Washington DC Injury Lawyer Blog

Court Dismisses Putative Class Action Alleging Defective Tires, in Part for Failing to Allege Injuries or Damages

February 6, 2013 | Lebowitz & Mzhen

A New Jersey federal court dismissed a putative class action against an automobile manufacturer and a tire manufacturer for failing to state claims for which the court could grant relief, ruling separately on motions to dismiss brought by both defendants. Greene v. BMW of North America, et al, No. 2:11-04220 (D.N.J., Nov. 28, 2012). The lawsuit asserted causes of action for breaches of warranty related to allegedly defective tires, although the plaintiff did not allege any personal injury or property damage. While this case involved alleged violations of consumer rights laws, it is similar to some products liability claims alleging damages caused by a dangerous or defective product.

The plaintiff, David Greene, leased a BMW automobile that was equipped with Potenza Run Flat Tires, a product of the tire manufacturer Bridgestone. Greene alleged that he noticed a bubble in the side of the left-rear tire less than six months into the lease, followed by two bubbles in the right-front tire over the next twelve months. He claimed that the bubbles made operation of the car “distractingly loud,” “[un]controlled,” and “dangerous.” Slip opinion on BMW’s motion to dismiss (BMW opinion) at 5, slip opinion on Bridgestone’s motion to dismiss (Bridgestone opinion) at 7. When the mileage on the car reached 13,800, he sought advice regarding the condition of the tires. He claimed that multiple representatives of BMW dealerships informed him that this type of tire often developed bubbles before the vehicle hit 14,000 miles. They also allegedly told him that he should replace the tires immediately. Greene requested the dealership from which he leased the BMW to provide replacement tires, but claims that they refused. He then purchased the same model of tire online.

State “Loser Pays” Laws Could Seriously Impact Rights of Injury Victims

January 30, 2013 | Lebowitz & Mzhen

The campaign by some people, businesses, and organizations to crack down on perceived abuse of the court system, largely in the area of personal injury litigation, is commonly known as “tort reform.” It has resulted in various laws at the state and federal level that set caps on damages for certain claims or make adjustments to the jurisdiction of various courts to hear specific types of cases. One law passed two years ago in Texas, referred to by some as the “loser pays” law, may have a significant impact on people’s ability to seek relief for injuries in state and federal court, both by allowing quick dismissal of purportedly “frivolous” lawsuits and by putting plaintiffs at risk of hefty attorney’s fee judgments.

HB 274, titled “An act relating to the reform of certain remedies and procedures in civil
actions and family law matters,” was signed into law by Texas Governor Rick Perry on May 30, 2011. The bill gives trial courts the expedited authority to dismiss “frivolous lawsuits” if they lack any “basis in law or fact,” and it directs the state supreme court to develop proposed rules on determining what constitutes a “frivolous” lawsuit. Part of the problem with the discussion surrounding this law, of course, is that most defendants, upon receiving notice of a lawsuit against them, respond by calling the suit “frivolous.” This makes it difficult for those of us who advocate for injured plaintiffs to tell if a lawsuit truly lacks merit or is simply inconvenient for a defendant.

Medical Malpractice Suit Dismissed by Washington DC Court for Non-Compliance with Notice Requirement

January 26, 2013 | Lebowitz & Mzhen

The U.S. District Court for the District of Columbia dismissed a medical malpractice suit without prejudice for non-compliance with the notice requirement in the DC Official Code. The court held in Carmichael v. West, No. 11-1513, slip op. (D.D.C., Jul. 27, 2012), that the plaintiff’s failure to give notice to the defendant deprived the court of subject matter jurisdiction. It also held that the plaintiff did not prove that she made a good-faith effort to comply with the notice requirement, nor that the “interests of justice” merited a waiver of the requirement.

Sheila Moody was admitted to D.C. General Hospital for obstetric care on August 30, 1998. She received treatment from the defendant, Dr. Threvia West, M.D. According to the plaintiff’s complaint, West knew that Moody was HIV positive, and that a vaginal delivery would expose the unborn fetus to a serious risk of infection. The plaintiff alleged that West still performed a vaginal delivery, resulting in the child, identified as John Doe, becoming infected with HIV. The child has suffered from HIV encephalopathy, a condition that resulted in severe pain and brain damage. Moody later died, and the child came into the care of the plaintiff, Nora Carmichael.

Carmichael filed suit against West for medical malpractice on August 22, 2011. She claimed that three actions by West directly contributed to the child’s injuries: performing a vaginal delivery instead of a caesarean section, delaying delivery until the child was exposed to ruptured membranes in the womb, and using a fetal scalp electrode that broke the skin and exposed the child directly to the HIV virus. The lawsuit claimed $80 million in damages. On September 21, 2011, the plaintiff sent the defendant a “Notice of Intention to File Suit” in accordance with DC Code § 16-2802. The defendant, with representation provided by the District of Columbia, moved to dismiss the lawsuit, or for summary judgment, based on lack of notice. The DC Code requires a plaintiff to send notice to a defendant at least ninety days before filing a lawsuit, unless the plaintiff can show a “good faith effort” to give notice.

Federal Government Reports on Improvements to Approval Process for Medical Devices

January 22, 2013 | Lebowitz & Mzhen

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.

Supreme Court Reviews the Constitutionality of Blood Tests for Suspected Drunk Drivers

January 10, 2013 | Lebowitz & Mzhen

The United States Supreme Court heard arguments this week in a case in which Missouri prosecutors asked the Court to rule that warrants are not necessary to collect blood samples from individuals suspected of driving while intoxicated. Given that alcohol can break down in the bloodstream, time is often of the essence when collecting evidence of intoxication. The Court ruled back in the 1960’s that police may only draw blood without a warrant when a suspect is involved in an injury accident. The present case, Missouri v. McNeely, No. 11-1425, asks the court to expand that ruling to cover any suspected DWI. Setting aside the arguments over constitutional rights regarding searches and seizures, this is an important case for the personal injury bar, as it may substantially affect how police collect evidence in DWI cases, and therefore what evidence may be available in a civil claim for damages.

Police arrested the defendant, Tyler McNeely, for DWI after McNeely reportedly displayed the “tell-tale signs of intoxication,” such as “bloodshot eyes” and “slurred speech.” Missouri v. McNeely, 358 S.W.3d 65, 68 (Mo. 2012). After McNeely refused to consent to a blood test or an alcohol breath test, the arresting officer, who did not have a warrant, instructed a medical professional to draw a blood sample. McNeely moved to suppress the results of the blood test at his trial, arguing that the officer violated his Fourth Amendment rights against unreasonable search or seizure. The trial court granted the motion to suppress.

Car Accident at Washington Monument in Mount Vernon Injures Passenger

December 30, 2012 | Lebowitz & Mzhen

The Baltimore Sun reports that on Thursday, December 27, a car rented in Connecticut crashed into a wall at the historic Washington Monument after the driver allegedly fell asleep. According to the article, the driver was not injured, but the sole passenger was taken to the University of Maryland Medical center with neck and back injuries. There were reportedly no other vehicles or individuals involved in this one-car accident.

Officials reported that there had been damage to the wall at the historic monument but did not describe the extent of the damage. The Washington Monument column was built in 1829 and is the most prominent structure in Washington, D.C. Made of marble, the monument honors the nation’s founding father George Washington.

According to the report, the car did not strike the monument itself, but a wall just south of the column that is part of the smaller Lafayette Monument. Honoring the Marquis de Lafayette, who served as major-general in the Continental Army under George Washington, the Lafayette Monument features a bronze sculpture of the French military officer on a horse.

Personal injury lawyers in the Washington, D.C. area are familiar with car accidents in the heavily trafficked nation’s capital. Falling asleep at the wheel is one of many of the risks of driving, and it is almost always due to negligent behavior. People are almost always aware of getting drowsy well before they actually fall asleep when driving. Sometimes they are in a hurry or perceive some other reasons not to heed the warnings of drowsiness.

Drivers have a duty of care to their passengers and other drivers that includes remaining alert and awake. A driver who experiences signs of drowsiness but does not pull over to rest or otherwise address his sleepiness is engaging in negligent conduct. The passenger in this case could seek compensation for his injuries from the negligent driver who fell asleep. Fortunately, it appears from the reporting that no party suffered significant injuries.

Drivers may experience drowsiness due to any number of factors:
– Lack of sleep
– Too many consecutive hours driving
– Overwork
– A medical condition
– Intoxication or drug use
– A prescription medication

No Higher Speed Limits on Major DC Commuter Routes After All

December 21, 2012 | Lebowitz & Mzhen

On December 18, Mayor Vincent Gray announced that several of the major commuter routes in DC would be seeing higher speed limits. While this may come as a welcome convenience for many drivers, Washington, D.C. car accident attorneys know that higher speeds also present higher risks. The D.C. Council must have agreed, as it issued a new rule prohibiting the mayor from changing the speed limits without its approval.

In making the announcement, Mayor Gray cited a study showing that higher speed limits would not affect the safety of the roads. However, even if the study’s findings suggest no impact on safety, it only makes logical sense that a higher speed of traffic would mean more significant injuries in accidents, even if not a higher incidence of accidents overall.

In overriding the mayor, the council said that instead of simply choosing four streets on which to raise the speed limits, the council would rather see more extensive research and deliberation. The mayor’s decision, a council spokesperson said, usurps the council’s authority to set speed limits. The mayor’s office responded that setting speed limits was within the purview of the mayor’s powers because it is a regulatory function, not a legislative one.

According to the latest data, which reports on accident statistics from 2007 to 2009, there are upwards of 15,000 collisions each year in D.C. Although Mayor Gray said that the speed limits were increased on roads that don’t see much if any pedestrians and carry faster moving traffic, most car accident attorneys would likely agree that there should be ample research to support raising speed limits before implementation. While it may be convenient for many commuters to be able to go five miles per hour faster on a few roads, the council has a good point that raising the speed limit on four streets may not be the best way to make change.

Federal Judge Permits Company Disputing CPSC Complaint Data to Remain Anonymous

December 14, 2012 | Lebowitz & Mzhen

In October, a federal judge permitted a company known only as “Company Doe” to remain anonymous in a lawsuit against the U.S. Consumer Product Safety Commission (CPSC). The anonymous company argued that the CPSC’s report with consumer complaint data was “baseless” and would cause “irreparable harm to [the company’s] reputation and financial well-being.” While that is certainly a valid concern, a Washington, DC products liability attorney would likely be more concerned with the extent to which such secrecy places the public at risk of encountering the dangerous product.

The CPSC is the federal agency tasked with protecting the public from “unreasonable risks of injury or death” from consumer products within its jurisdiction. Children’s toys, automobiles, and consumer appliances all fall within the purview of the agency’s power to regulate. The CPSC is perhaps most known for issuing announcements regarding product recalls.

In this lawsuit, Company Doe sued the CPSC, asking the court to stop the federal agency from publishing a report on its public searchable database, SaferProducts.gov. Presumably, the report is related to a consumer product Company Doe produces or produced.

Consumer advocacy groups have opposed Company Doe’s requested injunction, citing the First Amendment of the U.S. Constitution and the public interest in understanding why the report should remain undisclosed. They argue that the CPSC database is a critical tool for informing consumers about potentially dangerous products, and the exclusion of one product from the database by an anonymous company could undermine that purpose.

By law, the CPSC must post consumer complaints within 20 business days of receiving them, but it must first notify the product manufacturers to give them an opportunity to respond. Complaints that are shown to be materially inaccurate are corrected or removed.

Each year, thousands of consumer products are manufactured, sold, and then recalled for being defective. A product may be defective three ways. A design defect is a flaw in the way the product was conceptualized. In this case, every single instance of the product is defective, and a recall would affect every product sold. A manufacturing defect is a flaw in the production of the product, and these defective products deviate in some way from the intended product. Products recalled due to a manufacturing defect are often only a subset of the products sold, such as those manufactured and sold in a certain facility, or during a specific time frame. Finally, products may be defective if the manufacturer fails to warn consumers and potential users about foreseeable dangers of using the product, such as detachable blades or dangers of choking.

Energy Drink Maker Faces Lawsuits and Congressional Scrutiny After Multiple Reports of Deaths

December 7, 2012 | Lebowitz & Mzhen

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.

Wrongful Death Lawsuit Seeks to Hold Truck Driver Liable for Hours-of-Service Violations

November 30, 2012 | Lebowitz & Mzhen

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.