Consumer Product Safety Commission Tells Massachusetts Parents To Stop Using Cribs

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

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Baby Stroller Recall: Important News for Massachusetts Parents

As this Times article details, Graco Children’s Product, Inc. has recalled 1.5 million of its baby strollers because defective hinges on the stroller can amputate children’s fingers.
The defective strollers were sold in Massachusetts stores including Walmart, Babies R Us, Toys R Us, and Target between 2004 and 2008. The strollers affected by the recall are strollers marketed as part of the Graco’s Passage, Alano, Spree Travelers and Travel Systems lines.
The official recall notice can be read by clicking here.
If it seems to you that between the Toyota recall, the Graco recall, the crib recall and others, there has been a wave of massive product recalls lately, you’re right. As the Pop Tort blog explains, this increase in product recalls is partly the result of stepped-up enforcement by the Consumer Products Safety Commission after years of neglect under the Bush administration.

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Massachusetts’ Largest Medical Malpractice Verdict of 2009 Was Turned Down By Massachusetts Lawyers

1150306_building_reflection.jpgThis week’s Massachusetts Lawyers’ Weekly newspaper features a story about Massachusetts’ biggest medical malpractice verdict of 2009: a $15 million dollar verdict awarded to the parents of a three year old boy who died from complications from a heart surgery.
As sad as this tragedy is, someone might see it as just another large medical malpractice verdict and not a very remarkable story. After all, the case did not establish any new precedent in the area of medical malpractice or garner any media attention outside of trade periodicals.
The Lawyers’ Weekly story, however, shows that the case is noteworthy in at least two respects.
First, the parents of the boy apparently could not find a medical malpractice lawyer in Boston or Massachusetts. Four different law practices in Boston rejected the case. Some of the Massachusetts medical malpractice attorneys that the parents contacted begged off the case because the doctors involved had been expert witnesses in their other cases. Other medical malpractice attorneys in Massachusetts turned down the case because, in the words of Lawyers’ Weekly, it was “seen as a loser” by the medical malpractice community. Fortunately, the father of the child had a cousin in California who was a medical malpractice lawyer and that California lawyer, James Fox, agreed to take the case.
Another noteworthy part of this case is how some diligence and unconventional tactics turned a “loser” of a case into the biggest Massachusetts medical malpractice verdict of 2009. Fox took forty-four depositions in the case, about four times the average in Massachusetts medical malpractice cases.
This sweat-of-the-brow approach did not uncover any smoking guns about what the doctors did in the operating room but it did turn up evidence that certain Intensive Care Unit notes had been falsified and that certain other documents had vanished.
The discovery that documents had been tampered with enabled Fox to, in his words, try the case as an “obstruction of justice”-type case instead of a “battle of the experts” medical malpractice case, as is common in Massachusetts.
The tale of this case should be an unsettling one for Massachusetts medical malpractice lawyers. Massachusetts medical malpractice lawyers need to examine their own practices and see whether they’ve become too complacent in the tactics they use to try cases and whether they’ve become too ensnared in conflicts of interests with the doctors they use as expert witnesses.
Med-mal win suggests lawyers rethink strategy: Jury awards $15M in case seen as loser, masslawyersweekly.com, January 18, 2010

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South Shore Mother Whose Daughter Was Overserved Alcohol Files Wrongful Death Lawsuit: Part II

In yesterday’s blog post, we discussed why the estate of Taylor Meyer might be able to prevail in its wrongful death claim, or at least why the case might be able to reach a favorable settlement.
In today’s post we will discuss some of the challenges that the Meyer estate will face under Massachusetts law. The first challenge was alluded to by Kathi Jean Taylor who said at the press conference: “No one forced [my daughter Taylor] to drink alcohol that night,” and that Taylor “absolutely” bears some responsibility for her accident.
These statements raise another possible issue here: comparative negligence. Under the Masachusetts comparative negligence statute, if the party that is injured bears more than 50 percent responsibility for her injuries, she is not allowed to recover anything.
Comparative negligence will definitely be an argument that the defense lawyers use in this case. But Massachusetts courts have been reluctant to fault minors for their consumption of alcohol. In the important case of Tobin v. Norwood Country Club, 422 Mass. 126 (1996), the Massachusetts Supreme Judicial Court, emphasized that minors “are thought to be peculiarly susceptible to the effects of alcohol and less able to make decisions about what amount of alcohol they may safely consume in various situations.” (The court in that case went on to conclude that a driver who had been injured by a minor who consumed alcohol at a country club could sue the country club for his injuries.)
In light of the fact that Massachusetts courts have been reluctant to heap blame on minors in liquor liability cases, comparative negligence might not turn out to be such a big issue in the Meyer case. A judge might refuse to instruct a jury on comparative negligence in light of the forgiving tone of some of the case law.
A much more effective defense in this case – at least for the homeowner defendants – will be a lack of causation defense. In any Massachusetts case for negligence, the plaintiff must prove not only that the defendant was negligent, but that the defendant’s negligent actions caused her injuries.
So, for example, if a drunk driver is careening down the street at 100 mph per hour but brakes to a stop before coming into contact with you, his actions are negligent but you will not have any claim against him (unless you suffer very serious emotional distress) because his negligence did not cause your injuries.
Consequently, the adult party hosts in this care are likely to get a lot of mileage out of the legal argument that their actions, even if negligent, did not cause Taylor’s death. The adult defendants in this case will likely argue that Taylor’s death was attributable not to her consumption of alcohol but to the intervening cause of the teenagers who (apparently) purposefully misdirected Taylor into the swampland as some sort of joke.
They will likely argue that the actions of the teens who allegedly directed Taylor into the swampland were not foreseeable and that therefore they should not be held liable.
Who will prevail? We will see when this case reaches its ultimate conclusion – whether that be a pretrial settlement, a jury verdict, or an appeals court decision.
Hopefully, whatever the resolution in this case, it will discourage irresponsible drinking, incentivize parents to better supervise their children and reduce tragic deaths like Taylor’s.
Mother sues party mates of dead teen, boston.com, January 14, 2010
Mother files lawsuit after daughter’s drowning death at party, bostonherald.com, January 13, 2010

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South Shore Mother Whose Daughter Was Overserved Alcohol Files Wrongful Death Lawsuit: Part I

A Plainville mother, whose daughter’s alcohol-related death made headlines throughout Massachusetts in 2008, announced, at a press conference held on Thursday, that she and her lawyer had filed a wrongful death lawsuit in Norfolk Superior Court against several people who provided the teenage girl with alcohol on the night of the girl’s death. The lawsuit raises a number of legal questions pertaining to liquor liability that have not been settled by Massachusetts courts.
According to news reports of the lawsuit, Taylor Meyer, a seventeen year old girl, drowned in a Norfolk, MA swamp after drinking in several homes, including a home where a mother allegedly made alcohol available to the teens. Eventually Taylor wound up at a bonfire party, where she asked several other teens how to get from the remote location where she was in the woods back to her home. The teenagers apparently knowingly and cruelly directed the Taylor into the swampland surrounding the clearing. An autopsy of Taylor revealed a high blood alcohol level.
Taylor’s mother, Kathi Jean Meyer, noted at Thursday’s press conference that she did not expect Taylor’s estate to recover a large amount of money out of the lawsuit and that the lawsuit was a matter of principle that would hopefully help raise awareness of the dangers of alcohol. Kathi Jean may be correct that the wrongful death lawsuit she filed faces an uphill climb. However, there is also reason to believe that this case might end in a large settlement. The strengths of the Meyer case will be the subject of today’s blog post.
Liquor liability in Massachusetts can basically be divided into two categories: dram shop liability and social host liability. Dram shop liability is the kind of liability that attaches to commercial establishments, such as bars and restaurants, that serve alcohol. Social host liability is the kind of liability that attaches to people who serve alcohol at private parties. (The lines here can be kind of fuzzy – for example, a corporate picnic might be a setting where the principles of dram shop liability apply). The Meyer case primarily raises issues of social host liability.
Massachusetts law in the area of social host liability is surprisingly unsettled and hostile to plaintiffs. Massachusetts courts have consistently ruled that “social hosts” are not liable if the person drinking the alcohol injures him or herself, even if the person who consumed the alcohol is an adult who is below legal drinking age. Hamilton v. Ganias, 417 Mass. 666 (1994); Sampson v. MacDougall, 60 Mass. App. Ct. 394 (2004). The Meyer case presents a set of facts that Massachusetts courts have not yet pronounced upon: whether adult social hosts are liable for the injuries of minor guests to whom they serve alcohol. Since Taylor Meyer was seventeen at the time of her death (a minor), the Massachusetts precedents holding that social hosts are not liable for injuries to their adult, but underaged guests, would not apply.
(A couple of side notes: while Massachusetts courts have held that social hosts are not liable for injuries to their guests caused by alcohol that they serve their guests, the same rules do not apply to injured third parties. So while a social host might not be liable to their guest for their guest’s injuries, if the guest gets behind the wheel and injures a third party, the host may be liable to that third party for that third party’s injuries.)
Since Massachusetts courts have not ruled on whether a party host may be held liable for injuries to a minor guest resulting from serving that minor guest alcohol, any adult hosts who served Meyer alcohol might have an incentive to settle early on before the court creates a new legal rule clearly defining their responsibility. In other words, even if their legal liability is not clearly established, the adult party hosts might want to pay out before the court makes rulings that might establish their liability and make the plaintiff estate demand more money.
Most likely the adult defendants in this case have assets, like homes and retirement savings, that could all be lost if a judgment were entered against them. Meyer’s lawsuit against the defendants is a wrongful death action. The Massachusetts wrongful death statute, Massachusetts General Laws Chapter 229 Section 2, entitles plaintiffs to recover the net lifetime earnings of their deceased family member. In a case involving the death of a seventeen year old girl, the net lifetime earnings would, by any conservative estimate, run into the millions of dollars. In addition, the Massachusetts wrongful death statute allows for plaintiffs to recover punitive damages (punitive damages are generally not available under Massachusetts law). These punitive damages could multiply a multi-million dollar judgment based on lifetime income and lost companionship by a factor of ten or more without a danger of the verdict being struck down on appeal.
Since a judgment of that size would prove ruinous to all but the wealthiest defendants, the defendant adults in this case might have an incentive to settle even if there are questions about their legal liability.
Even if a plaintiff’s attorney had doubts about recovering a judgment of that size from the defendants’ personal assets, a plaintiff’s attorney might still pursue the case because of the possibility of recovering from homeowner’s insurance policies. This is another area where Massachusetts law is unsettled. Massachusetts courts have never ruled on whether a typical homeowner’s insurance policy covers non-automobile-related injuries arising from a party where an underaged teen was served alcohol. However, in one such case, a Massachusetts court ruled that the insurance company had at least a “duty to defend” the homeowner parents – that is the court required the homeowner’s insurance policy to pay for lawyers to defend the family. Worcester Mutual Insurnace Co. v. Marnell, 398 Mass. 240 (1986).
To sum up today’s post, the unsettled questions surrounding social host liability under these circumstances, the potential for astronomical damages and the potential recovery from insurance companies are all legal weapons that Taylor Meyer’s estate can leverage to (ideally) recover a large settlement.
What Kathi Jean Meyer is doing in this case is a public service. This case has the potential to change Massachusetts law in the area of social host liability. If Meyer succeeds in making law of social host liability stricter in Massachusetts, she will likely help reduce the number of senseless alcohol-related deaths in Massachusetts.
Many mothers whose children’s deaths have been caused by alcohol, such as the mothers involved with Mothers Against Drunk Driving, have focused on criminal sanctions directed at the intoxicated person. And, by focusing on criminal law, they have succeeded in reducing alcohol-related deaths.
Perhaps now however such activists should concentrate on the civil law as an avenue for reducing alcohol-related tragedies such as Taylor Meyer’s death. Strengthening and expanding social host liability stands a good chance of reducing alcohol-related accidents because social hosts often are sober while their guests are not. The possibility of a sober social host putting the brakes on the actions of an inebriated guest would be a welcome sight in Massachusetts.
Tomorrow, in Part II of this blog post, we will discuss some of the legal challenges that the Meyer case will face.
Mother sues party mates of dead teen, boston.com, January 14, 2010
Mother files lawsuit after daughter’s drowning death at party, bostonherald.com, January 13, 2010

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