SafetyForum.com articles re torts & product liability

Below information excerpted by Pamela S Evers, Assoc Prof of Business Law, University of North Carolina Wilmington, from materials available on www.Safetyforum.com For educational purposes only Warehouse Shoppers: Beware! Janessa Horner was a month shy of her fourth birthday that sunny Memorial Day Sunday, 2000, when she accompanied her parents and baby sister to church On the way home, they stopped to shop at the Home Depot in Twin Falls, Idaho The aisle they wanted was cordoned off, so they waited outside the security tape while an employee forklifted countertops down from a top shelf Without warning, the load shifted and slid off the lift Janessa's mother remembers it vividly: The lumber started hitting the floor and crashing into echoes Before I knew it, pieces of to 12 foot lumber were flying through the air end over end Two or more of the pieces hit the back of Janessa and crushed her into the concrete floor I knelt down to pull the pieces off of her I grabbed her bruised little body and screamed "Janessa!" realizing she was unconscious Splintered hundred-pound countertops had hit the back of the child's head, opening a main vein in her brain Within hours she was dead One of Too Many A freak accident? Tragically, what happened that Sunday in Idaho fits an all-too-common pattern in superstores and warehouse-style retail outlets nationwide From Jan 1, 1991, to June 22, 1995, according to Wal-Mart's Claims Management subsidiary, 25,426 of the chain's customers and employees were struck by merchandise These represent only incidents that resulted in the filing of a claim It is estimated that 150 WalMart shoppers are injured each day by falling merchandise or merchandise dropped by employees A Home Depot official has testified that his chain received 185 injury claims a week in 1998 A sampling of accidents that literally had been on the shelf waiting to happen: • • • • • • San Diego, CA, 1992 - Another 3-year-old girl was crushed to death by a falling door at a Home Depot Los Angeles, CA, 1999 - A 79-year old woman was killed at a Home Depot when a forklift operator accidentally knocked over lumber stacked above her Edmonds, WA, 1994 - A 46-year-old man was killed at a Home Base store when a 3,000-pound pallet of ceramic tiles fell on him Abilene, TX, 1996 - A small child was killed when a wardrobe fell over at a Sam's Club Virginia Beach, VA, 1997 - A 2-year-old girl died of injuries received when a 100-pound television set fell on her in a Wal-Mart Miami, FL, 1997 - A 36-year-old Home Depot employee was killed by ceramic tiles that fell from a collapsing shelf • • • • • • • Danbury, CT, 2000 - Jeffrey Mead, 41, was killed at a Home Depot when a 2,000-pound pallet of landscaping timbers fell and pinned to the ground both him and his twin brother His brother was injured but rescued Golden, CO, 1997 - Marlo Rice, 32, received permanent head injuries when a rack of bedding plants fell on her in Home Depot's garden department The retailer claimed the wind had knocked the rack over Rice said the rack was unstable because steel-framed tables had been leaned against it A jury awarded her $1.24 million Colorado, 2000 - Dennis Fry, shopping in a Wal-Mart, was knocked unconscious by a wooden cabinet that fell off a shelf when he opened the door to look inside When he came to, “I remember wiping the blood off my face Mount Laurel, NJ, 1997 - Boxes of vinyl siding fell at a Home Depot and struck 3-year-old Brandon Ryan on the head The chain agreed to pay his parents $500,000 Roseville, CA, December 2000 - Dan Ernest was struck on the head by a box of ceramic tiles accidentally knocked off a high shelf by a Home Depot employee removing something from the rack in the next aisle Campbell, CA, 1996 - The spine of Donald Lasher, a 40- year-old optometrist, was fractured in three places when a shrink-wrapped stack of tool boxes fell on him St Petersburg, FL, 1999 - Milton Chambers, an appliance repair contractor, was struck by a range hood in a Home Depot when an employee he’d asked to help take it down dropped it Attempting to shield his head with his arms, Chambers ended up with injuries to his arms, neck and back When Merchandise Tumbles: Worth the Price? Wal-Mart's Risk Manager, Kevin Husted, testified in the mid-1990s that these in-store accidents had increased in cost from $275 million in 1992 to $410 million only two years later However, with annual operating profits of approximately $5 billion, the Fortune 500 company apparently calculates it's worth the price So other super stores and warehouse-style retailers It's based on the economics of high-stacking the practice of stocking products in bulk on high shelves in areas frequented by shoppers Consolidating retail and warehouse space gives tremendous competitive advantages By slashing the cost of transporting merchandise from warehouse to shopping area (one firm has calculated that moving merchandise accounts for as much as half of its costs), and by making more efficient use of floor space, a warehouse retailer can offer goods at sharply reduced prices The result: highstacking, while economically advantageous, exposes shoppers to grave risks they didn't face at the stores that the high-stackers are driving out of business Doing Business Without Rules No state requires that restraints be used to keep high-stacked goods from falling off shelves No government agency tracks in-store injuries to shoppers Indeed, no legal mechanisms are in place that require warehouse stores to take any of the corrective actions that are needed, such as eliminating or significantly curtailing either high-stacking or the use of forklifts during store hours And retailers cannot be expected to act unless required to so by law: the actions would severely reduce their competitive edge It's a common and growing problem, says Jerry Hildreth, a former investigator for the California Occupational Safety and Health Administration, who has testified in fallingmerchandise cases At what point, as a public policy, we stop permitting public corporations to kill people? Three Ways To Protect Profits • • • Insurance In traditional retail outlets, insurers often set the rules It was not uncommon to see hazardous-warning signs posted that prohibited public access to warehouse areas, usually attributing the ban to requirements imposed by the store's insurers Not so in modern warehouse-stores For one thing, the warehouse and shopping floor are now merged into a single space And for another, the warehouse stores are self-insured, for the most part Allowed to insure themselves, they set their own terms about what they will and will not reimburse One of the first casualties is coverage of medical costs: many chains simply refuse to pay the medical expenses of their own shoppers that they injure and maim, arguing that their insurance doesn't cover those expenses The only thing this insures is that the corporation's bottom line remains healthy Paltry Fines Warehouse stores must comply with OSHA regulations protecting the safety of their employees This should result in improved safety for shoppers as well, but OSHA regulation is relatively toothless One example: In 1994 OSHA fined Home Depot for three violations in connection with an accident that killed a forklift operator That fine was a paltry $1,875 Secrecy Home Depot and Wal-Mart have both fought to keep confidential information about injured-shopper cases Settlements almost always require the injured to agree not to disclose information Home Depot didn't succeed with Janessa Horner's parents, however They refused to agree to the settlement request because, as CBS reported, they believe shopping where merchandise is stacked unrestrained overhead is dangerous and that secrecy about the danger is part of the problem Attorneys for Donald Lasher, the California optometrist whose spine was fractured in three places, say Home Depot officials go even further, that they routinely destroy safety records that they are supposed to maintain and deliberately fail to keep accurate records of injuries to prevent discovery (in court cases) For example, they point out that in their case against the company, Home Depot refused to or was unable to produce safety alerts for 98 prior incidents, safety team minutes at the store where Lasher was injured, safety walk inspection files and risk management audits Remedies Potentially effective regulations that have been suggested to reduce injuries, maimings and deaths in warehouse-store accidents include: • • • • Restricting forklift operations to night hours when the stores are closed or when fewer customers are on the floor Requiring that restraints, such as nylon straps, be used to secure overhead goods Requiring warehouse outlets to post their record of injuries and deaths on a warning sign at each entrance to the store Giving customers hardhats to wear upon entering the store • Requiring that outlets be insured to cover medical costs of injuries received on their properties Failing that, one injury victim suggested, "Why not set up those computerized kiosks like they have in airports at each entrance." For a few bucks you can take out extra insurance before you go in (08/14/01) Artificial Hips: Replacing the Replacements Consumers are all too familiar with recalls of defective automobiles, tires, toys and infant carriers, but imagine the anguish when the defective part being recalled has been surgically implanted inside your body, at great expense and pain Thousands of patients who have had hip replacement surgery in recent years are experiencing just that For many, the artificial hips that were meant to restore their ability to walk without pain and to enjoy even the simple things of life instead are causing what they describe as “excruciating” pain and, in come cases, further bone loss Their only remedy is to subject themselves to yet another painful operation and even longer rehabilitation The 'Inter-Op Acetabular Shell' Producing artificial hips is a lucrative and growing enterprise Each year some 310,000 Americans undergo partial or full hip replacement surgery, typically to alleviate the effects of arthritis Each surgery costs between $20,000 and $50,000, depending on the patient’s age and the length of hospital stay required As the population ages, the number of such surgeries is expected to rise An artificial hip consists of two parts intended to replace the hip’s normal ball-and-socket structure A metal “ball” is mounted on a stem that fits into the femur (thigh bone); the “socket” (acetabulum), a titanium shell lined with polyethylene, is designed to snap into place against the pelvic bone The titanium is porous to allow fusing with the bone Last year, numerous patient complaints that their “recovery” from hip surgery was causing escalating pain prompted the maker of one of the most popular brands of artificial hips to launch an investigation After eight weeks of study, Sulzer Orthopedics, of Austin, Texas, announced on December 8, 2000, that it was recalling 17,500 Inter-Op acetabular shells, 90 percent of them implanted in U.S patients The shells had been manufactured by Sulzer in batches beginning in 1997, when it began moving production “in-house” from its Pennsylvania contractor Most were made beginning in 1999, when the move was completed Sulzer controls about 11 percent of the hip-replacement market (Not all Sulzer hip replacements are implicated: in some cases the shell is cemented to the pelvic bone, a process typically reserved for the oldest patients These are not included in the recall.) The Defect The problem was traced to lubricants, any of four mineral-based oils produced by Mobil Oil Co that Sulzer used in the manufacturing process None of the oils was intended to be ingested or placed inside the body Leaking oil had been seeping into the titanium’s pores After implant, the oil’s interaction with the patient prevented the necessary bonding between shell and pelvic bone, causing “loosening” of the shell, a build-up of scar tissue and, in some cases, permanent further bone loss Typically, within six months of the surgery, patients experienced: • • Pain in the groin and inner thigh Pain when rising from a seated position • Weight-bearing pain, notably in the buttocks Rhonda Silva, 48, Oakland, CA – Immobilized for seven months by her defective artificial hip, Silva had the replacement itself replaced in October 2000, only to learn in December that her new hip was also defective “To get out of bed is the most excruciating” part of her day, she said “I feel like I have an alien living in my body I just want my life back.” Helen Simon, of San Francisco – A hearing and speech scientist, Simon said that learning her hip was on the recall list made her feel like a “human Firestone tire.” She had received her artificial hip on October 16, 2000, while Sulzer was "studying” the problem Barry Moore, 61, Belmont, CA – His hip was replaced June 13, 2000, while he was looking forward to leading his daughter up the aisle in her September wedding He had to walk the aisle limping with a cane and “halfway through the father-daughter dance, I had to quit.” Gretel Quick, 55, Blythe, CA – Her April 2000 hip surgery left her in so much pain, she said, she could hardly climb out of bed “It’s been sheer hell I can’t work, walk, or function normally, and emotionally I’m a mess.” The problem had not been unanticipated: In 2000, a National Institutes of Health panel urged that more study be given to what happens to medical devices after they’ve been implanted in patients, in order to improve artificial joints, pacemakers and other such devices A Brief History of the Hip Recall October 1999 – Hip replacement failures begin to be recorded at approximately the same time that Sulzer completes shifting component production “in-house.” July 2000 – Dr Lawrence Dorr, a Los Angeles surgeon who helped Sulzer design some of its products, notifies the manufacturer of problems with the hip implant “He was stunned by what he considered to be an unusually high failure rate,” the Austin (TX) StatesmanAmerican later reported “He thought the liner was the problem but later became convinced something toxic was on the outer shell He urged Sulzer to fix the problem fast.” September 27, 2000 – Sulzer sends a representative to meet with Dorr and begins an investigation November 2000 – Sulzer notifies the U.S Food and Drug Administration of its investigation December 8, 2000 – Sulzer announces it is recalling 17,500 implanted shells “It was ultimately the fault of one of our products and we’re taking full responsibility for that,” Sulzer General Manager Steven Whitlock tells the news media February 13, 2001 – A federal class action lawsuit is filed against Sulzer Medica, Sulzer’s parent company in Switzerland, on behalf of all patients who received the recalled implants, whether they have experienced problems or not The suit asks that Sulzer set up a fund to cover costs of testing, observation and monitoring of all affected patients March 2001 – Despite its earlier admission, Sulzer denies in court filings that it has any responsibility for the artificial hip failures and says the injuries were caused instead by unidentified third parties, by patient negligence, and by the product being altered or used incorrectly by others Sulzer also said patients contributed to their own losses by not acting to minimize their damages June 1, 2001 – A Sulzer spokesperson concedes that what was initially minimized publicly as “trace amounts” of lubricant found on the hip shells was in fact “an abundance of mineral oil.” June 13, 2001 – The number of artificial hips reported to have been surgically replaced rises to 1,850, more than 10 percent of those on the recall list As one observer noted about the disconnect between earlier admissions by Sulzer and more recent disclosures: “They’ve got a legal problem, and they’ve got a public relations problem, and they’re dealing with them on separate tracks.” A Painful ‘Remedy’ Unlike recalling a toy or automobile component, the recall of a surgically implanted device requires yet more surgery, in this case a procedure that is more complicated than the original operation and takes twice as long Not only must the artificial hip shell be removed and replaced, but built-up scar tissue must be cut away and the bone scraped clean to assure no oil remains to complicate bonding with the new shell This is then followed by a minimum of three months of painful recovery Inadequate Concessions After repeatedly declining to cover any but the direct medical costs of replacing the defective artificial hips, Sulzer has now agreed to give victims at least some compensation for pain and suffering The concession falls short in several respects: • • • No standards are specified for evaluating claims Minimum compensation to be paid all defective hip recipients is unspecified The claims process is not subject to judicial review or any guarantee that similar claims will be treated similarly Instead, the company plans to base payments on what insurers will reimburse • • No public offer has been made to cover future medical care, physical therapy, wage loss, or non-medical expenses No fund has been established for ongoing medical care and monitoring those who have the recalled hip implants but not yet require replacement surgery From Hips to Knees Sulzer’s replacement problems may extend to more than hips On March 11, 2001, as the number of lawsuits the company faces over its artificial hips soared, a Tulsa, Oklahoma, man filed suit over a knee-implant Sulzer, which at first insisted its other products were manufactured differently from the hip replacement parts, conceded in May that the knee implant – a stemmed tibia baseplate – had gone through the same process as the flawed hip part and may have the same oil-contamination defect A Sulzer spokesman said the company first received reports in January about problems with knee implants, but by then had corrected the manufacturing process The company publicly announced the potential knee problem on May 21, and on May 30 it dispatched a “special alert” to surgeons asking them to return for study any knee implants they remove Sulzer also asked physicians to monitor their knee surgery patients, but a spokesman said the company has no plans to recall knee implants (07/23/01) Rides of Your Life: When the Thrill is Gone Roller coasters and other amusement park "thrill" rides are in an all-out race for bragging rights as the world's fastest, highest and scariest With alarming and increasing frequency they are giving thrill seekers considerably more than they bargain for: whiplash, brain hemorrhages, broken limbs and ribs, paralysis, even death A decade ago, roller coasters averaged 55 miles per hour Today they average more than 70 and some approach 100 mph They climb higher, drop more suddenly, whip and swirl more swiftly And they inflict G forces higher than those endured by astronauts at lift-off The “Rattler’s” story illustrates the risks amusement park patrons take In 1990, Fiesta Texas, a San Antonio park, contracted to build the world’s highest, steepest, fastest and longest continuous wooden-span roller coaster When the $5.7 million Rattler opened to the public a year and a half later, it did set records, but only because its design had been changed during construction to make sure it did Combined with bad weather, those modifications caused the ride to open without adequate field testing, according to the San Antonio Express-News The Rattler’s first drop was 166 feet and inflicted G-forces on its riders That’s about 80 pounds of pressure The original design had called for a maximum of G’s During the drop, another 1.5 G-forces (about 24 pounds of pressure) struck suddenly from the left, then the right, as the ride whipped side to side Not surprisingly, injury reports started almost immediately “It feels like someone tried to take your head off,” one rider said “I must tell you that (the Rattler) was the most painful ride I'd ever been on!” another wrote “I mean, it actually hurt to ride it.” Examination of more than 100 injury reports in three months of operation showed that 36 percent were bloody noses, head wounds or mouth injuries, 31 percent were neck injuries, and 20 percent were back injuries Dozens of personal injury lawsuits soon followed In January 1998, 27 plaintiffs received a group settlement of $3.5 million Types of Injury Amusement park rides cause injuries far more serious than bloody noses, including broken limbs and ribs, brain hemorrhages and blood clots, and “diffuse axonal injuries” – the scientific term for what happens when the head is jerked violently in the wrong direction, such as in whiplash and shaken baby syndrome A recent report by the National Institute of Neurological Disorders and Strokes documented 15 cases of ride-related brain injury since 1979 Only one occurred before 1990, and 13 happened since 1994 – telling evidence that rides are getting more dangerous A sampler of cases from the past few years illustrates the seriousness and variety of riderelated accidents and injuries 2001 • A 28-year-old woman was slumped over dead when her train arrived at the end of its run on Goliath, a 255-foot high, 85 mile-per-hour “hypercoaster” at Six Flags Magic Mountain, California She apparently had suffered an aneurysm or bleeding at the brain stem Goliath had been known to cause minor black-outs on one of its more intense spirals • A 20-year-old woman suffered fatal head and neck injuries when her train slammed into the back of another on the Treetop Twister at Lightwater Valley, North Yorkshire, UK Several others were injured • Twenty-two persons were hurt, a few of them knocked unconscious, at Six Flags New England when brakes failed on the Superman Ride of Steel roller coaster and one train crashed into another at the loading platform 2000 • Brake failure also caused a train to plow into another at the loading station of the Pepsi Max Big One at Blackpool Pleasure Beach, England, injuring 14 The injuries included broken ribs and limbs • A 6-year-old boy was drowned when he fell off his inner tube on a Lake Compounce water slide, also in England 1999 • A woman riding Jurassic Park River Adventure at Universal Studios in California suffered chest injuries when she was thrown against her lap bar at the end of an 81-foot drop into water In August 1999, four persons were killed in amusement parks: • A 12-year-old boy fell out of a free-fall ride, Drop Zone at Paramount's Great America theme park in Santa Clara, California • A 20-year-old college student fell to his death from the Shockwave roller coaster, a ride that “drops” its standing riders along a 90-foot vertical loop and sideways spiral, at Paramount's Kings Dominion theme park in Doswell, Virginia • A 39-year-old woman and her 8-year-old daughter were killed on the Wild Wonder roller coaster at Gillian’s Wonderland Pier in Ocean City, New Jersey, when their car rolled backward down a 30-foot incline and crashed into another 1998 • A 15-year-old girl was killed and her brother and a friend were injured when their lap bar broke away and they were jettisoned from the high-speed “Himalaya” roller coaster in Austin, Texas The centrifugal force threw her against a nearby wall The ride had passed an inspection only 10 days earlier by the industry's “Safety Man of the Century,” Bob Gill, even though he had found four safety bars with broken latches An hour before the girl was killed, three other riders had reported broken safety bars on the ride, and still more bars broke in subsequent testing • A 46-year-old Texas woman suffered an aneurysm and severe brain hemorrhaging on a computer-driven high-speed jeep ride, “Indiana Jones Adventure,” at Disneyland • A 5-year-old tried to break free from his mother and leave his seat a few seconds too soon on Disneyland’s “Big Thunder” roller coaster His foot was crushed between the car and loading platform and torn in half The Consumer Product Safety Commission (CPSC) counted 43 riders and 58 park employees killed in ride-related accidents from 1987 through 1997, a combined average of 9.1 a year The CPSC also estimated that 9,200 persons were treated in hospital emergency rooms for ride-related injuries in 1998, up 87 percent from 1994 About half of the injuries (and most of the increase) occurred at fixed amusement parks, with another 2,100 injuries at traveling carnivals and the remaining 2,600 of unknown origin But even those numbers may underestimate the problem CPSC uses the National Electronic Injury Surveillance (NEIS) system, which monitors 101 geographically distributed American hospitals Amusement parks aren’t as evenly distributed as hospitals: Only two NEIS hospitals take patients from any of the top 40 parks, which account for almost a third of the 500 million park attendees each year, and one of those two hospitals accepts only children Who’s Minding the Store? CPSC regulates elevators, ski-lifts and children’s toys It even regulates traveling carnival rides It does not have authority, however, over fixed-location amusement parks, including the nation’s super-sized theme parks that vie to have the fastest, scariest rides, those that draw by far the lion’s share of thrill-seekers The Commission did regulate fixed-location rides from 1968 to 1981, but had to cease when industry lobbyists finally succeeded in winning from a deregulation-minded Congress exemption for all rides “permanently fixed to a site.” CPSC was forbidden to investigate accidents, develop or enforce safety plans, collect accident data from owners, operators and builders of the rides, or share such information with others to help prevent repeat accidents The only safeguards left in place are an ineffective hodge-podge of state requirements, insurance rules, and self-regulation Thirteen states have no amusement park inspection program at all: Alabama, Arizona, Kansas, Massachusetts, Minnesota, Mississippi, Missouri, Montana, North Dakota, South Dakota, Texas, Utah and Vermont Florida, the home of Disney World, exempts all three of its largest parks But the illegal practices continue, despite prosecution by state law enforcement officials, scrutiny by federal regulators, and attempts by private litigants to discourage the dangerous fraud In the early Eighties, auto manufacturers fought the enactment of state lemon laws tooth and nail, claiming they would not dare return the rejects to the road, for fear of being held liable if the vehicles were in subsequent crashes Their plaintive complaint: "You can't make us eat a $35,000 car just because the dealer couldn't fix the brakes." Fortunately, all 50 states rejected that argument The entire argument was totally disingenuous In fact, lemons keep cropping up again and again, as they are resold to unsuspecting used car buyers Vehicles with titles branded "lemon law buyback" are commonly auctioned off in states that not recognize that brand, washing their titles clean and inflating their value as used cars So far, manufacturers have defied attempts by state law enforcement agencies and federal regulators to stem the flow of bad cars to unwitting used car buyers (See filings with the Federal Trade Commission.) Based on information the auto manufacturers supplied to the Federal Trade Commission, auto manufacturers repurchase at least 100,000 vehicles each year to comply with state lemon laws They admit that of those, roughly 95% are resold and returned to the roads They deny deceiving customers, and deny the vast majority of the vehicles were indeed lemons, claiming that most of them are repurchased for frivolous reasons unrelated to their flaws Internal documents obtained by law enforcement agencies and individual attorneys reveal that the so-called "goodwill" buybacks are actually seriously flawed vehicles For example, the California DMV found that the Chrysler lemons had been subject to warranty repairs costing from $2,000 to over $14,000, and over 95% had safety defects As a clincher, the DVM obtained letters Chrysler sent to the state's Board of Equalization, claiming a tax refund, allowable when vehicles are repurchased under the lemon law Chrysler had requested the tax refund on nearly every lemon Evidence has surfaced from a North Carolina consumer's case that shows Chrysler has recouped a hefty percentage of its losses on lemons by reselling them, usually through auctions Only a small percentage of the vehicles it repurchases are destroyed or "donated." In fact, auto manufacturers have breathed new life into the notion of profiting from their mistakes Not only are the subsequent owners unaware of the lemon histories, and therefore soaked by paying an inflated price at the time of purchase But during their ownership of the lemon, they also commonly lack the warranty coverage provided the initial owners This means that lower income consumers end up footing the bill, out of pocket, for expensive repairs to faulty vehicles the factory knows have inherent flaws State attorneys general and consumer groups have urged the Federal Trade Commission to scrutinize lemon laundering nationwide The FTC Commissioners voted unanimously to enter into the fray However, negotiations between auto interests and law enforment officials and consumer groups have broken down, due to the manufacturers' insistence on "lemon loopholes" the pro-consumer forces staunchly refuse to allow How can I tell if I own a lemon and what can I about it? (08/23/00) Many manufacturers have ignored vehicle crashworthiness, relying on inadequate government standards As part of a vehicle's structural support system, a roof creates a "non-encroachment zone" or "survival space" that should protect occupants in a crash If a roof crushes substantially in an accident, occupants may suffer disabling head or neck injuries Most vehicles not have enough headroom to allow for more than three to four inches of crush without significantly increasing the risk of serious injury Rollovers are the most common cause of roof crush Over 10,000 people are fatally injured each year in rollover crashes The causal relationship between rollovers and harm to occupants from roof crush has been recognized as early as 1932 Nevertheless, the auto industry denies the relationship between roof crush and occupant injuries Manufacturers insist that the forces generated by the impact not a lack of crashworthiness-cause the injury or death This argument does not take into account that rollovers are among the most benign accidents because the vehicle decelerates over a long distance Arguing that rollovers are random events that cannot be duplicated, manufacturers rarely conduct rollover tests to guide their roof design or construction NHTSA's FMVSS 216, which sets the minimum strength requirements for a vehicle's roof crush resistance, does not require manufacturers to conduct dynamic rollover tests on roofs The federal standard also fails to consider what material the roof is made of and how it is constructed Consequently, this failure has led to: • roofs that can shatter, crush, or separate from the vehicle, • poor welding that can cause a steel roof to collapse, and • structural support that may be defective in design and manufacture In a rollover, a roof can crush in a number of different ways depending on the construction of the roof and the vehicle trajectory: One of the most common types of injury in a rollover roof crush case is a neck fracture caused by flexion and shear forces produced when the roof crushes down on the occupant Other types of neck injuries include axial neck compresion and hyperextension neck injuries Brain injury can also occur by intrusion of the roof into the occupant space Neck Fracture Injury Axial Neck Compresion Injury Hyperextension Neck Injury (06/07/00) EPA hits company with pesticide - reporting fine Agency: San Leandro firm repeatedly late in submissions By Martin Ricard, STAFF WRITER Article Last Updated: 08/30/2007 02:38:25 AM PDT SAN FRANCISCO — The U.S Environmental Protection Agency has fined a San Leandro pesticide manufacturer owned by a prominent Chamber of Commerce member for violating the federal pesticide law, the agency announced Wednesday Copper Harbor Co — owned by Dan Walters, a chamber executive board member — failed to submit its annual pesticide production report by the March deadline, the EPA reported The wholesale chemical manufacturer was fined $5,200 for repeatedly filing late submissions, the agency said Walters denied that the company has ever failed to submit a report in the past, but the EPA provided documentation that showed Copper Harbor has filed a late report at least once in the past "Companies have a responsibility to submit their pesticide production reports in a timely manner," Katherine Taylor, associate director of the Community and Ecosystems Division for the EPA Pacific Southwest Region, said in a statement Wednesday Under the Federal Insecticide, Fungicide and Rodenticide Act, companies must annually report pesticide production to the EPA by March The EPA issued 17 "notices of warnings" this year for companies that failed once to submit the reports on time, said EPA spokesman Marc Mowrey Twenty notices were issued for repeat violators, including Copper Harbor, during the same period, which results in a civil complaint, Mowrey added Copper Harbor received its first violation when it didn't file its production report on time last year, EPA records show Walters said Copper Harbor filed its pesticide production report late this year because the company didn't realize it was required to report one of the materials it handles — biostatics — in the pesticide report Once the company learned that the product needed to be reported, he said, the required production report was turned in after the filing date "We just had a misunderstanding in the filing process," Walters said Men to pay penalties for damming creek By AP Wire Services 8/30/2007 MUSKOGEE (AP) Two Westville men will pay civil penalties to settle an administrative claim alleging that they built a gravel dam over an Adair County creek in violation of the Clean Water Act As part of the consent agreement, Darryl Cates and Eddy Murray agreed to pay civil penalties of $1,000 each Neither man admitted or denied the allegations in the complaint by the Environmental Protection Agency According to the consent agreement filed Aug 14 in Dallas, Cates and Murray waived the right to contest the allegations and the conclusions of law set out in the EPA complaint They also waived all defenses that have been or could be raised to the allegations of the complaint and the violations resolved by the agreement The EPA filed the complaint Dec 19 after requests to dismantle the dam and restore the Barren Fork Creek were ignored The gravel dam and roadway were built across the scenic waterway in July 2005 without a permit, EPA officials say The dam was washed away in May 2006 by stormwater runoff But EPA officials pursued the complaint because of the respondents' failure to comply with an administrative order issued March 14 that demanded that the dam and roadway be removed and the natural contours of the Barren Fork be restored Son files wrongful death suit against Caterpillar for father's death 8/15/2007 3:51 PM By Michelle Massey, Texarkana Bureau Marshall - While working with his son clearing land, Thomas Mitchell was killed when a Caterpillar machine blade suddenly dropped Thomas' mother and son, Frances Mitchell and David Mitchell, claim the Caterpillar Skid Steer's hydraulic line was improperly assembled causing the accident Thomas' family filed a wrongful death lawsuit against Caterpillar, Inc with the Marshall, Texas Eastern District Court on August According to the plaintiffs' original petition, Thomas and David Mitchell were using a relatively new (about 300 hours) Caterpillar Skid Steer to clear family land When the equipment became jerky, David opened the engine compartment to determine the problem The plaintiff found hydraulic fluid leaking from a hydraulic hose connection When David attempted to tighten the connection, hydraulic fluid forcefully sprayed out covering David The suit goes on to say that this sudden forceful escape of hydraulic fluid caused the Caterpillar blade to drop, catching and killing Thomas Mitchell Caterpillar Skid Steer Continuing, the complaint states David was unable to pull the blade off his father because of the lack of hydraulic fluid It was several hours before other equipment successfully removed the blade from Thomas The lawsuit faults Caterpillar with negligence, manufacturing defect and design defect Plaintiffs seek damages for Thomas' physical pain and mental anguish, David's and Frances' mental anguish, pecuniary loss and loss of companionship A jury trial has been requested by plaintiffs' attorney Blake Bailey from the Bailey law firm in Tyler, Texas Judge John Ward will preside Case No.: 2:07cv00332 Jury Returns $18.9 Million Wrongful Death Verdict Against TXI March 23, 2007 http://www.lawyersandsettlements.com/articles/00689/txi-verdict.html DALLAS The widow of a man killed in an explosion at a TXI facility in Midlothian, Texas was awarded $18.9 million by a Dallas jury today, culminating a 3-week-long trial The jury deliberated for almost two days before returning the unanimous verdict against Dallas-based TXI, one of the nation's largest producers of bagged cement Gordon Rutherford, 34, of Waxahachie, Texas, was killed in January 2003 while employed by Circle 4M Welding, a TXI contractor According to the lawsuit filed by his wife, Amy, TXI directed Rutherford and a crew of three other welders to work in a location 90 feet in the air near an environmental scrubber that contained 5.5 tons of combustible plastic During the course of the work, the combustible plastics caught on fire and engulfed Rutherford who was standing in the basket of a crane Following the explosion, the crane holding Rutherford in the air would not operate, leaving Rutherford suspended in the air on fire, resulting in his death The suit charged TXI with negligence and recklessness in sending Rutherford and the other welders to work in this area without warning them of the danger presented by the nearby plastic that TXI knew was combustible The other workers sustained burn injuries of varying severity and one was hospitalized "TXI ignored basic safety principles and their own policies and procedures by sending this team into work near a large fire hazard." said Michael Heygood of the law firm Heygood, Orr, Reyes & Bartolomei, attorney for Ms Rutherford "This trial was about determining how seriously companies should take plant safety After hearing evidence for almost three weeks, the jury rejected the notion that industrial plants can maintain a blind eye to the dangers their workers face," he said During the trial, Mrs Rutherford's attorneys alleged that TXI knew about the combustible nature of the plastic in the scrubber, due to a previous incident 18 months earlier when the plastic overheated and melted A representative of the company that manufactured the plastic testified that he had previously recommended that TXI replace the plastic in the scrubber with stainless steel for many reasons, including the danger of overheating However, given the additional costs involved, TXI decided to reject such recommendation In addition, attorneys pointed to the fact that plant safety managers were inexperienced in the safety issues involving large industrial plants, having never held a job in safety prior to being hired by TXI "As a result of this verdict, industrial plants hopefully will understand the need to ensure they hire experienced safety professionals to overlook the operations of their facilities Mrs Rutherford hopes this verdict will save other lives," said Robert Lee of Lee & Braziel, co-counsel for Mrs Rutherford TXI was represented in the case by Charles Hurd and Lee Thibodeaux with the Houston office of Fulbright & Jaworski The Law Offices of Heygood, Orr, Reyes & Bartolomei is a Texas civil trial firm specializing in business litigation and life altering personal injury and wrongful death litigation More information on the firm is available at www.reyeslaw.com For more information on the litigation please contact Barry Pound at 214-55-4630; 800-559-4534 or barry@legalpr.com Defective Products causing Personal Injury: Get Your Medical Records Now December 4, 2006 By Jane Mundy http://www.lawyersandsettlements.com/articles/00481/defective-breat-implants.html San Diego, CA: Paula Carr was 29 years old when she had breast implants Paula asked a lot of questions except one: how long would they last? "I thought I would give myself a gift - instead I got a curse," she said "My doctor told me this new product was a combination of saline and silicone and I was excited about the prospect of having a renewed sense of self-esteem," Paula said "In January 1989, I saw Doctor Moore, head of the plastic surgery center in Indiana I was referred to him by my OB/GYN because I had very small breasts and he thought I would be a good candidate for this new product that had just become available Dr Moore told me that there was much less risk involved with this combination than straight silicone and set me up for surgery as an outpatient Everything was great until 1998 I started getting really bad headaches that progressed into migraine By 2000 I was getting TIAs - mini strokes Then in July 2000, I had a stroke and I was only 38 By now the headaches were daily, 4-5 migraines a week and about 6-8 seizures a month I was debilitated So far I have seen eight neurologists and none can figure out why I am constantly having these symptoms; they can't explain why my MRIs show brain damage I have been tested for everything, from rare blood diseases to arthritis; I've had multiple CAT Scans and MRIs In 2004 my breasts started hurting and I had a burning sensation in my left breast; it got to the point where I couldn't sleep on my left side and my breast was getting smaller than the right one At this same time we moved to San Diego I had a mammogram and saw another doctor He told me that more than likely, these combination silicone saline implants have broken and are slowly leaking silicone into my body It is not reversible and not curable and not repairable He explained to me that it causes fibromyalgia, unexplained headaches and migraines, all symptoms which I have, because the body doesn't absorb silicone And it restricts blood flow which could cause the mini strokes that I am having It is really expensive to get them replaced but I need to get them removed, right away I didn't expect to be disfigured because of these new and improved implants When I contacted the plastic surgery center and requested my records so my insurance company would cover the medical expenses, (they will pay to have them removed if deemed a medical necessity) the administrative assistant told me that Dr Moore had retired and the medical records regarding my breast implants have been destroyed I told her that was against the law but she told me to call the manufacturer of the implants, which could be one of three companies The only way I can determine the manufacturer is to have them removed and the manufacturer name and serial number will be on them So I am running up against a brick wall This is very frustrating I believe Dr Moore destroyed my medical records because the implants were defective He retired around the same time as Dow-Corning's lawsuit began I'm scheduled to see another plastic surgeon who has advised that I have them removed But it will cost up to $5,000 and my insurance company has agreed to cover surgery to have them removed but not to have new ones implanted The plastic surgery office showed me photos of women who had implants removed and not replaced - young women look like they have 90 year-old breasts I would never have gone into this had I known My family physician also believes that, due to so much muscle pain, I have silicone poisoning I am only 46 years old and my body feels like I am 70 I am on antianxiety medication and 7.5 mg of codeine, four times a day I've learned throughout the last six years of daily pain to make the most of each day - I don't have time for low self-esteem anymore! I called Dr Thomas Moore at the time of the original Dow-Corning lawsuit and he said my implants weren't affected - they weren't all silicone In retrospect, I should have gotten my medical records immediately after my procedure Medical records should be kept just like I keep my bank records, or my tax return It is that critical - saving medical records can help people regain some restitution - don't throw away your hope by not getting and keeping records I have now kept everything since 2000, and learned a very valuable lesson I also learned that self-esteem has nothing to with appearance, but everything to with inner strength And when it comes to making a decision about plastic surgery, if you choose to so, make sure that you think about it for a long time and consider the long term consequences - plastic surgery is not a quick fix and could end up being deadly The results of a defective implant causes irreversible pain and damage - not just for you but your family My husband watched me go from a social butterfly to just day-by-day existing I would never this over again because some doctors don't tell the truth and I think some of them are in it only for the money." Attorneys OK $5.3 M settlement in ambulance crash case By ERIN SCHATTAUER A 3-day-old Oil City girl was critically injured while being transported to a Pittsburgh hospital Attorneys in a personal injury case involving a 3-day-old girl who was critically injured in a 2003 ambulance crash have reached a settlement Now it is up to a Venango County judge to approve the agreement Appearing before Judge Oliver J Lobaugh Tuesday, former Oil City residents John Knabb III and Tracy Knabb, parents of now 3-year-old Joanne Knabb, gave their approval to settling the civil case for a sum of $5,307,000 The Knabb's attorney, Robert Varsek, believes the settlement is the largest personal injury recovery ever in Venango County Three-day-old Joanne was being transported to Children's Hospital of Pittsburgh in an ambulance owned by Guardian Angel Ambulance Service Inc on Feb 23, 2003 when the ambulance, which also carried the girl's mother, was struck head-on by a vehicle driven by John E Bridge on Route in Victory Township near Barkeyville, according to court papers Bridge, who Varsek said was under the influence of alcohol, was pronounced dead at the scene "A drunk driver set everything in motion," Varsek said Joanne was born with a hole between the ventricles of her heart and was traveling to the hospital for treatment when the crash occurred, according to newspaper accounts Following the crash, Joanne was taken to Children's Hospital where she was listed in critical condition Others, including Tracy Knabb, the ambulance driver and emergency personnel in the ambulance were also injured, according to police reports As a result of the crash, Joanne suffered injuries to her bones, cartilage, ligaments, muscles, nerves and body tissue, according to the complaint Her injuries have caused her prolonged pain and suffering, as well as disfigurement, emotional distress and mental anxiety, according to the complaint Because of the injuries suffered in the crash, Joanne will never go to school and never be gainfully employed, Varsek said "She will need 24-hour care the rest of her life," Varsek said The $5 million-plus settlement is to be paid in bulk by International Biomedical Inc of Austin, Texas, maker of the incubator and transport equipment IBI is to pay $4,632,000 with $2,300,000 to purchase two annuities that will pay Joanne $13,000 per month for the rest of her life and $2,332,000 will be paid in cash Joanne was secured in the transport incubator manufactured by IBI at the time of the crash When the crash occurred she was "catapulted" from it and thrown through the ambulance "As a result of being catapulted out of the transport incubator, she suffered catastrophic brain injury," Varsek said "She was the only one catastrophically injured," he added Additionally, Children's Hospital of Pittsburgh is required to pay $500,000 in cash, Guardian Angel Ambulance Service Inc is to pay $150,000 in cash and Bridge's estate is to pay $25,000 in cash Since the crash, the Knabbs' lives have changed dramatically Because of Joanne's needs, her parents are limited in their activities "There's really not a lot we can really get out and because she is so limited," Tracy Knabb said "She has not spent time away from one of us except when she has been in surgery," John Knabb said Varsek believes the personal injury settlement is the largest in county history "This is by far, by leaps and bounds, the largest personal injury recovery in this county," Varsek said "The money we've secured will take care of Joanne for the rest of her life," he added Lobaugh said Tuesday he will review the agreement before signing his name to it Cheyenne jury awards $17.5 million in Vail Resorts carbon-monoxide case A Cheyenne, Wyo.,jury on Tuesday awarded $17.5 million to a woman and her deceased husband's family in a carbon monoxide poisoning case against a Vail Resorts' hotel at Jackson Hole ski area The award is the largest personal injury verdict ever handed down in Wyoming The jury awarded compensatory damages but no punitive damages Attorneys representing Joette Williams, 52, and the family of her deceased husband, Dr Randy Williams, 51, asked the jury to award $61 million in actual damages with additional punitive damages Vail Resort's insurance policy will cover the damages Had the jury found Vail liable for punitive damages, the company would have had to pay without help from its insurer, possibly hobbling its effort to rebound from a first-ever annual loss last fiscal year "None of this brings back Dr Williams None of this brings back Mrs Williams' health," said Williams' attorney, Bob Schuster "But the family is appreciative the jury awarded the largest verdict that has ever been rendered in Wyoming." Joette and Randy Williams were found unconscious on Aug 2, 2001, in Room 327 of the luxurious Snake River Lodge & Spa at the Jackson Hole ski area Randy Williams died and his wife sustained brain damage and other injuries Carbon monoxide from a faulty boiler beneath their room had seeped through their window air-conditioning unit, according to testimony Vail Resorts owns 51 percent of the lodge The jury found Vail 47.5 percent responsible in the combined personal-injury and wrongful-death lawsuit The nine-person jury concluded that a contractor that installed the boiler, Mechco Inc., was 47.5 percent responsible and a contractor that worked on the boiler, Blue Line, was percent responsible The resort company is on the line for a little more than $8.3 million right now, but the judge in the case is deliberating if Vail Resorts could be held liable for the whole award of $17.5 million "The jury's unanimous finding of a compensatory award far less than what was sought by the plaintiff, combined with its finding that no punitive damages were warranted, is enormously gratifying for us," said Martha Rehm, Vail Resorts' general counsel "No one associated with the Snake River Lodge intended to harm." Joette Williams' attorneys tried to convince the jury that Vail Resorts was not only negligent but reckless in the carbon monoxide poisoning Testimony revealed that a contractor hired by the company had disconnected a safety switch designed to shut off the boiler when it emitted too much carbon monoxide A lodge employee who worked next to the boiler complained of sickness for several months before the poisoning A guest in the room above the Williamses checked out early, complaining of illness Williams' attorneys told the jury that Vail Resorts ignored too many signs of danger "This is about full and final responsibility; full and final justice," Schuster told the jury in his closing arguments Friday "But for Vail, this has been about finger pointing." Vail attorneys tried to convince the jury that Williams could soon recover from her brain injuries, which have left the former nurse unable to work The company also scrutinized the amount of money the Williamses were seeking, and argued against punitive damages Vail attorney Earl Gunn acknowledged that the "ball got dropped" in the replacement of the new safety switch, but the company was unaware the faulty boiler was dangerous "Yes, mistakes were made But these are just human beings who made some mistakes, and we are here to take some responsibility." December 17, 2003 Copyright © The Billings Gazette Man suing maker of nail gun that fired into his head Associated Press X-ray Last Updated: June 6, 2001 Eau Claire - A man is suing a nail gun company, accusing the firm of not properly designing and manufacturing a gun that fired a nail into his head in 1998 Travis Bogumill of Chippewa Falls and Society Insurance of Fond du Lac filed a lawsuit last week against Stanley-Bostitch, the East Greenwich, R.I., company that designed, manufactured and sold the nail gun "Stanley-Bostitch negligently and defectively manufactured the nail gun in question here and failed particularly to put appropriate safety devices on the nail gun," said Michael O'Brien, Bogumill's attorney in Eau Claire Photo/AP This X-ray shows the 3-inch nail accidentally driven into Travis Bogumill's head with a nail gun On July 10, 1998, Bogumill, an employee of Jim Falls Building and Construction, walked by a ladder at a remodeling job in Stanley as a co-worker climbed down with a nail gun in hand The nail gun touched Bogumill's head and fired a 3-inch, 12 penny nail into his skull An X-ray later showed a nail lodged on the right side of his brain, halfway between his ear and the top of his head According to court records, negligence on the part of Stanley-Bostitch resulted in Bogumill's injury Calls to Stanley-Bostitch and Society Insurance were not immediately returned Tuesday Appeared in the Milwaukee Journal Sentinel on June 6, 2001 Polyvinyl Chloride Polyvinyl Chloride is used in producing a myriad of consumer products such as shower curtains, plastic table cloths, childrens' toys As early as 1960, vinyl chloride monomer has been linked to cancer when workers in a B.F Goodrich plant were diagnosed with liver angiosarcoma The International Agency for Research on Cancer confirmed the link between angioscarcoma of the liver and long term exposure to vinyl chloride Greenpeace has lobbied for the worldwide phase-out of PVC because they claim dioxin is produced as a byproduct of vinyl chloride manufacture and from burning domestic garbage Dioxins are a highly toxic substance that can cause cancer even with very low levels of exposure Huge amounts of dioxins are released into the environment every day from the incineration of garbage, and nearby communities find cancer clusters appearing near these sites Once a PVC product has been created, there is no safe way to dispose of it Burning it releases toxic dioxin, burying it allows the chemicals to leach into surrounding soil and groundwater, and it can't be recycled The available statistics available from the U.S Consumer Product Safety Commission (CPSC) from 2003 Show an Alarming Trend: • In year 2002, moving amusement rides made up at least at least three thousand (3000) hospitalized injuries • to park spectators; In or about year 2002, trampolines, inflatable boats and slides that inflate, made up approximately two • thousand five hundred (2,500) trips to hospital emergency rooms by amusement park victims; In the years 1987 to the year 2000, amusement park rides caused at least fatal accidents in each calendar year; In other stats, the CPSC described other injury causing factors, and hazards involving amusement park related incidents, such as: • Mechanical failure from structural failure, broken or missing safety pins, cracked welds and other structural • • weakening parts, like sheared wires, broken and malfunctioning lap bars and seat belt restraints, or even human error like failure to turn the ride off Human Error: slamming brakes, abrupt stops, improperly repair, maintenance or assembly Improper behavior by park attendees: Ride riders who recklessly, intentionally and willfully rock and shake rail cars, who stand during rides, who break safety restraint devices, who sit in such a way as to defeat the safety restraints, who carry children outside the restraint systems causing them to lose hold and drop the babies ... immediate recall of all defective Firestone Tires Specifically, TAG wants Firestone to extend its recall to include all Wilderness AT tires, regardless of size, where they were made, or where they are... access to warehouse areas, usually attributing the ban to requirements imposed by the store's insurers Not so in modern warehouse-stores For one thing, the warehouse and shopping floor are now merged... involve non-recalled Firestone tires Among the incidents involving Wilderness tires where the tire size, model and plant of origin were identifiable, tread separation and blowouts were reported