April 9, 2014

Shoes at the Center of a Product Safety Recall and a Products Liability Lawsuit

by Lebowitz & Mzhen

74892143_f94145facb.jpgThe law of products liability enables consumers to recover damages if they suffer injury because of a design or manufacturing defect, a failure to provide adequate instructions for using a product, or a failure to warn of a known risk associated with a product. Agencies like the U.S. Consumer Product Safety Commission (CPSC) work to protect the public from dangerous or defective products by encouraging or ordering recalls before they cause excessive damage. Consumers also have the right to sue for damages on their own behalf. Two recent items in the news illustrate these two approaches, and both of them involve shoes.

The CPSC announced on February 20, 2014 that Eastman Footwear is recalling 12,200 units of Coleman Runestone Style children’s shoes sold at Big Five Sporting Goods stores during the calendar year 2013. The reason for the recall is described by the CPSC as a “laceration hazard” associated with metal rivets surrounding the shoestring holes. The CPSC received a single report “of an adult who scratched or cut his finger, but did not require further medical attention.

A nationwide recall might seem like overkill, based on the available facts, but it was undertaken voluntarily by the manufacturer. Sometimes caution, in this case a recall, is a better strategy than risking additional, possibly more-severe injuries. Now that the CPSC has announced the recall, consumers are advised to stop using the product, and resale of any units subject to the recall is illegal.

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March 26, 2014

New Federal Regulations Will Require Backup Cameras in All Motor Vehicles Within Four Years

by Lebowitz & Mzhen

Lexus_Navigation_advanced_parking_system.jpgThe National Highway Traffic Safety Administration (NHTSA) recently issued a new regulation that will require all vehicles under 10,000 pounds to have backup cameras by 2018. A lack of rear visibility causes a substantial number of pedestrian injuries and deaths every year. Children face a greater risk, simply because they tend to be smaller and therefore more difficult for a driver to see if they are directly behind a vehicle. A law passed by Congress in 2007 directed the NHTSA to develop regulations by 2011, but multiple delays have occurred since then. A lawsuit filed in September 2013 sought a court order directing the government to issue the rule mandated by the 2007 law.

The NHTSA reports that backover accidents, in which a vehicle strikes a person or another vehicle while driving in reverse, cause around 15,000 injuries and 210 deaths every year. Thirty-one percent of the deaths caused by backover accidents are children under the age of five, and twenty-six percent are adults age seventy and older. The new regulation, which will be added to Part 571 of Title 49 of the Code of Federal Regulations, will require the installation of backup cameras in new vehicles beginning on May 1, 2016, with full compliance expected by May 1, 2018. Cameras must be able to display a 10-foot by 20-foot area behind the vehicle. The NTHSA estimates a maximum cost of $45 per vehicle to install a camera, or $142 to install a full system. It states that the regulation, once fully implemented, will save fifty-eight to sixty-nine lives per year.

Congress directed the NHTSA to make a rule requiring backup cameras in the Cameron Gulbransen Kids and Cars Safety Act of 2007. The bill was named for a two-year-old child who died when his father, unable to see him in the rearview or sideview mirrors of his SUV, accidentally backed over him in 2002. The bill gave the NHTSA eighteen months to issue a preliminary regulation, with a determination on a final rule required within thirty months of the bill's enactment. The NTHSA's final deadline was in February 2011, but it kept delaying a final determination. In its press release announcing the rule on March 31, 2014, the NHTSA stated that it delayed issuance “to ensure that the policy was right and make the rule flexible and achievable.”

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March 18, 2014

Fatal Accident During Film Shoot Brings Likelihood of Lawsuit

by Lebowitz & Mzhen

Amtrak_Across_the_James.jpgThe death of a camera assistant during a film shoot in Georgia has raised questions about film crew safety, amid allegations that the filmmakers placed a higher priority on completing the film on schedule and under budget. The woman’s family is expected to file a lawsuit in connection with her death, but many important details of the case remain unknown. Prior court cases involving film shoot injuries or deaths have involved employment-related questions, such as whether an injured person was an employee of a filmmaker, as a key part of determining liability.

The decedent, Sarah Jones, was second assistant camera on a low-budget independent film entitled Midnight Rider. On February 20, 2014, she and others were setting up to shoot a dream sequence, which involved placing a bed frame and mattress in the middle of the tracks on a bridge trestle spanning the Altamaha River outside of Doctortown, Georgia. Crew members were warned that, in the event a train approached, they would have sixty seconds to get out of its way.

When a train did appear, Jones, a hairstylist, and the director were still on the trestle. The hairstylist told the Hollywood Reporter that their only way off involved running towards the train. She ran for a gangplank, but the train struck her left arm before she made it there. She survived, but suffered a major fracture. Another crew member managed to pull the director to safety. Jones, however, did not make it to the gangplank, and was killed by the train.

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March 11, 2014

Multidistrict Lawsuit Combines Claims of Collegiate Athletes Seeking Damages for Concussion Injuries

by Lebowitz & Mzhen

466px-thumbnail.jpgA series of lawsuits allege that the National Collegiate Athletic Association (NCAA) breached a duty to protect and safeguard student-athletes against concussion injuries. The U.S. Judicial Panel on Multidistrict Litigation (JPML) consolidated multiple putative class action claims into a single action in an Illinois court to resolve any common issues. In re National Collegiate Athletic Assoc. Student-Athlete Concussion Injury Litigation, No. MDL-2492, mot. to transfer (N.D. Ill., Sep. 4, 2013). One of the consolidated lawsuits claims a class consisting of all current and former collegiate athletes suffering from concussion-related injuries, while the others only claim classes of former athletes. A track runner recently became the first active Division I-A athlete to bring such a claim against the NCAA, but dropped the lawsuit without prejudice shortly after filing it.

“Concussion” is a term applied to a range of traumatic brain injuries caused by a direct blow or jolt to the head. Athletes in “contact” sports, especially football, seem to be at high risk of concussions. An athlete who sustains a concussion might not even realize it right away. Symptoms may include cognitive problems, such as difficulty concentrating or thinking clearly; physical symptoms like headache, nausea, light sensitivity, and blurred vision; emotional changes like irritability and anxiety; and changes to one’s sleep cycle. A single concussion may not have a long-term impact if treated promptly. Multiple concussions can result in psychiatric disorders, memory loss, and heightened risk of dementia or Parkinson’s disease.

The JPML proceeding began when the plaintiffs in a class action lawsuit, Arrington v. NCAA, No. 11-cv-06356 (N.D. Ill.) sought to consolidate several other cases in a single district. The Arrington case had already completed discovery, so consolidation would improve the efficiency of all of the case, which allegedly had common questions of law and fact. The JPML approved the transfer of the other cases to the Northern District of Illinois in December 2013. As of mid-March, 2014, the JPML proceeding includes ten pending actions.

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March 4, 2014

Department of Transportation Issues Emergency Orders on Railroad Safety After Multiple Accidents

by Lebowitz & Mzhen

Sorting_tank_cars_on_the_Englewood_Hump_%285401636867%29.jpgThe U.S. Department of Transportation (DOT) recently reached an agreement with railroad companies regarding safety measures for the transportation of crude oil by train, often known simply as “crude-by-rail.” Multiple recent rail accidents have led to concerns about the safety of crude oil obtained from areas of North Dakota, Montana, and Canada. The DOT issued emergency orders in early March 2014 requiring crude-by-rail shippers to test products and clearly label crude oil from the affected regions. Individuals and families living and working along rail lines face significant risks of injury from unsafe shipping practices, and the known hazards of this particular type of crude oil make enforcing safety regulations even more important.

The Bakken formation is a geologic region within the U.S. states of Montana and North Dakota and the Canadian provinces of Saskatchewan and Manitoba. It has been a major source of shale oil in recent years. While ordinary crude oil can be pumped out of the ground, shale oil is derived from certain types of rock and requires different processes, including hydraulic fracking. The federal government issued a warning about crude oil from the Bakken region in early January 2014, several days after a train transporting Bakken crude caught fire and derailed in North Dakota. Bakken crude oil is particularly volatile, subject to catching fire and exploding if not transported correctly.

At least three additional derailments involving crude oil from the Bakken area have occurred in the past year. A derailment in Alabama in November 2013 sent twenty cars off the rails, which burned for several days. In January 2014, a derailment in New Brunswick, Canada resulted in the evacuation of forty-five homes in the immediate area. Fortunately no injuries resulted in either incident. In July 2013, however, a derailment in Lac-Mégantic, Quebec burned through a large portion of the town and killed at least forty-two people, with another five missing and presumed deceased.

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February 27, 2014

Lawsuit Against Pet Store Claims General Negligence After Boy Allegedly Dies from Rat Bite

by Lebowitz & Mzhen

IMG_8031.jpgThe family of a child who died of an infection possibly contracted from a rat bite has filed a lawsuit against the pet store that sold them the rat. The medical examiner ruled the cause of death to be a bacterial infection sometimes known as “rat-bite fever.” The lawsuit alleges general negligence, claiming that the pet store, part of the national chain Petco, failed to warn of the dangers associated with owning a rat as a pet. The plaintiffs are seeking both compensatory and punitive damages.

The ten year-old boy, who lived in San Diego, California, reportedly purchased the rat from a Petco store with his grandmother on May 27, 2013. He began experiencing severe pain at around midnight on June 11, including a fever and stomach pain. Paramedics took him to the hospital, but he died about an hour later. After conducting an autopsy, the medical examiner determined that he died of streptobacillus monliformis infection, or rat-bite fever.

According to the Centers for Disease Control and Prevention (CDC), people can contract this infection from infected rodents via a bite or scratch, or by ingesting food or water contaminated with the bacteria. Common symptoms include fever, chills, and joint pain or stiffness. The infection can be serious and even fatal, with a mortality rate of ten percent, if left untreated. A significant risk of delayed diagnosis exists because the initial symptoms are often nonspecific and the bacterium itself is reportedly difficult to culture. As rats become more popular as pets, some clinicians have expressed concern about increased risk of exposure.

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February 20, 2014

Judge Reduces Total Amount of Damages Owed by Defendant in Asbestos Lawsuits

by Lebowitz & Mzhen

Asbestos-warning.jpgA federal bankruptcy judge entered an order approving the total damage amount requested by the debtor, a company named as a defendant in multiple asbestos exposure lawsuits. In re Garlock Sealing Techs., No. 10-31607, order (Bankr. W.D.N.C., Jan. 10, 2014). The total amount available to claimants, who are acting as creditors in the bankruptcy proceeding, is $125 million, considerably less than the claimants’ estimate of more than $1 billion. In over thirty years, asbestos litigation in the U.S. has involved claims by hundreds of thousands of individuals against thousands of companies for injuries ranging from breathing difficulties to terminal cancer. The judge’s order in Garlock expressed concern in harsh terms over seeming inconsistencies in some plaintiffs’ exposure claims. The outcome of this proceeding should not impact litigation over other dangerous products, but this decision may already influencing other asbestos cases.

“Asbestos” refers to several minerals composed of long fibers, formerly used widely in construction for sound absorption, fire-proofing, and heat and electrical insulation. It was also used to insulate electrical wires in some consumer products. Inhalation of asbestos fibers over a sustained period of time has been linked to numerous adverse health effects. “Asbestosis” is the name given to respiratory complications associated with asbestos exposure, but it has also been linked to mesothelioma, a malignant type of lung cancer.

Litigation over asbestos exposure began in the early 1980’s and has involved an estimated 730,000 plaintiffs and 8,400 defendants. Insurance payouts for asbestos-related litigation totaled $70 billion as of 2002, according to one study. Defendants have included companies that mined asbestos, sold or distributed asbestos, produced building materials or consumer products containing asbestos, or owned property in which asbestos was present. Lawsuits have relied on both products liability and premises liability theories.

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February 13, 2014

Court Approves Settlement in BP Oil Spill Class Action Lawsuit

by Lebowitz & Mzhen

Defense.gov_photo_essay_100506-N-6436W-023.jpgA federal appellate court approved class certification and a settlement in a class action lawsuit based on the 2010 explosion and oil spill on an oil drilling rig operated by British Petroleum (BP) in the Gulf of Mexico. In re Deepwater Horizon, et al, No. 13-30095, slip op. (5th Cir., Jan. 10, 2014). The spill led to several hundred lawsuits by individuals and businesses claiming property damage, and by individuals claiming personal injury. The recent ruling rejected a request by BP to vacate the district court order approving the settlement. While this ruling specifically involves claims for property damage, BP’s claims and the court’s ruling could also apply to personal injury class actions.

BP operated, Deepwater Horizon, an exploratory oil drilling rig in the Gulf of Mexico, about forty miles south of Louisiana. The rig was drilling a well located at a depth of about 5,100 feet underwater. On April 20, 2010, a pocket of methane gas rose into the rig, ignited, and caused an explosion that killed eleven workers and injured over a dozen. Oil flowed from the well directly into the Gulf for almost three months releasing an estimated 205 to 210 million gallons. Oil washed ashore in Texas, Louisiana, Mississippi, Alabama, and Florida, resulting in widespread reports of injured and dead wildlife, property damage, and health problems among residents of the affected areas.

BP was named as a defendant in hundreds of lawsuits. The Judicial Panel on Multidistrict Litigation (JPML) consolidated many of the claims in In re Oil Spill by the Oil Rig “Deepwater Horizon,” No. 2:10-md-02179 (E.D. La.), in August 2010 in order to address common issues as efficiently as possible. BP established a fund to pay claims known as the Gulf Coast Claims Facility (GCCF), which would eventually pay out over $6 billion. Starting in 2011, the company negotiated with the plaintiffs in the JPML case to transfer claims from the GCCF to a court-supervised fund.

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February 6, 2014

Fraternity Members Face Vicarious Liability Lawsuits Over Fatal Tailgate Party Accident

by Lebowitz & Mzhen

1058647_39234009.jpgTwo new lawsuits seek to hold over eighty members of a Yale University fraternity vicariously liable for an automobile accident that killed one person and injured two. A fraternity member allegedly lost control of a U-Haul truck and struck several pedestrians outside a football game. The estate of the woman who died in the accident and one of the women who was injured had previously sued the national fraternity and the university. The national fraternity disclaimed responsibility, but the new lawsuits suggest that it left the local fraternity chapter and its members exposed to vicarious liability claims. Personal injury claims against organizations lacking formal legal structure, based on actions of their members, can present difficult questions of how to determine and apportion fault.

The accident occurred on November 19, 2011 at a tailgate party hosted by the Yale chapter of Sigma Phi Epsilon (SigEp) at the annual football game against Harvard. A fraternity member was transporting beer kegs in a U-Haul truck to the tailgate, when he lost control of the vehicle. One person, thirty year-old Nancy Barry, was killed, while Yale student Sarah Short and another woman were injured. The school reportedly responded by putting new restrictions on tailgate parties and banning kegs at athletic events.

Short and Barry’s estate each filed suit in 2012 against the national SigEp organization, Yale University, U-Haul, the driver of the truck, and others. Each lawsuit claimed several million dollars in damages. They alleged that the national fraternity was liable because the members who were involved in the accident were acting as its representatives. The lawsuits reportedly foundered, however, when the Richmond, Virginia-based national SigEp organization stated that it had not officially sanctioned the tailgate party, and its insurer disclaimed all responsibility for the Yale chapter.

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January 28, 2014

DC Appellate Court Affirms that OSHA's Hazardous Material Regulations Do Not Preempt Personal Injury Claims Under State Law

by Lebowitz & Mzhen

GHS-pictogram-silhouete.svg.pngThe D.C. Circuit Court of Appeals rejected a challenge by the American Tort Reform Association (ATRA) to recent changes made to a federal regulation affecting hazardous materials. The Occupational Safety and Health Administration (OSHA) amended its hazard communication (HazCom) standard in March 2012. ATRA claimed that OSHA overstepped its authority, but the court disagreed. ATRA v. OSHA, No. 12-229, slip op. (D.C. Cir., Dec. 27, 2013). While the case involves a range of complex questions of regulatory law, the bottom line is that the ruling is good for personal injury plaintiffs. The HazCom standard mandates labeling and other warnings about materials known to pose health risks to workers and consumers. The court affirmed that it does not preempt state tort law, meaning that it does not prevent plaintiffs from recovering damages in a suit for injuries brought under state law.

OSHA has authority under the Occupational Safety and Health Act to promulgate regulations promoting workplace safety, but these regulations may not supersede or preempt state law claims for injuries or wrongful death. 29 U.S.C. § 653(b)(4). The HazCom standard, 29 C.F.R. § 1910.1200, requires classification of known hazards associated with exposure to chemical products and disclosure of those hazards to workers. This disclosure takes the form of labels placed on chemical containers and “safety data sheets,” along with programs for providing this information to employees.

Since the HazCom standard was first introduced in 1983, companies have had some leeway as to the format of the labels, but in 2012, OSHA issued a new rule standardizing all labels and data sheets nationwide according to the United Nations’ Globally Harmonized System of Classification and Labelling of Chemicals. It stated that the rule would preempt state and local laws and regulations relating to labeling requirements, but not state law tort claims, such as failure to warn and products liability.

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January 21, 2014

Lawsuit Against District Alleging Failure to Supervise Group Home Resident May Proceed, Court Rules

by Lebowitz & Mzhen

Washington_DC_view1.jpgThe U.S. District Court for the District of Columbia partly granted and partly denied a motion to dismiss brought by the defendant in a lawsuit alleging failure to supervise a group home resident. Colbert, et al v. District of Columbia, et al, No. 1:13-cv-00531, opinion (D.D.C., Dec. 13, 2013). The plaintiff sued the District of Columbia and a private contractor operating a group home, asserting various tort claims and a constitutional claim after her daughter, a developmentally disabled woman, became pregnant while in the custody of the District. The court declined to dismiss the suit outright, but it dismissed the constitutional claim without prejudice, giving the plaintiff an opportunity to amend her complaint. If the court dismisses that claim with prejudice, it may lose subject matter jurisdiction over the remaining claims based on DC law.

The plaintiff’s daughter, identified in the court’s opinion as KC, was hospitalized at the District’s request in the fall of 2008. A psychological assessment determined that KC needed 24/7 care and supervision, so she went to live at a group home operated by a contractor, Total Care Services, Inc. According to the plaintiff, KC had a history of sexual abuse and neglect, a history of failing to take her medication consistently, and mental impairment.

Total Care and the District were aware of KC’s history and how it affected her condition, the plaintiff claims, but they allegedly allowed her to have unprotected and nonconsensual sex with multiple individuals. The plaintiff does not appear to claim that any employee of either Defendant participated in sexual activity with KC. KC became pregnant and gave birth to a girl named TC, who was born prematurely in April 2011. The plaintiff was awarded sole custody of TC, but she was born with significant health problems and required frequent surgeries and hospitalization. TC died nine days after her first birthday.

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January 14, 2014

Federal Government Sues Contractors in Washington DC Court Over Allegedly Defective Material Used in Body Armor

by Lebowitz & Mzhen

320px-thumbnail.jpgA whistleblower lawsuit accuses several government contractors of providing material used in bulletproof vests to law enforcement agencies around the country, despite allegedly knowing about defects in the material that caused it to degrade over time and offer reduced protection. The federal government intervened in the lawsuit, and recently obtained the court’s permission to amend its complaint. United States ex rel. Westrick v. Second Chance Body Armor, Inc., et al, No. 1:04-cv-00280, mem. op. (D.D.C., Dec. 30, 2013). The suit is based on the federal False Claims Act (FCA), so it does not expressly assert products liability claims for injuries allegedly caused by defective vests or body armor. FCA cases can benefit people who have suffered injury due to design, manufacture, or marketing defects by identifying and exposing evidence that helps their cases.

The U.S. District Court for the District of Columbia described the background of the case in an order denying a motion to dismiss brought by several defendants. United States ex rel. Westrick v. Second Chance Body Armor, Inc., et al, 685 F.Supp.2d 129 (D.D.C. 2010). In 1996, Second Chance Body Armor (“Second Chance”) entered into a contract with Toyobo, a Japanese company that manufactures textiles and fibers. Toyobo supplied Second Chance with Zylon, a synthetic fiber touted as durable, long-lasting, and heat-resistant. Second Chance manufactured Ultima and Ultimax bulletproof vests using Zylon, marketing them as the “world’s thinnest, lightest, and strongest armor” with the “world’s strongest fiber.” Id. at 132.

The two companies allegedly became aware in 1998 that Zylon fibers experienced significant degradation after “exposure to light, heat, and humidity,” id., but they did not issue warnings about their findings or recall any products. Second Chance discontinued selling vests made with Zylon, notified purchasers of the problem, and urged removal of Zylon vests from service after two police officers were killed in June 2003 when bullets pierced their vests. A study by the U.S. Department of Justice (PDF file) released in 2005 found that only four out of sixty armors met all of its performance standards in ballistics tests, and concluded that the chemical breakdown of Zylon fibers was the likely cause of the performance problems.

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