TOV Injury and Safety Blog

New studies document long-term cancer risk of medical CT-scanning

Two new studies published in the Archives of Internal Medicine constitute a startling warning of the risk of cancer posed by the "explosion" of CT-scanning since 1993.  Performed by the National Cancer Institute and the University of California, San Francisco, they document the increased risk of developing cancer and also the lack of established guidelines and uniformity in associated radiation dosing.

The authors of the risk study identified lung cancer as the most common radiation-associated metastatic disease, followed by colon cancer and leukemia.  They predict that with the three-fold increase in CT-scanning over the past decade, we will experience 29,000 new cancer diagnoses and 15,000 additional deaths, annually, with a two percent over-all cancer occurrence.  (Doctors currently diagnose 1.4 million cancer cases, annually.)

School lunch meat standards fall below standards of fast-food

USA Today reported on December 9, 2009, that meat purchased for federal school lunch programs usually does not meet the minimum standards of most fast food restaurants.  McDonalds, Burger King and Costco are "far more rigorous" in checking for bacteria and dangerous pathogens and test ground beef 5 to 10 times more often than the USDA tests beef for schools.  Jack and the Box and other large retailers set limits on certain bacteria that are up to 10 times more stringent than school beef standards set by the USDA.  The USDA purchases chicken that does not meet KFC standards---this is meat that hasn't been acceptable to the Campbell Soup Company "for more than a decade."  Do you remember when the USDA stamp of approval on a package of meat actually meant something?

CPSC recalls Amby Baby Motion Beds after two deaths

Since 2003, Amby Baby of Minneapolis has sold a hammock style crib for baby's who are fussy with colic or reflux.  Two infants have died, however; a 4-month-old from Georgia and a 5-month-old from Oregon.  They were apparently wedged into the hammock's fabric or the mattress pad and suffocated. This week the Consumer Product Safety Commission recalled the beds. 

Buyer who did not read paperwork cannot dispute sales numbers

Toni Plummer sued Finish Line Power Sports, Inc., alleging that the used snowmobile she bought was priced incorrectly.  She also claimed that the sled had dents in it that had not been present when she initially agreed to buy it.  The Company pointed to its paperwork that Toni signed and refused to re-negotiate or allow the sled to be returned.  The trial court rejected her claimed violations of the Michigan Consumer Protection Act, but did allow a modest verdict related to the dents. 

On Appeal, the Court pointed out that since Toni admitted she didn't read the paperwork that came with the sled, she couldn't contest what it said by arguing it contradicted what she was told verbally.  She was held to the $5,200.00 price for what she thought would cost $3,000.00.  What's more, she was not allowed to object to the exorbitant interest charge, because the monthly payment amount and term were on the contract she signed, which the Court of Appeals concluded allowed her the right to confirm the interest rate by "a simple calculation."  We have some question about just how "simple" that interest calculation would have been, although when someone concedes that they haven't read the paperwork and instead relied on verbal representations, they don't end up with much of a "leg to stand on," legally.

CVS continues to sell expired drugs and other products

Bloomberg.com reported today yet another example of CVS Caremark Corp., the operator of 7,000 drugstores in the U.S., selling out-of-date products to unwary consumers.  This time, it was the State of Connecticut suing; less than one month after the State of New York settled a similar suit.  The Connecticut Attorney General's public statement detailed an investigation that found more than 20 stores (of 45 visited) in the state selling expired items including over the counter medicines, baby formula, energy drinks, cold and allergy medicines and dairy products.  

New York had previously settled a similar lawsuit against both CVS and RiteAid.  CVS had also previously settled a similar class action suit brought by California's AG.  The Connecticut AG noted that the 2009 investigation found MORE out-of-date products on shelves than were identified in a 2008 investigation--almost twice as many. He also noted that in the case of baby formula, for example, the product loses nutrient value over time, making the sale of expired formula particularly "appalling."

Court rejects claim loading handicap-access bus is not "operation of a motor vehicle"

Jeanette Collins' wheelchair fell while she swas being loaded on a Capital Area Transportation Authority bus.  She suffered multiple injuries and ultimately died.  The driver who was loading her on the bus claimed he did not know why the lift malfunctioned, dropping her.  Despite the fact that CATA had been warned previously that the subject lift was not operating properly and was not equipped with a safety belt, CATA defended Collins' family's wrongful death claim to the hilt. The trial court and Court of Appeals rejected CATA's defenses, including its argument that loading and unloading a bus doesn't constitute the "operation of a motor vehicle." 

CPSC recalls 2.1 million drop-side cribs

It was widely reported today that the Consumer Product Safety Commission had recalled nearly all the drop-side cribs manufactured by Stork Craftsince 1993.  The CPSC cited 110 incidents and four deaths caused by problems with the drop-sides.  It is becoming clear from this and previous recalls that drop-side cribs are just inherently dangerous, either because of wear and tear, inadequate plastic components, or mistakes in assembly.  Free repair kits are available at www.storkcraft.com. 

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."

Farm Bureau allowed to enforce one-year limit on notice of Uninsured Motorist Coverage

Farm Bureau was allowed to avoid paying Uninsured Motorist benefits purchased by Robert M. Marshall by relying on Farm Bureau's insurance policy language requiring that notice of uninsured fault be provided the insurer within one year of suffering injury.  Marshall's attorneys had claimed that the one-year notice provision was illegal and unconscionable and relied heavily on the fact that the policy was not sent to Marshall until after he purchased it, frequently injury victims do not know that the at-fault is uninsured within one calendar year, and in many cases they do not even know that their injury is severe enough to meet the "life-altering" standard established in the Kreiner decision. 

The trial court found these arguments persuasive and denied Farm Bureau summary disposition, however, the Court of Appeals reversed and threw out Marshall's claim.  It relied heavily on several decisions issued by the "Engler Majority" several years ago:  those decisions essentially overturned Michigan law and denied relief to insureds who were issued insurance policies that contained provisions that defied the insured's "reasonable expectations." 

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. 

One million strollers recalled

On November 9, 2009, about a million Maclaren strollers sold by Babies 'R' Us and Target were recalled after 12 reports of fingertip amputations suffered by children.  According to the Chicago Tribune, the recall includes all nine models of strollers sold by the company.  They have been on the market since 1999.  As a remedial measure, the company is offering free hinge covers to owners.  The strollers were manufactured in China and distributed by Maclaren USA, Inc. of Norwalk Connecticut. The Company's website has been taken off line.

State Farm chastised for "disingenuous" actions in delaying payment of PIP benefits

Woodrow Byers was a bail bondsman employed by his wife's corporation until he suffered a severe knee injury in a motor vehicle collision.  State Farm stopped paying PIP benefits because it believed that he was continuing to work for his wife's business, even though he wasn't paid, a substitute "bounty hunter" was employed, and the medical testimony was undisputed regarding Byers' inability to work as a "bounty hunter."  On the eve of trial, State Farm finally paid for Byers' knee surgery--one year late--in what the court concluded was a calculated attempt to avoid defending the delay at trial.  The jury still awarded Byers' wage loss, a modest recovery for domestic service losses, and interest.  When the Court awarded attorneys' fees relating to the "overdue" medical benefits, State Farm appealed both the jury verdict and the Court's fee award. 

Credit Union's defamation judgment against woman who published alleged theft from account is overturned.

Barbara J. Smith argued that the Michigan First Credit Union stole $40,000.00 from her account, and produced a bank document that appeared to support her claim.  The Credit Union argued that the document was a forgery and that the money was never deposited in Smith's account.  The trial court dismissed Smith's action, despite her evidentiary claim that she had deposited the money and it had been taken without her permission.  The Court of Appeals sent the case back to the lower court for a jury to decide, noting that Smith's testimony created a question of fact and credibility to be resolved by the jury.

Court allows evidence from litigant who had earlier claimed fifth amendment privilege

Paul Paulson claimed the fifth amendment privilege against self-incrimination in a debtor's examination arising out of his bankruptcy claim.  Later, the assignee of Old Kent Bank, who was a major creditor of his defunct business, Lakeside Machine, Inc., sued Paulson and his wife for fraud or "reckless disregard of the truth."  The wife claimed that she was simply acting in a ministerial role when she signed various loan documents for the bank, and her husband filed an affidavit supporting this claim. 

Consumer group argues that power windows are an unrecognized hazard to children

On November 2, the KidsAndCars.org group challenged the National Highway Traffic Safety Administration to account more accurately for children injuries and deaths associated with power auto windows.  It called for the universal application of an "auto reverse" feature on car windows to protect children. NHTSA responded that the risk to children is a "small, but persistent problem," not requiring government action.  It estimates that car windows cause 1995 injuries to children annually, which it claims are "mostly minor," and six deaths.  A 2003-4 study documented similar numbers, annually.  Making the changes requested by KidsAndCars would cost about $6 per window.

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]. 

No fault PIP application is adequate notice of victim's injury and potential third-party claim

Vivian Atkins was injured when two Suburban Mobility Authority for Regional Transportation (aka "SMART" buses) collided in Wayne County.  She filed an Application for no fault PIP benefits promptly, and later filed a lawsuit alleging a more serious "third-party" injury meeting the "serious impairment" threshold.  Her claim was dismissed on the theory that she had provide only "notice of her injury" and not "notice of her claim" within 60 days.  The Court cited the controversial "Engler Gang of Four" Rowland v. Washtenaw County Road Commission decision, for its holding that the SMART defendant need not show that it was prejudiced by any defect in Atkins' Notice.

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.

One million window blinds are recalled

IKEA, Bed Bath & Beyond and Hanover Direct recalled almost a million roller blinds and Roman shades because they pose a serious stangulation risk to small children.  The AP reported on October 27 that the recall includes a half million ISDANS, TUPPLUR and ENJE roller blinds made in Taiwan and France and sold by IKEA between 2005 and 2009, as well as nearly 400,000 blinds made in CHina by Dublin Energy Solution, and 90,000 Chinese-made faux suede shades sold by Domestications.  IKEA had recalled blinds in August of this year, as well.  The recalls followed one death and three entanglement reports.  Merely recalling defective products is not a safe solution, however.  Sadly, statistics show that fewer than twenty percent of recalled items will actually be returned, repaired, or taken out of the stream of commerce.

American Cancer Society elucidates issues involved in breast and prostate cancer screening

The ACS has been attempting to respond to recent research documenting the fact that "American medicine has overpromised when it comes to screening" without discouraging patients from seeking appropriate medical evaluations.  Unlike colon and cervical cancer screening, which have lead to the identification of deadly cancers and a substantial improvement in the related death rate, prostate and breast cancer screening have not significantly improved the survival rates for these cancers.  Instead, it appears that prostate cancer screening in particular, and to a lesser extent breast cancer screening, have resulted in the early identification and treatment of non-fatal tumors, while failing to catch fatal tumors early enough to be effective.   The ACS noted that while there has been a 40 percent increasein the diagnosis of breast cancer, this has led to only a ten percent decline in the diagnosis of Stage II and IV breast cancer.

The ACS notes that timely mammography is still an important health choice, although its effectiveness has been exaggerated.  Researchers suggest that the problem lies with our inability to distinguish between relatively benign cancers and cancers that will be fatal if left untreated.  Until we make that scientific leap, many patients will undergo expensive, invasive and dangerous treatments that ultimately prove to be unnecessary.  Recent research has demonstrated that in many cases the complications arising from treatment may outweigh the benefits gained.  A long-term study from New England documented the fact that survival rates among "over-treated" patients were lower than survival rates among the "under-treated" population.  This is not simply a question of "more is better."  We must determine how to judiciously apply resources where they will best serve the patient.

Consumer Product Safety Commission eyes standards for 4-wheel ORVs

The CPSC recently rejected voluntary safety standards suggested by manufacturers of 4-wheel ORVs, finding them inadequate.  Instead, it will take testimony from the industry and the public and compose independent standards.  It noted that the side-by-side off-road vehicles, capable of speeds in excess of 35 miles per hour, are involved in a disproportionate number of deaths and injuries.  In March, Yamaha recalled 100,000 of its Rhino models for repairs, after two models were linked with 46 deaths in six years.  The vehicles pose a substantial roll-over risk and have been associated with 116 deaths and many serious injuries since 2003.  Many of the victims have been children.  Industry spokesman suggest that the deaths are merely the result of owners' unsafe use.

No homeowner coverage for defective workmanship or mold

Hometowne Building Company built a house for a customer in South Lyons and then experienced problems with water seepage and mold.  After several unsuccessful attempts at remediation, the owner sued Hometowne and ultimately, one of its insurers, the North American Specialty Insurance Company (NASIC) settled the claim with the owners.  NASIC then sued Amerisure Mutual to force it to contribute to the settlement.  Amerisure argued that two exclusions in its policy let it off the hook, and the Court of Appeals agreed. 

The Court concluded that the "defective workmanship" exclusion precluded coverage for any damage to the structure caused by mistakes made by Hometowne.  This would leave limited liability for Amerisure to cover injury or damage to contents caused by defective workmanship, however, the policy also contained a "fungi or bacteria" exclusion which eliminated any contents coverage for damage caused by mold, fungi or mildew or their ramifications.

Pfizer hit with 1.3 billion dollar penalty for illegal practices: no big deal if your annual revenue is 48 billion

The U.S. government began investigating Pfizer's illegal activities in promoting Bextra--a pain killer since removed from the market--in a criminal action arising out of the government's payment of medical expenses for its beneficiaries.  Ultimately, the U.S. Attorney concluded that Pfizer was illegally promoting Bextra and other drugs to doctors through kickbacks and other illegal practices that included marketing the drugs for uses not approved by the FDA.  The claim was recently resolved by agreement of Pfizer to pay $1.3 BILLION dollars in civil and criminal fines.  Given that Pfizer reported revenues of $48.3 billion dollars in 2008, this kind of punishment is unlikely to phase the company's executives or deter future illegal activity of this nature.   Bextra was removed from the market because it was implicated in an unreasonble number of heart attacks and strokes among pain-relief users.

Battery and nuisance claims arising from burning lawn waste are dismissed

Helga Rose sued her neighbors, the Braciszewski family, claiming that their twice-annual burning of lawn waste created a battery to her and a nuisance to her property because the smoke entered her home and exacerbated her pre-exisiting respiratory problems.  The Court held that the standard is an objective one, meaning that if the smoke would not have constituted an unreasonable trespass that "substantially impair[ed] the comfort or enjoyment of adjacent premises" it was not actionable.  On this basis, the Court denied Rose any relief for nuisance.  It also held that she could not prove that the Braciszewski family intended the smoke to come into contact with her, and therefore no legal "battery" had occurred.  She was denied any financial compensation and also denied the right to enjoin the day-long burning.

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. 

ADA standards and regulations set to change

On September 23, the Equal Employment Opportunity Commission published its proposed new regulations for administering the Americans with Disabilities Act, which was amended effective January 1st.  According to experts, the new regulations will "significantly lower the standard for an employee to establish that he or she has a covered disability."  The amendment is expected to move the interaction under the ADA from a fight over whether an employee is qualified for consideration under the act to a fight over the employer's duty to make reasonble accommodations.  From the amendment forward, the employee's proofs will primarily be directed to whether the "diability" limits an employee's ability to work or is perceived to perform his or her job.  The new regulations will also take into account "mitigating measures" such as medication, eyeglasses, hearing aids and other measures which formerly precluded an employee from qualifying as "disabled" and eliminated any duty of accommodation.

Insurer pays life insurance proceeds to ex-wife; pays again to Estate

UNUM Life Insurance Company, rated one of the worst insurers in the country for treatment of insureds, put some of its flaws on display in a recent St. Clair County Probate case.  Gaylord Genaw had purchased a life insurance policy from the company and its value in 2006 was $110,000.00.  That year he and his wife divorced and the divorce judgment extinguished the ex-wife's interest in the life insurance. Days later, Gaylord was killed in a motor vehicle collision.  His ex- was still listed as a beneficiary on the policy and she applied for the proceeds, identifying herself as the divorced "ex-spouse."

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.

Allstate first on list of "Ten Worst Insurance Companies"

The American Association of Justice recently published a Report detailing the conduct of the "Ten Worst Insurance Companies".  Allstate topped the list (it consistently tops everyone's list of most abusive insurers), of course.  Here is the full list:

    1.  Allstate; 2. Unum; 3. AIG; 4. State Farm; 5. Conseco; 6. WellPoint; 7. Farmers; 8. United Health; 9. Torchmark; and 10. Liberty Mutual.

The Chief Executive Officers of these ten companies averaged an annual salary of nearlly $9 million dollars (that's $9 million EACH) for 2007. 

To view the entire report, go to http://www.justice.org/docs/TenWorstInsuranceCompanies.pdf.

Study finds malpractice insurers "gouge" doctors and reap stunning profits

The American Association of Justice (essentially America's trial lawyers) funded a study of insurance profits by malpractice insurers.  It reported this week that the insurers achieved "astronomical" profits year after year--higher than 99 percent of Fortune 500 companies.  The Washington Independent quoted the Report as concluding that the malpractice insurance companies studied reported profits that were 35 times higher than the Fortune 500 average and ranged from a low of 5.9 percent to a high of 74.8 percent.  The average reported profit for these insurers during the period was 31.2 percent.  Nowhere else in our economy can a corporation or individual anticipate achieving profits that even approach this level--and yet the public conversation about malpractice "reforms" has focused solely on eliminating the rights of badly-injured individuals, rather than redressing premium-gouging of doctors by insurance companies.

Saad strikes again: changes to roof to eliminate leak are not "maintenance or repair"

Henry Saad is perhaps the insurance industry's most reliable Michigan judge.  He can be counted on to vote in favor of insurers and their interests in virtually every case.  That propensity was on display again this week, when he voted to deny a claim filed by Karen Renny against the Michigan Department of Transportation.

Renny  was "seriously injured" when she fell on ice while entering a rest area building in Roscommon County.  She claimed the building was defectively designed and maintained in a manner that caused an ice build-up at the entrance.  The building had originally incorporated a gutter-like roof design intended to channel water away from the entryway.  Eventually the roof developed a leak and MDOT repaired it by means of a new approach that involved use of a "4 or 5 inch diverter" intended to channel water away from the entrance.  The new approach didn't work and caused a build-up of ice at the entrance where Renny fell.

Her case was initially appealed by MDOT to the Supreme Court, where the Engler majority held that she would not have a viable claim for negligent design of the roof.  This interpretation of the State's duty to maintain public buildings in a safe manner is prone to reversal, given that Justice Weaver and other Justices who disagreed with the decision now appear to represent a majority of the Supreme Court.  In any event, Renny's case was sent back to the lower court to assess whether she had documented a "design" case or a "maintenance" case.  The Saad panel of the Court of Appeals interpreted this mix of facts to be a "design" claim and therefore held that Renny could not sue MDOT for failing to maintain the building in reasonable repair.

Just one more in a trend of decisions that have interpreted Michigan law in a restrictive, activist manner to deny the common sense obligations of reasonable public policy.  "The duty to maintain safe buildings doesn't require the State to maintain safe buildings if we can torture the English language enough to achieve a different outcome."

Court reaffirms: no remedy for Michigan insureds when Farm Bureau acts in bad faith

Shirley Nixon sued Farm Bureau General after it refused to pay benefits under her homeowner's policy and accused her of intentionally setting fire to her home.  The trial court refused to dismiss her "bad faith" claim or her cause of action for "intentional infliction of emotional distress."  Farm Bureau appealed to the Court of Appeals, arguing that even if it acted in "bad faith" and wrongfully denied Nixon's purchased benefits, she had no claim for damages.

Citing an earlier case where Blue Cross wrongfully refused to pay for treatment of Stage IV metastatic breast cancer treatment, the Court of Appeals reversed the lower court ruling in Nixon's case and dismissed her claim for "bad faith."  The Court held that "the mere failure to pay insurance benefits" does not create a cause of action against the insurer in Michigan.  Unlike most states, Michigan does not recognize a cause of action for bad-faith refusal to pay an insurance claim, no matter how egregious the insurer's conduct, as "[f]ailure to pay a contractual obligation does not amount to outrageous conduct, eve if it is willful or in bad faith."  

Do you still have doubt about the power of insurance companies to control the law in Michigan?

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.

Buyer who opts for dual-agency contract with seller's broker cannot complain about the agent's failure to protect him

The VanHellemonts agreed to buy a $1.6 million dollar estate from the McManamons in Oakland County.  They used as their agent the McManamon's broker, and signed a dual-agency disclosure agreement.  The deal slowly fell apart and the VanHellemonts were sued for damages or specific performance.  They sued their realtor for malpractice, arguing that the agent should have written the buy-sell to protect them more fully:  in particular, they alleged the document should have called for the loss of their $35,000 earnest money deposit, rather than a $500,000 penalty, in the event that they did not close on the purchase.  The Court concluded that the VanHellemonts gave up their fiduciary duty claim against the realtor when they agreed to the dual-agency relationship.

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.

Citizens Insurance allowed to rescind its umbrella policy after car accident

Cyrus Trent was killed in a motor vehicle caused by Hilda Mae Rippy, the mother of Barbara Goldmanl   The Estate of Trent sued Rippy but Citizens refused to honor the liability policy that would otherwise have provided umbrella protection to Rippy and the Goldman family.  Citizens argued that under the Oade v. Jackson National LIfe case, it owed no coverage because the Goldmans had not included Rippy--who lived above their garage--as a member of their "household" in their original application for the umbrella insurance policy.  In the Oade case, the insured's life insurance application had accurately stated that he had never been hospitalized with cardiac concerns when he submitted it, however, he had been seen in the Emergency Room and hospitalized with chest pain prior to the issuance of the policy.  His failure to up-date his application was deemed to be a material misrepresentation.

Significant recall of Children's Tylenol products

The AP on September 25, 2009, reported that Johnson & Johnson had recalled a number of children's Tylenol products, including Tylenol Suspension 4 oz. Grape, Infant's Tylenol Grape Suspension Drops, 1/4 oz. and Children's Tylenol Plus Cold/Allergy 4 oz. Bubble Gum.  57 lots of these medications were recalled over concern regarding potential bacterial contamination.  Consumers with questions were directed to McNeil's Consumer Call Center at 1-800-962-5357.

Physician group seeks new warnings on prescriptions

According to the Los Angeles Times, the American College of Physicians has gone on record criticizing the Food and Drug Administration for its passive lack of supervision of prescription labeling.  The nation's primary association of Internal Medicine physicians, the ACP made a number of concrete suggestions and recommendations.  These included placing limits on the advertising of newly-approved medicines, identifying them as "new" through appropriate consumer labeling, creating a better system of tracking complications in newly-approved drugs and better identifying drugs formulated abroad.  The organization documented its concerns and justified these recommendations by reference to recent medical product recall and patient injury history.

FDA was pressured into approving unsafe knee implant

The New York Times today published an article detailing how the FDA succumbed to political pressure to approve a surgical implant called a "scaffold" for repairing torn medial [knee] menisici even though it deemed the device to be flawed.  The meniscus in the knee is a sort-of-pie-shaped section of cartilage that cushions the joint and provides a slippery joint surface between the tibial head and the end of the femur.  This device is intended to supplant or supplement the function of the meniscus in a damaged or worn-out knee.

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.

Intermittent tourist whistle is not a "private nuisance"

In a relatively unusual case, the Court of Appeals concluded that sounding a navigating whistle on the tourist riverboat operated in Frankenmuth does not constitute a private nuisance.  The resident who filed suit to limit or eliminate the whistle sounding was denied relief, even though the whistle is sounded almost ten time per hour during the 12 hours of operation and seven cruises daily.  In essence, the court held that the sound wasn't so obnoxious as to be unreasonable, given the Coast Guard regulations that applied and the location in a tourist magnet community.

California recognizes insured's right to sue insurer who destroys evidence

Lawyers USA reported this week that a California Appeals Court has recognized a cause of action in favor of an insured who could not pursue a product liability claim because his insurer, State Farm, disposed of an allegedly defective tire.  Under the facts of the case, the Court agreed that State Farm could be sued for "third party spoliation" of evidence.  Michigan's Supreme Court, while dominated by activist judges energized to protect insurance interests, have been reluctant to recognize this cause of action in Michigan.

Insurer limits pay-out from vandalism claim related to plumbing removal

Acorn Investment Company [AIC] owned a single-family rental home in Detroit that was insured with Michigan Basic.  After the tenants moved out, vandals removed copper piping and other fixtures, resulting in substantial water damage to the home. Michigan Basic relied on several exclusions in the policy to deny payment to AIC, which then filed suit.  The lower court granted judgment in favor of the insurer, relying on language in the policy related to both vandalism and earth movement, and AIC appealed.

Ex-wife must pay life insurance to Estate; not protected by ERISA rules

Kathleen Wright, formerly Kathleen Sanger, had been divorced from her husband for 14 years when Edwin Sanger died. The marriage had lasted only two years when the couple divorced in 1992, and the rights of each spouse to the other's life insurance was expressly extinguished in the judgment of divorce.  Edwin never wrote to his insurer to change the beneficiary, however, and under ERISA rules, the Metropolitan Life Insurance Company paid the proceeds of his policy to his ex, Kathleen. 

Kohl's fined for selling childrens' sweatshirts with drawstrings at neck

It is well established that neck drawstrings are a safety hazard in childrens' clothing.  Nevertheless, Kohl's Department Stores were selling imported sweatshirts with a drawstring at the neck, even though it had been fined $35,000.00 for the same violation in 2008.  This year, the Consumer Product Safety Commission fined it $425,000.00 for the violation which resulted in a recall in March of 2009.  Despite the earlier violation and fine, Kohl's maintains that it did not knowingly violate the law.

Allstate, bottom-rung of insurers, settles discrimination suit by employees

The Associated Press reported on September 11 that Allstate Insurance Company will pay $4.5 million dollars to settle an age discrimination suit brought by 90 employees.  The Equal Employment Opportunity Commission had assisted the employees, who apparently established that Allstate's effort to treat its sales agents as "independent contractors," discriminated against agents over 40.  Apparently ninety percent of the agents who were not "re-hired" or re-assigned (or whatever you do when you fire people and then hire some back as "independent contractors") were over 40.  Allstate is well known among lawyers and judges for cutting corners and abusing civil procedure whenever an extra few pennies of profit might be at stake.

Court interprets insurer's duty after accidental shooting

Liberty Mutual successfully refused to represent its insured after he accidentally shot a guest in his home.  The facts of the case, Liberty Mutual Fire Insurance Co. v. Patrick Stoutenburg, et al., are a little bizarre, to say the least, so this outcome was no surprise.  Nevertheless, the holding is worth reading for Judge Beckering's thoughtful concurrence, explaining the impact of Michigan Supreme Court precedent governing intentional, injurious acts and also the doctrine of judicial estoppel.  Judge Beckering reiterated the two-prong test that must be satisfied in determining whether an insured will have coverage for an "occurrence" that is in the nature of an intentional act.

Court rejects open and obvious defense in fall at car wash

Paul Kachudas fell and broke his wrist at a Genessee County car wash. The owner had discovered that the floor heating system of one bay of the car wash was not operable in the winter weather, but was distracted before he could erect cones to prevent the use of the affected bay.  Kachudas fell in the interim, but when he filed suit, the trial court dismissed the case on the grounds that the hazard of ice in a car wash during winter was "open and obvious."

Pfizer admits fraud in marketing drugs and is fined $2.3 billion dollars

If you are wondering why pharmaceuticals are adding so much to the cost of health care, take a look at Pfizer.  For the fourth time since 2002, the company or one of its subsidiaries has agreed to settle criminal or civil charges arising out of its improper marketing of a drug.  Previously it was Lipitor, Neurontin and Genotropin.  This time it is Bextra and three other medications which Pfizer was promoting to doctors for uses not authorized by the Food and Drug Administration.  Bextra has since been pulled off the market by Pfizer after serious safety concerns were raised.