Product Liability


According to a story in the Houston Chronical (also reported on in the New York Times), Texas tort reformers are at it again.  On the horizon in the Texas Legislature this year are several bad and unneeded “reforms”.  One law being proposed is called “loser pays”.  It is an old idea with a deceiving moniker.  The law, as proposed in a draft by Governor Perry, would make the person who brings the lawsuit pay for the expenses and attorney fees of the other party if they ultimately lose their lawsuit.  That might sound fair to some, but the law is one-sided.  The only time the loser pays is when the loser is the plaintiff.  If the loser is the defendant, which is the case in a majority of lawsuits filed, the defendant is not required to pay expenses and not required to pay the winner’s attorney fees.  Not anyone’s idea of fair.  But fairness is not the point.   

The law is being proposed as a measure to stop frivolous lawsuits.  In the Times article, a professor at the UT School of Law said no serious studies on frivolous lawsuits have found that frivolous lawsuits are a real problem.  If the law is a solution to a non-existent problem, why are taxpayer dollars being wasted on this issue.  It is time for the politicians to get back to work and quit raising the lawsuit boogeyman promoted by insurance and business interest.  These special interest groups raise this issue every couple of years to promote their goal of limiting their personal liability and ultimately to shirk their personal responsibility to average citizens.

“Loser pays” is a measure designed to put fear in the heart of the average person who wants to assert their right to seek justice and make a claim.  Any attorney the claimant consults with will be required to tell the claimant that if there is an unjust outcome and they lose the case, they will owe the defendant their attorneys fees.  Even when someone feels they are right, they will be reluctant to bring a suit, out of fear that an already bad situation could possibly be made worse.  This is the response business and insurance lobbyists are looking for in this measure.  But business and insurance interests will never have that same fear, because the proposal does not ask them to pay costs if the person who brings the suit is successful.

Texas is also looking at regulating attorney fees.  We all know that big businesses and insurance companies can hire any lawyer they want.  In fact many insurance companies have lawyers on their payroll.  A regular person sometimes can’t afford to hire an attorney.  Contingency fees make it possible for the little guy to get legal representation on par with what big businesses can afford. 

Texas legislators want to cap contingency fees at a low-level.  Free enterprise is the cry of every legislator who would push this kind of bill and no one is suggesting a cap on what insurers and big businesses pay their lawyers.  But it is ok to limit what kind of representation the little guy can receive, while encouraging the deep pockets that would obstruct access to the system.  Think what would happen if the NBA decreed that half of the teams can pay as much as they want for their players and put a cap on what the other teams could pay.  Not a fair system.  But fairness (justice) is not the goal.

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The CPSC issued a recall on 82,000 Pottery Barn Kids drop side cribs, according to Reuters.  The recall is being issued for cribs sold between January 1999 and March 2010, at Pottery Barn Kids retail stores, online at www.potterybarnkids.com, and through the Pottery Barn Kids catalog.  The CPSC reports 36 instances of malfunctions with the drop sides resulting in seven injuries where children got their legs caught or fell out of the crib.  The CPSC reports that one child’s head became stuck, but that instance did not result in injury. 

Over the past five years the CPSC has issued 12 recalls of drop side cribs, made by various manufacturers, resulting in the recall of more than 7 million cribs.  The CPSC reports that over the last ten years, 32 infants and toddlers have died as a result of incidents involving drop side cribs manufactured by various companies.  Additionally, the CPSC received reports of 14 other deaths possibly related to drop side cribs.  The CPSC plans to have news rules in place by the end of the year regarding the manufacture of drop side cribs.

According to the AFL-CIO blog, an OSHA rule created to protect workers from asbestos hazards has been upheld by the U.S. Court of Appeals.  In 2003 a contractor in Houston, Texas hired 11 immigrant workers to perform an asbestos abatement job.  The contractor, Eric Ho, did not train the workers or give them appropriate protection, such as respirators.  A city inspector ordered the job stopped because of the asbestos violations, but the contractor made the workers perform the job behind locked gates, after hours; putting the workers at great risk. 

OSHA issued 22 separate violations to the contractor.  Eleven violations for not providing each worker with a respirator and eleven for not training the workers on how to properly work around asbestos.  A Bush Administration Commission overturned most of the citations, saying the contractor could only be cited once for the training violation and once for the respirator violation, consequently reducing the number of fines facing the contractor from 22 to 2.

OSHA subsequently re-worded the rules to clear up the issue, stating that separate citations can be issued for each worker who is not properly trained and separate citations can be issued for each worker who is not given a respirator.  The National Association of Home Builders sued the government, claiming OSHA did not have the authority to rewrite the rule.

In National Association of Home Builders C. Occupational Safety and Health Administration, the U.S. Court of Appeals for the District of Columbia Circuit ruled that OSHA was operating within its authority when it made the rule.  The dangers of working with asbestos have been known for many years.  It can cause cancers including lung cancer and mesothelioma, as well as asbestosis.  The ruling of the court, that the employer can be fined for each worker it doesn’t protect, gives OSHA a hammer to combat employers who don’t protect their workers appropriately.

Garlock Sealing Technologies has filed for bankruptcy, according to a story on the WSJ Blog.  The company, founded in 1887, produces sealing materials for various sectors, including the petrochemical industry, the chemical industry, the power industry, and the paper industry.  For many years, approximately 1907 to 1980, Garlock produced gaskets, packing materials, and cloth that contained asbestos.  Garlock has been a defendant in numerous asbestos cases. 

In court documents Garlock listed the value of their assets at the $500 million to $1 billion range, and their debts in the $100 million to $500 million range.  The company is asking the court to establish a bankruptcy trust to pay asbestos related claims.  The filing also covers the Anchor Packing Company, an arm of Garlock that also produced asbestos containing products. 

Asbestos is a mineral widely used in the early to late part of the 20th century in industrial settings.  Breathing in asbestos can cause scarring of the lungs, which is called asbestosis.  This disease can prevent the lungs from expanding properly and leads to shortness of breath and even death.  There is no known cure for asbestosis, other than a lung transplant.  Asbestos also can cause cancer.  The most deadly cancer caused by asbestos exposure is mesothelioma.

The CPSC has announced a recall of 12 million drinking glasses sold at McDonald’s restaurants over the last couple of months, according to a story in the New York Times.  The glasses were a part of the promotion of the new movie Shrek Forever, which came out in May.  The glasses feature different characters from the movie and contain cadmium. 

Cadmium is a known carcinogen and can induce several types of cancer. Industrial exposures to cadmium can cause metal fume fever in workers and can progress to pneumonitis, pulmonary edema and even death.  Long term cadmium exposures have been shown to cause kidney disease and softening of the bones.  In the case of the Shrek glasses, children could receive long-term exposures from using the glasses on a daily basis.  Recently, cadmium was found in metal jewelry manufactured in China and sold at various retailers such as Wal-Mart and Claires. 

China continues to bombard our children with dangerous chemicals, from many different sources.  The CPSC needs to be vigilant about this and the lead problems in products coming from China.  Our children’s future health depends on it.

According to CNN, Maytag has issued a recall for 1.7 million dishwashers.  The electrical system in the dishwashers is faulty and the dishwasher’s heating element can pose a fire hazard. 

The CPSC reports that Maytag has received 12 reports of fires caused by the eating element failures and no injuries.  One kitchen sustained extensive fire damage.  CPSC reports that the “recall includes Maytag®, Amana®, Jenn-Air®, Admiral®, Magic Chef®, Performa by Maytag® and Crosley® brand dishwashers with plastic tubs and certain serial numbers”, which can be found at the CPSC.  The serial numbers are located on a tag inside of the tub near the left side of the door. 

The recalled appliances were sold at various stores across the country between February 2006 and April 2010, for between $250 and $900.  The recalled dishwashers should not be used again.  If you have one of the affected dishwashers the electric supply should be shut off immediately.  Consumers can contact Maytag directly at (800) 544-5513 or visit the firm’s website at www.repair.maytag.com; to discuss repair or replacement options.

CNN reports that the maker of several drugs that were recently the subject of a giant recall, including Children’s Tylenol, Children’s Zyrtec, and Children’s Benadryl, is moving to correct the problems that necessitated the recall.  McNeil-PPC, a division of Johnson & Johnson corporation, has had four major recalls in the last seven months, including the latest recall. 

The latest recall was issued because tiny particles were found in the children’s versions of several popular medications.  The company has not released what kind of particles were found other than stating that they could be solidified product or manufacturing residue, like tiny metal particles.  In addition the company stated that some of the products in the recall could have a higher concentration of the active ingredient than listed on the label.

In November 2009 Tylenol Arthritis Pain medication was recalled because there were reports of mildew/mold smell coming from the bottles of product, and instances of people being sickened by the product’s smell.  In December of 2009 that recall was expanded to included Tylenol caplets.  In January the company recalled containers of Motrin and Tylenol because of an unusual smell coming from the container packaging.

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