Articles Posted in Product Liability

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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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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.

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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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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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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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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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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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South Florida courts have been a hotbed for product liability cases. Product liability law in the state of Florida is currently under attack through various proposals currently being considered by the Florida Legislature.

Product liability law developed in this country from a time when manufacturers and distributors of products were originally not responsible for injuries caused by a defective product unless there was a direct contract with the person who was injured. In other words, unless a person purchased a product directly from the manufacturer, no claim was allowed. Over time, courts acknowledged the harm imposed on injured consumers and began to allow for exceptions to the rule requiring a direct contractual relationship with the manufacturer or distributor. The current law in Florida, and generally throughout the country, allows for claims against manufacturers and distributors who place into the stream of commerce a product that is defective by either manufacture or design.

At Jay Halpern and Associates, we believe that product liability claims help make for a safer world. In this age of deregulation, product liability lawyers act as watch dogs to make sure that companies generate safe products. By seeking full and fair compensation the economic consequence of making an unsafe product will hopefully motivate companies to manufacture the best and safest product possible. Many safety features that we deal with in everyday life are the result of product liability lawsuits such as safety caps on prescription medicines that prevent children from inadvertently being poisoned by swallowing pills. Another example is clothing that used to be flammable which is now made with materials that will not burst into flames.

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A myriad of different types of product liability cases abound in Florida courtrooms. As Miami product liability lawyers, we at Jay Halpern and Associates often need to determine whether a claim of product defect is a viable case in circumstances where there is no precedent for a similar case.

We have handled product liability claims in more traditional product liability cases which involve vehicle instability, seatbelts, crashworthiness, and power tools. Nevertheless, we have also handled claims involving products which are not the usual suspects for these types of cases. In some instances we could find no other similar case and we were breaking new ground in prosecuting certain product liability cases.

For example, we have handled cases involving diving knives, toy scooters, and blenders. Common sense is the common denominator, and the best barometer for determining whether certain cases which have no prior history, qualify as a meritorious claim that should be pursued. Naturally, a product liability lawyer needs to bolster his common sense approach to a case with research about the product, the state of the art of the product, the feasibility for alternative design, and other issues related to such cases.

For example, in one product liability case that we handled, we were successful in claiming that the handles on a toy scooter were defectively designed because when the scooter fell the handles stuck straight up, perpendicular to the ground, and were designed in such a way that they could cause a puncturing injury. When our young client lost the sight in one eye as a result of falling on a scooter handle, we successfully pursued a claim against the manufacturer of the toy scooter. We could not find any similar cases, alleging defective design of the handle bars of the scooter, but we were able to successfully show that economically feasible alternative designs could have easily prevented the risk of the life altering injuries sustained by our client. With no prior similar cases to analyze, we were left with only our lawyer know how and our common sense to guide us to a plan of action.
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