Dangerous/Defective Products

Federal Judge Decimates Product Liability Case Over Unqualified Expert Testimony

November 2, 2013 | Benjamin S. Persons, IV

Expert testimony is often the key to winning a product liability case. If an expert witness proves inadequate, the plaintiff’s case may not survive long enough to get in front of a jury. To give a recent example, a federal judge in Savannah gutted most of a plaintiff’s case on summary judgment after determining his expert witness was unqualified and unreliable.

Grieco v. Tecumesh Products Company

The plaintiff worked as a repairman. In 2010, while making repairs to the compressor of a walk-in refrigerator, the compressor caught fire, burning the repairman’s hair, shoulder and arms. He subsequently sued the manufacturer of the compressor, alleging numerous product liability and breach of warranty claims. (Although the plaintiff’s claims are governed by Georgia state law, his case is being tried in federal court, as the manufacturer is an out-of-state corporation.)

Georgia Law Does Not Require Used Car Dealers to Look for Defective Tires?

May 31, 2013 | Benjamin S. Persons, IV

Is a used car dealer responsible for selling a van with defective tires? A divided Georgia Court of Appeals recently weighed in on this question, declaring that dealers are not negligent when they fail to perform a basic inspection that would show a vehicle they sold had the wrong make and size of tires. car crash.jpg

The court’s decision arose from a fatal 2008 accident involving a Chevrolet Sport passenger van. In 2006, Redding Swainsboro Ford Lincoln Mercury acquired the van as a customer trade-in. Redding then sold the van wholesale to another dealer, S&S Auto Sales. S&S in turn sold the van to a passenger transportation company. The company used the van to transport workers to a poultry processing plant. In May 2008, the driver lost control of the van when the tread belt on the left-front tire separated. The van crossed the opposing traffic lane and crashed into a tree. One of the eight passengers died and the other seven suffered serious injuries.

According to the passengers, the tire that failed was designed for a smaller passenger vehicle. The van required light truck tires. Neither the van’s current owner nor the two used car dealers that previously owned the vehicle noticed this defect.

Georgia Dangerous Product and Child Safety Update; Frosted Mini-Wheats and Trader Joe’s Peanut Butter Recalled

October 25, 2012 | Benjamin S. Persons, IV

As a father of three children who enjoy Kellogg’s frosted mini-wheats, I was quite disturbed by the voluntary product recall for the frosted and unfrosted mini-wheats original and bite size this week. Apparently, flexible metal fragments from a faulty manufacturing machine were found to be in the cereal. The products subject to recall fall under the ‘better used by dates’ of April 1, 2013 – September 21, 2013. Kellogg is working with retail grocery stores to remove the tainted boxes and fortunately, no injuries have been reported to date. For more information about the recalled cereals, please go to Kellogg’s website consumer alerts.

However, that is not the case with a recent peanut butter recall linked to Trader Joe’s Creamy Salted Valencia Peanut Butter that contain the salmonella virus. It has been reported that 29 individuals in 18 states contracted the virus with ¾ of all the cases were children under the age of 18. Luckily, no deaths have been reported. Trader Joes Consumer Updates lists the specific products subject to recall or call (626) 599-3817 for further information.

What is a parent to do? Cereal and peanut butter are two staples in my household and part of a balanced diet. As a Georgia Trial Lawyer and informed parent, I can only hope that these recalls will reduce illness and eliminate catastrophic injuries as we try and protect the health and safety of our children.

FDA Issues a Class I Recall of More Than Five Million CooperVision Contact Lenses

November 17, 2011 | Benjamin S. Persons, IV

CooperVision Inc. announced this week they are expanding a recall first issued in August and are recalling more than five million contact lenses. The contacts were sold under the brand name Avaira, and are being recalled because they may be tainted with silicone oil residue that could result in blurred vision, eye injuries, and severe pain. The recall comes after the FDA issued a Class I warning about the lenses last month. Class I warnings are the most serious warning issued and involve problems in which there is a reasonable chance of serious health consequences or death.

By the end of October the FDA had received more than forty reports of problems associated with the contact lenses. According to the FDA, at least fifteen of the lenses were sold under the Avaira Toric label, and at least two were sold under the brand name Avaira Sphere. Avaira Toric users have reported a wide range of problems with the lenses, from hazy vision to the much more serious condition of torn corneas that require emergency surgery.

Some Product Liability Attorneys have accused CooperVision of issuing a “stealth recall” that did not properly alert many consumers to the possible danger.The FDA apparently agrees and has said that the company should have put more effort into making customers of the recall.

Atlanta Driver Surprised by Unexpected Airbag Deployment

November 8, 2011 | Benjamin S. Persons, IV

An Atlanta area man was stunned last week when the air bag in his 2008 Honda Accord deployed unexpectedly. Chris Androvic said he was driving his car under normal conditions when his airbags exploded in Forsyth County last Monday afternoon. Androvic was traveling in heavy afternoon traffic when the air bags above his head and his seat inexplicably deployed.

Surprisingly, a local Honda dealership said that the problem was his responsibility. Adrovic says they gave him a bill for over $5,000, as there were no recalls in place for this type of defect in Honda Accords making the damage his responsibility. But Adrovic, through his research on safecar.gov, found dozens of complaints specifically of other 2008 Honda Accord owners for similar incidents.

Honda responded to the situation with a letter stating that, “Neither NHTSA or Honda have initiated any recall action.” Adding that, “Customarily, a recall would be initiated only when a defect has been observed in many cases . . .” Though Honda said they will continue to carefully monitor the situation.

Georgia Child Safety and Product Liability Update – Jogging Strollers Recalled for Choking Hazard

October 14, 2011 | Benjamin S. Persons, IV

As a Georgia products liability lawyer and father of three I’m always interested in safety recalls with child safety implications. Hundreds of thousands of the popular B.O.B. jogging strollers are being recalled because of a choking concern. The U.S. Consumer Product Safety Commission made the announcement this week of the voluntary recall by the manufacturer, B.O.B. Trailers Inc. The recall involves all B.O.B. Strollers manufactured between November 1998 and November 2010. Strollers manufactured after October 2006 have a white label attached to the back of the strollers with the manufacturing date printed on, and strollers with no manufacturing date listed were produced before October 2006 and are also part of the recall.This is not the first recall of the year for B.O.B. as 357,000 of its strollers were recalled in February due to a drawstring on the stroller that posed a strangulation hazard.

The Consumer Product Safety Commission says the recall is due to the fact that the logo embroidered on the back of the stroller’s canopy backing patch can detach, which poses a significant choking hazard to baby’s and young children. The C.P.S.C. has received six reports of children mouthing the logo, with two of those incidents resulting in choking. In each of the reported incidents, the children were seated in a car seat attached to the stroller.

Over 400,000 of these strollers were sold in the United States between November 1998 and October 2011. REI, Babies R’Us and Amazon.com are among the retailers who sold the product. The strollers were sold in single seat and double-seat models and are embroidered with the BOB, Ironman, or Stroller Strides brand name on the canopy.

Georgia Child Safety and Product Liability Update – Drop-Side Cribs Outlawed For Causing Numerous Infant Deaths

September 19, 2011 | Benjamin S. Persons, IV

The traditional drop side crib that millions of parents have trusted and relied on to cradle their babies for generations has now been outlawed by the government. After many recalls and the deaths of over 30 infants and young toddlers over the last 10 years, drop side cribs will no longer be a choice for parents when shopping for a crib. The Consumer Product Safety Commission came to a unanimous vote to ban all operations involving the drop side crib in which on side moves up and down, so that a mother or father can easily remove their child. The ban of all operations, involving this crib include: a ban of manufacturing, selling, or reselling in any way. The government has approved a new standard that ensures the safety of all children that need to be in a crib. Cribs will only have fixed sides so children can’t climb out or fall out over the side. The government has also banned all child care institutions, as well as hotels, from using drop side cribs in their establishments.

Drop sides cribs have been criticized for decades for many reasons. These drop side cribs have been known to have malfunctioning hardware, cheaper plastics, and most commonly, assembly problems. Assembly problems have caused numerous instances in which the drop side rail detaches from the crib itself. When this detaching happens, it commonly creates a V-gap between the mattress and side rail. This can cause an infant or toddler to get stuck in this V gap and suffocate causing a needless death. A mother in New York lost her 10 month old son in 1997 when his side rail detached and his neck became trapped between the mattress and side rail. A mother wants to feel a sense of safety when she puts her infant or toddler down to sleep and not have to worry about them possibly suffocating or dying through the night. It is an awful feeling to wake up to your son or daughter trapped and not be able to help them.

First Personal Injury Lawsuit Following May 2011 FDA Warning Concerning Breast Milk and Infant Formula Thickening Agent

September 14, 2011 | Benjamin S. Persons, IV

A New Mexico couple has filed suit against Georgia companies, Simply Thick, LLC, the owners of SimplyThick, a product used to thicken breast milk and infant formula, and Thermo Pac, LLC, who manufactures and supplies the product in Georgia State Court. The complaint is believed to be the first filed following a warning issued in May of this year by the U.S. Food and Drug Administration that SimplyThick may cause the life-threatening necrotizing entercolotis (NEC). After the May warning, the FDA inspected Simply Thick’s Stone Mountain, Georgia manufacturing plant and found numerous deficiencies. At that point a complete recall was issued for every product manufactured at the Stone Mountain plant. The suit alleges that Simply Thick failed to properly thermally process and test the safety of its product, and as a result the SimplyThick ingested by the couple’s daughter was responsible her developing NEC.

The infant was born prematurely, and after being discharged from the hospital the couple was given samples of SimplyThick with instructions to use it when feeding. The couple says after using the product the baby’s health deteriorated so rapidly from the NEC that she had to be airlifted from a local hospital to a specialty Children’s Hospital in Albuquerque. NEC is a rare disease in infants post-hospital discharge that is normally life-threatening causing inflammation and death of intestinal tissue. NEC has a death rate of 25% and can cause severe impairment in children who survive.

Are Sketchers “Shape Ups” a Dangerous Injury Causing Product?

August 17, 2011 | Benjamin S. Persons, IV

Several people throughout the country are claiming that one recent fitness technique used to get in shape is actually hazardous. Sketchers, the makers of “Shape Ups,” the shoe which the company claims promotes weight loss, tones muscles, and improves posture without going to the gym are being sued throughout the country. The latest suit by an Illinois woman claims the shoes are a dangerous product because of the shoe’s “elevated and unstable, rocker bottom sole.” The woman claims that she suffered a torn tendon while sightseeing in Washington D.C. when the shoe suddenly “pronated inward and caused her left ankle to roll sideways resulting in excruciating pain.” According to the complaint the injury required surgery to repair.

The same firm representing the Illinois woman has files similar suits in Kentucky and Ohio, and is planning to file in Georgia, Virginia, and Utah. There is also a class action suit pending against Sketchers in the Southern District of California that claims the “Shape Ups” are being fraudulently marketed as having health befits.

Child Safety Update;Trunk Entrapment Deaths on the Rise

July 27, 2011 | Benjamin S. Persons, IV

General Motors is being pushed by safety organizations and trial lawyers to recall its older vehicles and install trunk safety switches. This year alone 20 children have died as a result of being locked inside hot cars with three of those deaths from children being trapped inside car trunks that were manufactured by GM. In Oklahoma this month, an 8 year-old boy died in the trunk of his parents 1998 Chevy Cavalier. Last month there was a similar story when two brothers were trapped in the trunk of their mother’s 2000 Chevrolet Malibu and also died.

The safety organization KidsandCars.org is calling on GM to recall all vehicles with trunks from the 2000 and 2001 model years and retrofit them with internal releases. Beginning in the 2002 model year all cars came equipped with a glow in the dark release handle inside the trunk. This is not the first time that GM has been called on to retrofit cars from the 2000 and 2001 model years with internal trunk releases. KidsandCars.org also tried to persuade GM in the 2009 after the death of a 5-year-old Arkansas boy and his 4-year-old sister in a 2000 Chevrolet Malibu. Janette Fennel of KidsandCars.org says that no one has ever died in the trunk of newer models that have the safety releases.

GM’s response provides little comfort to consumer advocates as they responded by stating that because they make more cars than any other company accidents are bound to happen in vehicles. They go even further by putting the responsibility back on the parents stating they have “worked . . . to alert parents and caregivers to the dangers of leaving children unattended in or around vehicles.” They also stated they have no plans to issue a recall.