TOV Injury and Safety Blog

Scientists propose database on pharmaceuticals to protect the public

Scientists this week urged creation of a public database on pharmaceuticals that would identify product risks and dangers much earlier.  Their article was published in the Archives of Internal Medicine.   They pointed to Vioxx--which increased the risk of heart attack or stroke among users by 39 percent--as an example of how the federal database would same money and lives. The authors believe that a proper meta-analysis of Vioxx would have identified its risks two years earlier. The drug manufacturing industry rejects the suggestion, and Dr. Michael Steinman of the medical school at the University of California, San Francisco, pointed to "this kind of dogma in medicine that you shouldn't use any drug for the first seven years after it's released, because it takes that long to figure out its harms and benefits."

Claim against roller rink dismissed after employee collides with skater

The Court of Appeals ruled that Skateland Arena in Flint owed no duty to Daquiri Hines, a minor who was injured when he was run down by the Arena's employee, Kelly Maule, while both were observing a game of dodge ball at the arena.  The Court ruled that Hines' attorneys had not met their burden of demonstrating that Skateland did not comply with the safety standards published by the rink operators association, and that Skateland owed Hines no other duty under the Roller Skating Safety Act. 

While the court recognized that the Legislature did not intend to grant roller rinks complete immunity under the RSSA, it nevertheless concluded that Hines had "assumed the risk" of injury and refused to follow the guidance of a previous decision that required rink floor guards to exercise "good judgment".  The case is another example of the special privileges and immunities afforded business entities with special access to lobbyists and legislators. 

Were roller rinks leaving the state due to liability problems?  Do they serve such an important public purpose that we should afford them immunity from their mistakes and from the injuries they cause?  Sadly, none of that matters.  They had the votes in the legislature, and sometimes they have the votes in court, to grab civil protection that ordinary people aren't accorded.

Talk about adding insult to injury: Truck kills a woman; no recovery for family.

Sheri Williams was killed when a large object was thrown through her windshield and struck her head.  Marc Sevigny, a J.R. Phillips Trucking, Ltd, employee, was hauling a tractor-trailer filled with slag in the opposite direction at the time of the incident. Williams' family contended that she was killed when a large fragment of slag became lodged in the semi-tractor's tires and dislodged as the truck accelerated away from the steel mill where it had just been loaded.  After many procedural twists, the steel mill was dismissed from the case, and a jury ultimately concluded that the truck driver and his employer were not negligent.  The family appealed, arguing that the verdict was "against the great weight of the evidence" and that the lower court had incorrectly allowed the trucking company's expert to substantially and dramatically change his defense theory during the trial.

Apartment complex not liable for foliage blocking view from entryway

Bicyclist Harmail Sidhu suffered numerous injuries, including two broken arms, when he swerved to avoid colliding with a car exiting an apartment complex owned by 830 South Main Street, L.L.C.  He claimed the incident resulted was caused by a wall of vegetation adjacent to the complex that blocked the view of motorists exiting the complex parking lot.  The trial court and Court of Appeals dismissed Sidhu's negligence claim, even though the complex was cited by the City of Ann Arbor for violating an ordinance that required trimming vegetation within the right-of-way. 

Condo owner cannot sue condo association for negligent acts of independent contractor

Steven Valentine's lawsuit against the Barclay Association was dismissed by the Court of Appeals this week, and the Court opened the door for additional fees and costs to be awarded to the association he sued.  Valentine had become embroiled in a dispute with his condo association after it hired a roofing company whose negligent acts allegedly caused damage to the interior of Valentine's condominium.  Valentine withheld his dues and sued the Association, arguing that it was responsible for the damage to his unit caused by the roofer's negligence in re-roofing [a common area duty of the Association]. 

Where employer leases parking lot, injured employee cannot sue landlord after fall.

Simon Thwaite attempted to sue Vincenti Court, LLC, and others, after he suffered injury in a fall on his way into his office.  He was employed by a company that enjoyed an exclusive lease of the parking lot, and was traversing the lot, on crutches, on his way to work, when he fell.  He argued that he fell on ice that resulted from a defect in the building, a pipe that allowed water to drain from the roof of the building on to the asphalt; and that the duty to repair this condition could not be delegated by Vincenti to his employer.

The Court of Appeals rejected Thwaite's claim, holding that his employer had the sole duty to clear ice from the parking lot, since it enjoyed exclusive possession of the lot.  Unfortunately, the judges failed to address the building owner's active negligence in failing to repair the known defective roof condition that was rendering the parking lot unsafe.  Under the employer's lease with Vincenti, the employer had no right to repair the roof defect.  Perhaps the Supreme Court will address this failure of common sense and justice.

Court dismisses claim arising out of fall on freshly-mopped floor

Jacqueline Maness sued the Carlton Pharmacy and a company hired to mop its floors, alleging that she hadn't been adequately warned of the slippery, wet floor on which she fell, suffering serious injury.  Initially, her claim was dismissed on appeal, after the defendants claimed that the trial court should have found the condition of the floor to be an "open and obvious" danger.  The Supreme Court reversed, however, noting that Maness' claim against the cleaning company, which was not in possession of the drugstore premises, could not be evaluated under the "open and obvious" doctrine, since that doctrine applies only to hazards maintained by a landowner/possessor.  The claim against the cleaning agency was sent back to the trial court to be evaluated on the basis of negligence and comparative fault.

Woman can sue dealership for failing to identify needed repairs

In a complicated case, Ruth Webb's car shuddered and vibrated after it was repaired following a minor collision.  She complained repeatedly to Progressive Insurance and Adrian Dodge, the entity that was paid to fix the front end.  Adrian Dodge claimed it couldn't find anything else wrong and Progressive claimed that any additional problems with the car related to normal "wear and tear."  Webb had the vehicle examined by other mechanics who confirmed collision damage, but when she sued Adrian Dodge in Small Claims to compel it to complete the repairs, the magistrate ruled against her. 

A few weeks later, she lost control of the car when it began vibrating and Webb was badly hurt in a collision. A mechanic who examined the vehicle found damage in the left tie rod socket and steering knuckle that he felt was related to the original collision and the vibration problem--and which he believed caused the second collision.

Ludington Holiday Inn case sent back to lower court to address fees owed by AutoOwners

Earlier on this website, we reported on litigation involving the Ludington Holiday Inn, where a family suffered a toxic exposure as a result of a problem with the heating system.  AutoOwners insured the Inn but refused to defend the injury claims against the Inn, arguing that they fell within an exclusion for injuries caused by pollution.  The trial court rejected that argument, and enforced an exception for "heating equipment" in the policy language applicable to the pollution exclusion. The lower court also awarded the Inn and the injured family significant attorneys fees and costs. 

Employer held accountable, beyond workers compensation, for traumatic amputation

Kristi Fries lost both hands above the wrist when the stamping machine she was operating cycled in response to her loose clothing.  She sued her employer, Mavrick Metal Stamping, arguing that it was responsible beyond workers compensation benefits because it had intentionally caused her injury.  An employer in Michigan is immune even from gross negligence or willful misconduct, if an employee is covered by workers compensation:  the courts have been exceedingly slow to allow employees to recover more than medical and partial wages, no matter how egregious the employer's fault is causing an injury.  The Court of Appeals allowed Fries to recover outside work comp, however, after reciting the facts leading up to her horrible injury.

Employee limited to work comp as exclusive remedy for injuries

Zoran Saveski attempted to sue the Ford Motor Company, alleging that he suffered injury as a direct result of intentional misconduct by a supervisor.  Saveski , a toolmaker, was directed to assist with maintenance on a "Lamb" machine while the plant was shut down.  During maintenance, he was left holding a 100 pound component, causing a blown disc.  He maintained that the supervisor intentionally placed him in a position likely to cause injury.  The Court held that he had not pleaded sufficient facts to document an exception to the workers comp "exclusive remedy" provision applicable to injuries suffered at work.  In order to avoid that provision and sue his employer for negligence, Saveski would have needed to show that the supervisor actually intended his injury; it was not enough to show that an injury was "likely" or "probable".

Landlord again avoids liability for criminal activity against tenant

Joyce Memminger sued the landlord of her gated apartment complex, McKinley Properties, alleging that it should be responsible for allowing access to her ex-husband.  The ex-husband held her captive for hours and shot her when she attempted to escape.  Memminger initially argued that the landlord was negligent in allowing the assailant unauthorized access to the premises, however, the court dismissed that claim.  She then filed a second action alleging that she had been fraudulently induced to rent the apartment based on false representations regarding the landlord's restrictions on non-tenant entry.  The Court of Appeals rejected this claim, as well.  That result probably did not surprise the parties, once Judge Henry Saad was assigned to the hear the appellate case.  His is a consistent voice for the interests of insurance companies.

Court examines "gross negligence" in the context of road construction and warnings

While re-paving US-127 in Ingham County, MDOT employees were consulted by Rieth-Riley Construction employees about how to address a trench adjacent to the Holt Road exit.  The project engineers for MDOT told the contractors that nothing should be done to barricade, warn or pave over the trench, and that if Rieth-Riley took action on its own, the expenses would not be covered under the contract.  In May of 2005, Bruce Boone was operating his motorcyle on US-127 when he attempted to exit at Holt Road and found himself in the trench immediately adjacent to the fog line in an area where the shoulder, exit and paved lane were combined during construction.   Boone was paralyzed in the resulting accident.

Trucker can sue for lumber yard employees' negligence

Wilmer Floyd fell 13 feet from the top of a flatbed load of lumber as he was attempting to cover it with a tarp that weighed 150 pounds.  Floyd had been sent to the Insulspan, Inc., lumberyard to pick up the lumber and was attempting to cover it prior to transport.  Despite instructions to the contrary, the Insulspan employees allegedly had left the lumber stacked out in a snowstorm and loaded it on Floyd's flatbed without removing several inches of snow fromt the materials.  Floyd claimed that he slipped on the snow and fell while adjusting the tarp, and sued Insulspan for negligence in failing to cover the lumber or remove the snow prior to loading.  The lower court dismissed Floyd's claim, applying the "open and obvious" exclusion to premises liability to obviate any duty by Insulspan.  The Appellate Court reversed, pointing out that the claim was one for negligence unrelated to Insulspan's  possession of the property and not alleging a hazard on the property.

Investigation documents the risk of eating ground beef in the U.S.

22-year old Stephanie Smith is a paraplegiac.  She suffered severe kidney and neurological injury after eating a frozen Cargill hamburger her family purchased from Sam's Club.  Tracing the E. coli contamination of the burger allows a disturbing view into the game of Russian Roulette that is involved in eating an American burger.  The frozen patty Smith ate was labeled "American Chef's Selection Angus Beef Patties" but Cargill records show that it was derived from slaughtershouses in Nebraska, Texas and Uruguay, along with trimmings from a South Dakota company that processes trimmings and treats them with ammonia.  Cargill tested none of these components for E.coli bacteria and does not require that its suppliers test, either.

Target penalized for selling toys with lead paint surfaces

The Consumer Product Safety Commission announced this week that Target Corp. had agreed to pay a $600,000.00 civil penalty for importing and selling a variety of toys with surface lead paint.   The CPSC maintained that Target knowingly imported and sold the illegal toys from China in 2006 and 2007.  They include Kool Toyz play sets, Anima Bamboo Collection games, Happy Giddy Gardening Tools, and Sunny Patch chairs. The CPSC says the company did not take any of the appropriate steps to assure that the toys complied with restrictions on lead levels.  Sadly, if Michigan kids were injured by these unsafe toys, they would have an extremely difficult time recovering from Target, since Michigan legislators eliminated retailer liability for defectively manufactured products several years ago.

Chinese drywall manufacturers snub U.S. Courts investigating defects

Virtually every day, another article appears in the U.S. media discussing the thousands of homes where defective Chinese drywall has caused substantial problems.  The drywall breaks down, emitting chemicals and odors, has been shown to ruin copper piping and to cause health problems. While a number of lawsuits have been filed, the Chinese manufacturers have simply refused to appear in court.  They recognize that U.S. judgments against them will not be enforced in China, allowing them to ignore the consequences of their negligence with impunity.  Fortunately for consumers in most of the affected states, the retailers and intermediaries involved in the purchase and installation of the defective drywall will be held accountable:  unfortunately, many of those intermediaries are completely without fault or will not survive the economic impact of these claims.

For consumers in some states, however, the problem is even more substantial.  If a state has rejected joint and several liability, thereby eliminating the duty of an at-fault with a "deep pocket" to make an innocent victim whole, innocent victims will achieve little or no compensation for a defect that has virtually destroyed new homes.  In Michigan, the problem goes even deeper.  Through tort "reform" adopted during the Engler era, even the retailers who sold the drywall would not be required to stand behind it:  unless they were independently negligent, retailers in Michigan have no liability for selling a defective product.  Thus, a Michigan resident would be required to prove that the retailer knew of the drywall defect before purchase, in order to hold the seller accountable.

The major problem with this "retailer immunity" is that is takes away the retailer's incentive to either confirm the quality of its suppliers, or to demand insurance indemnity coverage in the event of a defect.  Ultimately, the consumer is left at the mercy of unscrupulous, ignorant or simply negligent manufactuers.  In a "flat world," we have learned that this  policy exposes consumers to injury from defective toys, clothing, medicines, and all manner of products that are shipped to this country from unaccountable sources who are only a step above criminal enterprises.

A note discussing this issue was recently published by Ashley Thompson in the University of Michigan Journal of Law Reform.

Federal Aviation Administration issues warnings about safety hazards at O'Hare.

On September 24, 2009, a Chicago Tribune reporter wrote that federal inspectors found numerous safety violations at the busy Chicago airport, including debris on runways and excessive foliage that functioned to attract wildfowl.  It is believed by experts that several recent commercial crashes have resulted from jet engine damage caused by "ingestion" of flying ducks and geese, and the only crash of the Concorde was later attributed to debris on a runway.  The FAA also cited a "pattern of false statements" in the Chicago authority's self-inspection program.

Court allows "common work area" injury claim to go to jury

    In Alderman v. JC Development Communities, LLC, the Court of Appeals reversed a trial court dismissal of Alderman's injury claim.  The Defendant was the general contractor on a subdivision project of 200 homesites where Alderman suffered severe electrical burn injuries.  Alderman's injuries occurred when a subcontractor's employee accidentally contacted an overhead power line with a crane.  Alderman's attorneys claimed that he was injured because the general contractor failed to take reasonable steps to supervise or coordinate protections against readily observable dangers that created a high degree of risk to a significant number of workers in a common work area.

Death of three kids results in major window blind recall

The Associated Press reported today that the Consumer Product Safety Commission had ordered the recall of millions of window blinds and shades, after the strangulation death of three children who became entangled in the window covering cords.  The window treatments were sold at Target, IKEA and Pottery Barn Kids, among other retail outlets.  The deaths, dating back to 2006, involved manufacturers Vertical Land Inc., and Lewis Hyman Inc.  Free retrofit kits are available for the Vertical Land blinds and free repair kits are offered by Lewis Hyman for its products. 

Transportation Authority loses argument that unloading bus passengers is "not operating a motor vehicle."

In Horvath v. Don Johnson, et al., the Court of Appeals rejected the defendant's claim that loading and unloading bus passengers does not constitute operating a bus "as a motor vehicle".  Under governmental immunity statutes, governmental entities remain responsible for their employees' negligence in operating motor vehicles.  The so-called "Engler Majority" or "Gang of Four" insurance-oriented Justices of the Supreme Court have interpreted this statute in a way that has denied standing to a number of injury victims.  For example, it has held that maintaining a bus, conducting a police chase, or plowing snow may not constitute "operation of a motor vehicle"--even if the actor is doing precisely that.  This trend was rejected in the Horvath case, however, when the Court of Appeals dismissed the bus authority's claim that unloading passengers was not "operation" of the vehicle.

Lexington Herald-Leader and other sources confirm that tort "reform" doesn't cut health costs and fails to address "the leading cause of accidental death in America"

In an editorial written on August 16, 2009, the Herald-Leader, obviously a disinterested observer, pointed out that tort "reform" is a red herrring in the current conversation over health care costs.  That is, malpractice recoveries and "defensive medicine" are a literal drop-in-the-bucket compared to the overwhelming cost of medical care.  The paper pointed to Texas and other states where malpractice caps and reforms in 2003 did not significantly slow the exorbitant rise in health care spending. 

Michigan's high court addresses class action status of claims versus Dow Chemical

In the next chapter of the on-going battle between residents of the Tittabawassee River basin and Dow Chemical, the Michigan Supreme Court concluded on the last day of July that the plaintiffs did not meet the qualifications for a class action.  Residents of the river basin have been seeking redress from Dow over dioxin poisoning for years.  In previous rulings, Michigan courts have concluded that they cannot recover for medical monitoring, despite the risks and dangers associated with dioxin pollution. 

Another study documents "crazy" risk of texting while driving

The Virginia Tech Transportation Institute recently published data it procured from a study financed by the Federal Motor Carrier Safety Administration.  The study videotaped 100 long-haul truckers constantly for 18 months.  It concluded that a texting driver is 23 times more likely to be involved in a motor vehicle collision.  It regularly observed texting drivers take their eyes off the road for five seconds or longer--long enough to travel the length of a football field.  The study confirmed the results from several previous studies, leading the director of the Institute to conclude "You should never do this, it should be illegal."

Court analyzes common work area doctrine in case vs. Northwest Airlines

Elizabeth Banaszak, an apprentice electician, was injured when she fell through a temporary plywood covering and into a mechanical pit at the end of a covered walkway at Metro Airport.  The walkway was being renovated at the time, and Banaszak claimed that NW Airlines had retained control of the construction site, thereby assuming a duty to the employees of sub-contractors to keep the common work area safe.  Following repeated motions by NW, the trial court eventually dismissed Banaszak's claim, holding that she had not established the foundation for a common work area claim against NW.  The Court of Appeals reversed.

Cement falls from overpass injuring doctor--he MIGHT have valid claim against road authority

Dr. Anthony Adeleye was hurt when a chunk of concrete fell from the M-39 overpass and struck his windshield, as he was driving south on the Lodge.  He sued the Michigan Department of Transportation (MDOT) for failing to properly maintain the overpass bridge.  Luckily, his attorneys alleged that one cause of the deterioration of the bridge was the failure to maintain the roadway surface that rested on the bridge.  MDOT argued that it should have no responsibility for failing to properly inspect and maintain the bridge because its statutory duty to "maintain a reasonably safe roadway" applies only to the traveled surface and not to the structure supporting it.

Inspector can't be "the" cause of damages resulting from negligent construction

In Smylie v. Dryden Construction, Inc, et al., the Court of Appeals dismissed a case against the township building inspector arising out of defective construction.  The plaintiffs argued that the home they purchased was built over "natural underground watercourse" and that the inspector's failure to consult drain commission maps was the primary cause of their problems.  The Court of Appeals held that even though there was evidence of "gross negligence" by the inspector, he was immune from responsibility because his inspection responsibilities--when compared with the actions of the builder--could not qualify as "the one most immediate, efficient, and direct cause preceding an injury."  The latter is the formulation of "the" proximate cause requirement devised by the Engler Majority when it held that a government actor should not be jointly responsible for damages caused by multiple actors.

Progressive can't duck insurance obligation to rodeo

In Progressive Michigan Insurance Co. v. Super Kicker Rodeo Productions, et al., Progressive and ACE American Insurance Co. both tried to avoid paying for injuries suffered by Donielle Hart.  Both companies had underwritten liability coverage for the Rodeo's activities, but both argued that the coverage did not apply to Hart's very severe injuries.  Hart was a family member who helped out with the rodeo on an unpaid basis.  She helped to tear down the aluminum rodeo gates following a performance and suffered a skull fracture and other severe injuries when the loaded gates fell off a semi-trailer after a rope broke.  The trial court had dismissed the case against ACE and Progressive concluding that there were no questions of fact regarding the application of the insurance policies to the various individuals' employment status and the nature of Donielle's activities at the time of the injuries.

More on crib safety

What is it with the crib industry that it cannot build a safe product?  Numerous blog entries on this site have addressed the multiple crib recalls over the past three years.  The Atlanta Journal-Constitution published a column in the July 13 edition summarizing the problem. 

Federal government ban on routine use of antibiotics in livestock likely to falter

Many health authorities believe that overuse of antibiotics in healthy livestock, simply to stimulate growth, is contributing to the development of antibiotic-resistant bacteria.  On July 14, the Obama Administration indicated it intends to introduce legislation to ban this routine use of lifesaving medications.   The Obama plan was contained in written testimony provided to the House Rules Committee by Joshua Sharfstein, principal deputy commissioner of the FDA.  The move is supported by the AMA but opposed by the National Pork Producers Council:  most observers believe that farm-lobby opposition will prevent the ban from passing.  The Union of Concerned Scientists has estimated that 70 percent of antibiotics used in the U.S. are disseminated to healthy animals to stimulate growth and without supervision by a veterinarian. 

400,000 Simplicity cribs recalled, July 2009

The Consumer Product Safety Commission recalled about 400,000 cribs today, due to a defect in the hardware that allows a crib side to detach, creating a potentially fatal gap allowing entrapment or suffocation.    In September of 2008, the manufacturer recalled 600,000 similar cribs.  In 2007 it recalled a million older, similar cribs.  This new recall comes after at least one reported suffocation death.  How hard can it be to get this right, if this is your business?

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.

Fall from ladder evokes "common work area" doctrine; employee of sub-contractor can sue

David Slater was injured in a fall from a 32 foot ladder, as he attempted to unchain it.  The General Contractor had suggested that he unchain the ladder, left by another subcontractor, despite Slater's lack of experience on roofs, ladders or heights and his lack of fall protection.  His claim was initally dismissed by the trial court, but reinstatted by the Court of Appeals.  The higher court ruled that these circumstances brought into play the "common work area" doctrine, under which the owner or general contractor must assume a legal duty to maintain safety in certain construction areas.

FDA shuts down Detroit-area drug manufacturer Caraco Pharmaceuticals

Bloomberg.com reported on June 25 that U.S. authorities seized generic drugs produced by Caraco Pharmaceutical Laboratories, Ltd., citing multiple violations of manufacturing standards.  Inspectors found "serious violations" of manufacturing standards and "serious deficiencies" in quality control when they inspected the facility in May of 2009.  

Court dismisses woman's toxic mold exposure claim after Supreme Court eliminates "discovery" rule

Connie Colaianni alleged that she suffered numerous sinus and respiratory problems after her workplace moved into a newly-renovated location in 1998.  She did not sue until July of 2003, however, and the landlord argued that her case should be dismissed because it was not in compliance with the three-year statute of limitations. The trial court held that Colaianni did not reasonably discover the basis for her claim until her doctor diagnosed her illness as stemming from toxic mold exposure, and therefore concluded her suit was timely, as it was filed within three years of reasonable discovery. 

The Defendants renewed their motion to dismiss, however, after the Engler Majority of the Supreme Court wrote its opinion in Trentadue v. Gorton in 2007.  The Court of Appeals panel in Colaianni noted that when the Supreme Court completely repudiated the common law discovery rule in 2007, it undercut the basis for Colaianni's lawsuit.  Therefore, the case had to be dismissed on the basis of the three year statute of limitations, even if Colaianni's doctors did not identify the cause of her problems during the statutory limitation period.

Progressive's attempt to avoid coverage is rejected in death case

Progressive wrote insurance on the trucks operated by Rozafa Transport, however when William Neill was killed during the unloading of one of Rozafa's trucks, Progressive denied coverage.  The insurer admitted it had coverage if liability arose out of the "use, ownership or maintenance" of the semi-tractor and trailer, however, it argued that since a forklift was being used in the unloading process, the coverage was eliminated by an exclusion relating to injuries "caused by movement..of an unattached..mechanical device."

Chamber of Commerce pledges100 million to obstruct Obama regulatory effort

The Wall Street Journal reported on June 11 that the wealthy U.S. Chamber of Commerce, a reactionary association of anti-consumer business interests, announced that it would spend $100 million dollars to counter the "Obama administration's regulatory agenda."  Business Week explained that the Chamber plans a massive propaganda campaign intended to convince voters that its political aims were not anti-consumer.  The National Journal offered the suggestion that the Chamber has concluded it is wiser to obstruct Democrats than to work with them.  Among the Chamber goals, apparently, are defeat of new banking regulations, defeat of proposals to make mandatory arbitration a more level playing field for consumers, preservation of anti-victim tort "reforms," and greater influence in judicial elections.   The Chamber last week objected to a Democratic proposal for food supply regulations that would have required all food to be labeled with the country of origin:  the Chamber claims this requirement is unduly burdensome; health experts say it is necessary to assist in tracing and containing outbreaks of contamination.

FAA continues to get flack over safety rules involving regional airlines

When it was disclosed that the two pilots who crashed a commuter airliner in Buffalo (killing 50 people) were over-worked, under-paid and under-trained, Congress and the media directed their attention to the issue of FAA supervision of commuter airline pilot training.  A veteran pilot for US Airways in the crash of flight 1549 pointed out to CBS this week that his wealth of experience probably allowed him to avoid a fatal outcome, drawing a contrast with the pilots of the Colgan Air crash in Buffalo.  Apparently, in addition to being over-worked and flying without adequate rest, the captain of the Buffalo flight had "failed five flight tests," calling into question the quality of his training.  Under a new administration and the light of public examination, the FAA is now taking a closer look at commuter pilot training. 

Deadly consequences of FDA's failure to shutdown tainted syringe manufacturer

The June 7, 2009 edition of the Chicago Tribune carried a long article discussing the consequences of the Food and Drug Administration's failure to shut down a contaminated plant operated by a syringe manufacturer now associated with four deaths and hundreds of illnesses.   The plant in North Carolina was inspected in July of 2007 by the FDA in response to reports of contamination with "red, brown and black particles."  She reported that the plant had a plan to respond to  the "rust contamination" and took no action beyond reporting that the plant had "switched to an unreliable sterilization method."

Mattel fined $2.3 million over lead in toys

On June 5, Bloomberg reported that Mattel and Fisher-Price (a subsidiary) have agreed with the U.S. Consumer Product Safety Commission to resolve pending complaints over selling Chinese-made toys with hazardous levels of lead.  The settlement relates to the sale of 95 tainted toys, including Barbie accessories.  Mattel imported about 900,000 illegal toys from September 2006 to August 2007.  Fisher-Price reportedly imported another 1.1 million during the same period.  Ultimately Mattel recalled almost 21 million toys.  Unfortunately, the current statistics suggest that only a small proportion of recalled toys are actually removed from circulation.

Workers compensation "exclusive remedy" provision upheld

In Stallings v. General Motors Corp., the Court of Appeals again upheld the dismissal of an injury action against the injured employee's employer.  As has been explained in previous web log entries, adoption of the workers compensation scheme resulted in partial immunity for employers' negligence.  People hurt on the job are guaranteed certain benefits including medical expenses and a fraction of their normal wage, but cannot secure complete recovery from their employer, even if the employer is guilty of negligence or gross negligence.

Chamber of Commerce amps up disinformation campaign

The U.S. Chamber of Commerce is a wealthy organization that represents more than three million businesses.  In the past two decades it has become an extremely aggressive political and special interest lobbying entity, charged with spending millions of dollars to buy judges, wipe out consumer protection legislation and  prevent government regulation.  It is currently campaigning against rules that would require that the nation's food supply be labeled with the country of origin. 

Republicans reject food safety initiatives

In response to a broad range of food safety problems experienced by Americans over the past five years, the FDA and Congress have been attempting to adopt new food safety regulations.  Unfortunately, Republican leaders have already undercut the initiative by rejecting needed improvements.  The bill, originally devised with bipartisan support, called for all food manufacturers to pay an annual $1,000.00 fee to support quadrennial inspections and other monitoring.  The head of the FDA says that this fee is not adequate, but Republican leaders in Congress have already refused to support even this fee as "too high." 

Sixth Circuit limits, rejects "contract immunity" defense

Joy Davis sued Venture One Construction after an unhinged door fell on her while she was retrieving a dustpan on her employer's premises.  The door had been temporarily stored outside the construction area by a subcontractor performing remodeling on a Subway restaurant, and Venture One was the general contractor having a duty to maintain safety at the site.  Venture had persuaded the trial court to dismiss Davis' claim by arguing that it owed no duty to Davis, relying upon the Michigan Supreme Court's activist interpretation of "contractual immunity."  The Sixth Circuit overturned the lower court's decision, rejected Venture's claim that it owed plaintiff no duty, and returned the case to the District Court for trial.

Commercial tenant held responsible for damage caused by fire

In American States Insurance and Ratcliff v. Hampton, dba VIP Truck & Trailer, a building owner and his insurer sued the tenant who caused a fire in the leased premises for the damage caused to his building.  Under the parties' written lease, Hampton had assumed responsibility for any damage resulting from "his negligence or the negligence of invitees or guests."  Hampton argued, however, thast Ratliff's purchase of fire insurance and his admission that his building was under-insured constituted proof that the landlord had assumed the risk associated with a fire caused by Hampton.

The Courts rejected this analysis, and distinguished this case from a prior case where the tenant's only relevant leasehold duty was to pay the insurance premiums incurred by the landlord.

Fiat can take Chrysler assets without its responsibilities

Bankruptcy judge Arthur J. Gonzalez held last week that Fiat need not assume Chrysler's product liability defect responsibilities along with its assets.  A bankruptcy judge has broad discretion in deciding whether a successor entity must stand behind its predecessor's liabilities for personal injuries.  Many judges, and most common law decisions outside bankruptcy, hold that a successor entity that takes over the valuable assets of a company must also assume its existing duties to injury victims.

Court stretches to enforce pre-injury release executed by volunteer

Teresa Theodore volunteered to work at a racetrack in Oakland County.  On her first day, she was required by the racetrack to execute a release which "waives, discharges and covenants not to sue" for any injuries suffered "arising out of or related to the event(s)" held at the racetrack. An undetermined time later, she was struck by Raymond Horenstein's trailer as he was leaving the paddock area.  She sued Horenstein for her injuries, but his insurer persuaded the trial court that her claim against Horenstein was waived by the release she signed when she agreed to volunteer.  The Court of Appeals agreed.

Controversy over lead and toxic chemicals in common products

The Campaign for Safe Cosmetics (CSC) has brought national attention to the fact that lead and other known carcinogens are found in a number of daily-use consumer products.  Manufacturers of the products and some authorities argue that the chemicals are present in such small quantities that they do not pose a health risk.  The New York Times has published several columns on the issue, including potential sources of further information.

General contractor not responsible for wall collapse that caused serious injury

Brian Crumley, a carpenter, suffered very serious injuries on the job when a wall being erected collapsed in a stiff wind.  He sued Multi Building Company, Inc., a lumber supplier, alleging that Multi, the general contractor on site, had been negligent in protecting workers by failing to assure that the wall was "toed in" immediately.  Under Michigan law, a general contractor owes all workers on a site the duty to protect them from known dangers that pose a hazard to multiple employees in a "common work area."