TOV Injury and Safety Blog

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."

Restaurant not liable for criminal attack on patron

Mauricio Veal was attacked and robbed in the Defendant, V. Veseli,Inc.'s restaurant.  He filed suit claiming that the restaurant's employees were negligent in allowing the several men responsible for the attack to loiter on its premises and in failing to promptly seek police support.  The Court of Appeals pointed to uncontradicted testimony documenting that no one had anticipated the attack and that Mr. Veal left the establishment immediately after the attack to follow his assailants. 

FDA warns of contamination in Olay cosmetics plant

Reuters reported on May 5 that the FDA had warned Procter & Gamble that it had not adequately addressed contamination and other manufacturing problems at its Puerto Rico manufacturing plant.  The plant produces over-the-counter drugs such as Vicks Sinex nasal spray, and Olay cosmetics such as Revitalizing Daily Foam and Foaming Face Wash.  The FDA's previous inspection report pointed out that products were packaged or prepared in "unsanitary conditions" and that they may have been "contaminated by filth...or... rendered injurious to health." 

Boy, there's an endorsement for your next "Face Wash."  The warning letter is posted on the FDA's website.

Premises' liability aspect of tree-cutting claim is dismissed; negligence survives

Kamal Fayad agreed to help the Darwichs cut down a tree in their yard.  While Ismail Darwich cut the tree with a chainsaw, Mr. Fayad and Souha Darwich prepared to guide it down with ropes.  Unfortunately, when Ismail finished his cut, Souha dropped her rope and ran, and the tree fell on Fayad.  He filed a negligence action.  The trial court dismissed Fayad's complaint, holding that it sounded only in "premises liability" and that felling the tree was an "open and obvious" danger as to which the Darwichs owed no legal duty.    

The Court of Appeals overturned the summary judgment granted by the trial court, pointing out that in this case, Souha Darwich's alleged duty arose in part from her negligent participation in the tree-felling activity.  Her alleged negligence was not related to her ownership or control of the land where the injury occurred.  Therefore, an ordinary negligence claim had been pleaded and a duty of reasonable care existed; there were sufficient factual allegations to create a material question of negligence which a jury would need to decide.

Tenant who repaired defective handrail cannot sue landlord who installed it

Deborah Marino fell down the stairs in her rented home when a stairway handrail detached from the wall.  She and her husband claimed the handrail had been anchored only in the drywall and not in a wall stud.  Unfortunately, they repaired the handrail and drywall before filing suit for the injuries she suffered.  The appellate court upheld the trial court's decision to exclude any evidence of the manner in which the handrail had been mounted, since the landlord was not allowed the opportunity to inspect the failure before it was repaired. 

National Consumer Law Center criticizes Michigan's gutted consumer protection law

The NCLC identified Michigan and Rhode Island as the "terrible two" states with the most dismal record for consumer protection.  While Michigan formerly had an effective consumer protection act, it was gutted several years ago by the Engler Majority of the Michigan Supreme Court, rendering the Act virtually non-existent, even in cases where unfair, deceptive or unconscionable practices were identified. 

More litigation regarding poison gas in the Holiday Inn pool

Last month the Court of Appeals held that the Holiday Inn Express in Ludington had insurance coverage for a substantial injury verdict rendered against it.  This month, the court set aside the verdict in Bronkema v. Ferwerda Enterprises, Inc.  The case arose when a maintenance man, hurrying with repairs so that he could return to jail after work release, did not successfully accomplish his repairs and allowed poison gas to injure the Bronkema family.  The trial judge had directed a verdict in favor of the family on the issue of Holiday Inn negligence, but the judge threw out the case against the pool component manufacturer, whom the Holiday claimed failed to adequately inform it about proper safety measures. 

Electrician cannot sue employer for intentionally-caused injury

The Michigan Legislature adopted a statute that defines the rare situations where an employee can sue his employer for injuries suffered at work.  Normally, the employee is limited to the benefits provided by the workers compensation scheme (that is statutory medical  or funeral/burial payments, partial wage loss and very limited attendant care).  The legislature did hold open the potential for an employee to sue his employer for injuries if they are the result of intentional misconduct.  It also defined "intentional" misconduct in a manner that allows a jury to infer the employer's intent.  That statutory definition was at the heart of a disagreement by the Court of Appeals judges who decided the Allard v. Detroit Edison case.

Doctor's opinion that chemical exposure caused loss of smell is admissible

When a Lowe's employee opened the packaging on some pool chemicals, one bottle was punctured, but still placed on a retail shelf.  David Best suffered a chemical burn on his face and hands when he pulled the bottle off the shelf to examine it.  Soon after, he lost his sense of smell completely.  His doctor confirmed that he suffered from "permanent anosmia" and by means of differential diagnosis the doctor excluded other possible causes of the loss.  Lowes persuaded the trial judge to dismiss Best's case, however, by persuading the judge that the doctor's expert opinion was unduly "speculative".

Experts agree on the need to overhaul regulation of US food supply

Roughly 76 million Americans suffer foodborne illnesses each year, 300,000 are hospitalize, and 5,000 die, according to the Centers for Disease Control.  Most likely victims are children under four and adults over the age of 50. 

Insurance study warns about small-car danger

The Insurance Institute for Highway Safety reported this week that the Honda Fit, Toyota Yaris and the Smart Fortwo, three very small new vehicles touted for their light environmental impact, performed poorly in crash safety testing.  In testing that simulated head-on collisions with mid-size vehicles, with each model traveling at 40 miles per hour, the three minimodels suffered a disproportionate deceleration (and likely greater injuries to the occupants).  While the heavier vehicle changed speed by 27 mph on impact, the minimodels decelerated by 53 mph [essentially being driven backward at 13 mph immediately upon impact]; they were far more likely to be sent airborne and spun.

Can AutoOwners dodge responsibility for injuries at Ludington Motel?

The Bronkema family was injured by chlorine gas while staying at the Holiday Inn Express in Ludington.  No one denied the family's injuries, and AutoOwners initially paid more than $10,000.00 in medical expenses incurred by the family.  When the incident turned out to be more significant than anticipated, however, AutoOwners denied responsibility and stopped paying, citing the "pollution" exception in the coverage it wrote for the motel.  The trial judge rejected AutoOwners' pollution argument and awarded the motel and the Bronkemas more than $500,000.00 in damages, fees and costs.

Obama administration suggests it will be tougher on food safety

The immense pistachio recall, falling hard on the heels of the peanut paste poisonings, signaled to food companies that the Obama administration will act more aggressively to protect consumers than its predecessor did.  We'll have to wait and see if the federal government is able to dedicate adequate resources to the problem, however, as efforts to shrink the government continue and our food production increasingly moves overseas or under the control of bottom line cost-cutters such as WalMart. 

"Common work area" claim dismissed

Brent Curry, a licensed electrician, was injured when he stepped into a gap between the on-site construction temporary trailer and the metal stairs providing access to it.  The stairs had never been affixed to the trailer, but no one knew when it separated sufficiently from the trailer to create a gap wide enough to constitute a hazard to workers.  On that basis, the courts dismissed Curry's injury claim against the contractor.

Worker protection under safety program targeting unsafe employers was illusory

It will come as a surprise to few people to learn that the Bush Administration failed to effectively regulate known unsafe employers in a program intended to target particularly dangerous firms and industries.  A recent Labor Department Report found that the protections to be offered by the program were illusory, due to a combination of mismanagement and inadequate resources.

Union workers' anti-discrimination rights can be bargained away

In a reversal of public policy, the U.S. Supreme Court decided last week that a union majority, or its executive council, can bargain away individual rights relating to discrimination.  Historically, the Supreme Court had rejected this kind of argument, noting that a majority within the union may be willing to trade individual rights--or allow discrimination against an insular minority--if it can secure benefits for the broader membership.  In last week's 5-4 decision, written by Justice Thomas, the majority overturned the 1974 Alexander v. Gardner-Denver Company decision and allowed the union to bargain away federal age-discrimination protections.  The Union had acquiesced in employer demands that age discrimination claims be resolved only through arbitration and that normal civil procedure rights (including the right to a jury trial) be relinquished.

Wage and Hour Division is failing workers

Congressional auditors concluded this month that the Wage and Hour Division of the Department of Labor had not fulfilled its legal duties to workers during the Bush years.    The nonpartison Governmental Accountability Office concluded that the Division had mishandled 9 of 10 claims  brought by a team of undercover investigators. The examples it cited were revolting  proof of lack of accountability to any reasonable person. 

Maybe black ice isn't obvious. Duh.

In its continuing struggle to make sense of an "open and obvious" duty defense expanded beyond logic or common sense by the Engler Majority to relieve insurers of responsibility for falls, the Court of Appeals has once again addressed the black ice issue. In Wilson v. LakePointe Gas and Oil, three judges of the Court of Appeals followed the lead of the Slaughter v. Blarney Oil Castle Co., decision, and overturned a summary dismissal.  Wilson fell on black ice at a service station, but the trial court threw out his claim, applying the "open and obvious" defense.  The court noted with approval the Slaughter holding, stressing that by any definition of black ice, it is either "invisible, nearly invisible, transparent of nearly transparent" and therefore by definition it cannot be "open and obvious".  It is good to see some level of consistency and intellectual honesty in the examination of premises liability; unfortunately, the entire area of law needs to be re-examined with common sense.

One quarter of air traffic lands on runways without adequate safety zones

The Houston Chronicle reported this week that eleven major airports do not provide adequate over-run space to comply with federal regulations.  Between 1997 and 2007, 75 aircraft over-ran or veered off runways and encroached into public areas, causing 12 deaths and almost 200 injuries.  The involved airports included Chicago's Midway Airport and others in the cities of Baltimore, Boston, Charlotte, Fort Lauderdale, Los Angeles, New York, Philadelphia, Phoenix, San Francisco and Washington.  A six-year old was killed in the family car by a runaway aircraft at Midway in December of 2005:  he had been singing Christmas carols with his family.

Employee's injury case sent back for a new trial

The Court of Appeals reversed the Wayne County Circuit Court judge's decision that summarily disposed of an injured worker's claim against a company that leased manufacturing equipment to his employer.  The worker was badly hurt when a slitter allegedly malfunctioned.  His attorneys claimed that his injury was caused by the breach of a contract obligating the defendant to train employees in the use of the machine and to inspect it for defects and dangerous conditions.  The Court of Appeals unanimously agreed.

More immunity for contractors

A doctor and his wife moved into a new home and retained a painter to re-paint the interior.  The painter he hired did an incompetent job, leaving paint spots on the wooden floor and severe scratches on the window panes where paint was removed.  He sued the contractor for negligence, but the Court tossed his claim.

The judicial activists of the Engler-era created tort immunity for contractors by holding that a contractor cannot be sued for negligently performing a contractual duty.  Under the Fultz v. Union-Commerce Assoc. decision, the "Engler majority" held that assuming a contractual duty to act relieved the contractor of his otherwise-existing duty of reasonable care, rendering the contractor immune from negligence claims by the other parties to the contract or third-parties.  In this case, Mehta v. Limbright, the result was a lack of insurance coverage to pay for the contractor's admitted "incompetence or sloppiness".  In many other cases, the doctrine has meant that a severely disabled injury victim has been denied recourse against the insurer of the wrongdoer who caused the injury.

Aftermath of the peanut-poisoning scandal

We have been harshly critical of food-bourne illnesses from China.  The peanut butter scandals of 2007 and 2008 have caused us to re-examine our own food safety record.  In short, the "modern" Food and Drug Administration, under-funded and recently headed by Republican appointees who don't believe in government regulation, is little better than a third-world bureaucracy. Even ignoring recent food recalls in other fields, tainted peanut butter informs us of our failures. 

More disappointing news on food safety

The Austin American-Statesman reported this month that The Peanut Corporation of America--single-handedly responsible for poisoning hundreds of Americans and killing at least eight with salmonella--was able to open and operate an uninspected and unlicensed food processing plant in Plainview, Texas for years.  The plant was opened nearly four years ago (in March of 2005) and government inspectors never set foot inside until the company brought attention to itself by poisoning people nationwide. 

NTSB to hold hearings on medical helicopter safety

The National Transportation Safety Board has scheduled hearings to discuss the poor safety record of medical helicopters.  While some safety problems may be inherent in the emergency work of these aircraft, since they are subject to pressure to fly in poor weather, their actual record is so bad it has maintained the attention of safety investigators for several years.    When 18 people died in 2004, the NTSB urged the Federal Aviation Adiministration to order private companies to initiate four safety steps including obstacle sensing systems and better weather reporting capacity.  The FAA has acted on only one of the suggested remedies in the five years since.

FDA "fiddles" while contaminated peanut butter poisons additional victims

According to federal health officials, the FDA did not take legal action to address the salmonella contamination of peanut butter, even though it had identified the source, while it negotiated the terms of a recall announcement with the company responsible for the problem.  Eight people have now died and more than 500 were made ill.   A total of more than 430 products have been recalled and the company's first positive salmonella alert goes all the way back to 2007. 

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. 

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.

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.

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. 

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.

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.