Injury Law Blog : Florida Injury Lawyer & Attorney : LaBovick & LaBovick Law Firm: Serving West Palm, Boynton, North Palm, West Palm Beach, Jupiter

Intoxication while operating a boat is never acceptable under any circumstances. On Friday two boaters on separate water crafts went out for an early Fourth of July celebration. Unfortunately for 30-year old Puthuvamkunnath, he will never get this opportunity again. He was killed after a 30-foot boat rammed into his 17-foot boat that was anchored off Liberty Island in New York

Drinking and taking drugs while operating a boat can be a deadly combination in the water, especially if one is intoxicated. On Friday evening, Aquilone’s judgment was impaired due to drinking while operating his 30-foot boat and as a result, caused a fatal boat crash with a 17-foot boat carrying 30-year old Puthuvamkunnath and his friends.

The police arrested 39 year old Aquilone and charged with him with manslaughter. According to reports Aquiline was operating the vessel under the influence of alcohol and drugs while his wife and two small children were on board.

According to the police, Puthuvamkunnath was taken to Jersey City Medical Center with his two friends and was pronounced dead due to head injuries. The two friends were treated for minor injuries and was released from the hospital.
 
Click on the following link to read more on the fatal boating crash near the statue of liberty. - CBS News

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The Appellate court ruled that a shore town's law requiring personal watercraft operators to complete an approved boat safety course does not hold a city liable in the death of Jet ski User.

In the wrongful death action on behalf of a 16-year-old girl who perished when her Jet Ski hit an Ocean City, N.J., dock, the appeals court upheld the dismissal of the suit.

One would have thought that the wrongful death suit was a slam dunk for negligent supervision. The attendant for the city's boat ramp did not check whether the 16 year old Jet Ski User had the necessary skills before the ski launch. The court ruled that the Torts Claims Act, at N.J.S.A. 59:2-4, provides immunity for the city. Sadly, the appellate court sided with the trial judge that the facts in the case before the court did not support a negligent-supervision claim under another section of the act, 59:3-11.

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BP is being asked to establish a $20 billion fund to provide relief for the victims of the oil disaster!  Can you believe it?  $20 Billion!  That is about one tenth of the damages they have caused.  That is only one year of profit for the company.  They can pay $20 Billion like I am able to pay $20.00. 

Then to make matters so much worse, today when BP CEO Tony Hayward testified to Congress there were actually US Representatives who felt BAD FOR BP! That is correct, BAD FOR BP!  They thought that $20 Billion dollars was not fair.  They felt that the BP should not be “FLEECED” into paying for unnecessary damages! 

I am not gonna eat Tuna Fish for the rest of my life because this company lied about their ability to handle this disaster and somehow, now that they have caused one of the greatest man made disasters in the history of the world, our own legislators FEEL BAD FOR BP? Thousands of businesses and families will forever struggle to put their lives back together because their ways of making a living has been TAKEN AWAY FROM THEM.  How do you tell someone that has supported their families with a particular industry that "you may never be able to do this again" because of the damage the oil has caused to the waters? What does the business owner tell their employees when they can no longer pay them because the oil spill has destroyed the industry as they know it and they can't support their customers?

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Early morning driving in West Palm Beach has become more dangerous. West Palm Beach resident Myra Hudson was asleep in her home with her grandson and daughter when she was awakened by the sound of a loud crash.  Amazingly, the crash was that of 79-year-old man crashing his SUV into her home. This 79 year old was exchanging gunfire with other people in the West Palm Beach Neighborhood when he literally crashed into Ms.Hudson's home around 3:30 AM.

According to the police, none in the home was hurt, from the car accident.  However, the  79 year old gun slinging driver, Lamar Davis, was critically injured and transported to St. Mary's Medical Center.

Investigators are looking for the people involved in shooting 79 year old Lamar Davis. They also want to hear from any witnesses who may have seen the incident. Anyone with information is asked to call Palm Beach County Crime Stoppers at 1-800-458-TIPS (8477).

The American Red Cross gave Ms. Hudson and her family a place to stay for five days. They can't go back into their home until the dwelling is certified safe by inspectors.

We encourage readers to support the American Red Cross in their local community, so that the American Red Cross has the funds to assist families in times of need.

Click on the following link to read more from the Palm Beach Post on the 79 year old SUV Driver critical after gunfight and crash into West Palm Beach Home.

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Additional fines may be imposed against Toyota Motor Corporation (Toyota) , by U.S. safety regulators, for failure to promptly take action to fix the sticky accelerators. This would be in addition to the historic $16.4 million penalty imposed by the National Highway Traffic Safety Administration (NHTSA) on the automaker, April 5, that we discussed previously on the Injury Law Blog.  The NHSTA noted that the fine would have been $13 billion if not for caps set by U.S. law.

Automakers are required by law to inform regulators about a safety defect within five days of its discovery. Toyota’s records indicate that the automaker issued repair notices for sticking accelerators in Europe and Canada in September, but waited until January to take action in the United States. The possibility of this new penalty comes in response to an ongoing review of Toyota’s documents by NHTSA that indicates there were two separate defects in the recalled pedals.

United States District Judge James V. Selna in Orange County, Calif. will handle the trial, including important pretrial decisions such as deciding what documents and materials Toyota will need to provide as evidence.

According to an investigative Associated Press article, Toyota has a reputation of withholding documents and using evasive legal tactics in previous product liability, personal injury and wrongful death cases. A prime example is a product liability case in Colorado involving a young girl s killed in a 4Runner rollover crash. Court records show that a federal judge ordered Toyota to produce documents about internal roof strength tests. Unfortunately, the jury ruled in favor of Toyota, since they were not privy to important documents that may have helped shape a different opinion.

A former Toyota attorney, Dimitrios Biller and Whistleblower, accuses the automaker of  withholding evidence in former rollover cases. Rep. Edolphus Towns, D-N.Y., chairman of the House Oversight and Government Reform Committee, found many of  Biller's claims to be substantiated after reviewing some of Biller's still-undisclosed records. It is important to note that Rep, Edolphus Towns, had to subpoena Biller's records.

Toyota now must decide whether to appeal the initial fine or not. According to NHTSA Chief Counsel O. Kevin Vincent,

"If Toyota will not agree to pay the demanded penalty, NHTSA will refer this matter to the U.S. Department of Justice with the recommendation that the Attorney General commence a civil action in federal court ."

It is hard to believe that the previous largest fine was against General Motors Company for only $1 million. Surprisingly, this fine was for not promptly recalling  windshield wipers in vehicle model years 2002-2003.

US regulators consider 2nd fine against Toyota – Reuters 

AP IMPACT: In Toyota cases, evasion becomes tactic – Associated Press

Toyota Acceleration Suits Combined in California Federal Court – Bloomberg 

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The U.S. Department of Transportation (DOT) is seeking the maximum civil penalty of $16.375 million, against Toyota for failing to notify the government about its sticky accelerators in a prompt manner. This would be the the largest civil penalty ever assessed against an automaker by the agency. According to records, Toyota knew about the problem as early as late September 2009 when the problem was confirmed in Europe and Canada but waited until late January 2010 to recall 2.3 million cars in the U.S. for the same issue. This is unacceptable behavior for a company that prides itself on "quality, dependability and reliability".

U.S. DOT Secretary Ray LaHood stated the following on the Toyota issue
Automakers are required to provide the National Highway Traffic Safety Administration (NHTSA) with notification of a safety defect within five days of its discovery. Why did it take Toyota so long to inform U.S. officials and the American public about about the threat of sticky accelerator pedals on certain models? Were they testing the cars to be sure of the defect or was it corporate greed?

“We now have proof that Toyota failed to live up to its legal obligations. Worse yet, they knowingly hid a dangerous defect for months from U.S. officials and did not take action to protect millions of drivers and their families. For those reasons, we are seeking the maximum penalty possible under current laws.”

At least 52 deaths have been linked to crashes allegedly caused by accelerator problems in Toyotas, according to government records. The sticky accelerator pedal recall involves the 2007-10 Camry, 2009-10 Corolla, 2009-10 Matrix, 2005-10 Avalon, 2010 Highlander and 2007-10 Tundra. The recalls have led to congressional hearings, a criminal investigation by federal prosecutors, dozens of lawsuits and an intense review by the Transportation Department.

Toyota has attributed the problem to sticking gas pedals and accelerators that can become jammed in floor mats, and has cited no evidence of an electrical problem. Toyota dealers have fixed 1.7 million vehicles under recall so far. Consumer groups have said electronics could be the culprit, and dozens of Toyota owners who had their cars fixed in the recall have complained of more problems with their vehicles surging forward unexpectedly

Toyota could face additional violations and further penalties, if more evidence is found in the ongoing investigations. Toyota must now decide whether it will contest the fine

Click on the following links to read more on the proposed Toyota penalty:

Secretary LaHood Announces DOT is Seeking Maximum Civil Penalty from Toyota - NHTSA 
U.S. Seeks $16 Million Penalty Over Toyota Recalls - NPR
U.S. seeks to hit Toyota with top fine for delays in disclosing problems - LA Times 

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The Safety Record of mine owner, Massey Energy Company is coming under fire after the recent tragic coal miner deaths at Upper Big Branch mine in West Virginia. Authorities are checking into whether the explosion on Monday could have been prevented, considering several recent evacuations from the mine because of high methane levels  and the mine owner’s prior safety record, Rescue workers are currently removing explosive methane gas from the coal mine.

The Massey Energy Company, the biggest coal mining business in central Appalachia and the owner of the Upper Big Branch mine, is no stranger to scrutiny over its environmental and safety record. In 2008, Massey Energy Company paid a $20 million fine for clean water violations. This was the largest fine of its kind levied by the Environmental Protection Agency.  Also in 2008, A Massey  subsidiary paid what federal prosecutors called the largest settlement in the history of the coal industry after pleading guilty to safety violations that contributed to the deaths of two miners in a fire in one of its mines.

In March 2010, the Mine Safety and Health Administration cited the Upper Big Branch mine for 53 safety violations. The number of citations from 2009, more than doubled, to over 500, from 2008, and the penalties proposed against the mine more than tripled, to $897,325.

The cause of Monday's blast is under investigation. However, many ask the question how could a tragedy of this magnitude occur after such stricter Federal laws were put in effect after the 2006 mining disaster?  Massey Energy and its chief executive, Don L. Blankenship, is under the spotlight.  Could the company have prevented this recent tragedy with more safety precautions in place for employee safety? Investigations are underway and all eyes are on Massey Energy and the Virginia Upper Big Branch mine. Time will tell what was the cause of this tragedy and if it could have been prevented. 

Click on the following links to read more on the

Deaths at Virginia Mine Raise Eyes on Safety - NYT
Safety violations posted at Massey mine - Richmond Dispatch
 Mine Rescue Continues as Owner Faces Questions - NYT
Deadly West Virginia Mine Blast Stuns Experts - NPR
 

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Today a panel of seven federal judges in San Diego must consider a locale for the cases filed against Toyota nationwide, and  whether to consolidate the numerous proposed class-action lawsuits before the chosen court. The panel’s decision, expected within several weeks, would likely determine the eventual trial or settlement of the cases.

Some of the suits claim that Toyota was aware of the sudden acceleration problem but failed to inform consumers or the government. Others claim that Toyota is ignoring the real source of the problems: flawed electronics. According to National Public Radio (NPR), the suits each claim to be filed on behalf of some 6 million drivers. NPR also indicated that numerous other suits have been filed against Toyota, including wrongful death, personal injury, and claims of loss by investors due to decreases in stock value.

If the cases are consolidated and settled, Toyota could face damages up to $3 billion. According to Tim Howard, Northeastern University law professor,

"the class-action lawsuits filed against Toyota ranks as the largest automobile class action in the history of American law and the world.”

The New York Times reports that the judge of the chosen locale will make several important decisions, including “whether all Toyota owners affected by the recalls should be treated as a single class that could be paid for the vehicles’ lost value.”

Toyota is expected to request a dismissal of any single case.

Click on the following links to read more on the Toyota Lawsuit news.

US Panel to Consider Locale of Toyota Lawsuits - The New York Times
Lawyers Play Speed-Date in Toyota Suit Tussle - The Wall Street Journal
Lawyers Jostle To Lead Charge Against Toyota - National Public Radio

  

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How can Toyota have actual knowledge of their cars sticky accelerators, give wrong information to the United States National Highway Traffic Safety Administration, and NOT face criminal penalty?

Presently there is a Federal Grand Jury proceeding in New York, which is investigating the “timeliness of Toyota’s reporting of its sudden-acceleration complaints and fixes.” I am betting that the United States Attorney will open an investigation soon for criminal penalties against the company.  Many innocent victims have died because Toyota hid the truth about safety issues.

Human lives are not to be counted on an actuarial chart and compared to the financial impact on a company before making a known defect public.  When you are producing a dangerous product and putting it in the stream of commerce, you must correct know defects; otherwise, you are acting with reckless abandon in harming human life.

The very definition of manslaughter is the unlawful killing of a human being without premeditation or intent through gross negligence.  The difference between this and actual murder is that murder requires actual malicious intent.  Former Toytota counsel Dimitrios Biller said that Toyota had systematically disregarded the law.  He said to CNN that the material he had reviewed was “very, very disturbing.”  Toyota continues to fight the litigation requests to review their most important documents.  They are also not permitting their old lawyer to say what he knows. 

Hopefully, the public will not feel bad for Toyota because tough minded trial attorneys want to hold Toyota accountable for their reckless conduct.

 

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The Louis Majesty of Louis Cruise Lines, carrying 1,350 passengers and 580 crew on board experienced a horrifying ordeal on Wednesday. A 26-foot wave crashed into the ship, smashing five windows in a public area.  Unfortunately, two male passengers (one German and one Italian) were killed and at least 14 others were injured on the ship traveling on a 12-night Western Mediterranean cruise from Barcelona that included Spain, Spain, Genoa and Italy. The cruise ship turned around and headed back to port in Barcelona after being struck by the wave.

The Louis Majesty was off the off the French port of Marseilles when it was hit by "abnormal" waves, some more than 26 feet (9 meters) high, cruise line according to spokesman Michael Maratheftis. The public areas on the ship affected by the large waves that broke five windows were the - the forward part, or bow, of the 14-deck ship, owned and operated by the Greece based, Louis Cruise Lines.

Weather is reportedly to blame for the cause of the high waves, since winds were 45 mph, according to Buoy data off the French coast.

Louis Cruise Lines flew all passengers home on Thursday from Barcelona courtesy of the Cruise Line. The luxury cruise line has canceled the next cruise. The Louis Majesty will remain in Barcelona for repairs. March 14th is the scheduled date for cruises to resume on this vessel.

Click on the following links to read more on the tragic cruise ship incident off the French port of Marseilles:

Giant waves hit cruise ship; 2 passengers killed
Passenger describes 'terrifying' ordeal as giant waves hit cruise ship
Two killed, 14 injured as massive waves hit cruise ship off France
Passenger on cruise ship: Wave ordeal terrifying

 

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Toyota owners, there is a new problem facing yet another popular Toyota brand, the Toyota Corolla.  Driver complaints of  power steering related problems are causing Toyota to consider a recall of the very popular subcompact Toyota Corolla. 

This potential new recall may come in addition to the Toyota recall of approximately 8.5 million vehicles worldwide due to floor mat hazards, sticking gas pedals, and braking problems. Toyota has yet to disclose the vehicle model year(s) or regions that may be affected.

Reports show that the most recent Data from the National Highway Safety Administration (NHTSA), puts the alleged death toll due to Toyota vehicles at 34 deaths since 2000, with the numbers continuing to rise.

According to Toyota quality controls executive, Shinichi Sasaki, Corolla drivers may feel as if they were losing control of their ability to steer. Sasaki also mentioned that a link between the Corolla’s possible steering problems might involve the vehicle’s braking system or tires.

Word of this new issue comes on the heels of Toyota President Akio Toyoda’s statements regarding the forthcoming U.S. Congressional meeting. During a recent news conference, Mr. Toyoda stated that he does not plan to appear before the Congressional committee scheduled for February 24. Rather, he stated that he wanted to remain focused on improving the quality and image of his company on a global scale.

Toyota owners continue to address complaints to Federal safety officials about the potential problems. With approximately 100 reported complaints regarding the possible steering trouble, Toyota is poised to take yet another blow to its already tarnished image. When will this saga end?

In addition to decreases in the company’s image and stock value, news of this potential new recall, in conjunction with the other worldwide recalls, continues to draw legal woes for Toyota. According to the Financial Times, Toyota is facing a multitude of class action lawsuits in the United States that may cost the automaker billions of dollars. Experts estimate that more than 40 suits have been filed against Toyota under federal and state law. Claims reportedly involve wrongful death, personal injuries, property damage, and more.

Toyota is working to determine the source of the Corolla complaints and has not ruled out the possibility of issuing yet another recall.  Toyota sold roughly 1.3 million Corollas worldwide in 2009, making it the best-selling car in the world.

To read more on Toyota's latest woes regarding the looming Toyota Corolla stering probe and possible recall, click on the following links to New York Times, CNN,  Financial Times (Registration Required) and the WSJ Blog.

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Toyota Motor Sales U.S.A., Inc. (TMS), announced today, that the company has developed a safe solution to the risk of sudden, unwanted acceleration. The Japanese automaker indicated that its engineers created and thoroughly tested the solution: a small steel pedal reinforcement assembly designed to eliminate excess friction. Toyota reports that it has commenced shipping the parts to dealers, and expects the millions of affected vehicles to undergo repair as soon as possible.

According to Toyota, this sticking occurred (or can occur) because of excess friction resulting from normal vehicle operation. The company indicates that the pedal reinforcement assembly will eliminate the excess friction that caused the accelerators to stick in rare instances.

At the end of January, the company recalled over 4 million cars from eight vehicle models due to the risk of sudden acceleration caused by the accelerator sticking in a partially open position. In an unprecedented move, the Japanese automaker also halted production to resolve the problem safely and effectively. With Toyota’s announcement comes an apology from top brass, and a hope that the solution will begin to restore customers’ faith in the brand.

Toyota Motor Sales (USA) president and Chief Operating Officer, Jim Lentz, commented on the situation:

“Nothing is more important to us than the safety and reliability of the vehicles our customers drive. We deeply regret the concern that our recalls have caused for our customers and we are doing everything we can – as fast as we can – to make things right.  Stopping production is never an easy decision, but we are 100% confident it was the right decision. We know what’s causing the sticking accelerator pedals, and we know what we have to do to fix it. We also know it is most important to fix this problem in the cars on the road.

The Toyota saga continues with the National Public Radio report Toyota Apologizes, Releases Details On Plan To Fix Gas Pedals.  In a continuing story, NPR's  All Things Considered, co-host Melissa Block spoke with Toyota's Jim Lentz this afternoon on how a driver should handle the situation, of a gas pedal getting stuck.

Lentz is quoted in the interview as giving listeners the following advice:

The Driver should put both feet on the break, press hard, shift the transmission into neutral, and pull off the road.

Click on the following link to hear the All Things Considered interview with Toyota President Jim Lentz
 
Click on the following link to view more from Toyota on the accelerator pedal recall issue.

Click on the following link to see the Toyota PSA on the accelerator issue given by Jim Lentz..

The Toyota vehicles involved in the recent accelerator recall include:

• 2009-2010 RAV4 (Certain models)
• 2009-2010 Corolla (Certain models)
• 2009-2010 Matrix
• 2005-2010 Avalon
• 2007-2010 Camry (Certain models)
• 2010 Highlander (Certain models)
• 2007-2010 Tundra
• 2008-2010 Sequoia

As we mentioned in a previous LaBovickInjuryLawBlog article on the Toyota accelerator recall, owners  and drivers of the above mentioned Toyota models to contact their local Toyota dealer or to contact Toyota directly, if they are having issues. Safety measures and precautions should be taken to avoid any serious car accident.

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Car Accidents are never fun to be involved in, especially, a hit and run or when someone gets injured. Most people involved in an accident are shaken up afterwards, sometimes, just for the shock of the entire situation.

Yesterday, in West Palm Beach Florida, a driver of a Honda plowed into a Minivan, carrying a family of four. Due to being struck, the Minivan, crashed into another another car, with two passengers. According to a  WPBF - ABC - Report, a baby in the Minivan was thrown from the car into the street. The first question in everyone's mind is: Is the baby going to be okay and how was the baby restrained in the car? All of the passengers were taken to the hospital and were in stable condition, with the exception of the baby, who was last reported to be in critical condition. 

The driver of the Honda, reportedly ran and collapsed down the street.  The police are investigating whether or not alcohol was involved.

This leads to the message behind this post: It is against the law to leave the scene of an accident. According to Florida Statute 316.027 Crash involving death or personal injuries.--

(1)(a) The driver of any vehicle involved in a crash occurring on public or private property that results in injury of any person must immediately stop the vehicle at the scene of the crash, or as close thereto as possible, and must remain at the scene of the crash until he or she has fulfilled the requirements of s. 316.062. Any person who willfully violates this paragraph commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

(b) The driver of any vehicle involved in a crash occurring on public or private property that results in the death of any person must immediately stop the vehicle at the scene of the crash, or as close thereto as possible, and must remain at the scene of the crash until he or she has fulfilled the requirements of s. 316.062. Any person who willfully violates this paragraph commits a felony of the first degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084. Any person who willfully violates this paragraph while driving under the influence as set forth in s. 316.193(1) shall be sentenced to a mandatory minimum term of imprisonment of 2 years.

On a positive note, data released last year for 2008 Florida traffic accident data show a positive trend on Florida's highways in the area of crashes and fatalities in Florida.

• Traffic-related fatalities on Florida roadways decreased between in 2008 from 2007. The number of fatalities in 2008 were 2,983 and 3,221 in 2007.
• Traffic related accidents and crashes on Florida roadways decreased in 2008 from 2007. The numbers for 2008 were 243,342 accidents and the numbers for 2007 were 256,206 accidents.
• Traffic related accidents and crashes on Florida roadways involving alcohol decreased in 2008 from 2007. The numbers were 1,169 for 2008 and 1,244 for 2007.

Everyone understands that a car accident is never a fun experience for any party involved. However, it does not give the person at fault the right to run from their responsibilities. Bloggers for the Jacksonville law blawg:ForYourprotection.com, gave an excellent summary in a post regarding a  DUI Florida Hit and Run accident that resulted in the death of a passenger, when they wrote the following:

"If you are involved in an auto wreck and you have been drinking, the absolute worst thing you can do is leave the scene. You will be caught and convicted, not to mention the moral duty you have to the person you have just injured. Stay and render aid and be helpful and figure your actions have finally caught up with you."

Lastly, if you are involved in a car accident,  Stop, take a deep breath, and proceed to take the appropriate actions. It will all work out much better if you stay and address the situation instead of trying to avoid it.  Strangely enough this holds true for many things.

Let's continue to make Florida's roadways safer by driving with care and following traffic laws.

 

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The Food and Drug Administration has come under fire for having insufficient scientific standards to for evaluating cardiovascular devices. This recently came to light from a report found in the Journal of the American Medical Association entitled "Strength of Study Evidence Examined by the FDA in Premarket Approval of Cardiovascular Devices".

In an Associated Press article, The New York Times reports finding from researchers at the University of California, San Francisco. This article shares alarming patterns of how the FDA frequently gave their seal of approval for heart devices based on foreign research in small groups of patients. In a further twist, common standards and protocols for device studies were lacking such as clear goals and randomization. One can't help but wonder, who is looking out for the American public, if the FDA's testing has such fundamental flaws.

Scientific American, author, Cynthia Graber states the following in her podcast transcript, in response to the JAMA article.

"We like to think that medical equipment implanted in our bodies undergoes rigorous testing before it’s put inside a person

These recent turn of events, further underscores the need to pass the Medical Device Safety Act (MDSA), according to the American Association for Justice (AAJ). Since the hotly debated Supreme Court Decision in Riegel v. Medtronic, medical device product liability has been front and center in the debate on FDA approved devices and who should be held accountable.

AAJ President Anthony Tarricone eloquently states the following in support of the Medical Device Safety Act  (HR. 1346 / S. 540)

"Passage of the Medical Device Safety Act is critical for patient safety, especially when medical devices have not gone through rigorous premarket testing and post-market monitoring.”

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Last month Toyota finally had to fess up. They had to say “We are sorry. Our cars have a malfunction. We are killing people.” Toyota recalled almost 4 million cars because the accelerators were sticking and cars were being run up to 120 miles per hour causing high speed crashes

I have several loved ones and friends that drive a Toyota. Therefore I am genuinely concerned about this recent recall issue. A few months ago, we shared information on our blog regarding the Toyota Mat Recall.

I started to think about the following:

Here is the big game: Before anything: BLAME THE VICTIM. BLAME THE VICTIM. NEVER ADMIT FAULT. BLAME THE VICTIM.

It is the same old story: “The accident wasn’t our fault, it was driver error!” BLAME THE VICTIM.

But eventually the statistics add up. Eventually the big corporation must face the facts. Your car is messed up. Your drug is defective. Your medical device is malfunctioning.

When will these corporations learn and be more responsible about Consumer Safety?

I am delighted that we have a justice system that allows us to hold companies accountable.

Toyota issued the following Recall information on their website, regarding the accelerator pedal:

Toyota Motor Sales, U.S.A., Inc. (TMS) announced today details of the vehicle-based remedy to address the root cause of the potential risk for floor mat entrapment of accelerator pedals in certain Toyota and Lexus models. Toyota issued a consumer safety advisory on September 29 on this issue and has, as an interim measure, commenced the mailing of safety notices to certain Toyota and Lexus owners on October 30.

The models involved are: 2007 to 2010 MY (model year) Camry, 2005 to 2010 MY Avalon, 2004 to 2009 MY Prius, 2005 to 2010 MY Tacoma, 2007 to 2010 MY Tundra, 2007 to 2010 MY ES350, 2006 to 2010 MY IS250, and 2006 to 2010 MY IS 350

Toyota's quick fix to this problem is to  shorten gas pedals by three-quarters of an inch, starting in January. In certain instances, they will take padding from the floor to prevent the pedals from getting stuck on floor mats.

Toyota Announces Details of Remedy to Address Potential Accelerator Pedal Entrapment - Toyota Advisory to consumers 

 

 

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Congratulations on the valiant efforts of the legal team of The Public Justice Foundation and the Center for Constitutional Litigation (CCL) for winning a huge victory against generic drug manufacturers in the Mensing v. Wyeth, Inc., case.  The U.S. Court of Appeals for the Eighth Circuit ruled that federal preemption can't be used by generic drug manufacturers to avoid liability for failing to warn of their drugs' dangers.

According to this ruling, an FDA approval for a generic drug does not does NOT preempt claims against the drug makers for failing to warn consumers of known risks.  Justices in this case,  included: Hon. Roger L. Wollman - Sioux Falls, SD, Hon. Diana E. Murphy, Minneapolis, MN and Hon. Kermit E. Bye - Fargo, ND

In Mensing v. Wyeth, the Eighth Circuit's decision concluded with the following:

Mensing has stated a viable claim against the generic metoclopramide manufacturers. Far from prohibiting them from taking steps to warn
their customers of new safety hazards, federal law requires such action. For the
reasons stated we reverse the judgment in favor of the generic manufacturers but
affirm the judgment as to the name brand manufacturers.

Arthur Bryant, Executive Director, Public Justice and the Public Justice Foundation made an excellent point when he recently shared the following message: 

The Eighth Circuit emphasized that generic manufacturers, like name-brand drug companies, "bear primary responsibility for their drug labeling at all times." Lawsuits like Ms. Mensing's, the court said, do not "obstruct the purposes and objectives" of federal drug regulation "in any way." Instead, they help achieve the "fundamental" purpose of federal regulation-ensuring that "all marketed drugs remain safe."

Click here to read the Court Opinion on Mensing v. Wyeth, Inc.

We are headed in the right direction of improving drug safety and holding pharma giants, both brand and generic, accountable for their actions.

Time will tell what impact this decision has on the future of generic pharmaceuticals.

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Gadolinium-based contrast agent (GBCA) enables medical specialists to get a clearer picture of abnormal body tissues during the course of an MRI. Gadolinium is a type of metallic ion that moves differently from others in a magnetic field, thus making it an excellent diagnostic aid, but it comes with a huge risk for some patients.

Patients with advanced kidney failure who cannot excrete the chelated form of gadolinium fast enough, nephrogenic systemic fibrosis (NSF) may result. An additional risk factor is acidosis, elevated acid levels in body fluids, a condition often found in end-stage renal patients.

Patients who undergo angioscopic diagnostic procedures may be exposed to up to three times the usual amount of gadolinium. Cardiac patients often have renal insufficiencies due to prolonged elevations in blood pressure. Those most at risk of developing gadolinium NSF are those who have acute or chronic renal insufficiency, often part of the pre-operative stages of a liver transplant.

First noticed in 1997, gadolinium NSF is characterized by a thickening and hardening of skin and connective tissues. Thickened and inflexible skin can interfere with the range of movement in extremities, sometimes resulting in an inability to walk. Internal organs and connective tissue can be seriously damaged, impinging on the function of organs or restricting the movement of areas like the diaphragm, key in the breathing mechanism. Damage may begin appearing within two days to 18 months. Extensive organ damage may result in death.

The first strong association between the use of GBCA and NSF was described in a Danish Medicines Agency press release in May 2006.

In 2007, Yale University’s Dr. Phillip Kuo, MD, PhD, a world-renowned expert on NSF, and his colleagues began recommending hemodialysis of kidney patients with a few hours of undergoing a gadolinium-assisted MRI procedure. Kuo recommended at least two sessions of hemodialysis with the first 24 hours of this particular diagnostic test. In subsequent reports, a renal transplant was shown to arrest or even partially reverse the ravages of NSF.

In order to alert physicians to the hazards associated with gadolinium, the U.S. Food and Drug Administration began asking manufacturers in 2009 to include warnings on their gadolinium-based product labels.

 

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In Personal Injury, one of the common areas for concern is that of defective products and products liability. In most instances, a product that poses harm or danger for its intended use is classified a a defective product.

Liability for defective products can include, those who have actually caused the defect to be held liable for their actions.  Persons who can bring the claim or file a product liability lawsuit, include the purchasers of the product and also those that were given the product.

Common types of Product Defects include:

"Marketing Defects," such as missing or inadequate warnings and/or instructions, which may prevent the consumer from knowing how to safely use the product. A good current example of this is the Birth Control Pill YAZ or Yasmin.

• "Design Defects," where the product is manufactured exactly as intended, but the product itself is deemed unreasonably dangerous when used as intended or in a foreseeable manner. A good example of this is the Ford Pinto from the 70's. 

• "Manufacturing Defects," when a particular version of a product is defective and does not conform to the manufacturer's design due to some error in the manufacturing process.

Negligence is an area that looks at several scenarios including the following: 
• Exercise of reasonable care in making sure the product would not cause injury if used properly. ;
• Design, Marketing, and/or Manufacturing that attributed to the defect of the product; and
• Direct and proximate cause of the defect/breach of duty,that injured the claimant.

A Strict Liability claim involves asking the claimant Is show that the product was unreasonably dangerous for its intended use. Also, it is usually required to show that  the defect existed at the time the product left the control of the defendant against whom liability is sought, which caused the  injury.

Damages are seen as an effective measure to force a manufacturers to make safe products in the beginning. In most instances, an injured party is entitled to recover damages for the lass suffered due to the injury caused by the defective product. Sometimes, a victim may be able to receive punitive damages to discourage the guilty party from doing something like this in the future.  

Click on the following links to learn more on defective products, defective drugs  and products liability.

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According to the Illinois Supreme Court,  a judgment against the insurer, Addison Insurance, for the accidental deaths of  teens Everett Hodgins and Justice Carr at an excavation site constituted separate "occurrences" under the property owner's $2 Million liability insurance policy.

The plaintiff, Addison Insurance Company, brought a declaratory action in the circuit court of Will County against the defendants, the estates of teens Everett Hodgins and Justice Carr who were injured as a result of an Addison policyholder’s negligent maintenance of its property. The insured’s liability is not at issue in this case. Rather, this court is asked to determine whether the injuries to the boys constitute a single or multiple occurrences under the terms of Addison’s insurance policy.

Sadly, the $2 Million dollar policy will not bring the two teens back from their tragic death, but the parents will have closure in this horrible tragedy that took place on April 30, 1997.

Click here to read the ful text of the Supreme Court Opinion.

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All employees have rights to a safe environment while working. This includes construction workers. A Florida construction worker from Brevard County, was awarded a $76 million judgment  this week, in a case involving an on the job fall back in 2003 at a construction site.

The construction worker is now a complete quadriplegic and is paralyzed as a result of the accident. Some may feel that the Jury's verdict is excessive; hence the Defense is appealing the verdict. 

The Jury sent a strong message to the Construction Industry that they must provide a safe environment for their workers, otherwise, they will be held accountable for On the Job injuries.

Click Here to read more on Workers Compensation and Rights of Employees.

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I came across this video from the National Resource Company, "I Felt Comfortable". It is "supposedly" a true story of  Randy Fellhoelter and his near death experience of violating safety work rules and procedures. According to the video Randy's accident was caused by his accidental contact with 7,200 volts of electricity. Interesting 10 minute video on consequences of our actions.

Click here to view video.

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The Supreme Court Case, Wyeth v. Levine  (06-1249), the Supreme Court Justices are sharply divided over whether FDA regulations of labeling can prevent consumers from suing. Wyeth and the FDA presented the case before the Supreme Court involving Diana Levine, an amputee, whose bodily injury resulted from the use of the drug, Phenergan.

The debate among Supreme Court Justices is in the matter of whether consumers have the right to sue drug companies when the FDA has approved a drug for use. The strength of the argument presented by Levine's lawyers is that Wyeth is attempting to use FDA labeling to deny her a Consumer’s right to hold a Pharma company liable.

This is not the first case of involving a Pharma company being sued for harmful and deadly side effects of their drugs. A few notable instances include, Glaxo for their drugs Paxil and Avandia, Purdue Pharma for Oxycontin, Merck & Co. for Vioxx. In some cases, deficient research led to serious risks that was overlooked. In others, misleading advertising that omitted possible risks was the basis of these lawsuits.

The issue of FDA labeling as insurance to preempt lawsuits by consumers is an important aspect of the Wyeth v. Levine case. The issue of preemption is supported by the current Bush Administration in its attempts to reduce lawsuits by consumers against drug companies. Pharmaceutical companies argue that stiffer regulations and standards inhibit their research of newer, more effective drugs.

In the Levine case, Wyeth's argument reduces the lawsuit to a simple case of medical malpractice. Surprisingly, the FDA stands with Wyeth in the argument. The Federal Agency that is supposed to be on the side of Consumers, feels that once the FDA approved the drug for use, extraordinary risks that may appear as a result of use at some later point should not be a consideration for lawsuits against drug companies that have received FDA approval and are labeled as such. This begs the question: Who should be liable and held accountable if the FDA and the pharmaceutical maker fails to catch something in trials or overlooks a deadly side effects, because of the rush to get a drug on the market?

Another valid point of the argument by Levine’s lawyers is that Wyeth did not advise physicians or consumers of the danger of using the "push" method of injection of Phenergan. It is safe to say, that maybe more people would have had second thoughts about using this drug, if they would have known about the additional dangers. Moreover, in another case, Pfizer's anti-nausea drug, Vistrol, caused gangrene when injected into the arteries and Wyeth should therefore have requested an FDA to change the label warning of this on their Phenergan label.

The State of Vermont awarded Levine $6.8 million. In preemption arguments, federal law supersedes state law. Justices Scalia, Alito and Roberts argued in favor of Wyeth while Bader-Ginsberg argued in favor of Levine.

It would be simple to view Wyeth's position as one of preemption vs. adequacy of disclosure. Ultimately, the Supreme Court must address the potential for future lawsuits of this nature. They must also address the issue of what happens if the drug company gives the FDA false or misleading information about a drug that later proves to be harmful to consumers. Consumer advocates everywhere are following this case closely. Let’s see if the Supreme Court can do the right thing and tell Wyeth and the FDA that they do not get a free pass in this case. They are responsible for the safety of drugs that are put on the market, even if the FDA gives the drug a stamp of approval.

Jacob Goldstein, Writer and Blogger for the WSJ Health Blog, shares a few insightful comments from Diana Levine in his blog post "Wyeth v. Levine: The Mother of All Preemption Cases". He also includes a nice candid photo of the woman who Wyeth is going after for fighting for her rights to hold them accountable for taking their migraine drug that caused her to have her arm amputated. All eyes are on the Supreme Court regarding the decision of this case.  Let's see if they can get it right and hold the Pharmaceutical companies liable for unreported risks and dangers associated with their drugs.
 

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Have you ever noticed that sometimes things in life are unfair? In the legal world that adage also holds true. Take for example: If an unmarried adult, without minor children (say a grandmother whose children are grown and whose husband passed away) goes to see a doctor and that doctor accidentally kills her due to obvious and total malpractice there is no way to bring a malpractice suit. The adult children do not have the right to bring that suit on behalf of their dead mother. That seems unfair to me.

Another example,  is pets. Dogs, cats, etc.., have no value beyond their replacement value. In other words, if I have a fantastic dog who is my kids best friend and a great part of our family and someone kills that dog, I can only recover the value to replace that dog. If that dog was a mutt from the dog-pound, then the replacement cost is about $60.00. The emotional loss is terrible for the family, but the economic loss small.

What would you do if you took your photos to a photo lab for development and they lost your photos or even destroyed them? There is a value to those photos. The emotional value is very large, but the economic value is small. Although you have the right to recover for any loss, you are likely restricted to the economic loss. That economic loss is so small that is isn't worth the fight. I do not believe Florida law has changed to allow emotional losses in commercial cases. There is a legal rule called the Economic Loss Rule that prohibits emotional damages in commercial cases. I have not researched the Economic Loss Rule for some time, but I do not believe it has changed. Recently I saw a legal article advocating the law permit emotional losses in some situations: Movers who destroy family heirlooms that are worthless but have great family value was the example given *(which is similar  to lost photos). I do not believe, however, the present state of the law permits such recovery.
 

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Health writer, KATE BARRETT, wrote a great article for ABCNews.com, entitled: "New Toy Safety Standards Become Law". The article discussed in detail, the new legislation on Consumer Product Safety and how it impacts children's toys.  The article highlighted the addition of tough  new  standards that address lead levels and chemicals in products for children under 12 years old.  According to the new Bill,  safety tests will be required with the efforts of keeping kids safe and preventing recalls. 

This Bill was a Bi-partisan effort on behalf of our legislators in the House and  the Senate. According to Senate Commerce, Science, and Transportation Committee chairman Daniel K. Inouye, D-Hawaii,  "The Consumer Product Safety Commission (CPSC) has been a neglected agency for too many years, but this legislation puts an end to that neglect. Texas Republican, Joe Barton, ranking member on the House Committee on Energy and Commerce panel, stated "One of the roles of government is to get between kids and the sorts of hazards that are well beyond parents who aren't engineers and chemists with laboratories at their disposal". It is nice to see members of the House and the Senate putting their differences aside and doing what is right to protect our children. The last thing that we need is a repeat of the horrors from the recalls from last year for toys such as the Thomas Tank Engine trains and Dora the Explorer/ Diego toys.

Click here to read the ABC.com article on Safety for Children's Toys.

 Click here to read Consumer Safety Protections Bill H.R. 4040

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Preemption is a huge issue for the average American and I wonder if the public is paying attention. Last week as reported in the LaBovick Injury Law Blog, Congress had a hearing to discuss the issue of preemption. On all accounts, it appears to have been a success. One of the key speakers, Actor Dennis Quaid, discussed his experience with the drug Heparin, which almost killed his twin newborns. His testimony was so moving that even a total tort reformer, like Rep. Tom Davis, was moved to state that if "this had been my kids, I'd be suing everyone in sight. This should not happen."

The public does not seem to get the fact that this is a HUGE separation of powers issue. The right to sue is part of our JUDICIAL system. It is the way America, as a society, permits the common man to address problems he may have with other people including corporations and even our government. The Judicial system replaced the rule of Hammurabi, which was an eye for an eye. We also have a Legislative Branch, which makes the rules, and an Administrative Branch that applies the rules and keeps order (police, fire, army, road crews, etc). We can not allow the Administrative Branch to take away our right to access to the judicial branch. It messes up the balance of our government and our entire social makeup! Do you know how deeply this harms our system of government? I know it feels innocent and easy on the surface, however the implications of a dictatorship rule is scary!

Click here to read the testimony of key witnesses and Chairman Waxman's Opening Statement addressing the legal liability of manufacturers that produce dangerous drugs and medical devices before the Committee on Government Oversight and Reform.

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Are Carnival rides safe?  This is the question that is being asked by many people in charge of investigating the most recent Carnival ride accident that occurred in California on May 16th. Unfortunately it involves the Yo-Yo carnival ride, that collapsed shortly after 6 p.m. on May 16th about 80 miles southeast of Sacramento, at the Calaveras County Fair and Jumping Frog Jubilee. According to reports on Ride Accidents.com appx.  24 people  were injured and taken to local hospitals.  The carnival portion of the Calaveras County Fair and Jumping Frog Jubilee closed for the evening, but the other parts of the fair grounds remained opened. KCRA News from Sacramento reported live shortly after the accident happed.

According to a quote from the owner of the Carnival Yo-Yo Ride, Mr. Harry Mason of Brass Ring Amusements/Midway of Fun,  in a San Francisco Chronicle article, it was not yet clear what caused the steel arms of the popular Yo-Yo ride to collapse.

How can innocent thrill seekers protect themselves while enjoying amusement park fun? The non profit organization,Safer Parks has put together a top 10 list  of safety tips for parents and patrons of carnivals and themeparks:

Top 10 Safety Tips for parents

1. Be a cautious consumer when choosing amusement rides.
2. Watch the ride with your child before boarding.
3. Always obey minimum height, age, weight, and health restrictions.
4. Don't put children on rides they're afraid of.
5. Follow any special instructions about seating order or loading.
6. Always use the safety equipment provided, but be aware of its limitations.
7. Watch all extremities - including feet if the ride has open sides.
8. Teach small children what to do if they get separated from you.
9. Trust your gut - don't abdicate your parental responsibility or judgment to any business.
10. Remember that amusement rides aren't really magic.

The Consumer Product Safety Commission has a detailed report on Amusement related injuries. Click here to read the CPSC report on Amusement related injury updates for 2005.

Warning: Use caution and care when riding on Carnival and themepark rides. This is the best way to prevent injuries apart from not riding all together.

 

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The recent Tiger mauling that happened on Christmas Day at the San Francisco Zoo, is a tragedy for all involved, both the family and the Zoo.  The incident involved a teenager man dying as a result of the mauling and two other young men remain in critical condition, after the attacks. The Siberian Tiger, Tatiana, was shot to death after the attacks. 

It made me wonder how many other caged animal maulings have happened over the years. After searching on the Internet, I came across an Associated Press article that was picked up by several news outlets entitled "List of Maulings by Captive Animals". Although there is nothing pleasant about this list, it is important to note the list contains about 12 reported mauling incidents, involving caged animal maulings. Another surprise came when I noticed the same Siberian Tiger being involved in a mauling event that took place last year almost one year ago to the day of the most recent tragedy. 

I recall some of these tragic incidents that made the list. One happened in our backyard a few years ago, the case involving a 600 pound tiger escaping a private residence in Loxahatchee, Fla. This case was of special interest to me, since the owner of the tiger was Steve Sipek, a former Tarzan Actor. The personal significance to me is that several years, I purchased property in Boca Raton in an area formerly known as Africa USA in the early 1950's.  The area was nostalgic because some of the first Tarzan's were allegedly filmed in this area ans it was a 350 acre animal theme park, filled with authentic wild animals directly from Africa. The photos are simply amazing. Every time I look at the lake or the remaining Red bridge that carried the passenger tram through the wild gardens, I am amazed that this all happened many years ago in my neighborhood. Click on the following Africa USA links if you want to see historical pictures of this lovely area.  Several of the large trees, unique plants, wide river and red bridge still remain today. Unfortunately, modernization and capitalism won over the tourist attraction animals.  Downtown Boca was too important to growth to allow the tourist attraction to remain. On a positive note, South Florida has Lion Country Safari to enjoy, but from the pictures I have seen and stories I have heard and read, it is not Africa USA.

I love going to visit zoos and seeing the beautiful animals.  But cases like the recent one, makes you wonder, should we have caged animals on display that are dangerous?  I know that several people will say, yes of course, but can we ignore tragic incidents involving caged dangerous animals on display. Take a look at the following incidents mentioned in the AP report.  This recent case will add to the debate of ensuring protection of people when it comes to caged dangerous animals.  In one Associated Press Report entitled "Zoo director says tiger wall was low", there is controversy over whether the tiger wall met safety requirements.  I am sure that the current investigation will determine the validity of this statement.  One thing for sure, it will not bring the young man back to his parents, nor will it help the other two that were also hurt. The best we can hope for in this tragedy, is that this never happens again at this zoo. 

Word of caution, be careful when going to a Zoo with caged wild animals. Be on special alert for any warning or danger signs. It never hurts to be extra careful, considering there have been several incidents over the years in public places.

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Cargill Beef issued a massive recall on November 3, 2007 for more than 1 million pounds of ground beef that is suspected to be contaminated with E. coli bacteria. This is the second voluntary recall of beef in less than a month. The earlier Cargill recall was issued October 6, 2007 for 844,812 pounds of frozen ground beef patties because they may be contaminated with E. coli O157:H7.  This recall included products that were produced on Aug. 9, 10, 15, 16 and 17, 2007, and were distributed nationwide. Each package bears the establishment number “Est. 924A” inside the USDA mark of inspection. The products include:

Products distributed at the retail and subject to recall are:

• 6-pound boxes of “American Chef's Selection Angus Beef Patties 18-1/3 Pound Patties.” Each package bears a case code of “7703100” and various package codes of Best If Used By dates of “02/05/08,” “02/06/08,” “02/12/08,” and “02/13/08.”

A few prevention and safety measures include:

1.  cooking any ground beef to an internal temperature of 160 degrees F., or until the meat is no longer pink and the juices run clear.
2.  Avoid contaminating other foods with any E. coli bacteria that may be present in meat.
3. Wash Hands, utensils and cutting boards after they touch raw meat.
4. Place cooked meat on a clean platter, not one that was used to hold raw meat.

Consumers with food safety questions also can “Ask Karen,” the FSIS virtual representative available 24 hours a day at ASKKaren.gov. The toll-free USDA Meat and Poultry Hotline 1-888-MPHotline (1-888-674-6854) is available in English and Spanish and can be reached from 10 a.m to 4 p.m. (Eastern Time) Monday through Friday. Recorded food safety messages are available 24 hours a day.

The Ecoli Lawyer at the Marler Blog, provides excellent commentary on the history of Cargill Food Recalls dating back to the early 90's. Amazing they have been having problems this long. One would think that with new technology, the company would master how to prevent E. coli outbreaks. If you look at the great historical chart, the Marler Blog gives in their post on Cargill, getting reacquainted with the Enemy, it is hard to avoid the massive growth and expansion efforts of the Cargill company. My question to Cargill is "While you were growing and acquiring new companies were you looking into best practices of preventing food-borne illnesses?"

Blogger Jane Genova includes an excellent Blog Post entitled Cargill, ConAgra et al. Need to Follow Oprah Crisis Management 101on measures Cargill should take in dealing with the PR Crisis nightmare. Oprah is my hero and role model. No one is a master PR like Oprah. Jane's list is one that all executives and PR people should keep and hold onto, in case a PR Crisis should arise on their watch.

• Acknowledge the situation is serious
• Be visible where the trouble is or could be
• Follow up sincerity with concrete action. Be a responsive human being
• Be part of the reform effort. This is not about committees or delegation. The message is: This will not happen again, at least not on our watch.
• Be totally accessible. Use technology such as personal email addresses, blogs, and live media conferences

According to the Regional Beef President, John Keating, no illnesses have been reported. Now that is what makes me wonder if the public is fully aware of the meat recalls. There have been so many recalls over the past three months. Every time you look on the news, you hear of  another recall  that many have become desensitized by them. The ten states that are included in the recall are: Connecticut, Maine, Maryland, Massachusetts, Michigan, New Jersey, New York, Ohio, Pennsylvania and Virginia.

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October 15th is Blog Action Day around the world. This is the day that bloggers everywhere discuss the environment in a post.  How could we not participate by sharing something about the environment  on our blog? So here is our post about an oil company settling a pollution case:

Frontier Oil Corp recently settled a series of lawsuits on pollution brought by residents and former students and employees at Beverly Hills High School that alleged facilities at an oil field operated by Frontier subsidiary Wainioco Oil & Gas from 1985 until 1995 released emissions.

Frontier Oil Corp paid $6.2 million, which is a part of the overall $10 million settlement by Frontier and other defendants.

Share holders must be happy with this settlement, because Frontier Oil Shares are currently trading at $45.05.

Click Here to read more from Business Week Online.

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A Maryland family was awarded $4 million in the drowning death of their 5-year-old son,  Conner Freed, at Crofton Country Club. According to the Baltimore Sun, Hunt Valley-based DRD Pool Service Inc., the club's pool management company, was found negligent for failing to adequately train its lifeguards and properly staff the pool. It was ordered to pay Thomas Freed and Debra Neagle Webber $2,000,076 each - the 76 dollars serving as a symbol of Connor Freed's birthday, which was July 6. 

A 16-year-old lifeguard, who had been on the job for three weeks, was on duty when Connor was found floating in the country club's outdoor pool about 4:30 p.m. June 22, 2006. He had been swimming at the pool with a family friend and two other children. 

A Maryland state law caps jury awards in wrongful-death cases at $1.3 million, meaning the judgment awarded by the jury could be significantly decreased. Let's hope this stern verdict sends a warning to companies responsible for protecting our safety at community pools.

The family is calling for legislation that calls for a ratio of one lifeguard per 25 swimmers. Currently in Anne Arundel County, one lifeguard is required for every 50 swimmers. They have established a foundation in the honor of their son, Connor Cares.org

The Maryland Accident Law Blog cites a few chilling statistics on Children and Drowning incidents:

• Drowning is the second cause of injury-related deaths for kids ages 14 and under.
   In 2004, 3702 children (ages 14 and under) were treated in emergency rooms after nearly drowning. (USA Safe Kids.org)
• 40% of these near-drowning incidents took place in swimming pools. (USA Safe Kids.org)
• 19% of drowning deaths involving children occur in public pools with certified lifeguards present.  (Drowning Prevention Foundation).
• In 2000, there were 3,482 unintentional drownings in the United States; that's an average of nine people per day (U.S. Centers for Disease Control and Prevention).
• A swimming pool is 14 times more likely than a motor vehicle to be involved in the death of children 4 years of age and under (Orange County California Fire Authority).
• Children under five years of age and adolescents between the ages of 15-24 have the highest drowning rates (U.S. Centers for Disease Control and Prevention).
• Of all preschoolers who drown, 70 percent are in the care of one or both parents at the time of the drowning and 75 percent are missing from sight for five minutes or less (Orange County, CA, Fire Authority).
• The majority of children who survive (92 percent) are discovered within two minutes following submersion, and most children who die (86 percent) are found after 10 minutes. Nearly all who require cardiopulmonary resuscitation (CPR) die or are left with severe brain injury (National Safe Kids Campaign).

After reading drowning statistics for children it makes one realize that water safety is crucial for children. If you are a lifeguard or parent with small children, please take every precaution not to leave a child unattended in a pool for even a few minutes. Take all the necessary precautions and protect the safety of a child swimming.

Click here to read more on this case from the Baltimore Sun.

Resources:
ConnorCares.org
USA Safekids.org 
Poseidon.com
Drowning Statistics and Fact Sheet

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In a recent Press Release from The American Association for Justice, the organization praises a report by the nonprofit Center for Progressive Reform. The report  "The Truth About Torts: Using Agency Preemption to Undercut Consumer Heath and Safety" suggests that the Administration has forced federal agencies to claim their regulations preempt state laws, despite lacking any constitutional authority. These actions contradict Congressional intent and, frequently the agencies’ own policies. According to the new report,  state laws are preempted through regulatory rulemaking authority. The preemption provisions are often slipped in at the last minute without any chance for public comment. 

Among the preemption measures:

• The National Highway and Traffic Safety Administration (NHTSA) declared its rules on seat-belts and roof-crush resistance would preempt state common-law claims, despite previously rejecting the concept.
  
• The Food and Drug Administration (FDA) declared a rule on drug labeling preempted state tort law despite the fact that the agency had long held the opposite view.
  
• The Department of Homeland Security (DHS) also adopted preemption provisions, despite the fact that the Senate Homeland Security and Governmental Affairs Committee had expressly rejected such an approach just a year earlier.
  
• The Consumer Product Safety Commission (CPSC) and Federal Railroad Administration (FRA) have been criticized for trying to preempt state law.

Click here to read the report: "The Truth about Torts: Using Agency Preemption to Undercut Consumer Health and Safety".

Key figures testifying at the Senate Judiciary Committee hearing this week on “Regulatory Preemption" were Georgetown Professor David Vladeck, attorney Collyn Peddie and Donna Stone, state representative from Delaware and the current President of the National Conference of State Legislatures.

Testimony from State Representative Donna Stone

Testimony from Professor David Vladeck

Testimony from Attorney Collyn Peddie

Click here to read more from the AAJ on the Judiciary Committee Hearing.

Agencies such as the Consumer Product Safety Commission (CPSC), Food and Drug Administration (FDA), and The National Highway and Traffic Safety Administration (NHTSA) set out to protect the health and safety of Consumers. Let's hope that the Judiciary Committee meetings help to prove this point loud and clear so that we can all work together towards the fight for consumer justice.

 

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Hoteliers take note: There can be a premises liability or negligence issue if a guest gets hurt in a hotel room or bathroom while at a place of lodging.  Take a look at the case Ciocci v. Trump Taj Mahal Associates that just settled for $1.2 million. This case had a specific set of circumstances,it involved a broken toilet broke away from the wall in a handicap accessible room. Nevertheless, it should be a wake up call for all hotel establishments.  It would cost a lot less just to make sure that the facilities were safe.

The Ciocci settlement was in regard to the Taj Mahal's liability for the injuries Jean Ciocci, 74, of Philadelphia, sustained from two separate falls: the fall from her toilet in her hotel room's handicap-accessible bathroom on Oct. 8, 2004, and a fall she took one-and-a-half years later that her attorney argued came about because of the significant physical disability in her left arm caused by the earlier bathroom fall.

Click here to read more on the case from Law.com and The Legal Intelligencer (Subscription required)

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Beware:  What is done in the dark, will come to the light, sooner or later. The attorneys in Kentucky are wishing they would have adhered to this principle. They are now faced with criminal charges and must repay at least $62.1 million in settlement funds and interest, to their 400 clients they represented in Fen Fen Cases, according to Special Judge William Wehr.

The Attorneys, William J. Gallion, Shirley A. Cunningham Jr., and Melbourne Mills Jr., to repay $42 million taken from the settlement and $20.1 million in interest. What were they thinking? They started out with best intentions and ended up getting corrupted by greed. Greed is not good. Especially, when you have to hurt and exploit the people who hired you to help them.

Hopefully, this will send a message to the bad apples in the legal community that give the majority of trial lawyers a bad name. This is bad for the legal profession, bad for the consumers and bad for society at large.

Click here to read more on the story from Associated Press.

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We are happy to hear the insurance industry making statements that they will take care of any claims arising out of the Minneapolis bridge collapse tragedy without delay.

According to a vice president at the Insurance Federation of Minnesota, "There will be no exclusions – it will all be coverable."  They expect most claims to be for auto damage, workers' compensation and commercial property damage.

However, let's not rule out lawsuits regarding the maintenance of the the structure. This undertone has been looming in the news of late that the officials were warned some time ago about the dangers of this I-35W Bridge that hosted a heavy volume of traffic through downtown Minneapolis, Minn. 

I can't get over the fact that I drove across the I-35W Bridge in Minneapolis several times.  I just can't believe this happened.

The survivors have a lot to be thankful for. This was a natural disaster that could have been prevented.

Stay tuned... I am sure there will be lots of ink regarding lawsuits stemming from the collapse of the I-35W Bridge in Minneapolis.

 Click Here to read more from the Injurance Journal News.

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Wal-Mart Stores Inc. has settled a wrongful death lawsuit claiming a pharmacist at a Frederick store sold a too-strong insulin drug to a diabetic man who died after taking it. Terms of the settlement reached during a mediation session in Baltimore were kept confidential. 

The case was settled amicably, with no admission of liability or fault by anyone.

I guess the shareholders were happy with the wrongful death settlement, Walmart shares rose 1.15 to $48.83 on the day of the settlement.  They closed the week out over $49.00 a share. Hopefully the family received a respectable settlement for their tragic loss of their family member. Regardless of how much money they received, it will never bring back their loved one.

Click here to read more of the story in an Associated Press article.

The Law Firm, LaBovick & LaBovick, PA., Civil Justice Prosecutors, is a Plaintiff’s firm. The firm focuses on fighting for Plaintiff’s personal injury victim’s rights in Florida and on qui tam (whistleblower claims) nationwide.  We handle all serious injuries, car accidents, maritime accidents, wrongful death, slip & fall, toxic torts and product liability cases. We have locations in Boynton Beach, West Palm Beach, Jupiter and Port St. Lucie, Florida. Visit our firm website at www.LaBovick.com for more injury information.

 

 

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The age old debate about Theme Park safety is in the spotlight. In recent weeks, there have been two theme park tragedies, one involving the severing of a young 13 year old girl's legs below the ankle at a Kentucky Six Flags Theme Park and the other a tragic death of a 21 year old female Theme Park worker in New York. There are several discussions in the media on are theme parks becoming more dangerous and are adequate safety measures in place at theme parks around the country to protect the public?

According to an Associated Press news story, on Foxnews.com, Wendy Goldberg, a Six Flags Spokeswoman, indicated that the accident involving the young 13 year old girl, happened on the Superman Tower of Power. This is any parents worst nightmare, a large piece of heavy machinery harming their child.  Thankfully, the young girl, was in stable condition after surgery at Vanderbilt University Medical Center in Nashville, according to an Associated Press article on CNN.com.

The family and friends of Gabriela Garin, a 21 year old Theme Park worker that was killed on the Mind Scrambler at the historic Rye Amusement Park in New York over the weekend, are mourning her death. According to an Associated Press, article, the employer's role in the tragedy, is being questioned by the family. One can't help but wonder if the the safety precaution, created after the July 2004 fatality, were followed properly,  would Gabriella would be alive today?  Time will tell, if safety measures could have prevented this latest theme park tragedy.

It is sad that it takes tragedies for adequate safety measures to be put in place at amusement parks. Since Amusement parks attracts families, children and people of all ages, should there be uniform safety standards and guidelines for the multi-billion dollar amusement park industry? 

The non profit organization, Safer Parks, is a public service organization dedicated to preventing amusement ride injuries through research, information sharing, and advocacy. They try to understand the causes of preventable amusement ride accidents and injuries, and effectively communicate that information to interested consumers, industry members, and governments. They are a consumer advocate group in setting standards and regulations that protect the public safety, with a special emphasis on children.  Click here to read the editorial from Kathy Fackler on Regulatory Roulette. The founder of Sparks gives a candid insight into the inconsistencies around the country on government regulations. Over regulation is not necessary, however, safety protocols should be in place so that they are not drastically different from one state to another.

Here is a quick theme park safety fact, as of 2006, the Consumer Product Safety Commission ceased publication of statistical data on injuries associated with amusement rides.  The International Association of Amusement Parks and Attractions, IAAPA, the largest international trade association for permanently situated amusement facilities worldwide and is dedicated to the preservation and prosperity of the amusement industry.  According to their website, they oppose Bill # H.R. 2320 that set out to restore the jurisdiction of the Consumer Product Safety Commission over amusement park rides which are at a fixed site, and for other purposes. I wonder why they could possibly oppose such a bill? You can read the upbeat stories on their site about Amusement Park injury statistics that sound positive. The site has an interesting study by the National Safety Council on the 2006 Fixed-site Amusement Ride Injury Survey. However, the site does not include studies on deaths at the Amusement Parks. It may be hard to put a positive spin on such a gruesome topic. Enter theme parks at your own risk and be careful.  The goal of the amusement park is to provide a fun place where people come, have a good time and spend money. The theme park's goal is to make as much money as possible, in hopes of making huge profits. There is nothing wrong with a corporation making a profit, as long as it is not at the expense of innocent patrons.

As a Personal Injury Law Firm, LaBovick & LaBovick, P.A., our attorneys help injured victims or family members suffering the loss of a loved one due to negligence, wrongful death, or liability find possible answers to personal injury questions. Visit the firm website,  LaBovick.com,  to learn more about personal injury.

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The fight continues in one of the nation's deadliest night club fires that happened in 2003 at the Station Club in West Warwick. Lawyers for the victims of the deadly nightclub blaze are pressing a band tour manager, Daniel Biechele  and the nightclub owners to testify for the first time since the fire killed 100 people and injured twice that many four years ago, according to court documents.


Click Here to read more of the article from the Associated Press and the Worcester Gazette Telegram and News.

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Steve and Evelyne Tremain, will never have a happy ending, despite winning a $24.5 million judgment from the federal government over a "botched baby delivery" for their son Toby. Their son will never live a normal life.

Four years ago, Evelyne Tremain went to the hospital with labor pains. Instead of having a doctor on hand during the complicated delivery (as required), a Midwife, presided over the entire delivery. Since, Evelyne, had a Cesarean with complications, prior to this pregnancy, her doctor informed her that she was "high risk" should not use a midwife in this delivery. Unfortunately she received a "Midwife Delivery" instead, and a doctor was not involved until it was too late. The child, Toby Tremain, is impaired and tragically injured as a result of the medical care provided by the Air Force at St. Elizabeth's Hospital in St. Louis. The judge wrote in his ruling that the Air Force medical providers confused military rank with what was best for the patient. The midwife was a Major and the obstetrician was a Captain at the time of the delivery.

Click Here to read more on this case in the St. Louis Post Dispatch.

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The Oklahoma Supreme Court ruled that Dish Network was not liable for injuries sustained by an Oklahoma homeowner.  According to a recent ruling, the company owes no duty of care to a homeowner who fell from the roof while trying to repair a satellite dish. The company informed the homeowner, that the repairs were her responsibility, and then gave directions on how to make the repair. The homeowner, Jo Ann M. Lowery, suffered injuries to her left leg and back when she attempted to repair the satellite dish on the roof of her garage. Ms. Lowery filed a negligence action against Dish Network, alleging the company is liable for her injuries because they refused to repair its equipment and directed her to make the repairs.

Click Here to read more of the Oklahoma Supreme Court ruling

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