Articles Posted in Federal Legislation

A series of investigations and lawsuits seek to shed light on shootings by agents of U.S. Customs and Border Protection (CBP), the agency which includes the U.S. Border Patrol (BP), involving Mexican nationals located across the border on Mexican territory. Asserting civil claims over these incidents has proven difficult, both practically and legally. The CBP and related agencies suffer from a lack of transparency, which makes the discovery process difficult. Courts have been reluctant to exercise jurisdiction over claims by foreign nationals, raising questions about jurisdiction and rights when an agent fires a gun on one side of an international border, and the injury occurs on the other side.

According to the Arizona Republic, BP and CBP agents have been involved in at least forty-two fatal uses of force since 2005. Thirty-eight of those deaths occurred near the U.S.-Mexico border. The Republic describes them as varying from “strongly justifiable to highly questionable.” Four BP agents have died in “direct conflicts with aggressors” in roughly the same timeframe.

Jose Antonio Elena Rodriguez, age sixteen, was shot and killed by BP agents on October 10, 2012. The agents were located in Nogales, Arizona, while Rodriguez was in the Mexican town of the same name. The agents claimed that Rodriguez was throwing rocks at them. Agents are permitted to use deadly force in response to threats, and they treat rocks as a deadly weapon as a matter of policy.

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The 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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The 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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The 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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A 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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This week a group of parents spent time in Washington, D.C., urging lawmakers to act on a law, initially introduced some five years ago, which is aimed at preventing tragic accidents by requiring rear view cameras on cars.

It has been estimated that over 1,500 kids have been killed as a result of limited visibility in blind spots. Many parents who’ve tragically lost their children in these types of accidents believe that rear view cameras may have prevented these tragedies. At least one graphic claims that up to 62 children can be hidden within a Chevy Suburban’s blind spot.

One mother recounted the tragic death of her one and a half year old son two years ago, whom she accidentally hit when she didn’t see him as she backed her car out. The car the mother was driving did have motion sensors, but did not detect her son. A week after the accident, the woman and the rest of her family got cars which were equipped with rear view cameras. She has been advocating for them to be installed in cars ever since.

The legislation that would require rear view cameras has allegedly been tabled four times, with lawmakers citing concerns over technology and additional costs. The ‘Kids and Cars‘ advocacy group claims that adding a rearview camera to a car only adds an additional $175 to a car’s sale price, and that for parents it is a small price to pay.

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The Center for Devices and Radiological Health (CDRH) issued a report in November 2012 on improvements to its review and approval procedures for new medical devices. As part of the U.S. Food and Drug Administration (FDA), the CDRH is responsible for medical device safety and quality. The FDA defines “medical devices” as any device designed to either diagnose or treat disease or other conditions, or to alter or affect a bodily structure or function. They may range in complexity from Class I devices, such as dental floss, to Class III devices like pacemakers. The CDRH’s recent report builds on a plan the agency developed in 2011 to streamline and improve the premarket review and approval of medical devices.

Section 510(k) of the Food, Drug, and Cosmetic Act (FD&C Act) requires any person or business who intends to market a medical device designed for human use within the U.S. to submit a Premarket Notification, commonly known as a “510(k),” to the CDRH. The purpose of the 510(k) requirement is to allow the CDRH an opportunity to review the device and confirm that it is at least as safe as similar devices already on the market. Certain Class III medical devices that are entirely new, or otherwise not similar to any other device on the market, must submit to a Premarket Approval (PMA) process, which is more comprehensive because of the lack of existing safety data.

According to the CDRH’s report, entitled “Improvements in Device Review Data,” the agency’s premarket review and approval efficiency declined between 2001 and 2010. This was largely due to budget constraints, high staff turnover, limited training resources, and high workload. A lack of federal funding accounted for much of these issues, but the ever-increasing sophistication of medical devices compounded the problem, according to the CDRH, making it even harder for the agency to keep up with the incoming documentation. The effect of this decrease in efficiency was a significant increase in the time required for approval of new medical devices, along with the possibility of older, less effective or less safe devices remaining in use, posing a possible threat to patient safety.

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Living Essentials, LLC, the Michigan-based manufacturer of the drink marketed as 5-Hour Energy, currently faces lawsuits around the country blaming the drink’s high caffeine content for multiple injuries and deaths, or alleging that the company makes false statements regarding the drink’s contents or benefits. A nonprofit health organization recently accused the company of misquoting its executive director in an advertisement. The U.S. Food and Drug Administration (FDA) has named the drink in multiple reports based on consumer complaints, including thirteen fatalities, and two U.S. senators have requested to meet with the FDA regarding concerns about regulation of the beverage.

At least ninety-two FDA reports have mentioned 5-Hour Energy since 2004. Thirty-three of those reports involved hospitalizations, and thirteen involved deaths. Common caffeine-containing beverages like Coca-Cola have strict limits on their caffeine content set by the FDA, but “energy drinks” like 5-Hour Energy, Monster, and others are often labeled as “dietary supplements” rather than beverages. While a 12-ounce beverage like Coca-Cola might have an upper limit of 71 milligrams of caffeine, or roughly six milligrams per ounce, a dietary supplement does not face the same regulations. A single serving of 5-Hour Energy, sold in sixty milliliter (approx. two ounce) containers, may contain 207 milligrams of caffeine. The FDA has announced its intention to review its policies on labeling and warnings for drinks with such high caffeine content.

The company has also dealt with complaints from a non-profit science group, the Center for Science in the Public Interest (CSPI). The group accused Living Essentials of running a misleading advertisement online, which implies that the group’s executive director endorses the product’s safety. According to the CSPI, the advertisement includes a quote from the director saying that a fatal overdose is unlikely based solely on caffeine. The company suspended the advertisement in response to the group’s criticism.

Several lawsuits pending around the country are challenging the safety of 5-Hour Energy, either as a result of injury or death, or based on allegedly false or misleading statements regarding the beverage’s ingredients. A Tennessee lawsuit, Hassell v. Innovation Ventures, et al, alleges that consumption of 5-Hour Energy caused the death of the plaintiff’s husband by cardiac arrhythmia in 2009. The plaintiff asserted causes of action for negligence and products liability, but nonsuited the case without prejudice in November 2011.

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We previously discussed a Nebraska lawsuit that invoked a statute allowing wrongful death claims on behalf of unborn children. The case involved a truck accident that took the lives of a family and their unborn child. The lawsuit, Baumann v. Slezak, et al, also invoked Federal Motor Carrier Safety Administration (FMCSA) regulations governing the length of time truck drivers may operate a vehicle or be “on-duty.” The driver who allegedly collided with the family’s car had, according to the complaint, been driving longer than the maximum time period allowed by the regulations.

The accident occurred in the early morning of September 9, 2012. The family, which was traveling cross-country in two cars, was stopped at the rear of a traffic jam on westbound Interstate 80 in western Nebraska. A semi-truck driven by the defendant Josef Slezak approached the line of traffic at about seventy-five miles per hour. The driver allegedly failed to slow or stop the vehicle, hitting the family’s rear car at full speed. This propelled the car into the family’s other car and into another vehicle, killing the occupants of both cars.

The lawsuit names Slezak and his employer as defendants, asserting causes of action for negligence per se, violations of FMCSA regulations, and vicarious liability. The complaint accuses Slezak of violating two FMCSA regulations: a prohibition on operating a commercial motor vehicle while impaired by fatigue or some other cause, and hours-of-service (HOS) rules. Slezak had allegedly been driving for almost nineteen hours. He arrived at a terminal in Milwaukee, Wisconsin, according to the complaint, at 10:49 a.m. on September 8, 2012, and departed at 1:49 p.m. The accident occurred at about 5:19 a.m. on September 9, approximately 920 miles from Milwaukee.

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A U.S. District Court in Washington DC dismissed a lawsuit brought under the Federal Tort Claims Act (FTCA), 28 U.S.C. §§ 1346, 2671 et seq., against the federal government and other government entities. The plaintiff in Moorman v. United States asserted causes of action for premises liability, but did not specifically plead facts to show how the federal government, or a federal employee, was liable for her injuries. The court found that the FTCA did not apply in the absence of any allegations to demonstrate the federal government’s liability, and that as a result, it lacked subject matter jurisdiction over the entire case.

The plaintiff, Jacqueline Moorman, attended an event at the D.C. National Guard Armory in March 2009. When she left the event at approximately noon, she descended an exterior stairway. A concrete step crumbled under her feet, causing her to fall and sustain substantial injuries.

Moorman sued the Washington Convention and Sports Authority (WCSA), a government board that owns the Armory. She also named the United States and the District of Columbia as defendants. According to the district court’s opinion, her allegations of premises liability centered on the WCSA, which is part of the city government of Washington, DC. The mayor appoints most of the members of WCSA’s Board of Directors, who must also be confirmed by the Washington City Council. The federal government reportedly has no direct role in the WCSA or the operation of the Armory.

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