Product Liability


The CSPC issued a recall for Graco’s Passage™, Alano™ and Spree™ Strollers and Travel Systems.  The recall involves hinges on the stroller’s canopy, which can close on a child’s finger and cause severe damage.  Graco has revied seven incident reports, include 5 finger tip amputations and two severe lacerations.

The strollers were sold at AAFES, Babies “R” Us, Toys “R” Us, Kmart, Fred Meyer, Meijers, Sears, Target, Burlington Coat Factory, Walmart and other retailers between October 2004 and December 2009 for $80 to $90 for the strollers and $150 to $200 for the travel systems.  The CSPC advises consumers to stop using the strollers immediately and contact Graco for a repair kit.

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According to CNN, the CSPC issued a recall  of 635,000 cribs manufactured by Dorel Asia, due to reports of 10 injuries and one death.  According to the CSPC, they issued a recall because the “drop side hardware can fail causing the drop side to detach from the crib. When the drop side detaches it creates a space in which an infant or toddler can become entrapped and suffocate or strangle. In addition, the recalled cribs can pose a serious entrapment and strangulation hazard when a slat is damaged. This can occur while the crib is in use, in storage, being put together, taken apart or reassembled; or during shipping and handling.”

Wal-Mart, K-Mart and Sears stores sold the recalled cribs from January 2005 to December 2009.  The CPSC is requesting that owners of these cribs stop using the cribs immediately.  Repair kits will be available from Dorel Asia starting sometime in February.  The repair kit will include new sides for the crib, as well as hardware to prevent the use of the drop side feature.  The CPSC website has a listing of specific crib model names and model numbers included in the recall.

The CPSC announced that LaJobi, Inc. is recalling two of its crib models, the Bonvita Hudson crib and the Babi Italia Pinehurst crib.  The lower spring pins on the foot-board and headboard of the cribs can pop off track on the drop-side, causing the dropside to detach from the crib.  When the dropside comes off, a hazardous gap is created between the side of the crib and the mattress, where infants can become entrapped and suffocate or fall out of the cribs.

About 2,900 of the cribs were sold between December 2006 and December 2007, at Babies R Us, Baby Basics, Beautiful Beginnings, Buy Buy Baby, and other children’s products stores nationwide.  The cribs were manufactured in China.

There have been 33 reports of spring pin failure in these cribs, including two reports of children becoming entrapped in the cribs and one report of a child falling from the cribs.  The CPSC says anyone owning one of these cribs should discontinue using the cribs immediately, and contact LaJobi (website is linked here), who will provide a technician to perform installation of a free retrofit hardware kit.

Story on Bloomberg.com reportsMattel has agreed with the CPSC to pay a $2.3 million fine for importing toys containing dangerous levels of lead.  The fine relates to 95 of the company’s toy models, including Barbie toys and “Cars” toys. 

The CPSC reported that Mattel imported 900,000 toys between September 2006 and August 2007 that violated lead standards.  These products were imported from China.  As a result of these findings, Mattel recalled more than 21 million toys made in China, after they were found to contain high levels of lead or dangerous designs.

The lead situation is not the only problem related to Chinese imports.  As reported here, there have been recent recalls of dangerous Chinese milk products and medical products.

According to a story in the LA Times, the Food and Drug Administration is recommending that consumers should immediately stop taking the dietary supplement product, Hydroxycut.  The product is manufactured by Iovate Health Sciences Inc.  The company has agreed to recall the product from the market.

Hydroxycut products are dietary supplements that are used as weight loss products, such as fat burners, energy enhancers, low carb diet aids, and water loss aids.  The list of recalled products includes: 

Hydroxycut Regular Rapid Release Caplets
Hydroxycut Caffeine-Free Rapid Release Caplets
Hydroxycut Hardcore Liquid Caplets
Hydroxycut Max Liquid Caplets
Hydroxycut Regular Drink Packets
Hydroxycut Caffeine-Free Drink Packets
Hydroxycut Hardcore Drink Packets (Ignition Stix)
Hydroxycut Max Drink Packets
Hydroxycut Liquid Shots
Hydroxycut Hardcore RTDs (Ready-to-Drink)
Hydroxycut Max Aqua Shed
Hydroxycut 24
Hydroxycut Carb Control
Hydroxycut Natural

To date, 23 consumers have reported serious liver problems related to Hydroxycut.  One death due to liver failure has been reported (according to CNN.com a 19 year old died in 2007) and others have reported liver damage so severe that it required liver transplant.  Symptoms of liver injury include jaundice, brown urine, nausea, vomiting, light-colored stool, excessive fatigue, weakness, stomach/abdominal pain, itching and loss of appetite. 

Other health problems reported to the FDA include seizures, cardiovascular disorders, and rhambdomyolysis (muscle damage that can lead to kidney failure).

A jury in McClean County Illinois awarded the family of a deceased mesothelioma victim over $2 million, according to a story on pantagraph.com.  The woman, Juanita Rodarmel, was married to a man who worked at the Union Asbestos & Rubber Company (UNARCO) plant in Bloomington, IL in the 1950’s. 

Ms. Rodarmel’s husband carried home asbestos fibers on his clothes and Ms. Rodarmel was exposed to the asbestos fibers from his clothes every time she was his clothes.  The jury awarded $100,000 in punitive damages against Pneumo Abex, LLC and $400,000 in punitive damages against Honeywell International.  The lawyers for Ms. Rodarmel’s family argued that Pneumo Abex and Honeywell International conspired with other companies to suppress the facts about the hazards of asbestos.

The Arkansas Supreme Court found two provisions of a 2003 tort reform bill known as the Civil Justice Reform Act unconstitutional, according to a story on arkansasnews.com.  In the case, Johnson v. Rockwell Automation Inc., a worker sustained severe injuries to his hand, when the safety switch on a starter bucket malfunctioned, and sued Rockwell, the designer of the bucket.

The two issues the court looked at were a provision that allowed jurors to assess fault to non-parties and a provision that abolished the collateral source rule.  The Court found that the legislature went too far in the tort reform bill and that these provisions violated separation of powers provisions of the state constitution. 

In the opinion, Justice Paul Danielson wrote the “(r)ules regarding pleading, practice and procedure are solely the responsibility of the court.”  Because rules regarding pleading, practice and procedure are solely the province of the judiciary, the legislature cannot pass laws in this area, without running afoul of the constitution.

In this case, the defendant wanted to introduce evidence that a non-party shared blame for the defect that caused the injury, which was admissible evidence under the new statute.  The court found that “(t)he nonparty-fault provision bypasses our ‘rules of pleading, practice and procedure’ by setting up a procedure to determine the fault of a nonparty and mandating the consideration of that nonparty’s fault in an effort to reduce a plaintiff’s recovery.”  The Court found that “(b)ecause the nonparty provision is procedural, it offends the principle of separation of powers.”

The collateral source rule is a common law doctrine which dates back to the 1800’s.  It says that evidence that a victim might be compensated for injuries from a source other than the defendant that caused the injury, is inadmissible.  For example, a car wreck victim might have health insurance which pays for some of their doctor bills. 

The reason the defendant cannot ask for a reduction in a case where health insurance pays a bill, is that the health insurer has a right to pay back from the plaintiff, for any money they pay out on the claim (subrogation right).  That means if a jury reduces the amount of an award by the amount the health insurer pays, then the health insurer gets pay back from the plaintiff for what it paid out, the plaintiff ends up under compensated for their injuries. 

The court stated “we have held that the rules of evidence are rules falling within this court’s domain.”  The statute restricts what evidence may be admitted at trial.  Because the statute creates a new rule regarding what evidence is admissible at trial, it violates the separation of powers provision of the state constitution. 

Collateral source and joint liability are two common targets in tort reform attacks in state legislatures.  Joint liability protects plaintiffs from being under compensated when there are multiple defendants and one of the defendants cannot pay their share.  The collateral source rule prevents the at fault party from getting away with paying less than the full amount they owe and short changing the victim.

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