TOV Injury and Safety Blog

More criticism of FDA's medical device approval process

Not long ago, we recounted a controversy within the Food and Drug Administration regarding its division charged with approving medical devices.  That controversy was further stoked yesterday when nine scientists within the division authored a letter to President Obama criticizing FDA management of the approval process and charging that unsafe devices are routinely approved without adequate testing.

Slick tactics secure dismissal of malpractice claim against Northern Michigan Hospital

A woman named Sherri Martin sued Northern Michigan Hospital and a group of doctors alleging that she suffered serious complications as a result of poor care by doctors and nurses after surgery.  For some reason not explained in the reported opinion, the claim against the doctors was voluntarily dismissed by Martin's attorneys:  from the context, it appears that Martin's attorneys became convinced that her poor care resulted only from inadequate communication from the post-op nurses to the surgeons.

Malpractice insurer's claims of technical defects are rejected.

The family of Donny Harrison sued Harper Hospital and Dr. Paul Swerdlow, alleging that Swerdlow provided inaequate care to their child.  Swerdlow's insurer attempted to dismiss the case alleging technical defects in the Notice of Intent filed by the family and in the qualifications of the family's physician expert witness.

Hazard is "open and obvious" despite code-violation lack of lighting

Allegedly, Katrina Gorges died as a result of injuries suffered when she fell while leaving a friend's home.  She suffered a fractured hip and complications after falling on the sidewalk while leaving at 1 a.m.  Her family alleged that she fell because of the combination of a lack of lighting, an uneven sidewalk, and slipperiness caused by weather conditions. 

Woman who fell on construction ramp denied recovery

This week the Court of Appeals upheld the dismissal of a woman's premises liability claim after she fell and suffered injury.  The woman, Deborah Becker, claimed she was asked to deliver carpet samples to a home under renovation when she slipped and fell on construction ramp that was slippery with dust.  The court held that the hazard associated with the ramp was "open and obvious" and therefore Ms. Becker could not pursue a claim against the homeowner.

State Farm threatens to abandon Florida homeowners

This week, the State of Florida denied State Farm's request to increase its homeowner insurance rates by more than 47 percent.  In response, the company has announced its intention to drop the 1.2 million policy holders who insure their Florida homes with State Farm; it plans to continue to write all of its other profitable lines of insurance in the state.  State Farm claims that its Florida subsidiary lost money during the tough 2004-5 hurricane season, and is taking too long to repay loans it was forced to incur with the parent company.

World's largest automaker becomes "world's largest recaller"?

Forbes magazine filed a brief report this week, describing problems experienced at Toyota Motors.  Last year Toyota became the world's largest automaker, before experiencing the first operating loss in its 71-year history. (Apparently it operated at a profit while providing munitions to use against the U.S. throughout World War II?).  This month it has suffered a spate of huge recalls including some involving safety issues.  For example, 1.4 million vehicles were recalled last week to repair seatbelt tensioner defects.  It has also announced large recalls, recently, involving the fuel system and power steering mechanisms.

Women pay 39 percent more for individual health policies

The City of San Francisco filed suit this week, alleging that the State of California has illegally allowed "gender rating" by health insurers to create an enormous disparity in the cost of individual insurance for men and women.  The suit claims that under the system approved by the state's regulator of insurance, women pay as much as 39 percent more for coverage.  The defendants apparently don't deny this disparity.  The Los Angeles Times attributes this explanation to bone-headed Blue Shield spokesman Tom Epstein: "Our egghead actuaries crunched the numbers based on all the data we have about healthcare" and found that women awere more accident prone than men and more likely to break bones or get sick."

Georgia processor knowingly sold salmonella-tainted peanut paste

Federal officials disclosed on January 28 that the Peanut Corporation of America, which is responsible for the salmonella outbreak that has killed 8 and made more than 500 people ill, had "knowingly shipped contaminated peanut butter 12 times in the past two years".  The Company had conducted internal testing and found salmonella in its product throughout 2007 and 2008, but continued to sell it to Kellogg and McKee Foods (Little Debbie) and hundreds of others. 

Ledbetter bill passed by Congress

On January 27, Congress approved passage of a civil rights bill that will overturn the much-criticized 2008 decision of the U.S. Supreme Court in Ledbetter v. Goodyear.  That decision eliminated many discrimination claims before the victim was aware even became aware that an illegal action had been perpetrated.  Near the end of 2008, Congress passed another act, repudiating decisions by the Supreme Court which had greatly limited the breadth of the Americans with Disabilities Act.

Pfizer settles off-label marketing claims involving Bextra

Philly.com reported yesterday that Pfizer, Inc. took a $2.3 billion dollar charge in order to pay a record settlement with the federal government over claims that it had improperly marketed the pain killer, Bextra.  The drug was recalled in 2005 over a rare skin condition.  In the interim, Pfizer apparently admitted to the government that it had reaped billions in profit by marketing the drug to doctors for use in a manner not approved by the FDA.   It is likely that Pfizer still showed a significant profit for its sales of Bextra, despite the fact that it was sanctioned heavily for what turned out to be an unsafe product.

Additional evidence of cumulative brain injury from the NFL

The New York Times reported this week that brain damage commonly associated with boxers has been found in the brain of a sixth deceased former NFL football player under age 50.  Doctors at Boston University School of Medicine identified chronic traumatic encephalopathy (CTE) in the brain of Tom McHale who died at age 45 and played pro ball for nine seasons. This condition can be identified only on autopsy and has been found in each of the former pro ballplayers who have died under the age of 50 and been tested. 

Manager can be fired for failing to report intimate relationship with employee he supervised

This month, the Appellate Court upheld Home Depot's discharge of Chris Goodrich, a managerial employee, for failing to report that he had violated the employer's rule regarding reporting potential romantic relationships.  His situation is one textbook example of why the policy is not an infringement on employees' privacy. 

After Goodrich became romantically interested in a married employee under his supervision and went to her home to explore that interest, her husband showed up at the store to confront him.  At that point store managers became aware of the "potential" relationship, and confronted Goodrich, who indicated an intent to seek a PPO to deter the husband from contact.  Goodrich acknowledged the "potential" relationship and the employer terminated his employment the following week.  The Court held that Home Depot's actions did not violate the Bullard-Plawecki Employee Right to Know Act, because Goodrich's actions involved or implicated his employment duties as a supervisory employee.

Non-compete agreement is upheld

In Edwards Publications, Inc. v. Tracy Kasdorf, the Court of Appeals upheld the former employer's efforts to enforce a non-compete agreement against a former employee who was lured away by a direct competitor.  When reasonably limited in scope and duration, such agreements are enforceable in Michigan, particularly where the effect of violation, as here, is direct injury to the former employer's business through use of employment-acquired information and client contacts.

Operation of City golf course enjoys immunity from negligence

The City of Pontiac recently persuaded the Appeals Court to uphold the dismissal of a negligent design case brought against its municipal golf course by a man who was injured by another golfer's struck ball.  The injured man's attorneys claimed that the golf course should not enjoy immunity because the operation of the course was a proprietary function and not a governmental function.

The parties interpreted the City's financial data differently, with the golfer arguing it showed a profit, and the City arguing that when accounting for the bonds associated with the golf/residential development, the course actually operates at a loss and drains general revenue dollars.  The Court held that the City was entitled to a judgment of immunity as a matter of law, regardless of the actual profitability of the course, because its operation did not demonstrate a pecuniary motive and its revenues were essentially "self-sustaining".  The case is Transou v. City of Pontiac.

Insurers' argument that wrongful death act does not allow recovery for lost household services is rejected again.

It would seem to be a Neanderthal position, but Michigan insurers, intoxicated by their success before the Engler Supreme Court, have been arguing that a family cannot collect damages to compensate them for a decedent's services.   In other words, if a mom was a stay-at-home mom and didn't work outside the house, the insurers would place no value, whatsoever, on the domestic services she provided her family.  The party responsible for her "wrongful death" would owe no compensation to the family for her "economic" value.  The Court of Appeals has twice rejected that theory in the past two months.  In Thorn v. Mercy Memorial Hospital, and again in May v. Mercy Memorial Nursing Center, el al., separate panels of the Court of Appeals unanimously rejected this argument and identified domestic services as a compensable element of economic damage.  With Justice Cliff Taylor happily--if involuntarily--retired from the Supreme Court, the potential for reversing these decisions is very small.

Italian study regarding vaccines, autism and mercury poisoning

For some time, there has been a brutal disagreement over whether mercury in older vaccinations caused or contributed to the development of autism in children.  Parents of afflicted children and some health care providers swear by the connection, based primarily on the timing of the development of the child's symptoms, while many "mainstream" health professionals compare these claims to "holocaust deniers" (that is, they suggest that there is no sound, scientific basis for the attribution of causation).  Some critics have gone so far as to accuse parents who don't innoculate their children of being parasites:  relying upon other families to protect their children from communicable disease.  Needless to say, unfortunately the debate has become something less than civilized.  A new study from Italy appears to support the view of scientists who argue that there is no scientific causation connection.

Court of Appeals reinstates malpractice death case

A unanimous panel of the Michigan Court of Appeals recently reinstated the death claim filed by the family of Burr Needham.  He died in the Mercy Memorial Nursing Center, where he was recovering from a fractured hip.  The cause of death was determined to be "acute morphine intoxication", and the family suggested, not surprisingly that he had been over-medicated. 

Authorities criticize FDA regulation of medical devices

The U.S. Supreme Court last year held that individual victims cannot sue if they are injured by defective medical devices, if the product was approved for safety by the FDA.  This week, the Government Accountability Office reported that the FDA has failed, in some cases for decades, according to the New York Times, to rigorously review the safety of medical devices.

Plant that caused Salmonella had a poor sanitation history

The New York Times reported that the Blakely, Georgia plant that the CDC believes caused the outbreak of Salmonella in the U.S. had a history of cleanliness problems.  It was cited repeatedly in 2006 and 2007 for "dirty surfaces", "grease residue" and "dirt buildup" throughout the plant and 2008 inspection reports found the plant "repeatedly in violation of cleanliness standards". 

Woman's retaliation claim dismissed

A disappointing decision by the Court of Appeals this week dismissed the retaliatory firing claim of Martha Gullett against her employer, Autoform, Inc.  Ms. Gullett injured her hand while working as a press operator in 2002.  She returned to work after several months and in an attempt to accommodate her injury, she was assigned a job as a "checker" performing repetitive tasks. Over the following three years, she was forced to take additional time off with pain in the injured hand and ultimately her physician restricted her from working as a "checker" due to her "repetitive" use of the injured hand.  Her employer then discharged her upon the exhaustion of her rights under the Family Medical Leave Act. 

Emergency cardiac care for women is delayed?

A recent study by Tufts Medical Center in Boston examined almost 6,000 emergency calls involving cardiac symptoms in the Dallas area and found that while ambulances responded as quickly for women patients as they did for male patients, women were more likely to receive prolonged treatment by EMTs prior to delivery to the Emergency Room.   This delay increased from the average of 34 minutes in EMT care (19.9 minutes on scene and 10.3 minutes in transit) to 45 minutes for almost ten percent of patients.  Even this much delay can be catastrophic under the circumstances, and women were half-again more likely to find themselves in the class of "delayed" patients.

The investigators did not identify the cause of delay in any of these patients or an explanation of the greater likelihood of delay for women, but speculated that emergency responders simply may not recognize cardiac symptoms in women as readily as they do in men:  either because of a preconcieved expectation, or because of physiological differences between genders.

Protected by the FDA? Don't count on it.

If you thought that the Food and Drug Administration was protecting you, think again.  KV Pharmaceuticals announced this week that it was recalling "most of its products" and halting manufacturing and shipping operations.  These developments followed the November decision by the FDA to investigate the recall of over-size tablets manufactured by the company, including pain killers and ADD drugs, which were capable of delivering "dangerously large doses" of medication, according to the Associated Press.  Not only did the drugs find their way to the market, the AP reported that the FDA had been investigating the company's manufacturing and quality control standards for more than a year and was "still in discussion" with the company over the terms of the latest recall. 

Keep in mind that the U.S. Supreme Court has recently held that consumers should not be able to sue for injuries caused by medical devices, because the FDA's over-sight of the devices constitutes adequate protection and "preempts" private legal actions.  Michigan has held that all claims of injury by FDA-approved medications are similarly "preempted".  Perhaps we should disband the FDA and allow private lawsuits to protect the public instead:  the alternative would be cheaper to the public and probably more effective.

Worker who cooperates with internal investigation can sue over retaliation

The U.S. Supreme Court recently over-turned the Sixth Circuit Court of Appeals, holding that a school system employee could pursue her claim alleging a retaliatory firing.  The lower court had held that since she hadn't "blown the whistle" herself, Vicky Crawford could not avail herself of anti-retaliation provisions of Title VII.  She had cooperated with an internal investigation into improper behavior by the school district's employee relations director, only to find herself fired several months later.  Even the conservative Supreme Court found this holding unduly restrictive and contrary to the public policy intended by Congress, voting 9-0 to overturn the Sixth Circuit.

Court reinstates employee who was fired after expressing safety concern

Leoni Township in Jackson County fired one of its employees, Ben Brzezinski, after he expressed concerns about working in an unreinforced excavation and refused to enter a six foot deep trench.   Brzezinski brought an administrative action, claiming an illegal retaliatory firing, and he was supported by MiOSHA.   His supervisors claimed the firing was for subordination, and denied a retaliatory motive or that Brzezinski had expressed safety concerns.  The court noted, however, that the supervisors' testimony was inconsistent.

The risks entailed in moving our entire drug manufacturing business abroad

The media has done a good job of documenting the health risks associated with purchasing products from the third-world, where they are usually not manufactured to American standards.  That risk has been particularly great in the case of drug manufacturing, since the FDA regularly inspects and investigates domestic manufacturers, but no one insures similar compliance in many foreign countries.  The result has been a dramatic cost savings associated with manufacturing drugs in India or China [at least to manufacturers, if not to consumers or the government], and in the past few years a tsunami of unsafe or contaminated product recalls, including, for example Heparin.

Consumer groups criticize FDA melamine guidelines

Melamine is an industrial chemical which has been identified in several products, both domestic and foreign.  It was used intentionally to falsely inflate the level of protein in watered-down Chinese dairy products, causing a number of deaths and poisoning nearly three hundred thousand children, many of whom developed severe kidney trouble.  The Chinese government has sentenced at least two people to death in the tragedy and provided families with an average compensation of about $500.00.  The FDA began investigating domestically-produced products and has identified a trace of Melamine or its by-product cyanuric acid, in a number of them, including NestleGood Start Supreme Infant Formula with Iron and Mead Johnson's Enfamil LIPIL with Iron.

Pool operators still struggling to comply with new regulations

On January 23, 2009 the newspaper in Tyler, Texas, published yet another article describing the continuing non-compliance with the federal Pool and Spa Safety Act.   We filed a web log entry on this issue several weeks ago, describing the problem.   The law requiring safety protections was enacted to eliminate the drain hazard in public pools:  these drains have trapped, disemboweled or otherwise injured numerous swimmers over the years.  They are a particular hazard for children.  Enacted in December of 2007, the act allowed operators a full year to comply or face fines:  despite the time allowed and the availability of numerous inexpensive solutions, it is estimated that more than 80 percent of public pools remain out of compliance.  The CPSC records document an average of one-to-two drowning victims per year, usually involving flat pool drains.  The most common remedy is to install a domed drain cover that makes it more difficult to establish a vacuum.

Workers with documented chemical exposure may still be denied benefits for disability

The New York Times recently published a column addressing the gap between science, medicine and the law.  It identified employees such as Ed Abney, who can identify a valid statistical, scientific basis for their medical problem, but who cannot meet tort "reform" standards that require proof of causation for a particular individual.  This issue was less of a problem before product liability "reform" efforts lead to a series of decisions in some jurisdictions (including Michigan) holding that injury victims must establish a higher threshold of proof. 

Former student manager of football team can't sue MSU over Nike logo

The Court of Appeals recently denied 1960s-era student manager Gerald Sternberg the right to sue MSU over its decision to place the Nike logo on athletic apparel, including a replacement letter jacket Sternberg obtained in 1994.  The Court said Sternberg did not have "standing" to argue that the MSU-Nike agreement violated his right to freedom of religion or speech, or that it amounted to an intentional infliction of emotional distress.

The attorney judgment rule in legal malpractice claims: Docs sue lawyer, or "Dog bites man"

This month, the Court of Appeals had two occasions to address the so-called "attorney judgment rule" in legal malpractice claims.  The latter rule arises when an attorney is sued for negligence and claims as a defense that he or she is not responsible for a bad outcome as the decisions he or she made were in accordance with sound professional judgment.  It is a common defense in all professional malpractice cases that the allegedly erroneous action was actually an exercise of judgment in accordance with the standard of care of other reasonable professionals in the same field.  For example, if a trial attorney makes a considered tactical decision not to call a particular expert because the witness will do more harm than good, and that judgment is not an identifiable error at the time, he or she cannot be sued for that decision if the case is ultimately lost. 

Salmonella recall of peanut products

The recall of Salmonella products has continued to expand over the past several weeks, as the CDC has traced the national Salmonella outbreak upstream to a particular plant  in Blakely, Georgia, owned by a particular manufacturer, Peanut Corporation of America,  and then downstream to various products containing peanut paste which was produced at the subject plant.  Originally it was thought that the Salmonella contamination was limited to institutional packages of peanut butter, but now more than 100 products that include peanut paste have been identified and recalled. 

Supreme Court applies Title IX to students suffering sexual harassment

In a 9-0 decision the U.S. Supreme Court held on Wednesday that students who are sexually harassed or discriminated against are protected by the federal civil rights statutes.  A girl who was harassed on a school bus filed suit, through her parents, under Title IX and 42 US 1983,  claiming that the School District did not take adequate steps to protect the girl from an older student's inappropriate behavior.  The lower court held that Title IX actually barred a civil rights claim brought under the latter statute, and the jury ruled against the family on the Title IX claim. 

The unanimous Supreme Court held that the family should have been allowed to proceed under both statutes, as it was not the intent of Congress that Title IX bar other civil rights actions.

Hastings Mutual loses in dispute over coverage

Hastings Mutual had insured a warehouse owned by the Plaintiff, Overall Trading, Inc., but declined to pay for water damage suffered during the months of January and February  of 2005.  Hastings claimed the damage was caused by surface water run-off, a non-covered event, while the company presented proof from two engineers alleging that the damage was caused by a roof leak.  Overall Trading filed suit against the company, and Hastings claimed the suit should be dismissed because Overall never filed a new Proof of Loss after Hastings rejected the claim initially.  Hastings also sought dismissal based on Overall's failure to file a document distinguishing between the January and February losses.

Whistleblower defense is rejected by the Court of Appeals

When the Club of Kalamazoo and two individual managers attempted to require health club employees to install insulation in the walls during renovations and did not provide proper safety equipment, four workers objected.  When their objections were ignored, two of the workers reported the illegal demand to MiOSHA.  In response, their employer-Defendants reduced their pay to cover the cost of third-party installation and ultimately fired all four employees.  They filed suit, alleging a violation of the Michigan Whistleblowers Act.

Woman's Underinsured Motorist Claim dismissed as Farm Bureau exploits technicality

Farm Bureau Insurance has aggressively exploited the Engler Majority's willingness to protect Michigan insurers from claims by injury and casualty victims.  Another example of Farm Bureau's never-pay attitude was provided in Feldkamp v. Farm Bureau, decided by the Court of Appeals in January of 2009.  Feldkamp, badly injured in a 2002 motor vehicle collision, had purchased underinsured motorist (UIM) coverage from her own insurer, Farm Bureau.  Typically, UIM coverage increases the at-fault's coverage limits to the same limits that an insured purchased for her own liability.

Feldkamp was so severely injured that the at-fault's insurance carrier, GMAC, agreed to pay her its policy limits almost immediately, however, Farm Bureau refused to grant Feldkamp the written consent required under the policy to settle with the at-fault.  Feldkamp's attorneys became impatient with Farm Bureau's conduct and sought a court order compelling Farm Bureau to grant consent, which the court ordered after a hearing.  Feldkamp's attorneys then settled with the at-fault and gave her the Release that GMAC demanded.

Bette Ball can't sue: she used the wrong door or should have invited herself to spend the night

The Court of Appeals recently applied the Engler Majority's analysis of slip and fall claims to dismiss a claim brought by a lifelong resident of Michigan who fell and was "seriously" injured while leaving a friend's home.  The friend had a white ceramic tile porch that was covered with a thin dusting of recent snow.  Ball had entered safely, exercising great care, but when she attempted to leave she slipped and fell.  As she was lying on the porch, she found a small area of ice that she had not noticed in the area where she had stepped.

Seemingly frivolous cosmetic class action suit results in settlement

In case you were worried that wealthy shoppers were paying too much for their up-scale cosmetics, you will be relieved to know that a recent class action suit based on that claim has been settled.   Stores like Neiman Marcus, Saks Fifth Avenue and Bloomingdale's will be erecting "give-away" tables to hand out one free "high-end, prestige" cosmetic to selected shoppers, in order to satisfy a claim that the stores conspired to fix prices.  The give-away will depend on consumers confirming that they had previously purchased expensive cosmetics (on the honor system) and will last only as long as supplies last.

Difficult-to-treat MRSA infections found in alarming numbers by ENTs and pediatricians.

Staph germs, present on the skin of everyone, are becoming increasingly resistant to standard antibiotic regimens.  The Washington Post reported on January 20, 2009, that these MRSA bacteria are being found in "alarming" numbers in deeper tissue infections in ears, sinuses and tonsil and throat.  From 2001 to 2006, the percentage of MRSA infecdtions among 21,000 pediatric head and neck patients more than doubled from 12 percent to 28 percent.

Insurer who repeatedly demanded more information cannot argue ultimate suit was filed late

Employers Mutual insured two gas stations operated by the Tiel Oil Company in Reed City.  The gas stations suffered an in-ground petroleum leak after water infiltrated underground pipes, froze, and fractured the pipes.  The insurer was notified of the loss but declined to pay, offering serial excuses based upon its interpretation of various policy clauses. 

Recent Recalls include peanut butter and Fisher-Price play yards

Salmonella has been detected in peanut butter and has been identified as the cause of half a dozen deaths in the United States.  A number of related products that use peanut butter have now been recalled, as well, including products manufactured by Kellogg. 

The Consumer Product Safety Commission has also recalled almost a quarter million "Rainforest" play yards after some 1350 consumers complained aobut collapses that caused various injuries including broken noses, fractured bones and concussions.  The play yards were manufactured by Simplicity (now defunct) and some of the manufacturer's yards remain on the market with the same defect. 

Kids in Danger [an entity formed after the child of a University of Chicago professor died in a collapsed playpen] reports that 18 deaths have been associated with collapsing walls on play yards manufactured by other companies, however, the Bush Administration CPSC did not respond to the complaints about Simplicity or Rainforest yards or institute a recall for nearly two years.  It finally did respond with a recall when the company that had purchased Simplicity's assets completely stopped responding to consumers and rejected the CPSC's prodding for a voluntary recall.

Widely used antipsychotics double the risk of heart attack

Bloomberg.com reported on January 15, confirming that Zyprexa and Risperdal double the risk of heart attack and that the risk increases with the size of doseage.    Bloomberg was responding to articles published in the New England Journal of Medicine and reported elsewhere on this site.  The drugs were originally brought to the market with the claim that they were safer than Haldol and Thorazine which caused problems such as drooling, twitching or difficulty remaining awake and alert.  This is not the first study to demonstrate that the newer medications are also no more effective at suppressing psychotic symptoms.  While approved by the FDA only for the treatment of severe bipolar disorder or schizophrenia, they were also marketed for treatment of much milder problems such as ADD and mild dementia.  They have also been linked to an increased risk of obesity and diabetes.

In analyzing the records of 93,000 Tennessee residents, the researchers found that there were 2.8 sudden cardiac deaths for every 1,000 patients--about twice the predicted frequency in the general population.  Doctors say that patients with mild mood disorders should be treated first with mood stabilizers and with antipsychotics only if no other treatment is effective.  Doctors have also objected strenuously to the use of these medications in children.

Another huge crib recall

Last year there were enormous recalls of cribs manufactured in Asia but sold in the U.S.  This week the Seattle Times reported that a million more cribs, manufactured in China, Indonesia and Canada by Stork Craft, were recalled.  The metal mattress support brackets can crack or break allowing a gap where an infant can be trapped or suffocate.  Last year investigators addressing Sudden Infant Death Syndrome pointed to the danger of any obstruction of air circulation around infants and recommended the use of a fan in children's bedrooms to circulate air.  Parents and manufacturers must be vigilant to protect young children from any potential airway impairment on entrapment.

The US Consumer Product Safety Commission is reportedly aware of ten incidents involving failed support brackets, including one non-fatal entrapment.  The cribs were sold at WalMart, JC Penney, KMart and other stores, and through various on-line sources including Amazon.com and Babiesrus.com.

At the same time, Taggies Sleep'nPlay baby garments manufactured in China were recalled due to a problem created by detaching fasteners that represent a choking hazard.  All recalls can be investigated or confirmed through www.cpsc.gov.

Sex- and race-based harrassment and retaliation suit dismissed

The Sixth Circuit Court of Appeals summarily dismissed a claim brought by Christine Ladd against the Grand Trunk Western Railroad, claiming that Ladd had not met her burden of proof.  Ladd was a six-year employee of Grand Trunk who had been promoted twice by the company.  She was fired after she accused a supervisory employee of calling her a "black bitch" and, after her complaint, of injuring her by moving a truck without warning her.  Although their claims were admittedly contradictory and inconsistent, several co-workers to some extent collaborated the supervisor's claim that Ladd wasn't in the truck bed when he moved it, and on that basis, Ladd was fired for making a "false report". 

United Health agrees Ingenix was a bogus conflict of interest

Last year, we reported on the filing of a suit by the New York Attorney General, attacking the conflict of interest inherent in the use of Ingenix (a subsidiary of the large insurer, United Health) to minimize insurance payouts for out-of-network medical services.  The AG, along with other experts and medical authorities, claimed that Ingenix manipulated its data to reduce the payment, by, for example, omitting larger, urban providers and emphasizing captive low payments in its calculations.  This month Ingenix admitted the arrangement was a conflict of interest and agreed to pay $350 million dollars to settle the AG's suit and several pending class action suits.  United Health will close its (defective) data base and shift responsiblity for making these calculations to an independent nonprofit corporation.

Previously injured man cannot have suffered a serious impairment

Three of the more conservative Judges on Michigan's Court of Appeals recently held that a previously disabled man could not suffer a "serious impairment of bodily function" as a matter of law.  Theon Crumpler had suffered a head injury in a motor vehicle collision in 1986 and required 24-hour attendant care because of his difficulty walking and his need for help with the requirements of daily living.  When he suffered additional injuries in a 2001 accident, the Court held that his difficulties with seizures, with standing or with negotiating stairs,  and with fine motor tasks, were not adequate to constitute a "serious impairment" of his already disabled life.  The judges said that his already-humbled life was not "materially altered".  That might depend on the perspective from which it was viewed, we suspect.  In any event, the jury was not allowed to make that decision.

Company fastening tether is allowed to demand release from its own negligence

Joseph Jaye was injured when the House Arrest Services employee tightened the Court-ordered tether on his ankle too tightly.  Joe was required to wear the tether as part of his punishment for an alcohol-related driving offense.  He claimed the tether caused a severe laceration on his ankle before it was removed.  The Court of Appeals held that he could not sue the company because it had conditioned its contract on his signature releasing the company from liability for and "consequential...damages...arising out of...the transactions contemplated hereunder".  The three judges held that this language was adequate to represent a "meeting of the minds" by the parties to the contract that House Arrest Services would not be responsible for the negligence of its employees.

McDonalds not responsible when employee beats disabled child

The Court of Appeals recently held that a local McDonalds owed no responsibility to the mentally challenged victim-customer who was beaten by an employee.  The victim was allegedly attacked verbally by the employee.  He then reported the incident, including the employee's threat to "kick his ass", to the manager on duty.  The manager left the employee at his work station after the employee claimed to have calmed down, however, moments later the employee attacked the customer, he had to be "pulled off" the victim and police had to be called. 

Jury determines shoulder injury was not a serious impairment

In Regan v. Suchowolec, the Court of Appeals was asked to consider a jury's verdict of no cause action, denying Ms. Regan any recovery for her motor-vehicle-accident-shoulder injury.  She claimed that the trial court should have directed a verdict in her favor and not allowed the jury to decide the issue.  The Court of Appeals rejected her request, holding that her claims, particularly her description of pain and interference with life activities, were questions of fact and credibility and properly decided by a jury.

Lilly reported close to paying $1.4 billion fine for illegally marketing Zyprexa to sedate unruly kids and nursing home residents

The New York Times reported today that Eli Lilly is expected to agree to pay $1.4 billion dollars to settle civil and criminal charges that it illegally marketed the antipsychotic drug Zyprexa for unauthorized "off-label" use to patients who were vulnerable to its risky side effects.  The drug was never approved for use with children or the elderly, however, authorities claim that the company had a decade-long scheme to persuade doctors to prescribe it to sedate "unruly" nursing home patients and "disruptive" children.  Lilly sales people have claimed that the marketing effort emphasized that patients sedated with the drug would require fewer skilled nursing staff hours and would "reduce caregiver stress".