Blog Roundup

  • The Oregon Attorney General is suing Johnson & Johnson for a secret recall of Motrin that left some bottles of defective product on the shelves. (Hat tip Consumerist). Instead of instructing retailers to pull the bottles from the shelves, hired contractors to go undercover, armed with credit cards that would bill J&J, and buy up all of the defective bottles that they could find. At the close of this secret recall operation, J&J execs sent around emails proclaiming the double-secret probation recall was a “great success” and a “win.”
  • As Tyler Cowen reports, the odds of dying in a horse accident in New York City in 1900 were 1 in 19,000. The odds of dying in a car accident today in New York City are 1 in 26,000. Of course, as law prof Eugene Volokh pointed out in this long-ago post, those numbers aren’t the only consideration. In the late nineteenth century, horses daily deposited an estimated 2.5 million pounds of manure on New York City’s streets.
  • AbnormalUse reports on what is believed to be the first ever wrongful death lawsuit that a chewing tobacco company has settled. As AbnormalUse explains, the unique facts of this case might mean that this is the last chewing tobacco settlement that we are likely to see for a long time.
  • Eric Turkewitz on what AVVO ratings might not tell you about your lawyer – namely that he is a registered sex offender and was once disbarred.
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More Than Two Million Drop-Side Cribs Recalled

In cooperation with the Consumer Product Safety Commission, seven crib manufacturers announced today that they are recalling more than two million drop-side cribs. A drop-side crib is simply a crib in which one side of the crib raises and lowers in an up-and-down fashion, making it easier to place an infant in the crib or remove her from it. Drop-side cribs pose a risk of entrapment and suffocation to infants who may fall into gaps between the crib’s bedding area and other parts of the crib or have their necks stuck between the crib’s slats.
The dangers associated with drop-side cribs are especially pronounced when bolts and other hardware become loosened over time. Loose hardware in drop-side cribs gives even more play to the cribs’ moving parts, providing more space in which a baby may be entrapped. This public service video produced by the Consumer Product Safety Commission illustrates how a baby may become trapped or suffocate in a drop-side crib. It also illustrates the dangers posed by loose hardware:

Today’s recall brings the total of drop-side cribs recalled in the past five years to over nine million. ASTM International, which sets manufacturing standards for cribs, has proposed the elimination of drop-side cribs. Major retailers such as Walmart and Toys R US no longer stock drop-side cribs.

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FDA Issues Warning To Kellogg Over Listeria Bacteria At Eggo Plant

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.

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Can An Injured Olympic Athlete Sue The Olympics?

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).

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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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Toyota Acceleration Problem Poses Dangers For Massachusetts Drivers

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.

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First Denture Cream Wrongful Death Lawsuit Filed

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.

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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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