Last month Judge Swigert, of Florida, overturned a jury verdict in Ford’s favor.  The judge decided that that Ford had systematically concealed more than 30 years of data related to the problem of electromagnetic interference (EMI) and unintended acceleration (UA). The Judge’s 51-page decision lists Ford’s bad acts which include:

  • lying to NHTSA,
  • destroying evidence that EMI caused UA, and
  • misleading its own experts.

Because of its fraud, Ford will have to face a new trial in which the jury decides only the amount of compensatory and punitive damages Ford should pay Mrs. Simpson, a Ford owner who was left permanently paralyzed by the UA of her Aerostar. The Safety Record Blog recounts how Judge Swigert detailed Ford’s concealment here.

Judge Swigert’s decision undermines the foundation of Ford’s UA defense and spotlights NHTSA’s inability to properly investigate consumer complaints. While the decision focuses on Ford’s malfeasance, the criticisms set forth in the opinion also undercut many theories that other car manufacturers, including Toyota, rely upon today.
 

Last Thursday, the California Supreme Court handed down its decision in Howell v. Hamilton Meats.  The ruling favors those who cause injury to others (such as people who get into accidents while texting) over their victims. The Court decided that it is those who cause injuries, and not their victims, who will benefit from the health insurance that the victim has paid for.

I attended the oral argument before the Supreme Court back in May.  I wrote about that here.  Today, Gary Simms, who argued the case for Rebecca HowGary Simms, Appellate Specialistell, provided me his perspective on the Court’s decision.  

Q: Were you surprised by the 6-to-1 decision against the plaintiff?

A: Unfortunately, I wasn’t surprised by the result. The Court is deeply conservative (six Republican appointees) and predictably anti-plaintiff in most personal-injury cases, so I knew from the outset of being retained for the Supreme Court briefing that I would face a very uphill battle. I was working at the margins; in other words; three justices would never vote for my position, and I knew it. I expected to get Justice Pro Tem Klein’s vote, though, and she very clearly signaled it at oral argument. I hoped to get three other votes, but I knew it would be difficult.

Q: Were you surprised by the new Chief Justice’s vote with the majority after she had taken the opposite view in her Court of Appeal opinion in King v. Willmett very shortly before she was appointed to the Supreme Court?

A: Yes, but after the oral argument, I sensed that she would flip-flop, so I was only mildly surprised. I can only speculate why she reversed her position. But I think the most likely reason was that she knew her vote would not change the outcome, so she chose to join the majority to make it unanimous. (Because Justice Klein was sitting pro tem by designation, her dissent does not matter in that regard; all the permanent Justices joined in the majority opinion.) This allowed the Chief Justice to establish herself as being a collegial and open minded consensus-builder. That’s a very important quality for a Chief Justice. And perhaps

Continue Reading Howell v. Hamilton Meats: Candid Interview With Appellate Attorney Gary Simms

Beyaz is Bayer Healthcare Phamaceuticals’ newest birth control pill. In its latest marketing ploy, Bayer enriched its Yaz product. The new pill includes levomefolate calcium, which is designed to increase folate levels in women to help prevent neural tube birth defects. Neural tube birth defects include spina bifida and encephalopathy.

Prevention of birth defects is a good thing. But like Yaz, Beyaz contains ethinyl estradiol and drospirenone. With this troubling combination, Beyaz also carries the same increased risk of blood clots, pulmonary emboli, deep vein thrombosis, gallbladder disease and other potentially life-threatening side effects.

Do women need “fortified Yaz“?  No. Folate, also known as folic acid, is naturally found in green vegetables such as spinach, asparagus and broccoli. Since the early nineties, the FDA has required adding folic acid to grains and cereals. A U.S. woman can meet her daily requirement of folic acid by eating a bowl of breakfast cereal.   

In April, U.S. scientists reported that short term use of the popular diabetes drug, Actos (pioglitazone), posed no risk of bladder cancer, while use for more than two years was only weakly associated with an increased risk.

But last month a French study found diabetics who used Actos for longer than 12 months were exposed to a 40 percent increase in risk for bladder cancer compared to diabetics who had never used Actos.

In a footnote to their study the U.S. scientists admit:

  • The study was funded by a grant from Takeda the manufacturer of the Actos. 
  • Takeda reviewed and commented on the study before it was submitted for publication.
  • The scientists are paid consultants of Takeda, as well as, other drug manufacturers GlaxoSmithKline and the Actos distributor Eli Lily. 

When the U.S. study was published the U.S. Food and Drug Administration did not take any action against Actos or its manufacturer Takeda.

But, when the French study was published, France and Germany pulled Actos from the market.  In response to the French study, the FDA issued a warning to consumers that Actos may increase the risk of bladder cancer when used for more than a year.

Did the funding from the drug manufacturers influence the results of the U.S. study?  It sure looks that way. How did the French study uncover such a strong association of risk of bladder cancer, when the U.S. researchers missed it?  

Maybe. A California court has ruled that the assumption of risk defense does not apply to rides at an amusement park. The guest will still need to prove her case; but the claim is not automatically barred as many would have expected.

In Nalwa v. Cedar Fair,LP.,  a guest who broke her wrist on a bumper car was allowed to proceed with her claim against Great America amusement park.  But isn’t an injury from getting bumped on a bumper car an inherent risk of the riding a bumper car? Perhaps, but the analysis goes further.
 

The Court explained that California laws require amusement parks to make their rides safe. If  parks can avoid responsibility by asserting theassumption of risk defense, the purpose of the laws would be frustrated. Also, the Court pointed out that sitting as a passenger on a bumper car is not a vigorous enough activity to be considered a “sport”. And, the court determined that an amusement park owner should be held to a higher level of responsibility for safety of its rides — not a lower or non-existent safety level.
 

The park guest assumes the risk of being frightened — expecting a thrill; not an injury.

 

Actos has become one of the most popular treatments for type 2 diabetes melliActos linked to bladder cancertus.  Now the FDA is warning of a link between Actos and bladder cancer. A recent study showed that the risk increases by 40% after 12 months on the drug.  That risk is significant enough that the use of the drug has been suspended in France and no new patients are to be started on the drug in Germany. The FDA is suggesting that doctors limit the use of Actos while it continues to study the matter.

According to class action law firm Girard Gibbs, who is investigating the drug, early symptoms include blood in the urine, an urgent need to urinate or pain while urinating, and low back or lower abdomen pain.

The irony is why Actos is so popular:

Actos, despite links to heart failure risk and other serious side effects, became the No. 1 diabetes pill after Avandia, the only other drug in that class, was found in 2007 to sharply increase risk of heart attacks. Avandia’s use was banned in the EU and sharply restricted here. Actos sales jumped from about $2.9 billion in 2006 to more than $4.3 billion last year.

More at the Actos lawyers’ website.

 

Who is more impaired – a drunk driver or a driver conversing on a hands-free phone? According to a University of Utah study and the National Highway Traffic Safety Administration (NHTSA), it’s the driver conversing on the hands-free phone.

The University of Utah study  showed that when controlling for driving conditions and time on task, cell-phone drivers exhibited greater impairment than intoxicated drivers. The study found that compared with undistracted drivers motorists who talked on handheld or hands-free cell phones:

  • Drove slightly slower
  • Resumed normal speed after breaking more slowly, and
  • Were more likely to crash

In fact, three study participants rear-ended the pace car. All were talking on cell phones. None were drunk.

Further, the NHTSA has indicated that hands-free cell use causes a cognitive distraction that impairs a driver’s performance. Drivers are less likely to pick up on visual and audio cues that are necessary to avoid an accident. This makes hands-free cell use just as dangerous as handheld cell use.
 

Distracted driving is dangerous. Don’t be lulled into a false sense of security by hands-free cell use. There is no meaningful difference between handheld and hands-free cell use while driving.
When a driver is rear-ended, it may be important to consider whether the second driver was impaired or distracted. While the police officer who responds to the scene will evaluate the second driver’s sobriety, he may not ask about cell phone use. If cell phone use may be an issue, the victim’s attorney should take steps to obtain the second driver’s cell phone records.
 

Each year there are dozens of deaths related to carbon monoxide poisoning from boats. Carbon monoxide is a deadly gas that is odorless, colorless and tasteless. It is found in the exhaust emitted from the electric generator and drive engine. The risk of danger affects a variety of boating enthusiasts.

Federal officials have known for some time that carbon monoxide can reach lethal concentrations from generator exhaust that gathers at the stern of houseboats, but only in the last few years have they found evidence that carbon monoxide can gather in deadly concentrations behind ski boats, cabin cruisers and even personal watercraft. The highest concentrations of CO are often around swim decks, an area where occupants frequently sit while a boat idles or is traveling at low-speed and where the exhaust ports are located.

Some tests show as much as 30,000 ppm. How bad is that? As little as 200 ppm of CO can be deadly. High levels of carbon monoxide can be fatal causing death within minutes. It is suspected that carbon monoxide poisoning related to boating is underreported because the death may appear as a drowning.

The risk of high carbon monoxide poisoning may be reduced through proper boat design. For example, many houseboats may be retrofitted with a vertical exhaust system that routes the exhaust away from occupants. National Institute for Occupational Safety and Health (NIOSH) has evaluated the “dry stack” exhaust system and found that the stack exhaust system is extremely effective at removing CO from the occupant environment. The data showed that the vertical stack exhaust was a simple and effective control that performed well during all the evaluations.

Boaters should be cautious when participating in any activity at the rear of the boat where emissions are usually heaviest.

Symptoms of Carbon Monoxide Poisoning. 

Low levels of carbon monoxide poisoning can be confused with flu symptoms or food poisoning. Some of the symptoms are:

  • Shortness of breath
  • Mild nausea
  • Mild headaches

Moderate levels of carbon monoxide exposure can cause death if the following symptoms persist.

  • Headaches
  • Dizziness
  • Nausea
  • Light-headedness

So, while out on the lake this summer, keep these symptoms in mind. If these symptoms occur while boating, immediate treatment should be sought.
 

PG&E had the perfect opportunity to stand up in court and take responsibility for what it has done to the people of San Bruno.  Instead, when it filed its written answer to the victims’ lawsuits, it denied everything, and blamed everyone else, including its victims. PG&E stated that it should not be required to compensate plaintiffs because of the legal doctrines of “comparative negligence” and “contributory negligence.”  In other words, according to PG&E, the victims were responsible for their own injuries.

I wrote about PG&E’s legal position here.  Then, a few days ago, Jaxon Van Derbeken of the San Francisco Chronicle, wrote about it.  By Tuesday, most of the bay area TV stations were on the story, including NBC 11.

Once PG&E saw that blaming the victims wasn’t exactly winning over any new fans, it issued a hasty press release stating that it never “intended” to blame the victims.  It filed new papers with the court saying the same thing.  Trouble is PG&E’s new court papers assert the defenses of “comparative negligence” and “contributory negligence”  too. That is, PG&E’s new papers, just like its old, blame the victims for their own injuries. 

As CBS 5 noted, PG&E’s blame game is “astonishing,” and its backpedalling is too little, too late.

The failure to timely diagnose and treat a hospital-acquired illness (HAI) can, of course, be considered medical negligence. If doctors and nurses stick their heads in the sand and fail to recognize the signs of a serious infection, it can tragically worsen the patient’s condition. That sort of neglect can form the basis of a viable malpractice claim.

As it turns out, infection rates vary considerably between hospitals. The difference in infection rates is now being traced to whether the hospital has adopted a culture of “attentive hygiene.” When hospitals take steps to improve that hygiene, infectious disease doctors and hospital quality and safety research groups are finding that most hospital associated illnesses can be prevented.
That doesn’t mean that every hospital-acquired infection is the result of the hospital’s mistakes.

However, the research does mean that in a case where hospital acquired infection has caused severe harm, it may be well worth investigating whether the hospital had any of these common sense infection control protocols in place, and more importantly, whether the hospital made a real effort to strictly comply with the protocols on a daily basis.