TOV Injury and Safety Blog

Michigan Supreme Court to ban electronic communication during trial

The Michigan Supreme Court recently announced that electronic communications will be banned during jury trials and deliberations.  The move is a response to recent developments nationwide, including multiple appeals citing evidence relating to juror communications.  The media describing the new rule cited examples of a corporate executive texting to his boss during a side-bar conference, and to jurors posting contemporaneous messages on FaceBook or other sites.  A serious concern was expressed by Charlie Koop, Prosecutor from Antrim County, with regard to jurors attempting to answer evidentiary questions through independent electronic research on the web. 

Man wrongfully convicted of rape cannot sue the victim

On Wednesday, the Sixth Circuit Court of Appeals ruled that Jeffrey Moldowan cannot sue the woman who incorrectly identified her ex-boyfriend as having participated in her Macomb County rape in 1990.  Moldowan, who spent 12 years in prison before his exoneration in 2003, filed suit against Jane Doe and several law enforcement officials as well as the City of Warren.  The appellate court ruled that even if the victim (who suffered permanent and serious injuries in the attack) lied to officers as part of their investigation, she was immune from her ex-boyfriend's lawsuit:  it concluded that rape victims must know that they can participate fully in a police investigation without concern over future civil liability. 

Farm Bureau avoids coverage for employee theft

In Great Northern Insurance Co. v. Dan Ngo, et al., an insurer attempted to recover for an insured loss by suing the liability insurer of a U.S. Nails store in Royal Oak.  An employee of the store had stolen jewelry from Great Northern's insured.  Farm Bureau insured the store for liability, but argued that the employee theft was not an "occurrence" which it had agreed to insure, because it was an intentional crime by a store employee.  The store's owner argued that the event was an "occurrence" from his standpoint, because it was a loss he did not intend or participate in, other than by negligently managing the property and the employee who stole it.  The Court of Appeals ruled that the the event must be viewed from the perspective of the insured employee, and therefore it was not a "chance happening" or an "accident," and therefore it was not a covered "occurrence."

FDA panel recommends ban on Percocet and Vicodin

On June 30, 2009, a panel created by the Food and Drug Administration recommended that the agency ban Percocet (a combination of acetaminophen and oxycodone) and Vicodin (acetaminophen and hydrocodone).  The panel also voted almost unanimously to limit children's medicines containing acetaminophen to a single formulation in order to avoid confusion among doctors and patients over appropriate dosing.  The panel acted out of concern over the effects of these medications on the liver. 

Defective Chinese drywall brings to prominence concerns about inability to hold Chinese manufacturers accountable

The Kansas City Star pointed out on June 30, 2009, that the enormous problems associated with defective Chinese drywall have brought to the surface the compounding problems associated with holding Chinese manufacturers accountable.  The paper reminded readers that in recent months the list of faulty Chinese products identified in the media have included:

    "highchairs whose seat backs failed, steam cleaners that burned their users, bikes whose front-wheel forks broke, saunas that overheated, illuminated exit signs that stopped working when commercial power failed, dune buggies whose seat belts broke on impact and coffee makers that overheated and started fire...a soccer goal net that entrapped and stangled a child and a toy chest whose poorly supported lid fell on a toddler's neck and killed him."

During 2007, fully 69 percent of products recalled in the U.S. were manufactured in China, and previously recalled products continue to be imported, including "breakable toys on which infants can choke, lead toys, toys painted in lead-based colors and cribs whose slats are far enough apart to trap babies' heads."

Court confirms that true black ice is not "open and obvious"

It would seem to be beyond dispute that something which is by definition "either invisible or nearly invisible, transparent or nearly transparent" is NOT "open and obvious."  Nevertheless, insurance companies, emboldened with their success in defeating Michigan personal injury claims, have pushed most every defense theory to its ultimate absurdity.  This happened again in Garrison v. St. Paul Fabric Services, when the Defendant appealed a trial judge's decision that a fall on black ice in a handicapped parking space was not the result of an "open and obvious" defect.

Roche Holding AG removes Accutane acne medicine from market after verdicts.

On June 26, Bloomberg.com reported that Roche would take Accutane off the market following a reevaluation of personal injury verdicts and generic competition.  Roche has "vigorously" defended claims that the drug causes bowel disease, but jurors have awarded a total of $33 million dollars in damagesin several cases, and there are as many as 5,000 claims still pending.  One of the attorneys who attained a successful verdict claims that six cases have gone to trial and that all have been losses for the manufacturer.

G. M. agrees to maintain legal liabilty for future claims involving defective products after bankruptcy

As it was initially envisioned, the bankruptcy process involving General Motors would have resulted in the elimination of any liability for injuries caused by defective products, whether filed currently or in the future.  That would have closed the doors on a number of pending claims alleging death or serious injury resulting from a defective product.  After several state Attorneys General protested on behalf of injury victims, the company  and the Obama Administration have agreed to continue to recognize G.M.'s pre-existing product liability obligations, but apparently only with respect to unfiled claims. 

Nestle denied FDA information related to contaminated cookie dough

USA Today reported on June 29, 2009, that Nestle repeatedly  (from 2004 thorough 2007) refused to provide Food and Drug Administration inspectors with data including complaint logs, pest-control records and other pertinent information.   Perhaps if the information had been produced, or if the FDA had reacted more vigorously, Nestle Toll House cookie dough would not be implicated in the poisoning of 69 people with E.coli.  The Center for Disease Control has now become involved in the investigation.  An FDA spokesperson suggested that Nestle was within its rights in refusing to provide the information, however critics point out that the FDA could have insisted on access if public health is at stake.  FDA inspectors would have been obligated to secure an administrative warrant, which they did not do.

420,000 pounds of beef recalled in Michigan and other states

In a further indictment of the safety of our food supply, the Marler Blog reported this morning that the JBS Swift Beef Company had expanded its beef recall on June 24 from the original 40,000 pounds to more than 400,000 pounds.  E.coli contamination was alleged. The recall results from the investigation of 24 illnesses in multiple states.  Additional information can be obtained at the reporting website (www.marlerblog.com) or through FSIS.