Washington DC Injury Lawyer Blog

FDA Issues Warnings About Dog Treats Causing Illness

June 21, 2012 | Lebowitz & Mzhen

The U.S. Food and Drug Administration (FDA) has issued a series of warnings about dog treats imported from China. Complaints of illnesses began coming in to the FDA in November 2011. It has now received more than one thousand reports relating to imported “chicken jerky” products. The situation presents a clear issue of products liability, since one or more manufacturers are producing goods that are not fit for their intended purpose. It also raises a question of damages. The most direct victims are family pets, but the possible damages generally do not match the loss a dog owner would feel if a pet gets sick or dies due to a contaminated or defective product.

Chinese-made pet products were at the center of another crisis in 2007, when pet food manufacturers reportedly used wheat flour contaminated with melamine. Thousands of dogs became ill or died, tons of dog food were recalled, and several pet food executives in both the U.S. and China faced criminal charges. When reports of sick dogs started coming in November, the FDA began testing chicken jerky treats for melamine and other contaminants. It issued a “cautionary update” to consumers at the time, identifying the possible symptoms and noting that some reported illnesses might be unrelated to the chicken jerky. By February 2012, the FDA had received more than five hundred reports of sick dogs.

In April, when the total number of illnesses had exceeded six hundred, the FDA sent inspectors to China to visit the plants that produced chicken jerky products. The agency had already conducted extensive chemical and microbial tests but reportedly had not isolated a cause for the illnesses. Pressure continued to mount through the spring to find a solution.

Complaints from pet owners and veterinarians have reportedly led to three brands: Waggin’ Train, Canyon Creek Ranch, and Milo’s Kitchen. The first two brands, according to MSNBC, come from a company in Nanjing, China. Both companies maintain that their products are safe. Milo’s Kitchen has reportedly acknowledged settling a claim after a customer complained about a sick dog. The American-based companies are the most likely targets for litigation. Even though companies in China might be more directly liable, U.S. courts have little to no authority over them.

Washington DC Injury Prevention Ranks High in National Survey

June 14, 2012 | Lebowitz & Mzhen

A study of injury-related deaths conducted by a national healthcare advocacy group, the Trust for America’s Health (TFAH), ranks the fifty states and the District of Columbia based on ten “key indicators.” These key indicators relate to laws, regulations, and initiatives undertaken by state governments. According to TFAH, they represent the effectiveness of state efforts to prevent fatalities due to injuries.

Washington DC scored highly in the study, with seven of the ten key factors. In terms of total number of injury-related deaths per 100,000 population, the District of Columbia did not fare as well compared to many states, with a rate slightly above the national average. The study’s authors stress that they cannot say with certainty why any one state has a lower rate of injury-related fatalities than any other state, but their key factor analysis offers a good set of guidelines for assessing state efforts to promote injury prevention.

TFAH’s study, prepared with the assistance of the Robert Wood Johnson Foundation, a philanthropic organization that supports health care, examined statistics for injury-related deaths over the past twelve or more years. It drew a distinction between injury-related deaths and deaths from both communicable and noncommunicable disease, calling injury-related deaths a serious but largely hidden public health crisis. The study divided injuries into several categories based on the type and cause of the injury, including vehicular accidents, falls, blunt-force impacts, cutting or piercing wounds, burns, poisoning, drowning or suffocation, gunshot wounds, and “unclassified.” TFAH developed its list of key factors based largely on the cause of injury, such as accident or intentional violence.

Student Detained by the DEA and Forgotten for Five Days Demands $20 Million, Claims Torture

June 7, 2012 | Lebowitz & Mzhen

A San Diego student who spent five days locked in a holding cell after agents of the Drug Enforcement Administration (DEA) apparently forgot about him has sent a claim for $20 million in damages to the DEA’s general counsel in early May. The letter, a copy of which is not publicly available, may be a preliminary step to a formal lawsuit against the U.S. government. A lawsuit could claim negligence on the part of DEA agents, as well as civil rights violations, either of which would entitle the claimant to compensation for damages.

Daniel Chong, a 23 year-old student, was arrested during the early morning of Saturday, April 21, 2012, when he was attending a party at a friend’s house in celebration of “4/20,” an unofficial holiday celebrating marijuana. DEA agents reportedly raided the party and arrested Chong and several others. They took Chong to the local DEA office to be interviewed. Chong was told that he would be released that day, and he was taken to a five-by-ten-foot holding cell to wait for a ride home. No one came for Chong for five days.

Employees at the DEA office apparently forgot about Chong for five days. Chong had no food or water and no toilet, and his hands remained cuffed behind his back. He said that he could hear people outside and that he kicked at the door and screamed for help, but no one came. By the third day, he said he was hallucinating cartoon characters who spoke to him. He drank his own urine at least three times. He found a packet of white powder in a blanket, which he consumed, presumably thinking it might be food. He reportedly broke his glasses in an effort to commit suicide, going as far as trying to carve a message into his arm.

CPSC Announces Nationwide Recall of Inflatable Pool Slides, Citing Danger of Sudden Deflation Causing Injury or Death

May 29, 2012 | Lebowitz & Mzhen

https://www.youtube.com/watch?v=mnoqiV2ysnkAn inflatable pool slide designed for use with in-ground pools is subject to a nationwide recall, according to a recent announcement by the U.S. Consumer Product Safety Commission (CPSC). The pool slide, described as a “Banzai in-ground pool water slide,” poses a risk of injury to users because of sudden deflation and instability. At least one person died from injuries sustained when a slide deflated suddenly, and several more suffered severe neck injuries.

The pool slide has a blue base and a yellow slide. It has the words “Banzai Splash” on either side in a wave-shaped orange, blue, and white logo. The slide inflates to a height of six feet. A hose can attach to the top of the slide so water runs down the slide surface. It is designed to sit on the side of an in-ground pool, so users can slide into the water. This pool slide model was sold nationwide at Wal-Mart and Toys R Us stores between January 2005 and June 2009, with a typical retail price of $250. Hong Kong- based Manley Toys manufactured the slides in China. Toys R Us and Wal-Mart have agreed to accept returns of the product and will provide a full refind.

Federal pool slide safety standards require a slide to be able to support at least 350 pounds without any deformation. The recalled slide reportedly deforms under considerably less weight. This may cause the air in the slide’s base to displace, making the slide unstable. It could tip over or even deflate as a result. The slide allegedly did not undergo sufficient safety tests when it was imported to the United States.

Washington DC Survey Shows Increase in Distracted Driving

May 22, 2012 | Lebowitz & Mzhen

As cell phones become more of a necessity in everyday life, they also pose a threat to road and highway safety. Distracted driving, meaning driving with only partial attention to the road because of a cell phone or other communications device, rivals drunk driving as a threat to public safety. Although the total number of injuries and deaths attributable to distracted driving has decreased in recent years, the number of drivers who admit to driving while talking or texting on a cell phone has risen. Distracted driving plays a role in as many as one in four automobile accidents nationwide. A fatal car accident in Connecticut has focused the nation’s attention on the issue of driving distraction, leading to new educational campaigns and legislative efforts.

The District of Columbia joins thirty-one U.S. states in banning the use of handheld cell phones by all drivers. D.C. and thirty-eight states ban writing or sending text messages while driving, and the District bans learner’s permit holders from all cell phone use while driving, including use of a cell phone with a hands-free device like a headset. School bus drivers are similarly prohibited from all cell phone use while working.

An accident in Norwalk, Connecticut on March 24, 2012 has put a national spotlight on distracted driving. A 16 year-old girl, who was allegedly using a handheld cell phone, struck and killed a 44 year-old jogger. Connecticut has strict prohibitions on use of cell phones by novice drivers and drivers under the age of eighteen. The girl now faces multiple criminal charges, including negligent homicide with a vehicle and violation of the cell phone ban. The jogger’s father blamed the accident on the girl’s “stupidity” and has expressed support for a total ban on cell phone use, including hands-free devices, while driving. Currently, no state bans all cell phone use. The District of Columbia, for example, may allow adults to use a cell phone with a hands-free device.

Football Player Who Suffered Severe Head Injury Settles Lawsuit Against School District for $4.4 Million

May 16, 2012 | Lebowitz & Mzhen

A former high school football player, Scott Eveland of San Marcos, California, has settled his lawsuit with the school district over a head injury he sustained in a 2007 game. The injury has left him confined to a wheelchair, able to speak only through the use of an iPad or computer keyboard.

The issue of traumatic brain injuries in football has gained attention in recent months, with multiple lawsuits seeking damages from both athletic organizations and equipment manufacturers. Eveland had previously settled a products liability claim against the helmet manufacturers, and the remainder of the case focused on the liability of the school’s coaching staff.

Eveland was a senior at Mission Hills High School in San Marcos, located north of San Diego. He played linebacker for the varsity football team. According to the lawsuit, on September 14, 2007, he went to the athletic trainer to ask to sit out the first quarter because of a headache, which he claimed was so bad he could not focus his eyes. Eveland had already reportedly missed parts of practice due to headaches. The trainer went to the head coach who told the trainer, according to a student trainer who claimed to have witnessed the exchange, “You aren’t a [expletive] doctor,” and that the coach would decide who would play in the game. Both the trainer and the coach denied having this discussion in their depositions.

The Death of a Young Baseball Player and the Lack of Statistics on Youth Sports Injuries

May 10, 2012 | Lebowitz & Mzhen

The tragic death of a 12 year-old Chicago-area boy in a baseball-related accident has brought attention to a lack of data tracking regarding sports injuries in children. Although researchers have extensively catalogued injuries in athletes at the high school level and up, no one is collecting information on injuries to younger athletes. Sports can be a cause of serious injuries in children, so having access to information and statistics could help not only parents, but equipment manufacturers assess risks and develop safer products.

A 12 year-old boy from Oswego, Illinois, Eric Lederman, died in April from an injury caused by a baseball hitting him in the neck. Lederman was playing catch with a teammate on the side of the field while warming up for a game on Thursday, April 12. The ball struck him in the neck, reportedly hitting his carotid artery. He immediately collapsed and was taken to the hospital. He was pronounced dead at the hospital just after 8:00 p.m. The cause of death was determined to be a cerebral hemorrhage caused by blunt-force trauma, and was declared an accident.

Improvements in Auto Racing Safety Mean Fewer Accidents, Less-Satisfied Fans

April 27, 2012 | Lebowitz & Mzhen

NASCAR races around the country have gone a remarkably long time without a serious crash. Some races have recently gone hundreds of laps without even a yellow caution flag, which requires drivers to exercise caution or slow down due to a hazardous condition on the track. Some observers have credited new technologies, including improvements in aerodynamics, with fewer crashes and, therefore, fewer injuries. At the same time, fans report discontent with the situation, and attendance has declined. While improvements in safety and a reduction in racing car accidents would seem to be a favorable goal, the Associated Press went so far as to call it a “fan’s nightmare.”

The AP reported last week that racers at NASCAR’s Sprint Cup had gone more than nine hundred miles without a crash. Out of the last four Sprint Cups, three were entirely free of accidents. Overall, races have had a third fewer caution flags compared to last year. All of the recent crashes reportedly occurred at one race at Martinsville Speedway in Virginia on April 1. Fans have reportedly reacted by staying at home in droves, and by complaining loudly when they do show up. The stands at Bristol Motor Speedway in Tennessee, for example, were reportedly half-empty for the race on March 18. All of this led champion racer Jimmie Johnson to note something that may have already been obvious to many fans and observers: that crashing is more important than racing for some NASCAR fans.

Racing observers have cited both technological changes and a self-perpetuating safety trend as possible causes for the recent bout of green flags, which signal safe track conditions. According to USA Today, one driver said that cautions sometimes “breed more cautions” by slowing down the overall pace and giving cars fewer chances to crash. This could mean that, over time, the amount of crashes will return to the expected level, but other factors may be in play as well.

Utah Supreme Court Allows Claims Against Doctors for Third-Party Injuries

April 20, 2012 | Lebowitz & Mzhen

The family of a woman killed by her husband can sue the husband’s doctor, the Utah Supreme Court held in February. In B.R. and C.R. v. West, et al, the children of Kristy Ragsdale sued the doctor and nurse practitioner who treated the children’s father, David Ragsdale, alleging that the mixture of medications they prescribed caused a deterioration of David Ragdale’s mental state that led to Kristy Ragsdale’s murder. The trial court ruled for the defendants, finding that no doctor-patient relationship existed between the plaintiffs and the defendants. The Supreme Court overturned the verdict, which could significantly impact medical practices all over the country. Some states already hold doctors liable for certain third-party injuries, but the question remains open in many situations.

David Ragsdale was a patient of Dr. Hugo Roeder and nurse practitioner Trina West at a clinic in Draper, Utah. According to the court’s opinion, West prescribed six or more medications for Ragsdale, under Roeder’s supervision. These included psychotropic drugs like Concerta, Valium, Paxil, and Doxepin; and the steroids pregnenolone and testosterone.

Ragsdale and his wife were reportedly estranged during this time, and she had petitioned for a restraining order against him. West reportedly modified Ragsdale’s drug regimen in November or December 2007, after he told her about the divorce and restraining order. While Ragsdale had all of these drugs in his system, he shot and killed Kristy Ragsdale the morning of Sunday, January 6, 2008 in their church parking lot. He pleaded guilty to aggravated murder in 2009 and will serve at least thirty years in prison. Although Ragsdale took responsibility for the killing, he said he does not believe he would have done it but for the medications.

The Ragsdales’ children, identified only as B.R. and C.R., were only four and nineteen months old at the time of the murder. Their conservator, William Jeffs, filed a lawsuit in 2010 against Roeder and West for medical malpractice in prescribing medications with alleged risks of psychiatric side effects. The trial judge dismissed the case in February 2011 on the grounds that the plaintiffs lacked standing because they were not patients of Roeder and West. The Supreme Court agreed to hear the case directly, bypassing the appellate courts. It ruled in February 2012 that the defendants have a duty to nonpatients “to exercise reasonable care in the affirmative act of prescribing medications that pose a risk of injuries to third parties.”

DC Council Considers Bill Extending Statute of Limitations for Wrongful Death Claims

April 12, 2012 | Lebowitz & Mzhen

A bill pending in the District of Columbia Council would extend the statute of limitations for filing a Washington DC wrongful death lawsuit. Known as the “Wrongful Death Act of 2012” (WDA), the bill would change the statute from one year to two years. Councilmembers Phil Mendelson and Marion Barry introduced the bill on March 6, 2012. The bill has been referred to the Council’s Judiciary Committee and is awaiting a hearing. The Office of the Chief Financial Officer, in a letter dated March 19 (PDF file), confirmed that sufficient funds are available through fiscal year 2015 to allow the bill’s implementation.

According to the Blog of Legal Times, an attorney struggling with the tight time constraints of a one-year statute of limitations proposed the bill to Councilmember Barry’s office. Tennessee is reportedly the only other jurisdiction in the United States with a one-year statute of limitations for wrongful death claims. Subject to certain restrictions, Maryland has a three-year statute, and Virginia’s is two years. DC’s one-year statute dates back to the late 19th century.

The District of Columbia Official Code, in Section 16-2702, requires a claimant to bring a wrongful death lawsuit within one year from the date of death. From the standpoint of a personal injury attorney preparing a case for litigation, this does not allow a great deal of time to investigate the facts of the case and develop legal theories of negligence and liability. A wrongful death claim is essentially a claim for negligence, in which the injuries asserted include both the decedent’s death and the claimant’s loss of the decedent’s income, support, and companionship. These damages can be very difficult to evaluate and prove, particularly with a short time limit.

One lawsuit mentioned in relation to the WDA and the relatively brief time period to file a wrongful death claim is Nardyne Jefferies’ claim against the District of Columbia for the death of her daughter, Brishell Jones. Jones was murdered on March 30, 2010 in a mass shooting on South Capitol Street that left three people dead and six wounded. One year to the date after the shootings, Jefferies filed her wrongful death suit.

Jefferies’ lawsuit names the District of Columbia and various agencies and officials as defendants. Because the shooters were known to the DC criminal and juvenile justice systems, the lawsuit alleges that the government should have known that they posed a danger to public safety. Jefferies alleges fourteen separate counts, including several negligence-based counts, alleged violations of District and federal statutes and regulations, and violations of constitutional due process and equal protection. the defendants removed the case to federal court in June 2011, where it is pending in the U.S. District Court for the District of Columbia.