Stryker Hip Replacement Recall

September 19, 2012

Hip replacement surgery is an extremely invasive, complicated and painful surgery. Recovery and rehabilitation can take many months. Obviously, this is an experience that no individual wishes to undergo once, let alone twice...for the same hip.

In recent months however many individuals have required second replacement surgeries as a result of a defective hip implant system designed and manufactured by Stryker Orthopedics, one of the largest developers of medical devices, including hip replacements. These defective devices are specific to two separate Stryker hip replacement systems, specifically the Rejuvenate and ABG II systems. Thumbnail image for hip replacement photo.JPG

Stryker began alerting the medical community to these defective hip systems in April 2012, when they sent an Urgent Field Safety Notice to surgeons and hospitals who reportedly used either the Rejuvenate or ABG II hip replacement systems. An official voluntary recall was then issued in the United States by Stryker in July 2012. The recall states that the risks associated with the Rejuvenate and ABG II modular-neck hip stems include "the potential for fretting and/or corrosion at or about the modular-neck junction which may result in ALTR (adverse local tissue reactions) manifesting with pain and/or swelling."

In other words, the parts of the hip replacement are rubbing against each other, causing particles of metal debris from the implant to come off and enter the body. The condition is often referred to as "metallosis," where metallic debris, such as from a hip replacement system, embeds and builds up in tissue and muscle, such as that surrounding the hip joint. This can then cause extreme discomfort, pain and swelling, and can lead to severe infection and/or poisoning, specifically including abnormally high levels of cobalt. Other symptoms may include persistent pain to the buttock, groin or thigh regions, headaches, general fatigue or anything else unusual. As a result of these issues, the hardware usually must be removed and replaced with different hardware.

There have been thousands of people with these defective products implanted into their bodies that may not even be aware that this defective product is inside of them. Accordingly, if you or someone you know has had a hip replacement with either the Stryker Rejuvenate or ABG II hip-stem systems, and are feeling any discomfort in the hip region, a surgeon or other healthcare provider should be contacted immediately.

The recall issued by Stryker is a clear indication that the corporation manufactured and developed defective products. Stryker has a duty to design their products in a safe manner, free of any defects. Stryker may have breached their duty by designing these products defectively and thus may be held liable for any injury caused to users of this product.


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Even a Race Car Driver Will Lose Control During a Tread Separation

Florida drivers need to understand the dynamics regarding the loss of vehicle control during a tread separation event. Tread separations occur predominantly in warm weather states. Florida, Texas, Arizona and California experience the highest number of tread separations throughout the country. Heat contributes to the degradation of a tire, and therefore it is no coincidence that tire defect cases involving tread separations occur most frequently in these states.

Tread separations also typically occur at highway speeds because the centrifical force of highway speeds is necessary to initiate the force which allows for the unraveling of the tire tread, and the separation of the tread and top steel belt from the remainder of the carcass of the tire.

A tread separation event is a specific type of tire failure that results in certain vehicle dynamics which make it virtually impossible to control the vehicle at highway speeds. Tire manufacturers relentlessly point a finger at, and place blame on, the operator of vehicles which undergo tread separation followed by a rollover event. Nevertheless, science has shown that the operator of a vehicle which experiences a tread separation is operating a vehicle which is reacting dramatically different than it was acting moments before and just prior to the tread separation.

As Florida tire lawyers who have handled scores of tire defect cases, we have often argued to a jury that even an experienced race car driver will probably not be able to prevent a rollover where a full tread separation occurs when an SUV or light truck at highway speeds. We have made these arguments in order to articulate and emphasize the erratic behavior of a vehicle undergoing a tread separation at highway speeds. The driver will first experience a pull in the direction of the side of the vehicle on which the tread separation occurs. In order to prevent the vehicle from going off the roadway or into other traffic, an operator will typically attempt to steer in a direction counter to the pulling effect. When steering in a direction opposite to the pull, the vehicle will first respond minimally, but as soon as the tread detaches from the tire, the vehicle will make a drastic over-response to any steering input.

It is this erratic and unpredictable vehicle responsiveness which contributes to the repeated rollover events witnessed after a tread separation. As Miami tire attorneys at Jay Halpern and Associates we have recently been retained in connection with a case where the driver of a vehicle who was killed in a rollover event after a tread separation was in fact a former race car driver, and at the time of his death, an F-16 fighter jet crew chief in the Unites States Air Force.

We used to argue, poetically and theoretically, that even a race car driver could not control an SUV or light truck from rolling over after a tread separation. We are now engaged in the representation of a family, who has lost a son and father. Sadly, when we now speak about a race car driver losing control because of a tread separation event - we are talking literally, and not figuratively.

Tragic Boating Accident

September 7, 2011

American Lake in Lakewood, Washington, was the site of a horrific and tragic boating accident on March 1, 2009. That afternoon, David Kenny "DK" Ross, 14 years old at the time, was operating a kayak in the lake. DK was traveling to spend the day with his father on Silcox Island, when he was unexpectedly run over by a motor boat operated by McKinley Randle.

DK suffered horrible and life-altering injuries as a result of the event, which have left him physically and mentally handicapped. The injuries apparently include traumatic brain injury, in addition to neck injury and a collapsed lung.

The parents of DK allege that Mr. Randle was operating his boat in a negligent manner, in that he was "traveling too fast and not keeping a proper lookout."

The State of Florida and in particular, South Florida, is a hotbed for boating accidents. Surrounded by ocean and with warm weather on a daily basis, the potential for accidents on the water are countless. The problem is heightened by the fact that many individuals who operate boats do not have the experience or knowledge of the rules of the water and boating safety generally. Adding to the danger, Florida does not require a boating license to operate a personal vessel if over a certain age (only a standard Driver's License is needed) and operators are not required to take a safety course if over a certain age. This lays the way for potentially catastrophic accidents, similar to that experienced by DK in Washington.

At Jay Halpern and Associates, we cater to all types of vehicular accidents, including boating and automobile collisions. Boating accidents can be very complex and boats follow a different set of rules altogether than automobiles, known as the Navigation Rules. Two of the most important rules of boating are to keep a proper look out and to travel at a safe speed so as to avoid collision. This means that when a boating accident occurs, both vessels are considered at least partially negligent for the resultant collision.

In addition to boating accidents, we also handle all types of injuries, including traumatic brain injuries like those experienced by DK. We also handle severe spinal injury, compound fractures and even less serious muscle and ligament injuries.


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South Florida Bicycle Safety - There is more to worry about than Cars

September 1, 2011


South Florida has had an alarming number of bicycle accidents in the last ten years. The rise in bicycle accidents can be attributed to many factors including the increasing number of bicyclist and the increase in traffic congestion. Unfortunately, the South Florida infrastructure has not kept pace with the increase demand by cyclist and motorists.

A misconception of bicycle accidents is that all accident involve a collision with a vehicle. In addition to the dangers associated with sharing roadways with vehicles, bicyclist encounter unknown dangers in the form of poorly maintained roads, uneven roadways, and improperly designed roadways. When a bicyclist crosses an unpaved road or uneven road, his ability to control his bike is diminished and they are exposed to serious and permanent physical injuries.

As Miami bicycle attorneys we had the opportunity last year to represent two young adults who suffered serious injuries in two separate bicycle accidents.

The first case involved a local high school athletic director who had participated in multiple triathlons. During his triathlon training he was riding his bicycle on the Rickenbacker Causeway. The Rickenbacker Causeway had recently undergone major resurfacing project but was open to the public for use. As our client road his bike, he hit an uneven portion of the roadway and was thrown from his bike suffering injuries which required multiple surgeries. Through extensive discovery it was found that the resurfacing project had been completed with the uneven pavement completely disguised by white stripping. The cause of his fall was the uneven pavement and did not involve any vehicles. As a result we were able to reach a confidential settlement with the contractor of the project.

The second case involved a social worker who was riding her bike home from her local coffee shop in Coral Gables, Florida. As she crossed the intersection of Lejuene Avenue and Alhambra Circle, she was struck by a car making a left turn. As a result of the impact she was thrown to the ground suffering severe facial and closed head injuries. Although we settled for a confidential amount with the driver of the vehicle, an issue that came to light during our investigation was the lack of a bike path and improper lighting at the intersection.

Jay Halpern & Associates has extensive history in handling accident cases, including bicycle accidents. Our experience allows us to know first hand the obstacles and dangers that can transform an enjoyable bike ride into tragedy.

Deposing the Defense Tire Expert in a Tire Case

When a tire has failed by tread separation, and allegations are made that the tire was defective, by design and/or manufacture, a defense will undoubtedly be mounted by the tire company that manufactured the tire.

As Florida tire attorneys who routinely deal with tire cases, we are not aware of any case where a tire manufacturer has come forward and admitted that the company manufactured a defective tire. Of all the millions and millions of tires that are manufactured, are we to believe that there is not a single lemon among them? We know that tire companies, from time to time, recall certain models of tires because of defect concerns.

In a tire case lawsuit, the tire company which manufactured the tire will list a forensic tire expert, typically to assert that the tire was not defective in any fashion, and failed because of exposure to misuse and/or road hazards.

In going about a cross-examination of such experts, there is no alternative to thorough preparation for the deposition of the tire expert.

This preparation should include the following:

1. Obtaining a list of all the prior cases in which the expert has testified. Federal rules actually require that such a list be filed with court pleadings. If a case being investigated is proceeding in state court, it is likely that the expert in question has testified in prior cases in federal court so a list of the cases in which he has given testimony can be obtained. This list will usually reveal that the expert has testified virtually exclusively for tire manufacturing and tire service companies as opposed to individuals injured in tire failure and/or rollover events.

2. Review prior deposition testimony. The list of cases will also be a good starting point for obtaining deposition testimony in other cases. Reviewing such testimony is invaluable, and may reveal inconsistent positions taken by an expert in other cases made to protect the interest of the party that has hired him in another case.

Recently, we were involved in a case where an expert for a tire company asserted that a tire in question that had failed was not defective, and that the ingredients used in the inner liner were appropriate, even though they were missing a certain key ingredient. In testimony in another case, on issues that had nothing to do with our case, we found testimony by this expert where he stated that the failure to use that certain key ingredient that was missing in our case was in fact a design defect and that all tire companies were using that key ingredient as far back as two decades ago. This testimony had a dramatic effect tipping the scales in our favor for a fair resolution of the case. There are kernels of gold to be found in prior deposition testimony of adverse experts.

3. Request the production, by various forms of pleadings, of the opinions, reports, field notes and photographs of the adverse expert before the deposition. The notes, photographs and opinions of the adverse expert are the meat and potatoes of the testimony that he will offer to oppose the claims in the tire case. A thorough investigation should be made into the basis for each opinion, in order to understand whether there is some legitimate scientific foundation for statements which serve to protect the tire industry. The forensic work of the adverse expert should be reviewed by the Plaintiff's own expert to determine whether the adverse expert's conclusions and work lack scientific foundation.

The three methods listed above are just a beginning point for thorough preparation for the cross-examination of an adverse tire expert in a failure case. Thorough preparation may unearth bias, inconsistent statements, lack of scientific foundation, or other chinks in an expert's armor.

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To Prevent Spoliation in Tire Cases Use Preservation Letters

We have previously written that the three principle do's for tire failure cases are: 1) preserve the evidence; 2) preserve the evidence; and 3) see rules numbers one and two. This is because, except for in rare cases, product defect allegations, including tire defects cannot be proven without the product being available for forensic inspection by experts.

Preserving the evidence means, that where possible, the evidence is obtained, and placed into storage in a fashion that will prevent the product from deteriorating. For tires and motor vehicles, this typically means placing the items in dry storage under lock and key.

If the product is altered, lost, or damaged, the party who had responsibility for possession and control of the product may be charged with spoliation. Spoliation is defined by Black's Law Dictionary as the "intentional or negligent withholding, hiding, altering, or destroying of evidence relevant to a legal proceeding." If a court determines that a party is guilty of spoliation of evidence the court may strike the pleadings of the party guilty of spoliation, or instruct the jury that the jury may infer that the evidence would have provided damaging evidence against the party guilty of spoliation.

Florida tire lawyers have followed a long line of cases which have developed the law of spoliation in Florida, and which currently require a showing of the following:

1. The item lost, damaged, altered, or destroyed is usually the product alleged to be defective;

2. The subject product lost, damaged, altered, or destroyed was in the possession or control of the party charged with spoliation;

3. Some legal duty required the party charged with spoliation to protect and preserve the product. This legal duty may occur after litigation is initiated by virtue of court orders, by contract, or by other factors which may impose a duty; and

4. The loss, damage, alteration, or destruction of the physical evidence or defective product renders the injured party incapable of going forward with their case and establishing liability.

Miami tire lawyers must be alert to send out preservation letters at the early stage of their engagement in a tire defect case or other product liability case. In a typical rollover event initiated by the failure of a defective tire, the vehicle is initially placed in storage by the investigating police department or Florida Highway Patrol. Thereafter the vehicle is moved out of this temporary storage facility to another storage facility typically controlled by the insurance company for the owner of the subject vehicle. During this early phase of the case, when the matter is still being investigated, it is wise to direct a preservation letter to any person or entity who may have some control over the condition of the subject vehicle and its component parts including any failed tire or detached pieces of tread.

For these reasons, tire defect lawyers should consider writing a preservation letter to the investigating police department, any tow yard where the subject vehicle or component parts are being stored, the owner of the vehicle, the insurance company for the owner of the vehicle or any other person or entity which may exercise some type of control over the vehicle and its component parts. Thereafter, efforts should be made to purchase for salvage value whatever evidence remains, and move the evidence into protected dry storage.

A preservation letter should include the following information:

1. A clear identification of the subject vehicle;

2. A request that all measures be taken to preserve the critical evidence, subject vehicle, tires and other component parts;

3. A clear statement that failure to preserve such critical evidence may result in a claim for spoliation of evidence;

4. An offer to assist in preserving the evidence by taking whatever measures are necessary to preserve the critical evidence, including an offer to pay for any outstanding storage charges or any other charges associated with properly preserving the evidence;

5. An offer to take possession of the critical evidence and take responsibility for it;

6. A request that the critical evidence be moved into secure indoor storage space; and

7. A request that the attorney be contacted to arrange for transfer of the critical evidence to the attorney in exchange for payment of the salvage value.

Critical evidence has an uncanny way of going missing. Many times critical evidence is lost or destroyed unintentionally during these early phases of a case because what may appear as junk to one man may be invaluable evidence to another.

Advising those in possession and control of the critical evidence about the significance of preserving the evidence with a proper preservation letter will help ensure that the evidence is not lost, altered, or destroyed; and a legal duty may be created so that a claim for spoliation of evidence is preserved against any party who allows for the destruction of evidence after receiving a preservation letter.

Jeep Grand Cherokee Recall- Beware of Fires

1240763_car_fire.jpgWhen an automobile catches on fire following a collision, it can be disastrous and in turn lead to catastrophic injuries, including third degree burns and death. Many times this occurs as a result of a defect, making it a particularly serious issue because remedying the defect could prevent secondary injuries due to the fire.

If a specific automobile tends to catch fire more so than others, this may be a sign of a defective design and a possible products liability case. This exact issue has recently come to light, as detailed in a recent New York Times article.

According to the Center for Auto Safety, Jeep Grand Cherokee models produced from 1993 to 2004 are extremely susceptible to fires and should be recalled. This conclusion was based on three different tests performed on the Grand Cherokees, all the results of which indicated that these automobiles have a high tendency when compared to other similar automobiles, such as the Ford Explorer or Nissan Pathfinder, to result in catching on fire following a rear end collision. It is estimated that there were approximately three million of these vehicles sold, many of which remain on the roadways today.

The federal safety agency recently granted a 2009 request made by the Center for Auto Safety to begin investigation of the Grand Cherokees from 1993 through 2004. In the request, it was stated that the Grand Cherokees had two serious problems; 1) that because the gas tank is behind the rear axle and slightly below the bumper, it is in the crush zone area, making it susceptible to puncturing and 2) that the "fuel filler pipe" is positioned in a way that allows it to be ripped away following a rear impact, thereby allowing gasoline to escape. Compounding these two problems makes these vehicles particularly susceptible to catching fire following a rear-end collision.

Chrysler, the manufacturer of the Grand Cherokee, has responded to these accusations by arguing that the Grand Cherokee met the federal standard for not leaking fuel in a rear impact and that investigations did not indicate the Grand Cherokee was more likely to catch fire as a result of the impact than similar vehicles. They claim that the car was designed with "sound engineering judgment and due care," and did not have a design defect. N.H.T.S.A. signaled that they agreed with Chrysler based on their "preliminary review."

An important factor in the recall determination is that when the 1993-2004 Grand Cherokee's were produced, the federal standard was that a vehicle could leak a small amount following a 30 mph rear impact with the force of impact distributed evenly. This was a major concern and deemed not a high enough speed. Accordingly, it was changed in 2006; a vehicle must now pass a 50 mph rear impact and an impact that does not spread the force evenly. It is important to note that even if a vehicle meets a minimum standard, it can still be recalled as automakers have an obligation to produce safe vehicles.

According to Mark Arndt, an independent safety consultant, it is essential that survivors of 50 mph rear impact do not suffer secondary injuries from fires that would be preventable with the proper design. Mr. Arndt explained that the Grand Cherokee problems could be alleviated if the gas tanks were protected with a plate and that the vehicle have a valve that prevents leaks if the filler pipe is ripped free.

In 2005, the placement of the gas tank in the Grand Cherokee was changed, whereby it was shifted forward from a position next to the rear bumper to in front of the rear axle. On the face, this seemed to signify the unsafe nature of the prior design. However, a Chrysler representative explained that this was due to relocation of the spare tire and not for safety reasons.

Nonetheless, if you own a 1993 to 2004 Grand Cherokee, it is important to keep a watchful eye and open ear for a recall notice. If the vehicle is recalled, Chrysler may not have to compensate owners of recalled vehicles if the vehicle is at least 10 years old. However, product liability suits can be filed against Chrysler for injuries caused by these vehicles provided they are not barred by the statute of repose.

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The Value of Studying Companion Tires in a Tire Case

photo rollover k4.JPGWhen a tire fails, causing a rollover and catastrophic injuries, an investigation will follow regarding the cause of the tire failure.

Tire manufacturers and sellers will rush to propose a catalogue of reasons as to why the tire failed. Not surprisingly, this list will always exclude design and manufacturing defects built into the tire by the tire manufacturer.

Miami tire lawyers and lawyers throughout the country who handle product liability cases will be confronted with dealing with this catalogue of reasons for the tire failure, which will undoubtedly focus on the driver, user, or owner of the vehicle and tire.

In order to properly investigate and test the theories set forth by defendants in tire cases, it is helpful to analyze the companion tires on the vehicle.

For this reason, the companion tires and the spare tire need to be preserved for forensic evaluation by tire experts. This evidence is critical because the companion tires have typically experienced the same environmental forces as the failed tire, but unlike the failed tire, these companion tires did not fall apart and cause a rollover accident with horrific injuries.

As tire lawyers who have handled hundreds of tire cases, we have seen virtually every theory set forth by defendants in tire cases about why a tire failed without reference to any manufacturing or design defect. Three examples which come to mind are:

1. Under inflation as evidenced by rim flange grooving;
2. A puncturing object inside the tire;
3. A prior repair and patch on the tire.

We have successfully resolved cases for clients where one or more of the three conditions listed above have existed in a failed tire. While some of these conditions may not be desireable, tire lawyers must be able to show that these findings are not related to a condition that caused the tire failure and motor vehicle accident.

Companion tires have been instrumental to our proof in these cases, because we have shown that the three conditions listed above have existed in the companion tires on a vehicle which was in an rollover event, and which companion tires never failed. We have even shown that these conditions have existed on tires that have experienced much more service life on the vehicle than the tire that failed.

For this reason, the preservation and forensic examination of the companion tires and spare tire are critical to protecting the interest of those killed or injured in a rollover event caused by a tire failure. When confronted with a list of theories that deflect attention away from manufacturing and design defects, the companion tires and spare tire are critical evidence in disproving defense theories that (stealing a line from My Cousin Vinnie) do not hold water.

The Myth of Rim Flange Grooving in Tire Cases

As hot weather leads to more tire failures in Southern states, Miami tire lawyers need to understand how to counter specious defenses raised to deflect attention away from the fact that a tire has been defectively designed or manufactured.

One of the defenses commonly encountered by tire lawyers is the defense theory of rim flange grooving.

The rim flange of a tire is the slightly recessed area at the very bottom of the sidewall of a tire which comes in contact with the wheel rim when a tire is mounted on a vehicle. For the laymen, this is the circumferential piece of rubber adjacent to the circular hole in every tire. It is a very thin area of rubber which goes around the tire next to the hole, is slightly depressed from the rest of the sidewall, and may have a pattern or sheen which is slightly different from the rest of the sidewall.

The defense theory goes something like this: If a tire has evidence of rim flange grooving, or depression marks in the rim flange area of the tire, it is evidence of under inflation. Under inflation means that at sometime during the life of the tire the tire was run with less than ideal air pressure. The theory continues that exposure by the tire to an underinflated state compromises the integrity of the tire and may lead to failure by tread separation.

The problem with this theory has been exposed by tire experts who have shown that brand new tires in use for short periods at proper inflation pressures which are then dismounted will show some evidence of rim flange grooving simply by virtue of use on the vehicle, and the forces created at the contact point between the tire and the rim by normal activities such as cornering, accelerating, and decelerating.

At Jay Halpern and Associates, we have handled tire cases throughout Florida and across the country. We believe that theories such as rim flange grooving, which rely on findings that occur through normal use of a vehicle and tire are improper barometers for what causes a tire to fail. If a tire is properly designed and manufactured, it must withstand the normal and typical use for which it was intended. If that normal and typical use renders a finding of rim flange grooving, then such a finding should not stand for the proposition that the vehicle or tire was abused by the user.

Naturally, if there are unusual deep gouge marks in the rim flange area which indicate that the tire may have been run with no air pressure whatsoever, an inquiry should be made into any such unusual markings. Nevertheless, mild to moderate rim flange grooving which occurs during the normal course of vehicle and tire use is a bogus argument used by tire manufacturers to deflect attention away from design and manufacturing defects.

Hot Weather Plus Old Tires - A Deadly Combination for Florida Drivers

As we approach the summer months, Florida tire lawyers will unfortunately see an increase in tire failures resulting in rollovers. This has been an undeniable pattern since steel belted radial tires were introduced four decades ago.

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Studies have shown that tires, whose chronological age is older than six years, have a higher propensity for experiencing tread separation events. This is not only borne out by studies focusing on tire age, but it is also supported by scientific analysis happens to rubber over time.

The passage of time has a deleterious effect on the elastic and supple qualities of rubber. Studies have shown that over time rubber hardens, loses elasticity, and has a lower break point tolerance. The qualitative effect on rubber by time can be observed by the laymen in rubber bands which become brittle, break more easily, and have less elasticity as time goes by.

When the effect of the passage of time on rubber is coupled with heat, the result for tires on hot Florida roadways can be disastrous. Heat is the enemy of tires because it also accelerates the destructive effect not only on the integrity of the rubber itself, but also on the adhesion between the various component parts inside of the tire. The coupling of old tires with hot weather results in a clear spike in tire failure cases.

As Miami tire lawyers, we do not believe that a properly designed and manufactured tire should disintegrate and fail in hot weather climates, and expose the population in those climates to motor vehicle accidents caused by tire failure.

At Jay Halpern and Associates, we continue to see car dealerships and tire service outfits sell and pass along vehicles with tires whose chronological age is in excess of six years. We have even seen instances of tires older than six years being sold as brand new tires. They may be brand new in the sense that they have never been used on the roadway, but because of their shelf life and old age, they are inherently dangerous despite their new appearance.

Unfortunately, we are entering the season when we expect to see a spike in tire failure cases resulting in car accidents, rollovers and catastrophic injuries. Forseeability of these increased events of tire failures is known only to a select few in the tire industry as well as tire defect lawyers who pursue these claims. Tire companies refuse to place an easily recognizable manufacture date on tires, and many tire service companies refuse to acknowledge the facts about old tires. As a result many service companies allow for tires in excess of six years of age to be sold as new, to remain on vehicles after inspection, and to take no proactive action to warn consumers about the age of their tires and the potential consequences.

Unfortunately, this lackadaisical approach was recently endorsed by the Florida Legislature which killed a bill attempting to require that the date of manufacture of any tire sold in Florida be made known to the consumer. Until a more aggressive approach is taken to educate, warn and inform the consumer by tire manufacturers and tire service companies, we can expect to see the tragic trend of old tires plus hot weather continue to wreak havoc on Florida roadways.

After the Evidence is Preserved - Sending the Evidence to a Tire Expert

In a tire case, the most important initial step is to secure and protect the evidence. After this has been accomplished, the tire that has failed will need to be examined by a forensic tire expert. This may seem like a simple straight forward proposition, but getting the tire expert together in the same room with the critical evidence may be subject to more nuances than the inexperienced attorney may suspect.

Miami tire lawyers understand that the tire that has failed, together with the tread pieces that may have detached from the tire are key pieces of evidence which need to be preserved throughout the case so that they may be presented at trial, if necessary. Lose this key evidence and a multi-million dollar case may be lost.

Because there are only a handful of qualified forensic tire experts in the entire world, the tire expert chosen by an attorney may reside far from the location where the tire is being stored. Accordingly, some attorneys will use a delivery service such as FedEx. When such a service is used, overnight delivery with a tracking system should be employed, and upon delivery of the subject tire and tread parts to the expert confirmation should be established between the expert and the attorney.

In order to prevent the tire from being lost in shipping, some attorneys have the expert travel to the location where the tire is being stored or the plaintiff attorney's law office to inspect the tire. Other attorneys have the subject tire delivered to the expert personally, by an investigator or by a courier. This is not always feasible or practicle, and it does not necessarily insure that the tire will arrive without being lost or damaged.

While it is not common, tires which are key evidence in rollover cases have been lost in transit, and with the loss of such evidence the case may also be lost. Because of this concern, great care must be taken at both the sending and receiving ends when a failed tire, together with tread pieces, are sent to an expert for a forensic examination, or sent back to the Plaintiff's attorney's office.

This same high degree of care should also be taken when the defendant in a tire defect case requests an opportunity to have one of their own experts examine the tire. In such cases, it is important for tire lawyers to document the chain of custody of the tire, and place the burden on the defendant, to take possession of, and responsibility for, the tire. In the alternative the Plaintiff's attorney should insist on eliminating the concern about the loss of the tire by having the defendant's expert come to the plaintiff's attorney's office, or the location where the tire is being stored for that expert to complete his or her examination of the tire.

Bottom line: great precaution should be taken to document the chain of custody of a failed tire, or any failed product in a product liability case. Product Liability lawyers must take whatever measures are necessary to reduce the possibility of the loss of the evidence. Nevertheless, practicality and cost consciousness require that shipping, with pre-cautions, also be used in these cases.

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Stability Factors In A Tread Separation Case

The manner in which the tread of a tire peels away during a tread separation event will dynamically affect the stability of the vehicle. Miami tire lawyers need to understand these dynamics because tread separation events happen most frequently in the warm weather states such as Florida, Texas, Arizona, and California.

Vehicle dynamic experts have studied the effects of the tread of a tire peeling away with the top steel belt while leaving the carcass of the tire and the underlying steel belt intact. These events typically occur at highway speeds because the centrifical forces required to have the tread disengage from the rest of the tire are only reached at highway speeds.

The length of time that it takes for the actual disengagement of the tread is proportional to the amount of vehicle instability. With each rotation of the tire there is a drag and pulling dynamic which occurs in the direction of the side on which the tread separation is occurring. During this time that the tire is breaking apart, there will be an influence on the driver to make steering adjustments in the direction opposite to vehicle side where the tread separation is occurring. The longer the tread separation occurs the more adjustments are made.

When the tread finally releases from the tire, the vehicle will suddenly and unexpectedly change from an understeer vehicle to an oversteer vehicle at which time all of the subtle adjustments made by the driver will create a dramatic and over exaggerated response in the opposite direction to the side of the vehicle on which the tread separation occurs.

This is the reason why one commonly sees a vehicle rollover to the left when the right rear tire experiences a tread separation, and conversely a vehicle will go off the road to the right when it is the left rear tire which suffers a tread separation.

All during this period when the tread is pulling away from the vehicle it can slap against and interact with many parts in the undercarriage of the vehicle, creating additional erratic forces.

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The Perfect Tire Case - There Is No Such Thing

tire.jpg
As Miami trial lawyers, who handle a significant number of tire cases, we have been asked to consider what constitutes a perfect tire case. Upon reflection, we believe that such a case is akin to a unicorn, a mythical beast.

The perfect tire case in our view would go something like this: A consumer purchases a brand new vehicle, and upon riding out of the car dealership's lot, one of the tires suffers a tread separation, which results in an accident causing injury. This event is captured on the dealership's surveillance video and becomes exhibit #1 at trial.

Unfortunately, that is not the way defective tire cases unravel, literally or figuratively. A tread separation which arises out of a manufacturing or design defect is like a cancer which takes many miles and revolutions of the tire to manifest itself.

These events are almost never captured on video tape and have to be reconstructed by accident reconstruction experts. Furthermore, the many miles required to be traveled before these events typically occur allow for the tire manufacturers to attempt to deflect liability to other roadway events that may have occurred during these miles of usage.

Accordingly, tire attorneys who handle these cases in Miami and throughout Florida are confronted with a litany of defenses, including the usual suspects:

• Some other roadway hazard or event caused the tire tread separation;
• The driver did not properly inflate the tires over a period of time and this contributed to the tread separation event; and
• The driver did not respond properly and contributed to the vehicle losing control.

Unlike other types of cases, such as a rear-end automobile accident case, tire defect cases are almost always challenged by a laundry list of defenses, including those cited above. Despite the fact that we have tried and settled over 100 tire defect cases, we have never had the experience of a tire manufacturer admitting, in one of our cases, that they made a defective tire.

If a victim drove out of a car dealership's lot with a brand new vehicle and brand new tires, and a tire disintegrated and it was all captured on video, perhaps that would engender an admission of liability, but it would not surprise us, if even under those circumstances, a tire manufacturer came up with some creative theory to contest liability.

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South Florida Boating Safety and Product Defects

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The State of Florida has more boating accidents than any of the other 49 states. This is for a number of reasons including the sheer number of boaters and the numerous waterways surrounding and throughout the state. The South Florida area has a particularly high number of boat accidents as boaters are able to use the waterways year around.

The following is a horrific example of the potential hazardous and dangerous situation that can occur with the operation of a boat, like any other motor vehicle:

During the Easter holiday in 2005, two young girls took out a personal water craft (PWC) or Waverunner in hopes of a quick and fun ride off of North Flagler Drive in the West Palm Beach area of South Florida. Minutes later the two girls were involved in a tragic accident, colliding with another boat while traveling very fast. One of the girls suffered severe brain damage and other physical injuries, while the other young girl died at the scene.

The attorneys for the young girls are suing Yamaha claiming that the Waverunner had defective steering that only allowed the watercraft to steer while it was accelerating. They argue that the girls were unable to steer away from the boat prior to the collision. The attorneys argue that Yamaha knew about the steering problem and should have corrected it in this watercraft. Yamaha was the last of the PWC manufacturers to correct this steering issue in 2003 and the young girls were operating a 2001 model. The attorneys are also making a claim for punitive damages, claiming that Yamaha showed a "reckless indifference for human life."

Yamaha's defense claims that if the girls had known how to properly operate the PWC, they would have been able to avoid the collision. Furthermore, they argue that the girls were operating the PWC illegally because they were under 16 years of age, the minimum age to operate a PWC in Florida.

Opening arguments for both sides took place last week in Palm Beach County, Florida.

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Preserve the Evidence for Product Liability Cases

The three most important rules for handling product liability cases are: (1) preserve the evidence; (2) preserve the evidence; and (3) preserve the evidence. This is especially true for Florida product liability lawyers who must deal with climate, hurricanes, and salt water conspiring with other factors to erode evidence.

When the integrity of a product is called into question, through allegations of design or manufacturing defect, it is critical to preserve the product following an accident. Sometimes, it is actually impossible to preserve the evidence when the product itself has been destroyed as a result of an accident. For example, a fire caused by a defect may destroy much of the evidence, or a boat which malfunctions may be lost at sea. Nevertheless, to the extent possible, whatever remains of the product should be preserved by storage, photographing, and/or videotaping.

If the product is damaged, an exemplar product may have to be purchased for inspection and analysis in addition to whatever non-destructive testing can be done with the product involved in the accident. Under Florida law, the plaintiff is charged with the responsibility of proving that the product was defective by design or manufacture at the time it left the hands of the maker or distributor of the product. This typically requires a full forensic examination of the product, to the extent allowed without creating further destruction of the product.

At the outset of an attorney's investigation into a product liability cases, thought must be given to what efforts need to be undertaken to obtain the product, store it safely, or notify the party who has possession of the product that the product needs to be maintained and preserved. Failure to preserve the evidence will undoubtedly lead to legal challenges, some of which may be insurmountable.

Miami product liability lawyers need to keep the critical mantra of "preserve the evidence" in mind at the outset of a case. At Jay Halpern and Associates, we have had the experience of hiring scuba divers to search for component parts of a truck that crashed into oncoming traffic on the 7 mile bridge, and then flipped over a guardrail into the Atlantic Ocean. This is just one example of the extremes that may need to be explored to collect and preserve evidence. Dedication to the concept of preserving the evidence not only requires the expenditure of funds, but also requires creative thinking.

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