We tend to think of dangerous children’s toys as something from the past. But check out this list of banned children’s toys — which includes 2007’s best seller, “Aqua Beads.”
Last Wednesday was a watershed day for preventing power saw accidents. On Wednesday, the Consumer Product Safety Commission voted unanimously formulate new rules that would make power saws safer. Also on Wednesday, the First Circuit Court of Appeals upheld a $1.5 million jury verdict in favor of a worker whose hand was severely injured in a power saw accident, due to the fact that the Ryobi saw that he was using was not equipped with SawStop “flesh detection” technology.
We’ve blogged quite a bit about SawStop before. This incredible new (and old-fashioned) technology makes power saw accidents completely avoidable. But the major power saw manufacturers, companies like Black & Decker, Delta, Rigid and Ryobi, have not licensed the patented technology behind SawStop and so woodworkers, contractors and tradesman continue to lose fingers and suffer approximately 67,300 serious power saw accidents a year.
The principle behind the patented SawStop technology available in SawStop-brand saws is relatively easy to understand. Have you ever seen one of those old-fashioned touch lamps where you touch the base of the lamp and the light turns on and off? The way those lamps work is that a small electrical current passes through the base of the lamp and when your hand (which is largely water, a good electrical conductor) touches the base of the lamp, it interrupts the current and triggers the off switch. SawStop brand technology works in a similar way: the saw blade carries a small electrical current and, when that current gets interrupted, it triggers a brake mechanism that stops the blade, reducing its speed from 5,000 rpm to 0 rpm in several milliseconds.
The CPSC may or may not mandate SawStop-equivalent technology when it decides its new rules. But SawStop-type flesh detection technology is one option that CPSC is weighing. CPSC has 60 days to formulate its new rules and, during that period, will be welcoming comments from industry groups and consumers.
Regardless of whether CPSC decides to mandate the SawStop technology in all saws, product liability lawsuits will be able to continue.
On Wednesday, in Osorio v. One World Technologies, the First Circuit Court of Appeals (the federal appeals court seated in Boston), granted an expected boost to those lawsuits when it affirmed a $1.5-million jury verdict in favor of a worker whose fingers were injured while using a Ryobi BTS-15 table saw.
Even though SawStop does not presently manufacture a smaller saw like the Ryobi BTS, the First Circuit held that the jury could have concluded that it was feasible to incorporate SawStop technology into light-weight portable saws, as SawStop’s founder, Steve Gass, Ph.D., testified could be done.
The First Circuit also ruled that the plaintiff counsel’s urging the jury to “send a message,” although inadvisable, was a harmless error.
To read more about SawStop and preventable power saw accidents, click here, here and here.
I am preparing for a trial and swore I wouldn’t have time for anything as frivolous as a blog post until trial is over, but when I learned that Abnormal Use, the defense side legal blog that is the darling of The New York Times, National Public Radio and Jackie Childs (I’m in too much of a hurry to hunt for the links explaining the back stories to Abnormal Use‘s well-deserved blogospheric celebrity), had posted a response to a blog post of mine about driverless cars, I felt compelled to post a rejoinder to the folks at Gallivan, White & Boyd.
As Abnormal contributor and GWB attorney Frances Zacher points out, it is rather incongruous for me, as a plaintiff’s lawyer, to be calling for immunity for the manufacturers of driverless cars. But what can I say? I really want to see driverless cars ASAP. There’s nothing I’d like more than to have my time in the car be time where I can get something done – whether it’s working on a memo or watching a DVD. And driverless cars might make that happen.
I agree with Zacher that my proposal would grant immunity to the party “at fault” (the car manufacturer who is to blame for the defective software). It’s an interesting point and I wonder how I can square my position on immunity for manufacturers of driverless cars with my view that caps on non-economic damages in medical malpractice cases violate the Plaintiff’s Due Process right (some would say natural right) to be made whole by the party who wronged her and many other positions I hold — positions that depend on the basic moral insight that Zacher affirms.
I thought that pseudonymous Abnormal commenter John Galt also made a very good point in a comment to the post: Couldn’t we invoke the last clear chance doctrine in some driverless car accidents? I guess I was envisioning the type of driverless car accident where one driverless car suddenly swerves into the opposite lane and neither driver has time to override the machine. But certainly there are a variety of accidents that might not conform to the scenario that I envisioned: accidents where a driverless car malfunctions and the driver has time and opportunity to avoid the collision but does not. I would certainly agree that a different set of liability rules should apply to such a scenario and Galt’s comment suggests that maybe the courts should deal with driverless car accidents on a case-by-case basis in common law fashion. That said, I would reject Galt’s proposed doctrine inasmuch as it would require vigilance on the part of the human “driver” of a driverless car. To my mind, the point of having a driverless car would be to enable the human “driver” to devote his time to other tasks (email, etc.) rather than to navigating the roadways. If a driver constantly had to have his or her finger poised over the Emergency Override button, it would sort of defeat the purpose of a driverless car.
Now back to my regularly scheduled trial prep. Until trial is over, our faithful readers (who make up for in devotion what they lack in numbers) will be treated to the musings of colleague, Patrick Banfield, and some canned/set-to-publish blog posts by me. Even further attention from the blogerati at Abnormal shall not drag me from my seclusion.
PS I know the picture is of a flying, rather than a driverless, car, but I’m in a hurry.
So, following up on my blog post of a couple weeks ago, I finally got a chance to read “Poisoned: The True Story Of The E. Coli Outbreak That Changed The Way Americans Eat” by Jeff Benedict. “Poisoned” tells the story of Bill Marler’s lawsuits against Jack-in-the-Box for the 1993 E. Coli O157:H7 outbreaks at its restaurants.
I was excited to read the book because, based on the review that I read in The New York Times, I expected the story to be a real-life David v. Goliath legal thriller in the mold of Jonathan Harr’s “A Civil Action” (the book about the legendary Woburn, MA toxic tort case that was made into a motion picture starring John Travolta).
Sadly, “Poisoned” is not much of a legal thriller. Nor does it really touch upon much of the technology/science behind food safety and the way that Marler’s litigation changed food safety protocols. I was hoping the book would deliver on one of those fronts – either as a legal thriller or, as its subtitle suggests, a story about the technical side of food safety.
As reported by The Wall Street Journal, NPR and other media outlets, consumer groups gathered in Washington, DC last week to urge Consumer Product Safety Commission chairwoman Inez Tennenbaum to mandate new safety features in table saws.
The push comes as new data reveals the staggering frequency of table saw accidents and as new technology makes such accidents avoidable.
Recently, the CPSC released data showing that 40,000 people annually are injured by table saws, up twenty-five percent from a decade ago.
Meanwhile, a new, patented flesh detection technology – sold exclusively by saw manufacturer SawStop – has made such injuries avoidable. The SawStop technology uses a tiny electrical current to stop saw blades spinning at 5,000 rpm within milliseconds of their coming in contact with electrically conductive surfaces like human skin (human flesh, which is mainly made up of water, is much more electrically conductive than wood).
Adding SawStop technology to power saws adds approximately $100 to their cost. But power saw manufacturers, such as Black & Decker, Bosch, Ryobi, Delta and Rigid have not licensed the patented flesh detection technology or offered an equivalent in their saws.
Table saw injuries can be gruesome and life-altering. One of the table saw accident victims who went to Washington, DC to urge CPSC to do something was Adam Thull, who a year ago suffered a table saw injury where the blade cut through the bone of most of his forearm. Thull has already had five surgeries and has six more to go.
Now consumer advocates will have to wait-and-see what the CPSC does.
To read prior blog posts on SawStop, you can click here, here and here.
Full Disclosure: The Law Office of Alan H. Crede, P.C., represents personal injury victims using saws not equipped with SawStop.
On March 11, the Consumer Product Safety Commission (CPSC), as part of the Consumer Product Safety Improvement Act passed in 2008, launched a new easily-searchable database of dangerous and defective products – SaferProducts.gov. (H/t Professor Bernabe). The new website allows consumers to register complaints that they have about product safety.
The products’ manufacturers then have ten days to respond and then both consumer complaint and company response are uploaded to the web unless CPSC finds some reason to determine that the consumer complaint is bogus.
Seems like a valuable resource, right? I mean, why shouldn’t you have access to this information before you shell out for some big ticket item or a toy for your child that you want to make sure is safe? The database gives you virtually real-time feedback on products; there’s no lag time where you could be oblivious to a product’s dangers while the government dithers about whether to order a recall.
But Republicans in Congress, led by Rep. Mike Pompeo, managed to yank funding for the website two weeks before it debuted, saying it will “drive jobs overseas,” without explaining how or why the website could conceivably have that effect. So the future of SaferProducts.gov is in doubt. Check it out now before Congressional Republicans get their way and you can no longer see what products might hurt you.
It’s a common refrain whenever drug makers are asked about the astronomical costs of some of their pills: the price of drugs reflects the billions of dollars of research and development that go into them. We hear the same refrain when drug makers get sued for selling dangerous and defective drugs: the drug makers complain that they should be entitled to some sort of immunity after spending billions of dollars developing the drug and getting FDA approval before bringing it to market.
However, as Timothy Noah revealed in an article in Slate this week, pharmaceutical companies spend nowhere near one billion dollars in bringing the typical drug to market. Big Pharma actually spends $55 million on R&D for the typical drug, according to a new study published by the London School of Economics.
So where did the $1 billion figure come from then?
Answer: It’s pharmaceutical-sponsored propaganda.
The $1 billion figure originally appeared in a 2003 study (that we’ll call the “Tufts study”) that was published in the Journal of Health Economics. The article’s lead researcher is from Tufts University and the article’s research was sponsored by the (drug company-funded) Tufts Center for the Study of Drug Development.
There are a number of methodological problems with the Tufts study. First of all, it was based off proprietary numbers that the drug companies supplied to study’s authors, that the researchers have not shared with others and that they themselves apparently made no effort to verify.
Another error with the study, a glaring one, is that the Tufts study considers basic “pure science” R&D that is funded by the government as a cost of drug development, even though it is not borne by any of the pharma companies and is, in fact, one hundred percent taxpayer-funded.
The Tufts study also ignores all of the tax breaks that pharma companies receive for R&D. When you factor in those tax breaks, the cost of R&D is reduced by thirty-nine percent.
Lastly, the Tufts study’s estimates of the costs of clinical trials and the amount of time that it takes to obtain FDA approval are flatly at odds with publicly-available government data. The Tufts study’s estimates of the costs of clinical trials are six times higher than data that’s available from the National Institutes of Health (NIH). The Tufts study’s estimate of the time it takes for a drug to get FDA approval – 7.5 years – is about twice what other data reveals. That’s no mean difference when a patent monopoly has a lifespan of twenty years.
Several months ago, there was a big controversy in the blogosphere about whether economists should adopt a code of professional ethics (they currently have none and many conflicts of interest in economics research go undisclosed). Matthew Yglesias had a great post on the top entitled, “Economists and Incentives.” The Tufts study, and the oft-repeated $1 billion pricetag for pharmaceutical R&D, suggests that it may be high time for such a code.
Awhile back I blogged about the FDA’s massive recall of DePuy A.S.R. artificial hips. The DePuy artificial hips were touted as a leap forward in artificial hip technology when they debuted. They were supposed to last to last for fifteen years or more (much longer than other artificial hips) and their Articular Surface Replacement (A.S.R.) technology was supposed to help resurface portions of the hip once implanted.
As it turned out, the DePuy ASR artificial hips have worn out quickly due to metal-on-metal contact within the device and this metal-on-metal contact has resulted in toxic heavy metal ions being deposited in the bloodstream of patients, causing chronic pain, toxic reactions and, in some patients, the development of pseudotumors.
As I originally blogged about, the shocking part of all this is that the DePuy ASR never had to be subjected to clinical testing prior to its being marketed to the public. The FDA regulatory process contains a loophole – known as the “510(k) process” – that allows medical device manufacturers to sell new medical devices without any clinical trials of the device if the new device is “equivalent” to one already on the market. Even though the DePuy ASR was touted as offering next-generation advances – like the Articular Surface Replacement technology and being more durable – Johnson & Johnson, its manufacturer, never had to subject the DePuy ASR to clinical testing because it was deemed “equivalent” to other artificial hips already on the market.
Now, as reported by The New York Times, comes a new study from the Institute of Medicine showing that 81 percent of the medical devices recalled by the FDA from 2005-2009 were devices that made it to market through the 510(k) loophole. Only one-fifth of the medical devices subject to recall had been clinically tested prior to approval.
I think the DePuy ASR recall and this new study from the Institute of Medicine show that the 510(k) loophole needs to be tightened up a little. Medical devices subject to FDA regulation run the gamut from ear wax cleaning kits you buy at the drug store to implantable defibrillators that are supposed to restart your heart after cardiac arrest. Having a regulatory loophole for new-to-market devices that are equivalent to older technology benefits consumers by driving down the prices of medical devices and fostering competition. However, medical device manufacturers cannot be allowed to get away with selling cutting-edge surgically-implanted devices without any prior testing on the grounds that such technology is “equivalent” to older devices.
As reported this week by USA Today, the head of the Consumer Products Safety Commission will call in various power tool manufacturers to demand an answer as to why they have not done more to prevent the daily finger amputations caused by power saws. If the industry fails to voluntarily develop better safety standards, the CPSC may mandate new safety technology, including the use of “flesh detection” technology that stops a saw blade when a finger comes in contact with it.
As we have previously blogged about here and here, patent lawyer-turned-inventor Steve Gass has developed a patented technology that stops saw blades within approximately five milliseconds of coming into contact with human flesh or any other highly electrically conductive object. He’s started his own saw company, SawStop, that sells saws incorporating the technology.
The principle behind SawStop is the same as the principle behind those old “touch lamps” that would turn on and off when you touched their base: the SawStop saw blade carries an electrical charge and when an electrical conductor like human flesh (which is mainly water) comes in contact with the saw blade, the contact interrupts the electrical charge (which is transmitted at the speed of light) and triggers a brake mechanism that drops the saw blade down into its housing. The amazing technology was recently featured on the Discovery Channel’s Time Warp program, showing Steve Gass running his finger through a SawStop saw blade and coming away with nary a scratch. (Hat tip to law professor Alberto Bernabe for picking up on this amazing video).
When Gass developed this technology over a decade ago, he approached all the major power tool manufacturers, such as Ryobi and Black & Decker to license it to them. They expressed initial interest but never pursued it.
Meanwhile finger amputations from power saws continue to occur at about the rate of ten a day, according to data that the CPSC gather through its National Electronic Injury Surveillance System (NEISS). The CPSC estimates that these saw accidents cost the economy $2 billion annually.
If the saw manufacturers don’t act quickly to implement some new safety technology, CPSC may mandate that table saws come equipped with flesh detection technology. (The recent attention being paid to the dangers of power saws has spurred a number of innovations, including this new Whirlwind saw).
The dilemma about what to do with unsafe products, such as power saws lacking SawStop, is an interesting one. We have essentially two frameworks for dealing with unsafe products: tort (people injured by unsafe products file lawsuits) and regulatory (agencies like the CPSC or FDA step in and try to formulate appropriate regulations to protect people). As we have seen on this blog, a lot of free market economists, like (the late) Nobel Prize winner Milton Friedman, favor a robust tort system and are skeptical of regulatory solutions.
There is good reason to be skeptical of regulatory solutions. Regulatory agencies are prone to “regulatory capture” – being taken hostage by the corporate special interests that they are supposed to govern. We saw a good example of regulatory capture this past summer with the BP oil spill and what it revealed about how the Minerals Management Service was in the oil companies’ back pocket.
But regulation of unsafe and dangerous products does have its place. In order to prevail in a product liability lawsuit premised on a defective design, a plaintiff needs to show, among other things, a reasonable alternative design that is safer. Back v. Wickes Corp., 378 N.E.2d 964; Fahey v. Rockwell Graphics Sys., 20 Mass. App. Ct. 642. It can be fatal to a plaintiff’s case if the proposed alternative design is vastly more expensive; a jury can weigh the higher price of an alternative design in considering whether the original design was defective.
Now let’s say that incorporating an infallible safety technology in a power saw adds $1,000 to the price of a $200 power saw (I am making up numbers for ease of calculation). That would mean that someone injured by a power saw without this new technology would have a very difficult time making out a defective design claim.
Now imagine the power tool industry sells 100,000 power saws a year. And the cost to our society of finger losses caused by power saws is (as the CPSC says it is) $2 billion annually. Our society would be better off if power saw manufacturers were forced to incorporate this new, magical technology in their saws, even if it added $1,000 to the price of saws, because the $100,000,000 cost of adding the technology to the saws (100,000 saws x $1,000 per saw=$100,000,000) is much less than cost to our society of saws that lack the technology ($2 billion in annual medical costs, lost wages, etc.).
In the one case that has gone to trial thus far alleging that a power saw was defective by design because it did not include flesh detection technology – a $1.5 million verdict for the plaintiff – the jury heard evidence that the cost of SawStop technology was only a fraction of the cost of the saw, especially more expensive saws like cabinet saws. So individual product liability suits brought by those who lost fingers to power saws may eventually succeed in compelling the power tool industry’s big manufacturers to include this technology. But the industry could certainly use a push from CPSC as well.
Disclosure: The Law Office of Alan H. Crede, P.C. is involved with claims against table saw manufacturers.
- You may recall last April’s recall of Simplicity cribs, which we previously blogged about. Now, in the form of a Boston Herald story, comes news that the death of a Massachusetts infant from Attleboro was a “key factor” that prompted the Consumer Product Safety Commission to recall full-sized Simplicity cribs because of the risks they posed of suffocation and strangulation.
CPSC spokesman Scott Wolfson said, “In the full history of Simplicity cribs and bassinets, there were more than a dozen deaths, including the tragic case in North Attleboro. Simplicity cribs are one of the deadliest products that we’ve dealt with in recent years.”
- Five Massachusetts auto insurance companies are now offering optional pet injury coverage that will pay veterinarian’s bills for your pets if they are injured in a car crash.
- If you went to Fenway Park at all last year, they were a familiar sight: scantily clad young women in bright-colored wigs who were attempting to sign up Red Sox fans for a bone marrow registry. Now comes news that UMass Medical Center was behind the program and was spending $50,000 a week on the models. For every volunteer who signed up, UMass Medical Center would bill insurance companies for $4,300, when others in the industry perform the same test for approximately $100. See the WHDH-TV and Boston Herald stories here and here.