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

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

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.

Continue reading

Report: Laws Banning Cell Phone Use While Driving Doesn’t Lower Accident Rates

Orin Kerr, at the libertarian legal blog The Volokh Conspiracy, points to a new study claiming that laws prohibiting cell phone use while driving have not succeeded in reducing car crashes.
Kerr seems to suggest that, in light of the study’s data, such laws should be repealed.
It seems to me that the data, if true, are consistent with a number of conclusions, other than the conclusion that it’s perfectly safe to talk on your phone while driving. First, if these laws are ineffective, it may be because of underenforcement by the police. Having a law on the books is one thing, but in order to get people to change their behavior, the law has to be enforced. Maybe the police aren’t enforcing the law, or they are underenforcing the law. For example, Massachusetts police generally don’t stop cars to issue citations for violations of the state seat belt law; such citations are tacked on as add-ons, if a car is stopped for another reason, such as speeding.
Second, talking on a cell phone while driving might be such a ubiquitous phenomenon that, even in areas where police are enforcing the law, they are not making a dent in the number of people actually talking on their phones.
These competing explanations seem much more plausible to me than the conclusion that talking on a cell phone while driving is perfectly safe. Kerr’s conclusion simply flies in the face of the research showing talking on your cell phone while driving is very dangerous and makes drivers much more likely to be involved in a car crash.

Continue reading

Federal Law Now Prohibits Truckers From Driving While Texting

In a move that the Department of Transportation should have made long ago, a new regulation will prohibit truckers from driving while texting.
The move follows on the heels of President Obama’s October executive order prohibiting federal employees from texting while driving.
As the satirical newspaper The Onion jokes, the text messaging ban might be a boon for country music songs about how lonely it is for truckers on the open road.

Continue reading

USA Today Article On Nursing Home Quality

USA Today ran a great article yesterday on nursing home quality. Their investigation found, somewhat surprisingly, that nonprofit nursing homes provide better care than for-profit homes.
So, nursing home care seems to be one of those few areas in life where you don’t necessarily get what you pay for.
Upon reflection, the results aren’t so surprising. Caring for the elderly is a calling. People who are motivated primarily by money are unlikely to have that calling and therefore are likely to provide lesser care.

Continue reading

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.

Continue reading

Medical Malpractice Involving Radiation Overdose: A Troubling Phenomenon

Yesterday’s New York Times carried an eight-page story entitled “Radiation Offers New Cures, and Ways to Do Harm,” dealing with a surprisingly prevalent form of medical malpractice: radiation overdose.
The story – detailing the progression of radiation poisoning – is as gruesome to read as John Hershey’s Hiroshima, but there are some important takeaways for medical malpractice attorneys.
First, radiation overdoses are disturbingly common – the story cites to one hospital that did not detect an error in its machine’s calibration for more than a year. Second, they are dramatically unreported. One doctor quoted in the story, Dr. Fred A. Mettler, Jr., estimates that only about half of radiation overdoses are ever discovered and reported.
The source of the problem seems twofold. First, doctors are transitioning from the old-fashioned way of administering radiation therapy – an unfocused beam of weak radiation – to the newer method of focused, high-energy radiation administered by linear accelerators. Second, the software that is used to operate these linear accelerators does not seem to have enough fail-safes to make sure that the so-called “multileaf collimators” – equipment that shields the patient – is deployed in the right position.
Radiation overdose is really the intersection of two personal injury fields: medical malpractice (committed by the doctors and other technicians who operate the linear accelerators) and products liability (for the dangerous designs of some of these machines and their software). Decades of products liability litigation has made the industrial workplace safer by sending engineers back to the drawing board to design newer and safer machines. A wave of safety innovation has been the result and today’s factory floor is no longer the same threat to life and limb that it once was.
Let’s hope that medical malpractice and product liability lawsuits against the doctors who operate these linear accelerators and the manufacturers who design them will lead to similar product re-designs, so that simple mindless errors in the radiation ward no longer cause unspeakable tragedies.

Continue reading

Lawyers In Massachusetts And Elsewhere Ponder Whether Football Helmets Cause Head Injuries: Part II

Assuming that the modern-day football helmets effectively prevent against the most serious head injuries – such as fractured skulls – but are ineffective in preventing other sorts of head injuries would Massachusetts product liability law regard the typical football helmet as a dangerous or defective product?
That’s a good question and there’s really no clear cut answer under Massachusetts law right now since there are no cases directly on point. Despite the lack of case law to guide us, there are a few things that we can say for certain. Massachusetts law recognizes three main types of product liability claims:
1. Manufacture defects: These types of cases involve something that went awry in the factory – basically this is a case when the machine spits out an irregular product, but it gets packaged up and sold anyways and the manufacture defect causes injury.
2. Design defects: This type of case involves a product that was manufactured as intended but the design concept was unreasonably dangerous.
3. Failure to warn: This is a claim that the product did not provide an adequate warning about a danger involved in its use and this failure-to-warn caused an injury.
If the safety of football helmets were litigated in Massachusetts, a player’s claim would like be premised on both a failure to warn theory and a design defect theory.
It would most likely be up to a jury to consider whether modern day football helmet has any design defects and, in weighing that question, a Massachusetts jury would be asked to weigh several factors:
-the gravity of the danger posed by the current football helmet design
-the likelihood that head injury will result from the use of the helmet
-the technical feasibility of a safer alternative design
-the financial feasibility of that alternative design, and
-any other consequences likely to result from the alternative design
However, even if a jury were to conclude that there exists a cost-effective design that would be more effective in preventing head injuries than the current football helmet design, the manufacturer might still have a few defenses under Massachusetts law: the so-called Vassallo defense and Correia defense. (The defenses are named after the Massachusetts cases that bear their name).
The Vassallo and Correia defenses would exonerate a defendant if either: 1. the danger could not be detected by reasonable testing at the time the product was sold or 2. the consumer unreasonably continues to use the defective product after becoming aware of its dangers. The relevance, if any, of these defenses would really only come out through litigating the case.
As you can see, a design defect case can be difficult to prosecute and normally requires expert testimony from engineers or other design defects. Failure-to-warn cases tend to be the simpler variety of products liability litigation.
If a football player were successful in such a products liability case who would be held liable? The helmet manufacturer and merchant who sold the helmet would definitely be liable and, under Massachusetts law, the school or team supplying the defective helmet might also be held responsible.
Will football helmet litigation ever take off in Massachusetts? Who knows. But let’s hope that we do see safer helmets down the road, so fewer players meet the plight of former Patriots linebacker Ted Johnson and others like him.

Continue reading

Lawyers In Massachusetts And Elsewhere Ponder Whether Football Helmets Cause Head Injuries: Part I

In November, a Wall Street Journal article asked, “Is It Time to Retire the Football Helmet?” At the beginning of this month, Representative John Conyers (D-MI), of the House Judiciary Committee, held the second part of a hearing on whether football gear is causing brain injuries.
As football fans in Massachusetts and throughout New England who are familiar with former Patriot Ted Johnson’s story know well, football players stand a great risk of brain injuries. What may be surprising to most fans however is the questions that are being raised about how effective football helmets are in preventing brain injuries.
Some speculate that the helmets might actually do more harm than good. The modern football helmet was designed to prevent catastrophic injuries like fractured skulls. It does a fairly good job at this. But the modern football helmet, and the ubiquitous football face mask, have also made some players feel invincible. By protecting the player’s skull from an open fracture, his face from broken bones and his teeth from getting knocked out, the modern helmet has encouraged players to collide more violently and more often without fear for their own safety. According to some, such as University of North Carolina professor Fred Mueller, this has led to more concussions and other head injuries not fewer.
All of this seems to pose an interesting question: Assuming that the modern football helmet leads players to play more violently, causing more head injuries overall, is the football helmet a defective product? Could a football player who suffers brain damage from repetitive concussions caused by a style of play that is encouraged and enabled by the modern helmet sue the helmet manufacturer and win under Massachusetts law?
These are interesting questions. And in our next post we’ll take a closer look at Massachusetts product liability law to try and come up with some answers.

Continue reading

Reglan And Tardive Dyskenesia

You have probably seen a lot of ads on TV about the link between Reglan, a prescription drug used to treat heartburn and other gastrointestinal disorders and a disorder known as tardive dyskenesia. The FDA recently required the makers of Reglan and other drugs containing the compound metoclopramide to include a warning advising patients about some of the long-term or high-dosage risks associated with the consumption of metoclopramide.
While I think these ads perform an important public service in informing the public about risks associated with metoclopramide, I don’t think they do a good job of illustrating what tardive dyskenesia is. Normally the commercials just describe tardive dyskenesia in vague terms, saying it’s a neurological disorder.
This is another reason why YouTube is so great. There are a number of videos on YouTube that illustrate everything from moderate to severe tardive dyskenysis, such as the following, which shows a middle-aged women about a year after the onset of symptoms:

Continue reading