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Archive for Defective Products

NFL Helmets and Concussions

Tuesday, May 10th, 2011

     I was in the middle of a brain injury case. It was a jury trial in South Carolina. The defense had their defense witness on the stand, testifying about my client’s injuries and resulting problems.

     This was the kind of doctor that had an answer for everything. He bills for medical reviews, based on how many records he reviews. That’s not that unusual, until you ask him to describe the billing practice. “I put the medical records in a pile; put a ruler next to the pile and bill by the inch”. The jury leaned forward a bit there.

     His basis for testimony that my client couldn’t have any long term effects from the crash, was compared to  his knowledge of high school football. He looked at the jury and smirked, “you know how it works out there; a football player might ‘have his bell rung’ but that doesn’t mean that he can’t play next week”.

     That testimony was back in 2004. Since that time, the public awareness of brain injuries has become more prevalent. Almost everyone has seen a news story on it and most football fans can probably  even discuss a football player that still suffers from a head injury during their career.  

     If you get the new PlayStation Madden 2011 football game, it even has players suffering concussions. Then, they are unable to play the following week. It’s make believe but it’s based on our growing knowledge of head injuries.

     Sports Illustrated is also reporting on a Virginia Tech study of NFL football helmets. According to the study just released by a professor of biomedical engineering at the college, Stefan Duma; 40% of NFL players last year, wore a helmet model that got the second lowest rating for reducing the risk of concussions.

     More attention is being paid to prevention. More players are now aware of recovery issues and long term effects. No longer is it considered a badge of honor to dust yourself off and run back in the game. Then later, brag about the fact that you played and can’t even remember really being out there.

     In jury trials, juries are now in possession of more common knowledge about the long term effects of brain injury. No longer can a defense lawyer simply pay someone to come in and testify. Well, they still might pay them to testify but it doesn’t mean that what they say carries a lot weight anymore.

     I remember hearing the illustration about the Hubble Telescope.  When it first was carried into orbit in 1990, it captured clusters and galaxies that we never knew existed. Just because we had never seen all that amazing astronomy did not mean that it was not there. We just did not have the technology to see and understand.

     In brain injuries, there is more research that helps us understand the problems and solutions of head injuries and concussions. Even better equipment for NFL players is being explored. It’s understanding and then finding solutions. Meanwhile, these defense doctors will have to come up with different testimony, if they want to keep getting paid by the defense.  Maybe the next defense will be,  ”you see it but it’s not really there”.

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Akavar Class Action and Others

Monday, May 2nd, 2011

     It sounds like a great idea to be able to “Eat all you want and still lose weight”. Let’s put on our buffet pants right now. Unfortunately, you know the saying of “there’s no free lunch” . Now, we should also start saying that there is ” no all you can eat and don’t get fat lunch”. 

     A nationwide notice is being sent out, authorized by the United States District Court of Utah, relating to a class action lawsuit  that is being brought against the manufacturers of a weight loss supplement that is called Akavar 20/50.(Akavar) The lawsuit is called Miller v Basic Research LLC, et al. (Case No. 2:07-CV-871)

     In their ads for the supplement, the manufacturer made claims that the product had undergone “scientific evaluation” by a “team of doctors”.  The lawsuit alleges that there were no clinical trials; no scientific evidence that supported the claims of being able to eat anything you want and not gain weight; and that the advertisements were just making fraudulent claims.

          In 2009, Hydroxycut was recalled, because people claimed to have suffered severe liver damage injuries. I see their commercials again under the title of “Hydroxycut Advanced”. Now, they are pitching energy and weight loss in the same supplement. Notice, they hit the airwaves hard, right before swimsuit season. I wonder what change they made in the ingredients, that make it “Advanced”.

     Synerate weight loss was recalled, after more than 60 adverse events were reported. Many were deaths relating to heart attacks and strokes.

     The FDA just sent out a warning about an over the counter weight loss supplement called Fruta Planta. It is barred from the US and the warning went as far as to say that you should make sure that it gets thrown away, in a sealed container, so children and animals cannot  get to it.  

     It’s sad that people of bad character concoct some pill; set up a PO Box; and just start running TV ads that tout false claims. Meanwhile, people think that the ads are truthful and the pictures of the actors in their bathing suits, must be real. 

     The battle of the bulge lets these kinds of characters prey on the unsuspecting. History records that  Hitler believed that you should  ”make the lie big; make it simple; keep saying it and eventually they will believe it”.

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A Blog Secret

Tuesday, April 26th, 2011

     There is a movie out now, that is based on the premise of an amazing pill. Those that take it can accomplish great things because the pill completely activates their brain and users can then function at a tremendously higher level of intelligence.  That would be a significant secret to intelligence and accomplishment. (The movie does indicate a downside to those pill-takers)

     As I scanned my email “in box”, I noticed all kinds of headlines that made me think that you can’t trust any manufacturer.  Or, at least look real close at the the products.

     Childrens’ scooters have been recalled because they cause lacerations; 1.2 million aquarium heaters have been recalled because they cause fires and are dangerous to those in and out of the aquarium;

     Over 15,000 photon carabiners have been recalled. I got real concerned because I didn’t know what they are. Then, I learned that they are involved in the ropes that mountain climbers use. It sounds bad when a dangerous activity is more dangerous because the equipment is dangerous. Kinda like a parachute without the chute.

     I just saw that iodine pads have been recalled. They are included in first aid kits. Apparently, they are contaminated with bacteria. I understand the concept of  ”fighting fire with fire”. I’m guessing that doesn’t work with bacteria.

     Moving right along; you’re right, I haven’t mentioned the blog secret yet. I’ve just tried to impress you with my information and attachment skills.

     The point of the above is that there are a lot of products that can cause injury. Life does throw its obstacles. That’s why I was fascinated to read a previous interview with the 114 year old man (Breuning), who passed away recently. I think I even mentioned it in a prior blog, but I’ll give the attachment bar for the blog, a rest.

      The following are his suggestions to long life. I suppose he would also include avoiding products that cause injury and are being recalled. Anyway, you can’t argue tips to long life, that are given by a man who lived that long. Here are his suggestions without edit:

      Embrace change, even when the change slaps you in the face. (“Every change is good.”)

      Eat two meals a day (“That’s all you need.”)

      Work as long as you can (“That money’s going to come in handy.”)

      Help others (“The more you do for others, the better shape you’re in.”)

     Then it’s a lesson Breuning said he learned from his grandfather: Accept death.

“We’re going to die. Some people are scared of dying. Never be afraid to die. Because you’re born to die,” he said.

     

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A Topamax Recall and Reminder

Thursday, April 14th, 2011

     “Something The Lord Made” is the HBO movie about controversial open heart surgery on an infant. At the time, it was extremely controversial to operate on the heart. Outside the United States, there had been some heart repairs as early as 1895.

     The movie discusses the religious opposition to open heart surgery at the time. There were some that allegedly believed that the soul resided in the heart and thus, should not be tampered with. Others believed that such medical conditions should be left to the determination of our Creator.

     I was reminded of this movie when I saw the recall for Topamax. Topamax is a medication that is prescribed primarily for epilepsy. According to the announcement by the manufacture, Ortho-McNeil Neurologics, the recall stems from four consumer complaints.

     The complaints resulted from an uncharacteristic odor in  pill bottles, that is thought to be TBA (tribromoanisole). TBA is a byproduct of a chemical preservative that is sometimes used on chemically treated wood. It could have gotten into a batch of Topamax, from wood pallets where the medication had been stored.

     Epilepsy  is one of the most common neurologic disorders. History tells us that it used to be sometimes known as the “Sacred Disease” because the resulting symptoms were believed to be a result of such things as demonic possession, or an attack by “other wordly” beings.  A 5th century treatise by Hippocrates discussed the attacks and their possible relationships to visions.

     Because the condition was not understood, some considered it to be contagious or poisonous. Treatments went as far to include literally drilling a hole in a person’s skull, to possibly attempt to either let the poison out or the evil spirit.

     This recall serves to remind us of how fortunate that we are with medical treatment and understanding today. Past medical conditions that were not understood, were given explanations that are obviously considered outrageous today. Maybe some of the treatments today, will also be deemed as an archaic to future medical care providers. 

     The other reason I blogged on this recall, is that it serves as a reminder to pay attention to our personal medications. A bad odor is cause for concern. Some may simply ignore their pill bottle when taking the medication. Also, medications are transported like other cargo and subject to issues beyond the manufacturing.

     In this instance, Ortho-McNeil is saying that the recall is related to fewer than 6000 bottles. Probably there’s a bit of a “conspiracy theory nut” in me, to always question the immediate discounting of any concern.

     I’m glad medicine has made such strides. I’ve been a benefactor of those advancements. Personal vigilence is also important and this recall is a reminder of that.

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No, Not a Raccoon Burger.

Wednesday, March 30th, 2011

     Join in with me and sing, “Frosted Lucky Charms, They’re Magically Delicious!”. Just kinda cheers you up.  Sure, maybe they have a bit of too much sugar in them,, but it was always fun to see if the marshmallows could outlast the boring cereal.
     Now we know the importance of the Food and Drug Administration (FDA). They have come out with an advisory (NY Times) about possible links between artificial food colorings, and behavioral problems, like hyperactivity in children. That means that products such as Jell-O, Lucky Charms and Minute Maid Lemonade, could be bad for kids.

     Because of the FDA, soon, products containing food coloring, will be required to carry warnings that such consumption can cause or aggravate behavior conditions in kids. Previously, the FDA had maintained that synthetic coloring that was added to these products, had no affect on children. Of course, manufacturers like General Mills are downplaying these recent studies.

     Because of the FDA, you might soon  see all Pop Tarts looking the same color and all Fruit Loops looking like “one Loop”. Or, they will have that scary warning on the side. Of course, maybe these food manufacturers are going to have some convincing product that “colors the food” safely. What, you thought the green marshmallows in the Lucky Charms were really from local leprechauns!!!!

     It’s a reminder of the importance of some regulation, and the importance of the FDA being properly staffed, to be able to render opinions on products that are on the market.

     If you looked at the title, you’re probably still wondering if this is a bait and switch title. What do Pop Tarts have to do with Raccoons? I promise, I’m not trying to drive you to eat a big bag of orange Cheetos.   

     I did open the eyes a bit, when I read a recent article in a SC newspaper. (GoUpstate.com) You just can’t sell whatever you want to, as an owner of a grocery store.

     South Carolina health officials have told a Richland County grocery store to stop selling raccoon meat. The Department of Health found bags of chilled racoon meat in a cooler at a Lucky Seven No. 2.  I guess that’s why you can’t buy greased beaver knees,  eye of newt or the lucky toe of frog, as recited by Shakespeare. They just aren’t approved. (well maybe the frog?)

     The racoon is an interesting animal to study. For the blog, I learned that a President owned one as a pet (named Rebecca) and that raccons have hands so nimble that they can unlace a shoe, unlatch a cage or retrieve coins from a shirt pocket. All those seem like talents that aren’t that helpful in the wild. Although, maybe that’s why I’ve never seen them in shoes. 

     Knowing that information about raccoons, makes me smile. Maybe an insurance company will soon have a raccoon as a mascot. On second thought, they do look more like the Hamburgler at McDonalds, with their little mask. They just shouldn’t be sold for meat in the grocery store cooler.

     You have to say “Amen to that!”. Ok, I know I’ve taken you on a long ride. Maybe you have to be nimble to find  a little bit of legal in here somewhere.

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Toyota and Whole Foods

Tuesday, December 28th, 2010

     I thought I would pack in a couple of settlements involving products that caused injury. So, I’ve loaded the blog up and here we go.

     First, Toyota has agreed to settle a lawsuit over the first sudden-acceleration fatal accident case. This is the case that brought this problem to the news, when an off-duty highway patrolman’s borrowed Lexus that he gotten from a California dealership, could not be stopped. The 911 call that was replayed on several news stories, was made by a person watching the horrific event as it occurred.

     The unusual circumstance of the settlement pitted the dealership against Toyota. Toyota paid 10 million dollars to settle it but wanted to keep the settlement confidential. They had defended the case by saying that the acceleration occurred because the dealership had put the floor mats to close to the pedal. The dealer fought the confidentiality because they would not take the blame and placed it squarely on the manufacturing pedal defect. The settlement then became public, due to a Judge’s ruling.

     If you recall, Toyota took the position that either the story was a complete fabrication or the dealership’s placement of the floor-mats was the only cause. Then, Toyota, through its chairman, acted as though they would take full responsibility. Despite all that, they still fought this flow of information.

     I guess they are just hoping that the public forgets, as they run their “touching” holiday commercials. Do you really know anyone who got a Lexus, with a bow, for Christmas?  Plus, who pulls their new car into the house, for a Christmas morning. That would be a surprise to see that in the living room.

     The second case and settlement relates to a Whole Foods  holiday product. The Food and Drug Administration has announced the recall of assembled Ginger Bread houses that were sold at the grocery store chain in 23 states.

     The ginger bread houses, assembled by Illinois company, Rolf’s Patisserie, are being recalled after the products were shown to cause over 100 people to get sick with staphylococcus aureus food poisoning. This form of bacteria causes nausea, vomiting, stomach cramps and diarrhea. Anyone who has ever experienced food poisoning can certainly feel a lot of sympathy for those people.

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Recalls and Bad Vegetables

Monday, October 18th, 2010

     I know that blogging about product recalls doesn’t normally get the hair to stand on end. I usually put those in the recall section. If you decide that you want to check what might be recalled, then at least, you can see if the “newest bestest” car seat or exercise machine that  is still the ”top dog”; Or yesterday’s 19 inch black and white TV. (tried to really think of an outdated item. Fried Twinkies are still in, aren’t they? Don’t take those away!)

     The following are three recalls that grabbed my attention. Any recall involving vegetables has to be a little bit disconcerting. Remember when you couldn’t find a tomato in a restaurant or couldn’t order broccoli. OK, maybe you haven’t been ordering the green stalks anyway. Well, here are the recalls:

     The Pictsweet Company has announced a voluntary recalll of its frozen peas.  The company has learned that some of the packages may contain glass fragments. The attachment gives the instructions on the recall. It doesn’t say why there might be broken glass in the packages but it states that swallowing glass fragments could cause injury. I can’t argue with that.

     The next recall, as reported by the Dayton Daily News, is a voluntary recall of 18K child safety booster seats. These are manufactured by Evenflo, who reports that these “child safety” seats show that the seat can crack,  in a simulated 30-mph frontal collision. Since December 2008 thru September 2010, Evenflo has had eight recalls reported by the US Consumer Product Safety Commission. It might be a brand that would cause you to walk to the next aisle, the next time you are in the “seat buying section”.

     The final recall for the blog today, as reported in the Chicago Tribune, is a voluntary recall of 516,000 Spa Factory Aromatherapy Fountain and Bath Benefits Kits. Apparently, these kits cause a pressure buildup of carbon dioxide and create a projectile/ explosion hazard. These are a children’s product and there have been reports of 88 exploding jars, with at least 13 children reporting injury. Usually you think of relaxation, when contemplating a spa product, not  the word “projectile”

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The iPAD Is Hot

Wednesday, July 28th, 2010

     As I was waiting for the jury verdict yesterday, (I throw that in so you know why the blog got a little stale), I pulled out my ipad and started catching up on some work. My client said, “Is that an ipad? Those sure are cool”. I do think they are cool. Now, I have learned that there is a lawsuit that also says that they are hot.

     Bloomberg  reports that Apple is being sued over claims that the ipad tablet overheats and fails to operate properly, in warm conditions. The case is styled Baltazar v. Apple and is filed in the Northern Distict of California. (Oakland)

     I remember when steakhouse restaurants started getting sued, because people were slipping on  peanut shells, left on the floor. The next thing that happened, no more  free peanuts. I remember saying, at the time, that I understand that restaurants had a duty to make sure that the shells got cleaned up; I just hoped that they wouldn’t stop serving the peanuts. Sure enough.

     Anyway, I’m still fascinated with what the ipad can do. That doesn’t include the fact that there is still a lot that I have to figure out.  I hope that there really isn’t a problem; If there is, then maybe it will just take a warning that says “don’t take ipad to the beach” or “stay out of the heat, even though these things are pretty cool”.

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The Irritation of Lexus

Sunday, June 27th, 2010

     I started to title this blog “The Irritating Lexus Commercial“. Then, I thought that I should google that term to see if there were multitudes of blogs on that topic. No, but it concerned me that irritating bowel syndrome came up and I wanted to steer clear there. Although, on second thought, you’ll see why those topics might be related.

     I am talking about the Lexus commercial that aired incessantly during the US Open last week. Now, let me explain how irritation at  Lexus can be related to my legal blog. I know, you think I am really taking you on a ride.

     I am guessing that if you watched any of the golf  last weekend, you were like me, asking, “What in the world”.  If you missed it, then experience is no teacher for irritation for you.

     It was a commercial that showed a Lexus car that was anchored down. I think the intent was to show how quiet it could run at high speeds. They placed a wine glass, sans wine, at the back of the exhaust. Then, they revved up the engine to some high speed and placed the glass behind it. Soon, the glass broke.

     Now I’m not kidding. That commercial must have aired over 150 times. I thought, for humor they will put something else back there like a banana or watermelon to see what happens. No such creativity. Instead, just repetition and I’m not even sure why.

     I know that the US Open supposedly reaches a high income demographic. However, the car costs in excess of 350K. Remember, it’s a Lexus. I’ll just let that concept ferment right there.

     Let’s move to the connection of my blog and the commercial of torment. Remember, there is a recall of Toyota and Lexus engines because the gas pedal sticks and drivers have no control to stop the car. 

     So, this US Open commercial stops the car in a garage by anchoring it down, so it demonstrate the power of  breaking a wine glass. How is that tapping our subconcious mind? For me, we would always just say, “Look, here is the stuck accelerator commercial again”  Maybe, the commercial just got jammed at the stations and they couldn’t stop it from running.

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Do You Drive a Windstar?

Tuesday, May 18th, 2010

     We bought milk the other day and it just wasn’t good. Just for future reference, the grocery store will usually reimburse you for bad milk. It’s great to just be able to take a product back that causes you problems. Maybe the cows were just having a bad day.

     Sometimes when a product is a problem, they recall the product, change the name and move on. Lately, businesses have been using a different approach. I remember when there were exploding tires and a lot of litigation that involved plant employees describing how Firestone had knowledge of tire separation issues. They made it through the litigation and, for a period of time, focused on their Bridgestone tire division. Now, all is forgotten and Firestone Tires is still a name brand.

     In 2009, the diet pill, Hydroxycut, was recalled because it it was linked to liver failure. Instead of removing it from the market, they kept marketing it under ”Hydroxycut Advanced with Antioxidants”. Now, we don’t remember much about the liver damage (unless you happen to be a lawyer). Instead, we see these pictures of people who claim to have lost weight from this amazing pill. In addition, the photos seem to suggest that you get a set of “six pack abs”. At least that is what all the photos show.

     Do you remember the Cambridge Diet. For a while, it was the “in thing” to drink this shake for meals and lose weight because you were only consuming 400 calories. There is still a version of it on the market but because people suffered heart issues from not getting enough nutrients, it went from diet to fad. I was surprised with the “head shaking” information that the formula was sold by the original diet developer, Dr Howard of Cambridge University, to a marketer named Jack Feather.  

     The point of this is that business has learned that you can overcome problems with marketing. Watch Toyota because they are doing it. Watch BP. I’m sure we are going to be bombarded with ads that tell us all the special things  that they do for us. Only politicians seem unable to overcome negative actions with advertising. See Gary Hart’s Presidential campaign. Also, I’m not sure that Governor Mark Sanford has a political future either.

     Today, USA Today reports an ongoing investigation regarding the Ford Windstar minivan. Ford last sold the Windstar in 2007. According to Government officials for NHTSA, there have been 234 complaints about rear-axle failure. So far, there has not been an ordered recall but based on this large amount of complaints, that still is a possibility.

     I blog about this because Ford has managed to move beyond this and have replaced this product with crossover SUV’s. There really has not been much discussion about the Windstar Minivan problems, nor much of a real warning to those who still drive a used Windstar. Instead, Ford focused on its Ford Flex and Windstar is like something in the rearview mirror. What about all those people still driving families around in Windstar minivans. Sometimes, it’s just worth doing a reminder blog on a product that is still out there and still causing problems.

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