Boston Personal Injury Lawyer Blog

Yesterday's six hour "health care summit" between President Obama and Congressional leaders had its share of wonkish moments about interstate regulation of health care insurance. But it also featured a barn burning speech by Senator Dick Durbin about the Republicans' plan for so-called medical malpractice "reform."

Senator Durbin, himself a former medical malpractice lawyer, both on the defense side and the patient side, hammered home on several points that bear repeating because they are so surprising to most people.

• Even without new laws capping damages, medical malpractice lawsuits are dropping off dramatically. According to a study by the non-profit Kaiser Foundation (established by Henry J. Kaiser, the man who invented HMOs), the number of paid medical malpractice claims has declined by 50 percent over the last two decades. And between 2003 and 2008, the total amount paid out for medical malpractice claims - across the entire United States - was cut in half, from $8 billion to $4 billion.

• According to the Congressional Budget Office, the Republican plan for medical malpractice reform will save $5.4 billion dollars a year (out of a health care budget that is $2.5 trillion). But those savings will be offset, in whole or in part, by new costs: the cost of the deaths of people who are killed by medical malpractice reform. See, medical malpractice reform will make doctors feel a little bit more insulated from legal liability for their actions and, therefore, will make them a little bit more careless. It's what economists call "moral hazard" - the excess risk that people take when they are not fully exposed to the risk of their actions. The Congressional Budget Office estimates that the extra careless by doctors will result in additional 4,800 medical malpractice deaths a year. That's on top of the 100,000 deaths that the Journal of the American Medical Association says are caused by medical malpractice annually.

• The Republican plan for a $250,000 cap on damages for pain and suffering is an attempt to reduce health care costs by unfairly placing the price of those cuts on people whose lives have been ruined by medical malpractice. Sen. Durbin related an anecdote about one of his constituents: a woman whose face was burned off in the operating room when her oxygen supply caught fire. Is $250,000 in pain and suffering enough to compensate her? (As an aside, I've previously blogged about how these medical malpractice caps have not worked in the states that have adopted them)
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I also enjoyed Sen. Durbin's singling out Dr. Atul Gawande for praise (some of Dr. Gawande's research on medical malpractice reform was previously blogged about here). Dr. Gawande's new book The Checklist Manifesto is about four books down on my nightstand.

But enough rehashing Senator Durbin's speech. You need to watch his knockdown of the Republicans for yourself:

Reading the tort reform blog Pointoflaw.com, I came across a link captioned: "'Ford failed to warn seating unsafe for obese persons' suit fails." Sounds pretty frivolous, right?

I followed the link to Abnormal Use, a corporate defense blog, which has the virtue of being intellectually honest, unlike Pointoflaw. There I got the whole story.

It wasn't just some overweight person who was suing Ford for failure to warn a chair might collapse under her weight.

The plaintiff in the case was a 300 pound woman driving a Ford Explorer that was rear-ended by another SUV at the (relatively low) speed of 30 mph. The impact of the accident caused her seat to collapse backwards. The accident also left her a paraplegic.

Ford hadn't tested or designed the seats for anyone above 220 pounds. Now here's a little graph that I just found through a simple google search that shows about 5-10 percent of men are in the 220 pound range. Yet Ford didn't bother testing above 220 pounds.

And this poor woman wound up a paraplegic in a 30 mph accident. Sound frivolous now?

Yet, according to the blog post, the trial court entered a directed verdict against her on her failure-to-warn claim and didn't even let that claim get to the jury.

I assumed that this woman's failure-to-warn claim was not her only claim and that she also brought breach of warranty claims against Ford. I was hoping that she managed to prevail on one of those other claims. I went to the (unreported) decision on Westlaw. It appears the other claim did make it to jury and that the jury found against her.

I have a great respect for juries and jury verdicts so I'll leave alone the fact that the jury found against her on a strict liability standard that should've been unfavorable to Ford.

But the online reporting about this case illustrates how the media stir up worries about frivolous lawsuits.

This wasn't an overweight person who sued Ford because the seat collapsed under her weight and she fell on her butt. This was a woman who was rendered a paraplegic, in part, because Ford didn't test its seats above a weight range within which some ten percent of the adult male population falls. And she wasn't suing Ford for failing to include a warning label on the chair saying, "If you're too heavy, this seat may cause injuries." Her failure-to-warn claim was just one of the legal theories she pursued (her claim for breach of the warranty of merchantability was much stronger).

From a societal perspective, cases like these should really boil down to: Who should bear the cost? As a paraplegic, this woman will require millions of dollars in medical care for the rest of her life. Who should bear the cost of that? We, the taxpayers, or Ford, a company that profits from a car seat that it never bothered to test at 30 mph with a dummy weighing more than 220 pounds? If Ford has to bear the cost do you think that maybe next time they might design a better seat?

The consumer protection blog, WalletPop, reports on the Food and Drug Administration's warning to an Eggo waffle plant about listeria bacteria contamination.

This is not the first problem that Eggo has had with listeria. Last summer, Eggo had to recall buttermilk waffles that were manufactured at the same plant because of fears of listeria contamination.

Consuming food contaminated with listeria bacteria can lead to serious illness or even death. One University of Florida study estimates that the mortality rate of those infected with listeria is about twenty-five percent.

Continue reading "FDA Issues Warning To Kellogg Over Listeria Bacteria At Eggo Plant" »

In June, Boston surgeon and man of many parts, Atul Gawande, published an article in the New Yorker magazine entitled: "The Cost Conundrum: What a Texas Town Can Teach Us About Health Care." The article seized the attention of President Obama and other policymakers, leading President Obama to highlight the article in his June address to the American Medical Association.

This week the article attracted new attention: a critical piece in the New York Times and a follow-up New Yorker blog post by Gawande, rebutting the Times' piece.

In light of the renewed coverage of Gawande's piece, it's worth revisiting the original article in case you missed it. The original article attempted to address a puzzle: if you look at Medicare data, McAllen, TX has the nation's second-highest Medicare expenditures. (The leader is Miami, which is not too surprising).

Medicare spends $15,000 per patient annually in McAllen. About 800 miles north of McAllen is El Paso, TX. El Paso has similar demographics to McAllen but in El Paso Medicare costs run half as much - $7,500 per patient.

In addition, the healthcare in McAllen wasn't particularly good. Some of the places with the best health care in America - Grand Junction, CO and Rochester, MN (where the Mayo Clinic is located) - spend the least on health care. (The Mayo Clinic is in the bottom 15 percent for health care costs, but among the tops in terms of results).

Gawande set out to investigate this puzzle and traveled to McAllen to talk to doctors there about why their health care cost so much. In the article Gawande took a bunch of McAllen doctors out to dinner and went around the table questioning the doctors about why their healthcare costs were so high.

One of the first villains singled out by the doctors was medical malpractice lawsuits. They were driving up the costs, the doctors said.

Dr. Gawande replied that this made no sense: six years earlier, Texas had adopted so-called medical malpractice reform legislation that capped pain-and-suffering awards at two hundred and fifty thousand dollars. The doctors at dinner with Gawande admitted that, because of the change in medical malpractice law, the lawsuits doctors faced had gone down "practically to zero."

I'll spare you the rest of Dr. Gawande's dinner with McAllen doctors and skip to Dr. Gawande's findings upon leaving McAllen. Health care costs had gotten so out-of-control in McAllen because a certain culture had taken hold. Doctors had begun to see themselves as businessman, instead of professionals. Gawande describes a series of doctor kickbacks in McAllen in everything from hospital admissions to home health care - kickbacks that would be perceived as unethical or at least unseemly in other cities.

Gawande suggests that part of the solution here is to change the incentives in health care: doctors who keep patients healthy should make more; let's give doctors a financial incentive to engage in preventative care.

Another theme from Gawande's article that bears emphasis is the surprise that McAllen doctors and hospital executives display when informed of the statistics about McAllen health care costs. Time and again, Gawande confronts doctors who were shocked to discover that McAllen was so much more expensive than other cities. Even hospital executives - the bean counters whom you would expect to know such figures - professed ignorance about how much Medicare was spending in McAllen.

Gawande explains that while hospital executives generally have a good grasp on data like their profitability, their market share, etc., they are ignorant of the "big picture" of health care costs in their city or county.

I think it's this kind of ignorance about costs that drives doctors' complaints about medical malpractice lawsuits. No one likes to pay an insurance bill. It seems like a nuisance cost, since most people get nothing out of their insurance policy (other than peace of mind). So doctors hone in on this cost and assume it's important in the "big picture" of health care costs.

The result is terrible medical malpractice "reform" legislation like you see in Texas, legislation that believes the best approach to cutting health care costs is sticking the unfortunate few who are victims of medical malpractice with the bill for us all.

Continue reading "Are Medical Malpractice Lawsuits To Blame For The High Cost Of Healthcare? " »

The Wall Street Journal's law blog featured a discussion today of the legal rights of the family of Nodar Kumaritashvili, the young Georgian luger who died in an Olympic practice run last Friday from head injuries sustained when he and his sled flew over a low wall coming out of a sharp turn on the luge course. Many have blamed the course for his death, noting how the course was apparently designed for maximum speed (in order to help one of the lugers set a new world record) and how the wall on the side of the luge track should have been higher.

But even if the International Olympic Committee is to blame for Kumaritashvili's death can they be held legally responsible? That's a question of Canadian law of course. But let's assume that the Winter Olympics had been held in Boston, Massachusetts. What would the Kumaritashvili family's rights be then?

The answer would turn upon a lot of the same legal doctrines raised in the Wall Street Journal post. First, there would be questions about Kumaritashvili's assumption of risk. Under Massachusetts law, athletes who participate in sports are generally assumed to have agreed to the risks of injuries inherent in the sport and therefore to have waived their personal injury claims. In order to overcome the assumption of risk doctrine under Massachusetts law, Kumaritashvili's family would have to show some sort of unusual risk posed by the track's design.

Furthermore, as noted by the specialists in the Wall Street Journal article, the fact that the Olympics raised the wall that Kumaritashvili flew over as a result of his death, cannot be used against them as evidence of their negligence. Massachusetts law has the same rule regarding so-called "subsequent remedial measures," now neatly summarized in Section 407 of the Massachusetts Guide To Evidence.

Another issue, one not raised by the article, would be the issue of contributory negligence. Did Kumaritshvili himself make any mistake? Did he oversteer? If Massachusetts law applied to the facts of the case and a jury found that the luger was more than 50 percent to blame for the accident, the jury would be instruct not to award the luger anything. (Of course, a good plaintiff's lawyer could make a lot of arguments against the application of the rule - e.g., the plaintiff's contributory negligence was not the cause of his injury, and a million others).

In today's Slate is an article by Nadia Arumugam titled: "Ignore Expiration Dates: 'Best by,' 'Sell by,' and all those other labels mean very little." While I might disagree with her about how tasty expired food is, the last paragraph of the article contains a lot of wisdom when it comes to freshness labels and food safety:

"Expiration dates are intended to inspire confidence, but they only invest us with a false sense of security. The reality is that the onus lies with consumers to judge and maintain the freshness and edibility of their food--by checking for offensive slime, rank smells, and off colors. Perhaps, then, we should do away with dates altogether and have packages equipped with more instructive guidance on properly storing foods, and on detecting spoilage. Better yet, we should focus our efforts on what really matters to our health--not spoilage bacteria, which are fairly docile, but their malevolent counterparts: disease-causing pathogens like salmonella and Listeria, which infect the food we eat not because it's old but as a result of unsanitary conditions at factories or elsewhere along the supply chain. A new system that could somehow prevent the next E. coli outbreak would be far more useful to consumers than a fairly arbitrary set of labels that merely (try to) guarantee taste."

It's true: while improper food preparation at home or in a restaurant can cause food poisoning, the most virulent forms of food poisoning are caused neither by domestic food preparation or food that has spoiled - the worst forms of food poisoning originate at the factories. If a product is OK when it makes it to your grocer's shelf, it probably won't do much harm to you, even if you consume it past a "sell by" date. But if a product has a problem before it reaches your grocer's shelf, you're probably facing a serious case of food poisoning.

Continue reading "Are You Risking Food Poisoning By Ignoring Expiration Dates? " »

Dave Hudacsko, part of the team responsible for the "Semper Ride" motorcycle accident film that I blogged about here, saw my blog post about the movie and reached out to me to let me know that the film has a website - http://www.semperride.com - and that, pending final approval from the Marine Corps, you'll be able to watch a lot of the film and see other features on the website.

The film's target audience is young Marines - too many of whom are dying in motorcycle accidents - but it should also appeal to any young male motorcycle rider you know who's convinced of his own invincibility and certain that he is too good a rider to ever have a motorcycle accident.

I think anyone interested in preventing motorcycle accidents can give a giant "Hoo-rah!" to that.

Continue reading "Follow-Up On "Semper Ride" Motorcycle Safety Film" »

NPR's OnPoint program, broadcast from Boston's own WBUR, had a terrific hour-long program on the Toyota recall today. You can listen here.

Continue reading "Good NPR Program On Toyota Recall" »

In my January 25 blog post, I discussed a phenomenon that should be of concern to patients in Massachusetts and elsewhere - the prevalence of medical malpractice involving radiation overdose.

This week, the Food and Drug Administration announced its "Initiative to Reduce Unnecessary Radiation Exposure from Medical Imaging." The initiative will focus on two goals: 1.) insuring the medical necessity of any imaging procedure and 2.) optimizing the amount of radiation necessary for each procedure.

Over the past two decades, Americans' exposure to ionizing radiation has nearly doubled. This increase in radiation exposure is largely attributable to exposure from CT scans, fluoroscopy and nuclear medicine. According to one study, the CT scans performed in the United States in 2007 alone could lead to 29,000 additional cases of cancer down the road.

It will be interesting to see how successful the FDA is in persuading the medical profession to use medical imaging only when necessary, especially in light of how profitable such procedures are for hospitals.

The corporate defense blog Mass Tort Defense has more on this story.

Continue reading "FDA Announces Effort To Reduce Radiation Overdose Medical Malpractice" »

Recently, the United States Department of Agriculture instituted the recall of 1,240,000 pounds of Italian sausage manufactured by Rhode Island-based meat packing company, Daniele International, after discovering that a sample of their black pepper salami contained salmonella.

On Wednesday, the Centers for Disease Control announced that, between July 2009 and the present, approximately 225 people in 44 states have been infected with a particular strain of salmonella, Salmonella Montevideo. Thirteen Massachusetts consumers have been infected with Salmonella Montevideo during that time. Some people believe that at least some of the Salmonella Montevideo episodes can be linked to Daniele International's black pepper sausage.

Here is a CDC map of the outbreak:

Today, the Associated Press reports that a Chicago man, who suffered salmonella poisoning, has filed a lawsuit against Daniele International and two of Daniele's pepper suppliers, saying that they failed to take steps to prevent the outbreak.

Salmonellosis, the type of food poisoning caused by consuming salmonella-tainted food, typically produces symptoms such as fever, nausea and cramping. However, in children, the elderly and those with weakened immune systems, salmonellosis can be fatal.

We will keep you updated on this recall and further lawsuits against Daniele International.

Continue reading "More Than A Dozen Massachusetts Consumers Suffer Salmonella Poisoning In Outbreak" »

The pro-business blog Point of Law insists, citing to an article in Popular Mechanics, that the dangers posed by Toyota's acceleration system are overblown. Meanwhile, Department of Transportation head Ray LaHood is telling Toyota owners to stop driving (at least until political concerns cause him to backtrack).

Who do you trust?

Someone should tell Popular Mechanics that forty-one percent of reports of sudden uncontrolled acceleration are about Toyotas. Meanwhile Toyota held about 16 percent of US market share in 2009. Sounds statistically significant to me.

Continue reading "Toyota Recall II: Is Sudden Uncontrolled Acceleration Something To Be Worried About?" »

Today the Consumer Product Safety Commission issued an immediate recall of "Generation 2 Worldwide" and "childESIGNS" drop side cribs because of the risk of death from suffocation or strangulation created by the cribs' drop side design. The recall notice urges parents to stop using the cribs immediately and not to attempt to fix the cribs' design flaws. Here is a copy of the notice in its entirety:

Generation 2 Worldwide and "ChildESIGNS" Drop Side Crib Brands Recalled; Three Infant Deaths Reported

WASHINGTON, D.C. - The U.S. Consumer Product Safety Commission (CPSC) is announcing the recall of all Generation 2 Worldwide and "ChildESIGNS" drop side cribs. CPSC is warning parents and caregivers who own these drop side cribs that infants and toddlers are at risk of serious injury or death due to strangulation and suffocation hazards presented by the cribs. CPSC staff urges parents and caregivers to stop using these cribs immediately and find an alternative, safe sleeping environment for their baby. Do not attempt to fix these cribs.

The crib's plastic hardware can break which can cause the drop side of the crib to detach from a corner of the crib. When the drop side detaches, it creates a space into which an infant or toddler can roll and become wedged or entrapped. When a child is entrapped between the drop side and the crib mattress, it creates a risk of suffocation or strangulation. In addition, the crib's mattress support can detach from the crib frame, creating a hazardous space in which an infant or toddler could become entrapped and suffocate or strangle.

CPSC has received reports of three infants who suffocated when they became entrapped between the crib mattress and the drop side when the drop side detached. In July 2007, an eight month old child from Newark, Ohio suffocated when he became entrapped between the drop side and the crib mattress. The drop side of his crib had detached due to a broken plastic stop tab on the lower track. In October 2003, an eight month old child from Richmond, Ind. suffocated when he became entrapped between the drop side and the crib mattress. The plastic hardware on the drop side was broken and allowed the drop side to detach from the crib headboard in one corner. In September 2002, a six month old from Staunton, Va. suffocated when he became entrapped between the drop side and crib mattress. The lower drop side track was missing two screws which allowed it to pull away from the headboard post and detach.

CPSC has also received reports of 20 other drop side incidents, 12 of which involved the drop side detaching in a corner of the crib. In two of these incidents, a child became entrapped. One child suffered bruising from the entrapment. There are five reports of children falling out of the cribs due to drop side detachment. One child suffered a broken arm as a result of the fall.

In addition, CPSC has received 8 reports of mattress support detachment in these cribs. Due to the space created by the detachment, three children became entrapped between the crib frame and the sagging mattress and four children crawled out of the crib. There was one report of cuts and bruises.

Due to the fact that Generation 2 went out of business in 2005, CPSC has limited information about the cribs. Although CPSC does not know the total number of units distributed or the years of production, it is believed that there were more than 500,000 of these cribs sold to consumers. Some of the known model numbers are: 10-110X, 10-210X, 21-110X, 20-710X, 64-315X, 26-110X, 90-257X, 20-810X, 46-715X, 64-311X, 74-315X, 21-815X, 21-810X, 20815X, 308154 and 54915. (The "X" denotes where an additional and varying number may appear at the end of the model number.) However, all Generation 2 Worldwide and "ChildESIGNS" drop side cribs are included in this recall, including those with other model numbers.

The name "Generation 2 Worldwide" appears on a label affixed to the crib's headboard or footboard. Some labels identify the place of manufacture as Dothan, Ala. Others identify China as the country of manufacture. The name "ChildESIGNS" appears on the teething rail of some of the cribs.

The recalled cribs were sold at numerous local furniture and retail stores including Buy Buy Baby, and Kmart and Walmart stores nationwide for between $60 and $160. Consumers should contact the store from which they purchased the crib for remedy information, which will vary between a refund, replacement crib or store credit, depending on the retailer. Consumers are urged to contact CPSC and report any difficulties in obtaining a remedy from their place of purchase.
Important Message from CPSC:

CPSC would like to remind parents not to use any crib with missing, broken, or loose parts. Make sure to tighten hardware from time to time to keep the crib sturdy. When using a drop-side crib, parents should check to make sure the drop-side or any other moving part operates smoothly. Always check all sides and corners of the crib for disengagement. Any disengagement can create a gap and entrap a child. In addition, do not try to repair any side of the crib, especially with tape, wire or rope.

For more information on Crib Safety, visit CPSC's Crib Information Center.
Picture of Recalled Drop Side Crib Picture of name 'ChildESIGNS' on teething rail

Continue reading "Consumer Product Safety Commission Tells Massachusetts Parents To Stop Using Cribs" »

I recently came across this statistic: in 2008 more US Marines died in motorcycle accidents than died in Iraq. The actual numbers: twenty-five Marines died in motorcycle accidents in 2008, twenty-two Marines were killed in Operation Iraqi Freedom.

In response, the Marine Corps has produced "Semper Ride," a motorcycle safety film. The film features many top bikers and motocross figures, including Ben Bronstom, Chris "Teach" McNeil and Josh Herrin.

The film makes many sensible points, including that no matter how good a rider you are, you can be the victim of a serious motorcycle accident if a car driver is careless even for a second. Also, if you're a beginning rider, dirt biking is good training for learning to handle a motorcycle.

Upon reflection, the stats about Marines' motorcycle accidents should not be so surprising. When the war in Iraq was at its height, car safety advocates were pointing out that the number of lives claimed by our nation's roads annually - approximately 42,000 - dwarves the number of lives lost in Iraq. The only surprising thing is that even among a cohort like the Marines, who face so many dangers, motorcycle accidents are a serious risk.

Sadly, the lives lost in auto and motorcycle accidents are often easily preventable deaths. So buckle up and keep an eye out for the Marine, or other motorcyclist, who might be in traffic with you.

Continue reading "Surprising Statistic: In 2008 More Marines Died In Motorcycle Accidents Than In Iraq" »

According to this news article, fifty Indiana women have sued Bayer, the maker of the Yasmin (or "Yaz") birth control pill, because their use of the pill caused serious health problems, such as stroke and heart attacks.

Yasmin or "Yaz," has been sold since 2001. It contains a hormone known as drospirenone that can lead to high levels of blood potassium. High levels of potassium can, in turn, lead to a condition known as hyperkalemia, which can be responsible for heart attacks, blood clots and circulatory problems.

In the past few months, dozens of lawsuits have been filed against Bayer, claiming that Yaz is unsafe. The Food and Drug Administration has issued a warning letter concerning Yaz, however Bayer has not recalled the product.

To date, no Yaz lawsuits have been filed in Massachusetts. We will update you if Massachusetts women do become part of this litigation.

Continue reading "Massachusetts Women Should Be Aware Of The Risks of Yaz " »

Joanne Doroshow of the Center For Justice and Democracy has this fabulous blog post today over at The Huffington Post.

Doroshow makes two good points. First, medical malpractice reform in Texas has been an abysmal failure - as it has been elsewhere.

Second, there are almost no frivolous medical malpractice lawsuits. A medical malpractice lawyer has to advance significant out-of-pocket costs to prosecute any medical malpractice case. In every medical malpractice case, he will have to pay for filing fees, depositions and, most costly of all, expert witness fees - the experts being, of course, doctors who command very high fees for their time. These costs run into the tens of thousands of dollars and, with an aggressive insurance defense bar out there, no lawyer in his right mind files frivolous cases.

I don't think there is even a public perception that plaintiff's lawyers file frivolous med mal lawsuits. Instead, I think there is a public perception that juries sometimes give outlandish rewards to the victims of medical malpractice and that must be stopped. Well, there are legal mechanisms in place, ones that have always been there and that are used quite frequently, that allow judges to throw out verdicts that are not in line with the actual harm suffered.

Instead of limiting the rights of victims of medical malpractice, health care reformers should focus on the truly large costs of health care: the costs associated with obesity and diabetes. If we could find better treatments for these diseases, the cost of health care could be cut by a third to one-half. And we wouldn't be turning medical malpractice victims in victims twice: first in the operating room and then in the courtroom.

Continue reading "Link Of The Day: Medical Malpractice "Reform" " »

Earlier this week, a third wrongful death lawsuit was filed against Toyota relating to acceleration problems that have caused Toyota vehicles to accelerate suddenly and uncontrollably.

This third lawsuit was filed by lawyers for Trina Renee Harris, a 34-year old mother of two, who was killed when her 2009 Toyota Corolla slammed into a cement divider on a toll road. There were no skid marks or other evidence of an attempt to brake.

Harris' apparent inability to stop the car is consistent with reports of other recent Toyota crashes. In August, an off-duty California state trooper and three of his family were killed after the Lexus they were driving accelerated to 120 m.p.h. In a telephone call to 911 that the family made while trapped in the speeding Lexus, the family explained to 911 dispatch that the car was accelerating without their being able to control it.

Another Toyota driver, Bulent Ezal, had his Camry suddenly accelerate in a restaurant parking lot and plunge 70 feet off a cliff, landing in the ocean. Ezal's wife was killed in this accident.

Thankfully, not all of the accidents have been fatal. One driver, Joseph Hauter, survived a crash that occurred when his 2008 Toyota Camry suddenly accelerated at a gas station. Investigators are looking into several other non-fatal accidents in multiple states.

Thus far, there have not been any reports of Massachusetts Toyota drivers being involved in sudden acceleration crashes. However, Massachusetts drivers need to take precautions because Toyota cars seem especially prone to this problem. As the Consumerist blog reports, 41 percent of sudden acceleration complaints that were made in 2008 were for Toyota and Lexus models.

Lawyers for the car accident victims in these cases believe that the problem lies in an electronic throttle system that was installed in many Toyota models. The electronic throttle system does not have any mechanical link between the accelerator pedal and the engine. In addition, there is no override system for the electronic throttle, so that pressing the brake when the throttle is stuck will not cause the accelerator to shut off.

Toyota has instituted a nationwide recall to attempt to address the problem. The vehicles affected by the recall include:

• 2009-2010 RAV4


• 2009-2010 Corolla


• 2007-2010 Camry


• 2009-2010 Matrix


• 2005-2010 Avalon


• 2010 Highlander


• 2007-2010 Tundra


• 2008-2010 Sequoia

Lexus models were not included in this recall, although, as noted above, Lexuses have been the subject of complaints and at least one wrongful death suit. If you own a Toyota model listed in the recall, or one not listed that you are concerned about, you can call Toyota's customer service department at 1-800-331-4331.

Continue reading "Toyota Acceleration Problem Poses Dangers For Massachusetts Drivers" »

The Massachusetts Supreme Judicial Court is poised to reconsider a longstanding rule in premises liability cases - the so-called "natural accumulation rule" - leading some defense lawyers to fear that the SJC's decision could pave the way for a tidal wave of new premises liability lawsuits.

Under the "natural accumulation rule," which has been a part of Massachusetts law for more than a century, property owners are not liable if someone slips on a "natural accumulation" of snow or ice that is on their property. So, to oversimplify a bit, if someone slips on virgin snowfall or naturally occurring ice, the property owner will not be held liable. But if the snow or ice is altered from its natural state - for example, by water flowing from a gutter pipe - the property owner may be held liable.

The natural accumulation rule has led to a raft of precedents that are difficult, if not impossible, to reconcile with one another. After years of complaints about the inconsistent application of the rule and the lack of any underlying public policy rationale, the Supreme Judicial Court recently agreed to hear arguments in the case of Papadopoulos v. Target Corporation and to consider the question of "whether, in a premises liability action involving snow and ice, the distinction between natural and unnatural accumulations of snow and ice should continue to be a factor under Massachusetts law."

In the Papadopoulos case, Mr. Papadopoulos slipped in the parking lot of a Target department store that had recently been snowplowed, resulting in a hip injury that required surgery. However, a trial court judge threw out his case, ruling that the ice he slipped on was "natural accumulation."

Hopefully, the Supreme Judicial Court will abolish the natural accumulation rule. The rule gives property owners and commercial tenants no incentive to properly shovel, plow and sand their property. It is an outlier in Massachusetts law because landlords are responsible for keeping their property in safe condition in virtually all other areas. As Mr. Papadopoulos' lawyer argues, Target has a duty to "repair defective walkways, fix the cracks in their parking lot [and] clean up spills in their stores." There should be a corresponding duty to keep their property free of snow and ice.

Check back here for updates on the Papadopoulos case. There will be a post about the case's outcome and posts about new rules the Supreme Judicial Court might consider.

Continue reading "Massachusetts Supreme Judicial Court Poised To Change Rule In Slip-And-Fall Cases: Part I" »

A wrongful death lawsuit has been filed in Florida, alleging that a sixty-four year old man died from zinc poisoning resulting from his use, over fourteen years, of the denture cream Poligrip. This is widely believed to be the first such wrongful death lawsuit filed in the United States, although scientific research about the hazards of denture cream has been accumulating for several years and other lawsuits have been filed that have alleged non-fatal instances of zinc poisoning from denture creams.

In 2008, the scientific journal Neurology published a case study of four people suffering from zinc poisoning that was traced to their use of denture creams that contained zinc. Since that time, several lawsuits have been filed on behalf of denture cream users who suffered neuropathy (pain in their extremities) and other neurological disorders caused by zinc overdose.

The wrongful death lawsuit that has just been filed alleges that, over a fourteen month period, the denture user's zinc poisoning caused a decline in health that led to paralysis and, ultimately, death. We will keep you updated on future developments in denture cream litigation and the underlying scientific research.

Continue reading "First Denture Cream Wrongful Death Lawsuit Filed " »