Rhode Island Injury Lawyer Blog

The story begins in the 30's and 40's. Despite the known harmful side effects of lead based paints, manufacturers continued to produce the product AND advertise that it was a safe kid friendly product. Finally, the truth came out and the United States banned lead based paint in 1978. The story is not unlike the litigation surrounding cigarettes and asbestos.

Paint manufacturers made billions and children across the country were placed at serious risk from lead based paint. In fact, many children today who live in pre-1978 housing remain at risk. Rhode Island was hit particularly hard and many children were poisoned. Our AG at the time, Sheldon Whitehouse, hired outside plaintiff counsel to sue the paint manufacturers to absorb the massive costs that lead based paint placed on the State due to increased health care costs and housing costs. The state won...billions!

The money was to be used to remove lead based paint from hundreds of thousands of Rhode Island homes. Despite this important ruling which sent a clear message to corporations placing profits before safety, the Rhode Island Supreme Court overturned the jury verdict.

The paint manufacturers, seemingly convinced of their own righteousness and believing the lawsuit to have been frivolous, sought to be reimbursed for all of their trial costs. Yesterday, Judge Silverstein ruled that the defendants were not entitled to defense costs because the case was neither frivolous nor in bad faith. Furthermore, forcing the state to pay the defense costs would deter the State from bringing future litigation intended to protect the public welfare.

I have written about the ongoing debacle at Toyota Motor Corp. regarding their accelerator problems and numerous product liability lawsuits, and I have received a lot of calls from people who feel they have been victimized by a defective Toyota vehicle.

The more I investigate the situation, the more incredible it becomes. Toyota apparently was well aware of their problems, hid the evidence, and chose to ignore the problems. This may go down in history as a classic example of corporate greed overtaking public safety...not unlike the Ford Pinto, the tobacco industry, or asbestos manufacturers.

As product liability cases are launched across the country, attorneys have discovered that Toyota withheld potentially damaging information in previous lawsuits. The so-called "Book of Knowledge" was uncovered under subpoena by the House Committe on Oversight and Government Reform. According to Committee chair, Edolphus Towns, Toyota conducted a "systematic disregard for the law" and routinely violated "court discovery orders in litigation."

Among the information uncovered, Toyota has been concerned about the unintended acceleration problems as far back as 2005 and conducted numerous meetings and safety assessments. Toyota would often enter into negotiations during these early product liability lawsuits rather than disclose damaging evidence in discovery. These early plaintiffs would walk away satisfied that they were able to settle the case, but future victims were left in the dark regarding the dangers of these Toyota vehicles. The Committee has already placed the death toll from "runaway toyotas" at 39 (12 more than the afformentioned Pinto disaster).

One of the most interesting stories (at least to me) to develop from the recent discoveries at Toyota, involves a Minnesota man, Koua Fong Lee, who was convicted of vehicular manslaughter after an accident he caused killed a family of three. Mr. Lee defended from the onset that he was unable to stop his car or avoid the crash, but the Minnesota jury did not believe his testimony and he was subsequently convicted and sent to prison. In light of recent information, his case will be reviewed. I certainly hope for Mr. Lee that justice will prevail if he truly was not at fault for this accident.

Continue reading "Problems for Toyota Go From Bad to Worse" »

The headline might be an overstatement of what Toyota Motor Company is facing as a result of the recent recall of over 2 million cars, but the scope of their potential problems is still staggering.

In the United States, some 2.3 million Toyota vehicles (the worldwide recall could extend to 9 million vehicles) are being recalled because the accelerator pedal could wear down potentially causing it to become difficult to depress, become stuck in a partially depressed position, or become slow to spring back. Toyota claims that the percentage of vehicles that might actually be affected is very low, and there are no verifiable statistics as to how many accidents have been caused as a result of these accelerator problems. Nevertheless, Toyota is facing a great number of product liability cases.

The House Energy and Commerce Committee has investigated the problems which may be the worst since the Ford and Firestone Tire debacle. According to the committee, unintended acceleration in Toyota vehicles has resulted in 19 US deaths in the past decade. Many lawsuits, including several class action lawsuits, have already been filed against the manufacturer. The plaintiffs all allege sudden, uncontrollable acceleration up to speeds over 80 mph. Neither brakes nor slamming the vehicle into park was sufficient to stop victims from striking trees, running red lights subsequently causing intersection accidents, and in one particular case, accelerating over a cliff.

Plaintiff lawyers are alleging that Toyota has been aware of this problem for a long time but has failed to take adequate steps to prevent the disasters described above. One of the attorneys involved in a lawsuit against Toyota has stated that the company initially blamed the drivers, then improper floor mats, and finally the accelerator pedals. It should also be noted that Toyota recalled their Lexus ES350 and Toyota Camry in 2007 for accelerator problems, but failed to extend the recall to all of their vehicles. This may have been a reckless and deadly decision by the corporation.

In the meantime, factories are closed and dealers are prohibited from selling remaining stock. The company is acting quickly to either repair or replace the problem parts on affected vehicles.

Here is a list of all affected vehicles.

Continue reading "2.3 Million Product Liability Cases?" »

An Oregon man, Mr. Matthew Beale, has been awarded the sizable sum in a product liability suit against Kimberly-Clark which owns the company, I-Flow Corp. According to the lawsuit, I-Flow encouraged surgeons to insert a "pain pump" which supplies pain medication via a catheter to the affected area.

A jury has found that this pain pump is responsible for destroying the cartilage in Mr. Matthew Beale's right shoulder leaving the thirty-eight year old father of four permanently disabled. The story began in 2004 when Mr. Beale picked up a muscle injury playing football with his kids. He underwent arthroscopic surgery to repair the muscle at which time the surgeon also inserted the pain pump into the shoulder joint where it delivered medicine for several days. Mr. Beale began to recover but after six months found himself in excruciating pain. Mr. Beale now suffers from a condition called chondrolysis which is a severe deterioration of cartilage. Essentially, his shoulder cartilage has been eaten away leaving "bone on bone" friction.

In November, after hearing of many chondrolysis cases, the FDA stated that they have never approved such devices for prolonged infusion of medicine to joints.

This case will set a tough precedent for Kimberly-Clark and I-Flow since they are currently facing hundreds of similar lawsuits from victims suffering from chondrolysis. Attorneys for the plaintiff were successful in proving that I-Flow did not conduct sufficient testing, nor did it warn of the potential dangers.

Continue reading "Kimberly-Clark Hit with 4.75 Million Dollar Jury Verdict" »

Approximately 1.5 million Graco brand strollers are being recalled after several children's fingertips have been amputated by hinges. The strollers, manufactured in China and available at all major retailers, include Graco's Passage, Alano, and Spree strollers and travel systems.

The children were injured by placing their fingers in the strollers canopy hinge while the canopy was being opened or closed. The reports so far show that five children have had their fingertips severed and another suffered serious cuts to their fingers.

Only a few months ago, MacLaren recalled approximately a million strollers because of a similar danger. Maclaren had received reports of over twelve children suffering fingertip amputations.

As with all product liability cases, plaintiffs who bring suit for the injury caused to their children will need to prove that the design of these strollers was defective. Considering a child's tendency to reach out for objects in their field of vision, it is reasonably foreseeable that a child might have their fingers near these dangerous hinges. This fact, coupled with knowledge of previous similar accidents, support a finding that the strollers were inherently defective and dangerous.

Continue reading "Graco Recalls Over One Million Strollers Because of Possible Amputations" »

Our country has certainly seen a surge of problems and lawsuits associated with dangerous or defective Chinese made products including tainted fish, drywall, baby formula, and toys. It is now becoming clear that generic drugs manufactured in Chinese factories will result in a string of product liability and wrongful death lawsuits.

The most recent lawsuit to make the news comes from Texas and the family of Lloyd James Robinson. Mr. Robinson died after having an adverse reaction to Heparin he received at a DaVita Dialysis Center. The family has filed suit against both the dialysis center and the manufacturer of the drug. As it pertains to the drug manufacturer, the theory of liability is that the Chinese facility in which the drug is manufactured does not meet US regulations. Reports of adverse reactions to the Heparin injections began in early 2008 and led to a partial and then total recall of Heparin products on the market. Following the recall, the Food and Drug Administration discovered the drugs were contaminated with a "heparin-like molecule," identified as over-sulfated chondroitin sulfate. This contaminant accounted for up to 20 percent of the total mass of the each sample tested.

In order for a product liability case to be successful the plaintiffs must prove either:

• The product design was defective


• The product was manufactured in a defective way


• The unsafe product lacked sufficient warning or direction

While I am unfamiliar with the facts surrounding this case, it appears that the attorneys are targeting option 2 above. Cost cutting measures in Chinese laboratories that do not meet US regulations caused a safe drug, such as Heparin, to become contaminated and, thereby, defective.

This story seems to be popping up everywhere after I first heard it on NPR. A study to be released this week in the Archives of Internal Medicine, reports that CT scans are exposing patients to far more radiation than previously believed and in doses that could cause thousands of cancer cases each year.

CT scans, which use computer and X-ray technology to create detailed internal images, have become a very common procedure due to its accessibility and accuracy. In fact, nearly 70 million CT scans were conducted last year alone. It turns out, however, that CT scans expose patients to far greater radiation than conventional X-rays and the benefits of conducting the diagnostic test may be outweighed by the dangers.

The study reviewed approximately 1100 patients undergoing various routine CT scans. The results were startling. First, there is a huge variance in the amount of radiation sustained by each patient. The dose of radiation for a multiphase abdomen-pelvis CT study ranged from 6 to 90 millisieverts, and the average dose was 31 millisieverts. Dr. Andrew Einstein of Columbia University stated that 90 millisieverts, depending on how counted, is equal to "many thousands of chest x-rays." Thousands!

One CT Scan procedure can generate nearly thirty years worth of background radiation to which humans are typically exposed.

What is startling to me about this story is that this information was never discovered sooner. How is it possible that so few recognized the extreme dangers inherent in one of our most common diagnostic tests.

If such an exposure can truly cause cancer, then lawsuits are bound to occur. I am curious to see what information will be uncovered during the discovery phase as to how much was known regarding the danger of these seemingly innocent tests. This may be one to watch.

It's been a tough week for cell phone manufacturers and service providers. Recently, Rhode Island officially banned texting while driving, and today brings news of a product liability suit against cell phone manufacturer, Samsung, and service provider, Nextel.

In September of 2008, Linda Doyle, was fatally killed in an automobile accident in Oklahoma City. Ms. Doyle was killed by a woman who ran a red light at 45 mph while talking on her cell phone. The family of Ms. Doyle has brought a product liability suit against Samsung and Nextel alleging that they marketed cell phones to drivers of automobiles while failing to adequately warn of the dangers of driving while on a cell phone.

Generally, a product liability case can be brought using one of three theories of negligence:

• The product design was defective;
• The product manufacturing was defective; or
• The product lacked adequate warning or instruction.

This lawsuit clearly falls into the latter category. Similar cases have been brought in the past and failed when the defense successfully argued that people are aware of the danger of using cell phones while driving. I feel terrible for the family but believe they have an uphill battle in this case. If cases such as this are successful, it could open the door to quite a number of liability cases against cell phone manufacturers and service providers.

Continue reading "Samsung and Nextel Sued Following a Fatal Car Accident" »

The learned intermediary rule, which roughly holds that a manufacturer (typically pharmaceuticals) satisfies their duty of care by providing a "learned intermediary" (usually a doctor) with all necessary information including risk of harm, because the learned intermediary will interact with the consumer and relay the risks.

The Rule has been challenged in a number of states with a wide ranging difference of opinion... And now it comes before New York.

I do not think I could state the justification for abolishing the rule any better than the sponsors of the bill, Brodsky and Weisenberg:

In 1997 the F.D.A. relaxed its guidelines for
direct-to-consumer advertisement of pharmaceuticals. Since that time,
there has been an onslaught of marketing in an attempt to influence a
patient's choice of a drug. These efforts have become an essential
part of manufacturer's marketing plans, resulting in an increase from
$843 million in 1997 to annual costs in the billions for print and
broadcast advertising. This change has also resulted in an increase in
the number of prescriptions written: fifteen months into the
relaxation of the guidelines, one heavily marketed drug saw an
increase in sales of more than one hundred times that of prescriptions
written prior to advertisement.

This controversial new marketing technique, opposed by the American
Medical Association, undermines the patient-physician relationship by
encouraging consumers to ask for advertised products by name. As
"patient choice" becomes an increasingly popular concept, physicians
are being relegated to a passive role where, upon demand, the patient
receives a prescription for the advertised drug 73% of the time.

The purpose of the bill, as stated by the sponsors, echoing the opinion of all those who oppose the learned intermediary rule is:

To require that pharmaceutical
manufacturers who engage in direct-to-consumer advertising of
prescription drugs satisfactorily advise consumers of the risk
involved in the ordinary use of the prescription advertised. This bill
also requires that, in products liability actions, the adequacy of the
warning be a question of fact for the jury.

I applaud the New York assembly for challenging this rule and hope that it abolished.  Such a doctrine may have been appropriate in 1966 when it was first raised in Sterling Drug v. Cornish, 370 F. 2d 82), but it is a dangerous doctrine today when pharmaceutical companies directly advertise their product to the public.

The New York Times ran an interesting article today pointing out that the decision to remove the troublesome Medtronic Sprint Fidelis device from the market does nothing to assist the tens of thousands who have already had the device installed.  Such people face the difficult choice of an additional dangerous heart surgery, or to continue to live with a potentially fatal device installed in their heart.  The Times reports that  four people have already died during the extraction process.

Yet despite the associated deaths and the high fail rate on these devices, Medtronic has been largely shielded from lawsuits thanks to the Supreme Court decision in Reigel v. Medtronic.  The Supreme Court barred common-law claims challenging the safety or effectiveness of a medical device marketed in a form that received premarket approval from the FDA.  The lack of testing performed on the device is seemingly irrelevant, so long as it received premarket approval from the FDA.

Democratic lawmakers are already considering a move to enact legislature reversing this decision.