subjected to the TASER discharges, Heston suffered a cardiac arrest causing irreversible brain damage. He was removed from life support the following day and died shortly thereafter.
    
In their lawsuit, Heston v. City of Salinas, et al., N.D. Cal. Case No. C 05-03658 JW, Heston's parents alleged that TASER ECDs are unreasonably dangerous and defective for use on human beings because they are sold without adequate testing and without sufficient warning about the effect of multiple shocks for extended durations, particularly on people who are under the influence of drugs. They further claimed that the weapon, when used repeatedly, causes cardiac arrests and unnecessary deaths.

Dough machine maker settles with baker for arm and hand injuries

Torres v. Lucca's Bakery

Playtex Sued Over Chemical's Use in Manufacture of Baby Bottles

From Law.com:

An Arkansas woman has filed a federal lawsuit accusing a Connecticut company of making plastic baby bottles with a dangerous chemical linked to serious health problems.

The lawsuit by Ashley Campbell against Playtex Products Inc. of Westport is the latest challenge involving the industrial chemical bisphenol A. The lawsuit seeks nationwide class action status to represent what it says are thousands of people who bought plastic bottles containing the chemical from Playtex or other companies.

Canada said last month the chemical, found in hard plastic water bottles, DVDs, CDs and hundreds of other common items, is potentially harmful and may ban its use in baby bottles. A growing number of parents are turning to glass bottles amid the concerns over bisphenol A.

The U.S. government's National Toxicology Program said last month that there is "some concern" about BPA from experiments on rats that linked the chemical to changes in behavior and the brain, early puberty and possibly precancerous changes in the prostate and breast. While such animal studies only provide "limited evidence" of risk, the draft report said a possible effect on humans "cannot be dismissed."

With more than 6 million pounds produced in the United States each year, bisphenol A is found in dental sealants, baby bottles, the liners of food cans, CDs and DVDs, eyeglasses and hundreds of household goods.

Federal Preemption: Working Against Consumers

The lawsuit filed by actor Dennis Quaid and his wife, Kimberly, after a hospital unintentionally gave their newborn twins the wrong dosage of a blood-thinning drug is being contested by a drug maker on the grounds that it is immune from liability.

Owing to rules that have been or are being rewritten by the Bush administration, any person filing a similar product liability lawsuit could face the same argument, greatly increasing the chances his suit would be lost or dismissed outright.

In articles last week, the Associated Press disclosed that federal agencies are quietly rewriting the language used in regulating consumer products. Before the rewrites, the language included this sentence: ‘The final rule is not intended to preempt state tort civil actions,’ meaning a company can be sued if its products are claimed to be flawed. After the agencies’ rewrites, however, the language says federal preemption questions can indeed arise for a number of reasons. The Quaids’ case is an example of how companies can use the new language.

Woman gets $1M after car's hatchback lid collapsed on her head

A jury awarded $1 million to a woman who was injured when the trunk hatch lid on her Subaru Outback collapsed on her head. Tammi Grumski, then 37, was pulling a bag of groceries from the rear of her car when the hatch lid fell, resulting in a head injury and cognitive deficits. She claimed that Suburban Buick Subaru in Pittsburgh negligently repaired the lid a week before the accident. Defense counsel conceded liability, but disputed the extent of her injuries. Grumski now has to wear prism glasses because of a vision impairment that made it difficult for her left eye to transition from focusing on objects at different distances. She claimed that she'll have to retire from her nursing job as she gets older due to the cognitive impairments.

Grumski v. Jones, Palmeiri & Saldutte Inc.

See Verdict Search here for full report on this case.

Federal Verdict Against GM in Rollover Lawsuit

Garland Reynolds and his wife, Bonnie, were awarded $3.5 million in connection with the 2002 rollover accident that claimed the life of their son, Matthew. The Reynolds sued GM in 2006, alleging that the design of the 1995 Chevrolet Blazer created stability issues that contributed to the fatal wreck. The jury awarded no punitive damages.

A jury of five men and three women deliberated for nearly three days in U.S. District Court in Gainesville, GA before finding GM at fault.

The jury said to General Motors that the Blazer is unsafe and it should not have been designed without proper stability, attorney for the plaintiff said.

On June 3, 2002, Bonnie Reynolds was driving a 1995 Chevy Blazer on the Interstate with her son in the front seat when the Blazer was struck by a drunk driver who lost control of his Pontiac Sunbird.

The Blazer flipped several times and Matthew Reynolds was ejected. He died the following day in an area hospital.

The driver who struck the Reynolds' car was later convicted of first-degree vehicular homicide and is serving a lengthy prison sentence.

Plaintiffs presented evidence at trial of other rollover accidents involving the Blazer. The plaintiffs contended that the make and model was built with too high a center of gravity for the wheel base, and that the "track," or distance between the wheels, should have been widened to prevent stability problems.

Blazers manufactured from 1995 through 2002 have similar design flaws. The Blazer was subsequently phased out in favor of the TrailBlazer, which has a wider wheelbase. 

Evidence presented at trial called for a recall.

General Motors maintains that the vehicle is safe.

Company spokeswoman Geri Lama said GM was disappointed in the jury's verdict. They contend that the rollover accident is the sole fault of the drunk driver who struck the Blazer. GM is considering its options of an appeal.There was never an offer to settle, according to Plaintiffs attorneys.

GM was represented by a team of King & Spalding attorneys led by partner W. Ray Persons,

The case, in the Northern District of Georgia, is Garland Reynolds Jr. et al., v. General Motors Corp., No. 2:04-CV-106.

No cough or cold medicine for kids under 4

"The best thing a parent can do is comfort their children," said Laura Herrera, a Baltimore family practitioner and mother of two. "Keeping them as comfortable as possible is certainly better than giving cough and cold medicines."

In a concession to pediatricians, who doubt the drugs do much good for children and worry about risks, the companies that make over-the-counter remedies like Dimetapp and Pediacare announced they had changed their advice to parents for the second cold season in a row.

Besides recommending against cold medicines off drugstore and grocery shelves, the companies say not to give antihistamines to kids to help them sleep. The new instructions are on packages that started hitting stores this week.

Last year, the industry went against cough and cold medicines for children under 2. The latest changes came after discussions between drug companies and the Food and Drug Administration. The talks were kept quiet for months as federal health officials debated how to respond to a pediatricians' petition seeking to ban the medications for children under 6.

At a public hearing last week, neither industry officials nor regulators gave any hint of an impending announcement.

Cough and cold products have been given to children for decades, but it turns out the medicines were never scientifically tested to see how well they work in children. And recent research has found some untoward side effects, such as accidental overdoses.

Pediatricians who support a ban for children under 6 nonetheless said they were pleased with the industry announcement.

"It's a huge step forward," said Joshua Sharfstein, Baltimore's health commissioner. "There is no evidence that these products work in kids, and there is definitely evidence of serious side effects."

Problems with over-the-counter cough and cold medicines send 7,000 children to emergency rooms each year, with symptoms including hives, drowsiness and unsteady walking. Many children overdose by taking medicines when their parents are not looking.

"The 2- and 3-year-olds are definitely the highest risk," Sharfstein said. "More than 50 percent of the problem is with these kids. If they don't have this stuff around the home, they're less likely to grab it and ingest it."

Toymakers Frustrated by Patchwork of Safety Rules

From The WashingtonPost.com:

In an attempt to avoid a repeat of last year's wave of tainted-toy recalls, lawmakers in eight states have imposed restrictions on potentially toxic substances in children's products such as lead, cadmium and phthalates. Phthalates, chemicals used to make plastics, have been linked to reproductive problems.

Children's product manufacturers such as Hasbro and Mattel and toy retailers such as Toys R Us are echoing Tucker's sentiments. They argue that having different state regulations on children's products will keep safe toys off the market.

Bush Administration Uses Bureaucracy to Limit Lawsuits

From Law.com:

"Faced with an unfriendly Congress, the Bush administration has found another, quieter way to make it more difficult for consumers to sue businesses over faulty products. It's rewriting the bureaucratic rulebook.  Lawsuit limits have been included in 51 rules proposed or adopted since 2005 by agency bureaucrats governing just about everything Americans use: drugs, cars, railroads, medical devices and food.  Decried by consumer advocates and embraced by industry, the agencies' use of the government's rule-making authority represents the administration's final act in a long-standing drive to shield companies from lawsuits."