Recently in Product Liability Category

September 29, 2015

Badilla v. Wal-Mart Stores - Product Liability Breach of Implied Warranties

Consumers in the U.S. are protected by a number of provisions of both state and federal laws with regard to promises or "warranties" made by companies about their products.
Some of these warranties are in written or spoken form. These are called "express warranties." However, there are also certain unwritten, unspoken expectations to which consumers are entitled. These are called "implied warranties."

Essentially, consumers almost always have some recourse when products don't meet their basic expectations - especially when the result is someone is injured. The most common that we see in product liability law is implied warranty of merchantability. That means the product is guaranteed to work and be reasonably safe when used for its intended purpose.

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August 15, 2015

Cook v. Wyeth Pharmaceuticals, Inc. - Product Liability Lawsuit After Mal Moore's Death

When Mal Moore, the former athletic director for the University of Alabama, died two years ago, he was in the advanced stages of pulmonary fibrosis. It was the ailment that caused him to step down. He was soon after hospitalized and died in March 2013.
Now, his daughter alleges that the condition was caused by a drug he was prescribed in 2008 for treatment of an irregular heartbeat.

In its generic form, the drug is called amiodarone, and it's used to treat life-threatening heart rhythm problems (known as arrhythmias) in individuals who have already taken other similar forms of medication. Moore only took the medication for three months to treat his condition, but his daughter alleges this exposure to the drug caused him to develop the pulmonary fibrosis.

Her federal lawsuit, Cook v. Wyeth Pharmaceuticals, Inc., was filed in the U.S. District Court, Northern District of Alabama, Southern Division.

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July 21, 2015

NHTSA Fines Vehicle Manufacturers $44M for Failure to Recall, Report Danger

Two large, heavy-duty truck manufacturers are being slapped with a $44 million fine from the National Highway Traffic Safety Administration for failure to timely recall defective vehicles that posed injury risk to the public.
Spartan Motors, Inc., based in Michigan, and Forest River Inc., based in Indiana, conceded they did not initiate timely recalls on defective vehicles, as required by federal law. They also did not report important information, such as Early Warning Report data and technical service bulletins.

Most of that penalty will be deferred if the firms agree to bring their respective companies into compliance with federal regulations. For example, Forest River was given a $35 million civil penalty, but $30 million can be deferred. Meanwhile, Spartan has been given a $9 million penalty, but it will only have to pay $1 million if it complies with the consent order. It will, however, have to spend $3 million bringing the company into compliance.

Forest River first grabbed the attention of federal safety officials following a church bus crash six years ago. The crash, which occurred in Louisiana, resulted in two deaths and 21 injuries.

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May 15, 2015

Reckis v. Johnson & Johnson - $63M Product Liability Verdict in Child Injury Case Affirmed

The Massachusetts Supreme Judicial Court has affirmed judgement for a family awarded a total of $63 million in damages - including $13 million for loss of consortium -- following a child's severe reaction to multiple doses of Children's Motrin.
Contrary to points asserted by drug manufacturer/defendant, the Supreme Judicial Court found the failure to warn claim was not preempted by the Federal Food, Drug and Cosmetic Act, that a pharmacologist who testified as to causation evidence was qualified to do so, and that damages awarded to the child and each of her parents were not grossly excessive or unsupported by the record.

This is a tragic tale of what can happen when medical labels we trust don't contain the information we need. It's also an important case in that it reaffirms that just because a company has deep pockets and extensive resources doesn't mean it will prevail in civil court. The civil court system is one of the few places victims can expect an even playing field, and where large companies can be held accountable for failing to uphold its duties to consumers.

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January 12, 2015

Stuhlmacher v. Home Depot - Ladder Defect Case to be Retried

The injury at the center of the recently-decided Stuhlmacher v. Home Depot U.S.A., Inc. didn't occur around the holidays. However, it is relevant because it involves an allegedly defective ladder. The fact is, both before and for weeks after the holiday season, people climb ladders to decorate and then "un-decorate" their homes. ladder1.jpg

It's a fact that ladders can tip regardless of their condition if they aren't used properly. However, when a ladder collapses or otherwise fails when being used properly as intended or anticipated, this may be grounds for a product liability lawsuit.

This was the case in Stuhlmacher.

Generally in order to succeed in a product liability lawsuit, one must prove not only he or she suffered injuries, but that those injuries were proximately caused by a product that was either defective or lacked proper instructions or warnings. One must also show the product was being used more or less in the manner intended.

Here, according to court records, the issue before the U.S. Court of Appeals for the Seventh Circuit was that of causation, as posited by a plaintiff expert witness, whose testimony was stricken from the record by the trial judge. Without that testimony, causation could not be proven. The federal appellate court reversed, finding the testimony qualified as relevant under Civil Rule 702, so long as it helps the jury in determining any fact at issue in the case. Specifically, expert witnesses are allowed to put forth alternative models to explain their conclusions, the court ruled.

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December 20, 2014

Robert Bosch LLC v. Smith - Ala. Supreme Court Weighs Product Liability Lawsuit

Amid a host of recalls for faulty airbags used by nearly a dozen auto manufacturers, the Alabama Supreme Court recently weighed another product liability case involving allegedly defective airbags.airbag1.jpg

In Robert Bosch LLC v. Smith et al., justices were asked whether a trial court erred in requiring defendant air bag manufacturer to submit a series of internal records deemed trade secrets as part of discovery.

Defendant appealed that decision, arguing it should not be forced to turn over information that could be damaging to the company. Plaintiff argued trial court did not err in its ruling and the need to prevent disclosure does not outweigh the benefit of disclosing what should be considered relevant evidence.

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September 25, 2014

Rose v. Highway Equipment Co. - Overcoming Pure Contributory Negligence Standard in Alabama

The product liability lawsuit brought in Massachusetts by a man whose hand was mangled by lawn machinery failed after a jury apportioned him 73 percent fault for his own injury. In that state, plaintiffs who hold 50 percent of the fault or more for their own injury are barred from collecting on a claim.
In Alabama, our Montgomery injury lawyers know our courts follow a much stricter standard. In fact, we are one of just five states following the pure contributory negligence model, which holds a plaintiff who holds any percentage of fault for his own injuries will be barred from bringing a claim.

Per the 2002 Alabama Supreme Court ruling in H.R.H. Metals, Inc. v. Miller, a defendant proves contributory negligence by showing the plaintiff failed to exercise reasonable care.

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April 25, 2014

Fatal Montgomery Car Accident Prompts GM Ignition Switch Lawsuit

News of the recall of millions of General Motors vehicles due to a faulty ignition switch has been big national news, but one of the cases to result in a lawsuit involved a young mother here in Northwest Alabama.
She was killed in a Montgomery car accident in December, and now her father is suing the auto manufacturer on the grounds that it knew of the defects in the 2006 Chevrolet Cobalt model she was driving - and did nothing to warn her or other customers.

According to the lawsuit filed in Lauderdale County Circuit Court, the ignition in the woman's vehicle suddenly quit on Dec. 4, 2013. As a result, the 3,200-pound vehiclel was totally uncontrollable. She crossed the center line into oncoming traffic, slamming directly into the path of an 18-wheeler log truck. Investigators say she died instantly as her vehicle burst into flames.

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February 10, 2014

Miller v. Mylan Inc. - Product Liability Claims for Fentanyl Patches

There have recently been a growing number of product liability lawsuits filed against drug manufacturers for culpability in the injury and death of persons who were given transdermal fentanyl patches.
It is alleged in these cases that the drug, when administered in this manner, has the potential to deliver an injurious or even fatal dose - something patients are never warned about prior to placing the patch on their skin.

In one such case out of Michigan, Miller v. Mylan Inc., the patch had to be defined under the state's product liability law as it pertains to drug manufacturers. The Sixth Circuit Court of Appeals recently wrestled with the issue of whether the patch should be considered a drug, a device or a combination product. The distinction will determine whether the case will be allowed to move forward.

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October 10, 2013

BMW Recall Highlights Risk of Defective Vehicles in Alabama

Even those buying high end vehicles are not immune from the risk of defective product injuries. According to NBC NEWS, the automaker is recalling more than 175,000 vehicles from 2012 to 2013 because of a problem with the power brake system. The recall includes the 1 Series, 3 Series and 5 Series sedans, as well as the X1 and X3 crossovers and Z4 sports car.
The company claims that, in rare cases, there can potentially be an interruption with the oil supply to a part that can cause drivers to lose their power braking assist. The brakes will still work in these cases, but the driver would have to press much harder on the brake pedal. This accounts for more than 76,000 vehicles in the U.S.

Our Montgomery injury lawyers understand that owners of the vehicles will be notified by mail. Unfortunately, this recall is not particularly large or unique. Earlier this month Chrysler announced the recall of 132,000 SUVs to address software issues that may result in a blackout of instrument panel lighting.

Yamaha motorcycles, Honda Odysseys, BMWs, Suzukis, Fords and Toyota have also announced recent recalls. In some cases, these recalls may be little more than an inconvenience. But in a substantial number of cases the recalled vehicle poses a threat to the health and safety of motorists.

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August 15, 2013

Nearly 5 Million Defective, Dangerous Products Barred From U.S. Import in 2012

Nearly 5 million products deemed either defective or dangerous were halted from entry into the U.S. last fiscal year, with the U.S. Consumer Product Safety Commission noting that many were products intended for children.
While our Montgomery child injury lawyers recognize this is an important service, particularly as it represents an increased vigilance over recent years, we know there are still a great number of dangerous products that make it to store shelves each day. Product recalls can help, but those are typically only issued after a defect or danger has been uncovered - meaning someone has already been hurt.

Not all of those dangerous products are imports, but it's not surprising that many are, given the fact that many of our biggest importers, including China and India, lack the same kinds of rigid safety standards that we hold in the U.S.

Of the 18,000 products the CPSC, along with the U.S. Customs and Border Protection, screened between October 2011 and September 2012, about 1,500 were found to be defective. There were some 4.8 million units in all.

Children's products with excessive lead levels have historically comprised the bulk of the products halted, and that trend continued last year. Other toys and child's products containing choking hazards and high phthalate levels were also among the top items seized.

The CPSC has been screening products since 1973. However, efforts were intensified in 2008 and again in 2011, with the creation of the Office of Import Surveillance.

But still, dangerous products manage to make it in. One recent example is the Baby Einstein Musical Motion Activity Jumpers, manufactured in China. Some 400,000 of these jumpers were sold in the U.S., and another 8,500 were sold in Canada. According to the CPSC, the yellow sun toy, which is attached to the seat frame, has the potential to rebound with significant force, causing injury to the infant. Already, there have been 100 incident reports resulting in more than 60 injuries. Of those, many involved bruises and facial cuts. In one case, a 7-month-old baby boy suffered a lineal skull fracture. In another case, an adult suffered a chipped tooth. The product was sold at major retailers, including Toys R Us, Target and over the last three years, retailing for about $90.

Of the children's products that were blocked from U.S. entry in the last quarter, 62 percent were due to excessive lead levels, 15 percent due to small parts creating choking hazards, 10 percent were for improper certification, 4 percent were for excessive phthalates, 4 percent were for improper tracking labels and 1 percent were for nursery products that were not durable.

Some of the adult products halted from entry included:

  • Luminaries (26 percent);

  • Cigarette lighters (19 percent);

  • Fireworks (15 percent);

  • Bicycle helmets (6 percent);

  • Hairdryers (6 percent);

  • Electric Aquarium equipment (6 percent);

  • Generator labeling (4 percent);

  • Mattresses (4 percent).

The rest included electric fans, flat irons and portable lamps.

Continue reading "Nearly 5 Million Defective, Dangerous Products Barred From U.S. Import in 2012" »

May 9, 2013

Alabama Personal Injury Claimants Could Sue Brand for Generic Product

The Alabama Supreme Court has ruled that a person could sue a brand name firm for failure to warn about a drug's risk - even when the patient consumed a generic version of the drug not manufactured by the company.
Our Montgomery personal injury lawyers understand the 8-1 ruling in this case, Wyeth Inc. v. Weeks, has the effect of expanding the legal concept of foreseeability. That is, a brand name manufacturer could be expected to reasonably foresee that a doctor prescribing either a brand name drug or its generic spin-off would rely on risk warnings drafted by the brand name manufacturer - even if the patient was ultimately given the generic version.

Interestingly, a court in California had rejected this same kind of pure foreseeability doctrine in O'Neil v. Crane Co.

However, the Alabama Supreme Court reached its decision relying on previous U.S. Supreme Court rulings in PLIVA, Inc. v. Mensing and Wyeth v. Levine, rulings reached in 2011 and 2009, respectively. In the PLIVA case, the court had ruled that federal laws barred generic manufacturers from altering warning labels on their products to differ from those on the brand name product.

So it's not so much a question of a manufacturing defect, but of a failure to warn of a particular risk. In that case, a brand name company could be held liable because the generic manufacturer would have simply repeated the warning label originally drafted by the brand name company.

As of right now, the case applies only to Alabama product liability claimants, it was closely watched by personal injury attorneys around the country, because of the reliance on the recent U.S. Supreme Court rulings. In this way, the ruling has national implications.

The ruling doesn't necessarily mean that the plaintiff is going to win, but it's a victory that he is being allowed to move forward with the case.

Accourding to court documents, the plaintiff in this case developed a condition called tardive dykinesia. This is a disorder that results in repetitive, involuntary muscle movements, reportedly caused by the long-term use of a drug called metoclopramide. This is a generic form of Reglan, a heartburn medication manufactured by drug giant Pfizer.

The lawsuit names Pfizer, as well as two different generic drug manufacturers - Actavis Elizabeth and Teva Pharmaceuticals - in the U.S. District Court in the Middle District of Alabama. The suit claims all companies failed to warn users and physicians about the long-term risks associated with metoclopramide.

The plaintiff had never before consumed Reglan and Pfizer never made metoclopramide. Pfizer had originally moved to dismiss on the ground that brand name product makers have no duty to a patient who consume a generic drug not produced by the brand maker.

The U.S. District Court asked for certification from the Alabama Supreme Court on the issue of brand name manufacturer liability for duty to warn.

In its decision, the Alabama Supreme Court noted conflicting rulings from other state courts, as well as the growing number of lawsuits being filed against Pfizer for complications due to consuming Reglan long-term.

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February 10, 2013

Millions of Vehicles, Car Products, Recalled in 2012, Says NHTSA

Hundreds of recalls alerting consumers to millions of potentially defective vehicles and vehicle products were announced over the last year by the National Highway Traffic Safety Association. carspeed.jpg

While it's good news that these products are no longer on the market, our Montgomery personal injury lawyers find it appalling that so many companies would put the public in harm's way. Manufacturers, even if they aren't aware of the risk they have posed, have a responsibility and an obligation to fully vet their products before making them available for sale. Vehicles are among the largest investments a family makes, and can take years to pay off. At a minimum, they should be free from defects that could result in serious or fatal injuries.

In addition to the vehicles themselves, the 650 recalls announced last year by those in the auto industry included some 60,000 items of vehicle equipment, which would include things like faulty child safety seats and unsafe tires. In all, the recalls affected nearly 18 million vehicles and vehicle-related products.

To put the scope of this into perspective, assuming no consumer was hit by two vehicle recalls in the same year, that would affect roughly 9.3 percent of licensed drivers, or roughly one out of every 10 you pass on the road.

Maybe it was you?

By far, the NHTSA rates the worst offenders as:

  • Toyota (12 recalls affecting more than 5.3 million vehicles);

  • Honda (16 recalls affecting more than 3.3 million vehicles);

  • General Motors (17 recalls affecting more than 1.4 million vehicles);

  • Fort Motor Company (24 recalls affecting nearly 1.4 million vehicles)

  • Chrysler Group (13 recalls affecting more than 1.3 million vehicles).

Other companies with a high number of recalls include BMW (15), Nissan (13), Daimler Trucks (21), Navistar (20), Prevost Cars (16), Blue Bird Body Company (12) and Ducati (10). Most other companies had under 10 recalls.

For Toyota, its recalls included problems with Prius models' steering intermediate extension shafts, which could suffer damage if a sharp turn was made at a slow speed. There was also an issue with the electric motor pumps that could result in a system failure during operation. In another model, there was also a power window problem that posed a fire risk.

Hondas recalls included a roll-away problem after drivers had removed the keys from the ignition. We know of at least two people who were injured as a result of this problem, including one person who suffered a broken leg after being run over by his van even though he had removed the key from the ignition.

General Motors' recalls included problems with fuel leaks - particularly in hot-weather states.

Ford - which had the distinction of the most recalls for 2012 - had to recall some 90,000 vehicles in one instance due to overheating that could spark a fire in two of its best-selling models. At least 13 vehicle fires were reported, though no one was hurt. Others involved a swatch of carpet that could block the gas pedal in its Escape models and others involved coolant leaks from the freeze plugs.

Finally, Chrysler's recalls involved the removal of more than 900,000 Jeeps with airbags that might deploy unexpectedly or without warning while the vehicle was being operated.

Continue reading "Millions of Vehicles, Car Products, Recalled in 2012, Says NHTSA" »

July 30, 2012

Defective Product Injuries in Alabama: Make Checking CPSC Recall List a Habit

Parents and guardians are urged to stay up to date on the most recent product recalls from the U.S. Consumer Product Safety Commission (CPSC). All too often, we forget to check out this important information and face the risks of injury as a result of a dangerous or defective product marketed to consumers.

Every day, more and more products are placed on the recall list after accidents or reported injuries are sustained. Consumers can help protect against defective product injuries by checking the government's monthly recall list on a regular basis -- just like the batteries in your smoke detector. You'd be surprised how likely it is that you have a dangerous or recalled product in your household and quite possibly in the possession of your child.
Our Montgomery personal injury attorneys are here to help, whether it's warning of dangerous products in the household, or assisting with litigation in the wake of an accident. Knowledge and awareness are the first steps to helping to keep your family safe. Here are some of the latest recalls from the CPSC:

Chicco Polly High Chairs:

Nearly 500,000 of these chairs are being recalled in the United States and another 31,000 in Canada because children can fall on the pegs on the back of the chair. This poses a bruise and laceration hazard for these young users. There have already been more than 20 reports of injuries. If you have one of these chairs, you're urged to contact Chicco to get more information on receiving your free peg cover kit. Call the company at (800) 807-8817.

Downeast Concepts' Children's Beach Chairs:

More than 15,000 of these chairs have been recalled because they have exposed, sharp metal rivets that pose serious laceration hazards to young children. The chairs were sold in purple, blue, yellow and pink. There have already been injury reports submitted. If you have one of these chairs, the company is offering a full refund. Call (800) 343-2424 for more details.

Toddler Girl Aqua Socks by Old Navy:

There are nearly 35,000 pairs of aqua socks that Old Navy is recalling These socks have less traction when worn on wet or smooth surfaces such as hardwood or tile, creating a slip and fall hazard. There have already been two accident and injury reports submitted. The style number 896452 is involved in this recall. If your child has a pair of these socks, discontinue use and take them to any Old Navy store to get a full refund.

Troxel's Flexible Flyer Swing Sets:

Nearly 101,000 swing sets in the U.S. and another 5,000 in Canada are being recalled because the seats can break away from the bolt fasteners during use, posing a fall hazard. There have already been more than 1,230 accident reports filed, with nearly 15 injury reports. There are more than 10 models of swing sets that have the seesaw attachment impacted by the recall. If you have one of these sets, call the company at (888) 770-7060 for a free repair kit.

Continue reading "Defective Product Injuries in Alabama: Make Checking CPSC Recall List a Habit" »

March 19, 2012

Alabama Product Liability: Linden, Jr. v. CNH America Explains The Sophisticated User Doctrine

Manufacturers are just not making products like they used to. This is seen with the rising number of product liability cases in the courts. Our experienced Montgomery product liability attorneys understand the intricacies involved in these cases, and we can help you get the results you deserve.
Negligent manufacturers should not be able to get away with lower safety standards in the design and manufacturing of their products because by allowing this we are feeding into this negative cycle of faulty production. Do not be intimidated to file your Montgomery product liability case.

Linden, Jr. v. CNH America is an appeal that arose because a man was injured when he was thrown off of a bulldozer. Upon falling off, the bulldozer fell on his legs causing serious injuries. Plaintiff sued the manufacturer of the seatbelt in the bulldozer, Indiana Mills & Manufacturing, Inc. ("IMMI") and the manufacturer of the bulldozer, CNH America, LLC ("CNH"). He claimed that the seatbelt had a defective design, manufacturing defect and insufficient warnings.

The initial court cited Iowa statute that held that where there is a faulty component part manufactured by one manufacturer but incorporated into another product, the manufacturer that used the faulty product as a component part can be held liable.

IMMI manufactured the seatbelt that was used as a component part in the manufacturing of the bulldozer by CNH. Because of the Iowa statute discussed above, CNH was held liable for any injuries that resulted because of a faulty product manufactured by IMMI.

Thus in plaintiff's case against CNH, the court discussed the intricacies of manufacturing and design defects. The court then dismissed the plaintiff's manufacturing defect claim and the jury in the case granted a directed verdict for the defendant on the claims of insufficient warnings and design defect. Plaintiff appealed this decision and arguing that the court erred in their jury instructions as well as in their finding.

The higher court in Linden discusses the appropriateness of the jury instructions in the original trial. The court had instructed the jury regarding the sophisticated user doctrine and the plaintiff argued, that the court failed to give a specific standard regarding negligence for the faulty seatbelt.

The sophisticated user doctrine is used to establish a manufacturer's duty to warn product users of potential dangers associated with the use of their products. Under this theory, a manufacture does not have a duty to warn users of their product if the user knows or should know of the potential dangers involved in using the product. This is most commonly seen where the product user is a professional and would be assumed to know the characteristics of the product.

Because in this case the plaintiff was a professional bulldozer driver, the court found that they jury instruction which led to the discussion of this standard was adequate. The seatbelt is considered part of the bulldozer. Therefore, it could be assumed that a professional bulldozer driver would understand the faulty nature of the bulldozer seatbelt.

This court found that the logic was reasonable in the jury instructions and the plaintiff failed to provide the appropriate evidence to support his contention of manufacturer's duty.

Product liability can seem complex but with the right attorney, you can present the right evidence and prove your case.

Continue reading "Alabama Product Liability: Linden, Jr. v. CNH America Explains The Sophisticated User Doctrine " »

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