Boston Personal Injury Lawyer Blog

In January, on the heels of the terrifying tale of a state trooper and his family killed in a crash caused by their out-of-control Lexus, more reports of sudden uncontrolled acceleration problems with Toyotas began pouring in. Of course, skeptics were quick to point out that reports of uncontrolled acceleration problems with Toyotas resembled past claims of acceleration problems with various makes and models that had come to naught, especially the Audi acceleration flap of the early 1980s.

Since no one could point to any mechanism in Toyota's (computerized) accelerators that would cause uncontrolled acceleration, these skeptics insisted that the problem must be driver error. At the time, I cautioned that we should keep an open mind - that the block box computer programs that regulate Toyotas' acceleration and braking could conceivably have a bug, the same sort of bug that caused the Great Northeast blackout of 2003.

This week, the acceleration skeptics got welcome news as the National Highway Traffic Safety Administration announced its preliminary findings: in all of the Toyota acceleration cases investigated thus far, driver error has been found to be the cause of the braking failures. Yes, pedal misapplication - hitting the accelerator instead of the brake - is the leading culprit at this point in time.

Meanwhile this week came another story, a story about malfunctioning black boxes. Wall Street traders and government regulators are still probing the May 6 "flash crash" in which the Dow Jones inexplicably plunged nearly 1,000 points within a couple hours. Of course the bulk of stock trading is done by computers running proprietary algorithms that Wall Street banks have invested many more billions in than Toyota has spent engineering the computer systems in its late model cars. Investigators probing these trades are finding the black box computer algorithms used by traders produced bizarre "crop circle" graphs over the course of the flash crash.

It seems one might draw some parallels between the 2010 "flash crash" and an older stock market mystery that occurred around the same time as the 1980s Audi debacle: the Black Monday 1987 stock market crash that some chalk up to computer trading.

My position on the Toyota uncontrolled acceleration phenomenon has always been the same: when people complain that their cars (increasingly controlled by complex computer systems) are going haywire, we should take them seriously and investigate thoroughly because even the best-engineered systems can behave unpredictably. If investigation reveals that root of the problem is not a defectively designed product, but rather human-fueled hysteria, then so much the better for society.

I just wish the same people who are so quick to point to human error in the driver's seat would be as quick to recognize human error in some of Wall Street's follies.

It's a problem we've blogged about many times before - patients receiving mega-doses of radiation from CT scans and other medical imaging.

There are several dimensions to this problem. One, these potentially lethal machines are being operated by under-trained and under-educated technicians who don't understand all of their dangers. Two (and perhaps most importantly), the manufacturers of these machines, including General Electric and other companies, have defectively designed them, failing to implement any kind of failsafe mechanisms that would prevent technicians from administering radiation doses that would kill an elephant.

Thankfully, The New York Times' Walt Bogdanich has not let up on this story and last weekend, published another follow-up piece. The piece details just how badly designed some of these CT machines are. As one victim of radiation overdose told Bogdanich, when a truck backs up, "it goes 'beep, beep, beep.' If you fill up the washing machine too much, it won't work. [But on a CT scan] there is no red light that says your irradiating too much."

Let's hope these defective machines get re-designed and soon.

In March, I blogged about this $1.5 million jury verdict against saw manufacturer Ryobi for failing to equip its table saws with some form of flesh detection technology, such as that offered in SawStop-brand saws. This video illustrates the SawStop technology that's been wowing contractors and other tradesmen over the last decade or so:

For more about SawStop, and the power saw industry's refusal to license the patented technology for its own power saws, check out the stories here, here, and here.

To date, SawStop technology is credited with hundreds of "finger saves" - instances where the technology saved table saw operators from losing fingers.

PS - If you're wondering how SawStop works, it relies on electrical conductivity. It's the same principle that you see at work in those old "touch lamps" that would turn off and on whenever your hand came in contact with their base.

Before leaving for the weekend, here are some topics that I wish I had time to blog about the past week or two:

• Should Medicare and Medicaid reimburse doctors when they commit medical errors classified as "never events"? Is the categorization of "never events" fair?

• Would having your doctor warn you about the dangers of texting while driving reduce the number of accidents caused by texting?

• Massachusetts passes liquor liability law requiring bars to carry a minimum insurance policy of $500,000 for injuries caused by overserved patrons.

• Fireworks safety.

Be careful on the roads and with fireworks and have a happy and safe Fourth of July.

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.

Continue reading "More Than Two Million Drop-Side Cribs Recalled " »

Two new research articles published in the research journal Pediatrics are drawing attention to an unintended consequence of advances in battery technology: more children are swallowing the batteries as the batteries grow smaller. The journal articles published in Pediatrics reveal a sevenfold increase in the number of children who ingested batteries between 1985 and 2009.

One of the most worrisome aspects of this phenomenon is that, unless the parent sees the child swallow the battery, the health problems related to swallowing the battery may go misdiagnosed. One infant who swallowed a button battery was initially diagnosed with an upper respiratory infection. Eventually, an x-ray administered to check for pneumonia turned up the button battery. Surgeons removed the button battery from the child's esophagus and the child was discharged. However, the chemicals in the battery had burned through the child's esophagus, causing a fatal aortic rupture shortly thereafter.

While small batteries are here to stay, one of the most outrageous aspects of this danger is how manufacturers have not taken steps to child-proof the batteries. One thirteen month old apparently had the manual dexterity required to remove a button battery from the remote control for her parents' iPod docking station. Hopefully, products liability litigation will lead to a redesign of either these small batteries or (more probably) the shells of the devices that contain them. When an infant not capable of neither walking nor talking can extract a twenty-millimeter battery from a remote control, there is a serious design defect with that product.

Continue reading "New Research Shows More Children Are Swallowing Tiny "Button Batteries"" »

Last year, over Memorial Day Weekend, twenty-seven people died in All Terrain Vehicle (ATV) accidents, including two riders under the age of sixteen.

This year, the Consumer Product Safety Commission (CPSC) is issuing a warning to ATV riders to be mindful of the dangers of off-roading.

It is easy to understand why Memorial Day weekend might be especially dangerous to ATV riders. Since it's the unofficial beginning of the summer season, you probably have a greater number of riders who have just "come of age," and are riding an ATV for the first time. Couple that with the "rust" that more experienced drivers accumulate over the winter months when they are not riding, and throw in some alcohol, and you have a perfect storm for ATV accidents.

If you own an ATV, you should know that, in April 2009, CPSC began mandating that ATV manufacturers offer free hands-on training for ATV purchasers through dealerships. So you can go to your dealer for a free course on how to operate your ATV safely.

Continue reading "Consumer Product Safety Commission Warns Of Memorial Day Weekend Dangers To ATV Riders" »

Warning labels on drugs and other products are often mocked for the extreme caution they recommend and for their obviousness. In fact, there's a whole host of websites dedicated to mocking warning labels, including the website "Dumb Warning Labels." (My favorite: "Warning: Product will be hot after heating.")

One warning that I've heard mocked quite a few times is the warning you hear at the end of certain prescription drug commercials that a side effect of the drug may be an increased risk of problem gambling. Ads for the drugs Mirapex and Requip (a medication for restless leg syndrome and Parkinson's) carry this warning, as seen here:

The ad, and its litany of warnings, probably seems silly, just another vestige of an overly litigious society. People may watch and doubt whether there's any sort of connection between the drug and gambling and suspect this warning is premised entirely upon some scientist's conjecture that such drugs may cause such behavior.

But, as I was reminded this week, while reading "How We Decide," a book on neuroscience, drug and product warning labels are there for our own benefit. Drugs like Requip are called "dopamine agonists" - they activate dopamine receptors in your brain even when your dopamine levels are low.

For many people these drugs are a miracle. For example, Parkinson's disease is a disorder of the dopamine system that involves the irreversible death of dopamine neurons in the part of the brain that controls bodily movement. A Parkinson's patient taking a dopamine agonist can see dramatic improvement in his control of his bodily movement because the agonist gets more horsepower out of the few surviving dopamine neurons.

One side effect of this is that the patient's amped-up dopamine neurons make him more attracted to the "dopamine highs" he gets from gambling. Lehrer, the Rhodes Scholar author of "How We Decide," tells the story of Ann Klinestiver, a fifty-one year old English teacher who was diagnosed with Parkinson's and prescribed Requip. Klinestiver, who had never previously gambled, and who had religious objections to gambling, suddenly became a problem gambler. After a year of playing slot machines, Ann had lost more than $250,000 - wiping out her retirement savings.

Klinstiver's story is not unique. As Lehrer informs us, medical research suggests that as many of 13 percent of patients taking dopamine agonists develop severe gambling compulsions.

So the next time you come across a product warning label or a prescription drug label reciting a litany of possible side effects, ones that seem like a barrage of nonsense, take heed. The labels may actually be there for your benefit.

I've previously blogged about the prospect of football helmet manufacturers facing product liability lawsuits for design defects in their helmets and the resulting brain injuries that occur.

This week came news that former NFL lineman Ralph Wenzel has filed a Worker's Compensation claim that says head injuries he sustained in the course of his NFL career are responsible for his present-day dementia.

Of course, a Worker's Compensation claim for football head injuries is recourse that is only available to former professional football players, not to college or high school players who sustained brain injuries while playing for fun, rather than as part of their "job" or "work." But even though these Worker's Compensation claims are available only to the tiny fraction of football players who played professionally, the consequences could be enormous. The potential liability faced by the NFL in Worker's Compensation claims relating to head injuries could be $100 million or more. Liability of that scale is big enough to force even a multi-billion dollar empire like the NFL to consider its rules and regulations regarding concussions and other head injuries. Football fans might even see the three point stance abolished as a result!

Worker's Compensation pre-emption means that former pro football players cannot sue their former teams directly for brain injuries they sustained from their playing (they can however maintain product liability actions against the helmet manufacturers). High schools and colleges need to be alert to the prospect of this kind of litigation because their players are "students," not "workers," and Worker's Compensation laws do not prove a bar to suing them directly. High school and college programs could therefore face even greater liability than the NFL.

It is a startling realization, but legal liability for brain injuries might fundamentally alter the rules of football and transform it place in our culture.

My guess, however, is that the NFL lobbies the California legislature to change the law with regards to football players.

Continue reading "Football Head Injuries: A Follow-Up" »

I've previously blogged about the dangers of excessive radiation involved with medical imaging procedures, such as CT scans and x-rays, and the FDA's new program to reduce patients' unnecessary exposure to radiation.

Last week, as part of that FDA program, Dr. Julian Nicholas, a former FDA scientist, testified that he was forced out by his FDA bosses when he refused to approve General Electric's "virtual colonoscopy" procedure, a product that would use CT scans to test for colon cancer. Dr. Nelson refused to endorse GE's virtual colonoscopy because between 1.5 and 2 percent of all cancers are caused by radiation from CT scanning and Dr. Nicholas did not believe that the level of radiation exposure involved in CT colonoscopies was justified by increased detection or the less invasive nature of the procedure (compared to traditional colonoscopies). A patient receiving a single CT scan gets as much radiation from the CT scan as he would from 400 chest x-rays.

CT scans, nuclear medicine and fluoroscopy are only one-fourth of all medical imaging procedures in the US (x-rays are far more common), but these procedures expose patients to nearly 90 percent of the radiation they get from medical imaging. They are also, generally, more lucrative for hospitals than x-rays.

Continue reading "FDA Scientist Says He Was Forced Out Because He Would Not Approve Medical Imaging Procedure" »

Electric bicycles have long been popular in Europe and Asia but, a couple weeks ago on NPR's Science Friday With Ira Flatow, I learned about their growing popularity here in the United States. Industry experts in America predict there will shortly be one million electric bikes on the road here in the States.

An electric bicycle is essentially your typical bicycle (ideally a bicycle with a sturdy frame) that is equipped with an electric motor or battery. Pedaling the bicycle charges the battery. Cyclists can then allow the electric motor to completely power the bicycle or merely use it to get a little extra "oomph" when pedaling up steep inclines or when fatigued.

A typical electric motor, although small and noiseless, can power the bikes up to speeds of 30-40 mph on downhill runs.

Modification kits that turn a standard bicycle into an electric one cost only a few hundred dollars.

As you can see from the Youtube video, electric bikes are a lot of fun and are pretty much the ideal form of transportation for a long bicycle ride in, say, Napa Valley or on Cape Cod. But I think most personal injury lawyers considering the coming boom in electric bikes will have worries about rider safety.

One of the leading causes of motorcycle accidents is the low profile and low visibility of most bikes. Auto drivers too often don't see bikers and accidents are the result. This problem seems even more severe with electric bikes, since most electric bike motors are placed on a fairly standard bicycle frame.

In addition, electric bicyclists cruising around at 40 mph need better head protection than the typical bicycle helmet. Using a low-impact bicycle helmet when you're traveling at 40 mph risks serious head and brain injury. Electric bicyclists traveling at high speeds should be wearing motorcycle helmets.

Lastly, whenever a new product comes on the market, its manufacturers generally haven't worked through all the design flaws that they inevitably discover later.

But with conversion kits so cheap and the bikes so fun to modify, I suspect we'll be seeing a lot more of them here on the roads in Massachusetts shortly.

Continue reading "Electric Bicycles: Coming Soon To A Massachusetts Roadway Near You" »

The Consumer Product Safety Commission, in cooperation with Infantino, LLC, issued a recall on March 24, 2010 of two models of baby slings that have caused at least three infants to fatally suffocate.

The models - "SlingRider" and "Wendy Bellissimo" - were sold from January 2003 through March 2010 at Walmart, Burlington Coat Factory, Target, Babies "R" US, BJ's Wholesale and other retailers.

The slings pose two distinct risks of suffocation to infants who are carried in them. Some infants may suffocate when the sling curls the baby's body, bending the baby's chin to her chest, thus constricting the baby's airway. Additionally, a baby whose mouth or nose is pressed up against the sling's fabric may be unable to breathe.

Parents should immediately discontinue using the baby sling and make sure that it is not re-sold or given to others. Thank you to personal injury lawyer Bob Kraft for alerting me to this serious recall.

Continue reading "Life-Threatening Baby Slings Sold In Massachusetts Recalled" »

In a recent Boston Globe article, reporter Jenn Abelson covered a $1.5 million jury verdict in favor of a Malden man, Carlos Osorio, in a products liability action against a table saw manufacturer that claimed the saw was defective because it was not equipped with "flesh detection technology" that would have caused the blade to stop when it got too close to human flesh. Yes, such "flesh detection technology" does exist and is quite effective.

Flesh detection technology is just another example of a safety device that would probably not exist if there were no products liability lawyers to force manufacturers to internalize the costs that society incurs through the use of dangerous and defective products. Table saws without such safety technology are cheaper. Most table saws are probably purchased and used by construction companies, who generally can't be sued by their employees because of Worker's Compensation technology. Do you think construction companies would be willing to shell out extra for a premium model? It seems unlikely. But manufacturers sell saws equipped with flesh detection technology because it's cheaper to offer safety technology than to pay up in lawsuits.

A couple generations ago, products liability lawyers were the ones who got manufacturers to adopt safety guards and other "bells and whistles."

If you see a lawyer today, give her a hug. She may have saved your fingers from being sawed off.

Continue reading "Massachusetts Man Wins $1.5 Million In Table Saw Case" »

Professor Alberto Bernabe's Torts blog has a good round-up of the recent coverage of a British Medical Journal article revealing undisclosed financial ties between researchers who discounted a link between the diabetes drug and heart attacks and the drug's maker, GlaxoSmithKline.

In 2007, the FDA issued a warning that Avandia may elevate a patient's risks for a heart attack. Since that time, more than 200 scholarly articles have been published. In about 90 of those articles, the authors had a financial interest in Avandia. However, one-quarter of the time when authors had a financial conflict of interest, they did not disclose the conflict.
And in fourteen percent of the articles, the authors stated that they had no conflict of interest, when in fact, the authors of this new article say they did.

The authors of this new British Medical Journal say that the number of Avandia researchers who disclosed their conflicts of interest was "unexpectedly low." They also found that 94 percent of researchers who had positive opinions of Avandia received industry funding.

Continue reading "Journal Article Reveals Undisclosed Conflicts Of Interest In Avandia Studies" »

In response to research and media reports suggesting a link between a certain class of osteoporosis drugs - known as oral bisphosphonates - and femur fractures, the FDA announced yesterday that it is working with outside experts to insure that the osteoporosis drugs are safe.

Fosamax, Actonel, Boniva and Reclast are all oral bisphosphonates, the class of drugs under investigation. Some have claimed that long-term use of these drugs raises the risk of an unusual type of femur fracture just below the hip that is known as a subtrochantreric fracture.

The Wall Street Journal reports that two studies that were presented this week at the American Academy of Orthopaedic Surgeons' annual meeting suggests that long-term use of Fosamax and Boniva (where "long-term" means four or more years of use) may lead to reduced "bone structural integrity."

In 2008, the FDA warned that Fosamax had been lined to serious joint pain.

The FDA cautioned yesterday, however, that people taking oral bisphosphonates should not stop taking the drugs without first consulting with their physicians. At this point, the FDA believes that the benefits of Fosamax and the other oral bisphosphonates outweigh the potential risks that it is investigating.

Continue reading "FDA To Investigate Link Between Osteoporosis Drugs And Femur Fractures" »