Articles Posted in Products Safety

bicyclewarningsignMy friend and  fellow trial lawyer, Lester Tate, and I are representing a young man in a case against Kawasaki, the manufacturer of the motorcycle he was riding when he was severely injured because it stalled on him. Months later, he received a recall notice that said the voltage regulator on his motorcycle was defective.  The minute he received the notice he thought that sure explained what happened to him the day his world was turned upside with a catastrophic motorcycle wreck.  The case was heard yesterday before the 11th Circuit Court of Appeals, our appellate court for cases that are filed in Federal Court, here in the Northern District of Georgia.  One of the issues on appeal involves Kawasaki’s duty to warn its customers who have bought or used that particular motorcycle about a known defect with the motorcycle’s voltage regulator.  So, a manufacturer’s duty owed to its consumer is heavily on mind right now.

What exactly is a manufacturer’s duty to want its customers of a potentially defective product?  Under Georgia law , when the manufacturer of a product has actual or constructive knowledge that its product involves danger to users of the product, the manufacturer has a duty to warn users of the danger. Battersby v. Boyer, 526 S.E. 2d 159, 162 (Ga. App. 1999). O.C.G.A. § 51-1-11(b)(1) provides that “[t]he manufacturer of any personal property sold as new property directly or through a dealer or any other person shall be liable in tort, irrespective of privity, to any natural person who may use, consume, or reasonably be affected by the property and who suffers injury to his person or property because the property when sold by the manufacturer was not merchantable and reasonably suited to the use intended, and its condition when sold is the proximate cause of the injury sustained.” The term “not merchantable and reasonably suited to the use intended” as used in this statute means “defective.” Giordano v. Ford Motor Co., 165 Ga. App. 644, 645(1983). “In a product liability case, the existence of a duty to warn depends upon the foreseeability of the use in question and the type of danger involved, and the foreseeability of the user’s knowledge of the danger.” Dorsey Trailers Southeast v. Brackett, 363 S.E.2d 779, 781 (Ga. App. 1987). A manufacturer may be subject to liability for failing to warn the user adequately of the known or foreseen danger if there is no reason to believe the user will realize the dangerous condition.” Id. at 477; see Ford Motor Co. v. Stubblefield, 319 S.E.2d 470, 477 (Ga. App. 1984). When a duty to warn arises, the duty may be breached in one of two ways: (1) failure to communicate the warning to the ultimate user; or (2) failure to provide an adequate warning of the product’s potential risks. Battersby, 526 S.E.2d at 163; see Wilson Foods Corp. v. Turner, 460 S.E.2d 532, 534 (Ga. App. 1995) (citing Thornton v. E.I. Du Pont De Nemours &Co. Inc., 22 F.3d 284, 290 (11th Cir. 1994)). “This duty to warn is a continuing one and may arise “months, years, or even decades after the date of the first sale of the product.” Watkins v. Ford Motor Co., 190 F.3d 1213, 1218 (11th Cir. 1999). “Some products are defective solely due to an inadequate or absent warning.” Chrysler Corp. v. Batten, 264 Ga. 723, 724, 450 S.E.2d 208, 211 (1994).

The issue of failure to warn, including the lack of any warning or the adequacy of any warning, is one that the jury must resolve. See, e.g., Dorsey Trailers Southeast v. Brackett, 363 S.E.2d 779, 782 (Ga. App. 1987); Bryant v. BGHA, Inc., 9 F. Supp. 3d 1374, 1389-90 (M.D. Ga. 2014); Giordano v. Ford Motor Co., 165 Ga. App. 644, 645 (1983)(“Whether a duty to warn exists thus depends upon foreseeability of the use in question, the type of danger involved, and the foreseeability of the user’s knowledge of the danger. See Greenway v. Peabody International Corp., 163 Ga.App. 698, 294 S.E.2d 541 (1982). Such matters generally are not susceptible of summary adjudication and should be resolved by a trial in the ordinary manner. Beam v. Omark Ind., Inc., 143 Ga.App. 142, 145, 237 S.E.2d 607 (1977).”).

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In recent months, a series of serious automotive recalls has hit the headlines. Two major companies, Takata and General Motors, have begun issuing recalls of millions of cars due to defective safety features. For almost ten years, these companies have avoided these potential issues and as a result, many people have died. These companies must now publicly face the consequences of their actions and take responsibility for the deaths caused by these incidents.

In a recent article by Claims Journal, General Motors attorney Kenneth Feinberg stated that GM is now taking responsibility for at least 100 deaths caused by faulty ignition switches in some of their vehicles. This number is a sharp increase from the 13 documented deaths caused by the malfunctioning switches last year. Feinberg stated that each claim found to be legitimately caused by a faulty switch would begin with $1 million in compensation, and increase based on the specifics of the accident.

The exact issue with the switches is that they can sometimes slip from the “on” position to the “off” position, which causes the cars to stall and disables the air bag functioning. Obviously, this poses a huge safety risk in the case of a crash, and is something that General Motors should have thoroughly investigated when the claims began almost a decade ago. They believe the car models most affected by ignition recalls are Buick, Cadillac, Chevrolet, Oldsmobile, Pontiac and Saturn. In the interest of public safety GM has created a website dedicated to information regarding the recall. To check if your car is on the list, click here.

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I am working on a products liability case today that I have pending in Cobb County, Georgia in which my client was severely burned by a sulfuric acid drain opener (SADO). “Burn” may not be the accurate term…it is more like she had her skin dissolved by the sulfuric acid drain opener. She has been treated in three burn units and has undergone nine surgeries, including numerous skin grafts and fractional laser procedures. Yet she still has permanent scars over much of her body.

Do you know what’s in the drain opener you have under your sink right now?  Have you ever used a Sulfuric Acid Drain Opener?  My guess is you have no idea whether you have ever used a sulfuric acid drain opener.  SADO’s, as they are known in the chemical industry, are arguably too hazardous to sell to the public for use by the average consumer. And the average consumer has no idea just how ultra hazardous they are. SADO’s are often pure sulfuric acid, which nothing much added to them except water. They are typically “professional strength” and really should only be sold to professionals. Some manufacturers of SADO’s don’t even employ chemists to create their formula nor was their chemical formula originally created by an actual chemist. This makes the product extraordinarily dangerous to consumers as no professional chemist has even verified what is in the formula so the manufacturer really has no idea of exactly what they are selling.

In many cases, the label on SADO’s are not adequate to warn a lay user sufficiently about the type of chemical burns they can cause if they come in contact with a person’s skin or body. Keep in mind that in many third world countries SADO’s are used as a weapon, often in domestic violence incidents in which men throw sulfuric acid onto women’s faces to disfigure them permanently.  This is the same strength sulfuric acid that is being sold to consumers as a SADO.  For many years a group of concerned chemists have tried to get the sale of sulfuric acid drain openers banned in the United States.  These concerned chemists have petitioned the Consumer Product Safety Commission numerous times to try to get the Commission to take action to ban SADO’s because they are simply too hazardous for use by the average homeowner. But, apparently, politics always seems to get in the way and nothing happens.  Manufacturers keep making money and uninformed consumers keep getting harmed.

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Recently, in Atlanta, Georgia, there has been a lot of media coverage of the near-drowning incident of Usher’s son in a private swimming pool. Apparently, the child’s arm became stuck in a drain at the bottom of the pool and he could not free himself. Audio contractors who were working in the house came to his aid after hearing the screams by his Aunt for help and were able to jump in the pool, pull the child off the drain, administer CPR and save the child’s life. The last report I heard on the child’s recovery is he was doing well, which is wonderful news.

Still of great concern, however, is that pool drain and why the child could not get free from it. There should have been an anti-entrapment drain cover on this pool (photo of a drain cover is above) and an emergency pump cutoff switch, which would have broken the suction power of the drain. The suction power of a swimming pool drain is enormous and can be deadly. There have been numerous cases of children being stuck on a drain in a swimming pool, hot tub or spa and being unable to get off the drain by themselves due to the enormous suction power. In many horrific cases, sometimes the children caught by these drains are eviscerated, i.e., the suction from the drain literally rips their intestines out of them and they are killed or disabled. The Consumer Product Safety Commission has been investigating these incidents since the 1970’s. In 2007, for all age categories, there were 74 reports of circulation entrapments. Individuals in the 5- to 9-year-old category had the highest frequency of entrapment reports. You may never have thought of that possibility until just now. I am writing to make sure you are aware of this deadly potential and, if you are a pool owner, to take action now to install an emergency cutoff switch to the pump that supplies this unbelievable suction power, and if you are merely swimming in someone else’s pool or hot tub, to inquire about the existence of such a emergency cutoff switch and to warn your children to stay away from drains.

There is now in place a Federal Law that requires all public pools and hot tubs to have an anti-entrapment drain cover or other life-saving measures. Passed in 2007, the Virginia Graeme Baker Pool and Spa Safety Act (PSSA), named after the granddaughter of James Baker, III, who died after being caught by a drain in a hot tub. As of December 18, 2008, all public pools and spa were supposed to be in compliance with this act. Although this law applies technically only to public pools, private pools in 2013 really should also be in compliance. Older pools can easily be retrofitted by any pool management or maintenance company. Please check any pool you own or any pool your child swims in for these life-saving devices. Unless you are a personal injury trial lawyer, you may never have even thought of this potentially deadly incident, but the incident involving Usher’s son is a wake-up call to be vigilant so that your loved one is not injured or killed.

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I saw today that a child survived swallowing 37 magnets, so powerful they had twisted and blocked her intestines. These were Buckyballs, which the company says are toys for adults, not children. I doubt children know they are for adults, only. They certainly look like toys that children would want to play with. Even though the company says they are not “toys,” some of these magnets were recalled last year for failure to comply with Federal toy standards.

There simply is no legitimate reason for magnets so strong that they can twist and bind a person’s intestines. These are inherently dangerous around toddlers. The Consumer Product Safety Commission reports that 22 incidents involving magnets and children from June 2009 to October 2011, with 11 of those requiring surgery to remove the magnets. This includes the Magnetix brand of toys, which has caused the death of many children who have swallowed the magnets. After it became known that Magnetix magnets were killing many children, the manufacturer, Mega Brands, decided to include a warning on the package that stated: “Caution: do not ingest or inhale magnets. Attraction of magnets in the body may cause serious injury and require immediate medical care.” Does this go far enough? Or does it just touch the surface?

The Consumer Products Safety Commission, cpsc.org, has been warning us for years now about the hazards of magnets, how easily they can be swallowed by a child, and how quickly and irretrievably they can cause such severe damage when ingested. I have mentioned the CPSC before, but it is a good idea to check their website, cpsc.org, on a regular basis to learn about new recalls of dangerous products. Another good source of information on dangerous toys is the Kennan Kids Foundation, created by my good friend, Don Keenan, a fellow trial lawyer here in Atlanta. The Keenan Kids Foundation keeps abreast of hazardous toys available in America and alerts parents to their dangers. It is a very helpful website of up-to-date information about what is a safe toy and what it not.

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I am thrilled to hear that the Consumer Product Safety Commission will be launching a new website on which consumers may search for a product by name or type to see what safety issues may arise with that product. This is long overdue and I believe will prevent numerous injuries caused by defective products.

The CPSC, a relatively small federal agency of about 530 employees, has jurisdiction over more than 15,000 kinds of consumer products used in homes, sports, recreation and schools. It does not, however, have any actual real recall power, and the decision whether to recall an unsafe or defective product still rests with the manufacturer. I think that is a misperception that alot of people around the U.S. probably have, i.e., that the CPSC has some enforcement mechanism to mandate removal of unsafe products. It does not. The consumer has to be proactive in searching out information about certain products and the new CPSC website will help. The new CPSC website is not expected to be up and running until March 2011, so check it then. In the meantime, you may still gather alot of information about any product you may suspect has a problem at the CPSC’s current website, www.cpsc.gov.

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Graco has recalled at least two million strollers due to the potential for strangulation of infants. These strollers have already killed four babies. The Graco stroller recall was, apparently, prompted when babies were getting their necks stuck under the tray. Check the serial number of your stroller and if you own one of the recalled lots, STOP USING your Graco stroller IMMEDIATELY! Here is a list of the recalled products.

The Graco recall is so extensive and serious that it has prompted Federal review of all stollers.

This is not the first time Graco has had problems with their strollers. You may recall a recall in January of this year due to the tendency of Graco strollers to cause fingertip amputation of the babies riding in these strollers.

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In what has been little publicized, Abbot Nutrition has recalled some of its Similac and Isomil Infant Formula. An internal quality review detected the possibility of the presence of a small common beetle in the product produced in one production area in a single manufacturing facility. There is a possibility that infants who consume formula containing the beetles or their larvae, could experience symptoms of gastrointestinal discomfort and refusal to eat as a result of small insect parts irritating the GI tract. The presence of e. coli bacteria has been found in some infants. Long term effects could include kidney damage.

All Similac powder formula in rectangular plastic tubs is being recalled. You may find the specific serial numbers and recalled lot numbers on Abbott’s website.

Consumers should discontinue use of these products immediately. If you have already used some of this product, save what you have left. You should have your child checked immediately by a physician.

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Consumer Reports has just issued its report on the twelve most dangerous supplements and I want to share those with Georgia readers so they know what to avoid. The Today Show on NBC also ran a feature on it this morning. The supplement industry continues to be one of the largest non-regulated industries in the United States, which is a BIG problem. The FDA (U.S. Food and Drug Administration) does NOT regulate the supplement industry and has no jurisdiction or authority to make it do anything.

This includes putting a full and complete ingredient list, including the concentration of each drug, on the label of the bottle, For example, in some tobacco addiction supplements, manufacturers have actually used arsenic, a deadly chemical that has been used to kill unknowing people. You would think that consumers might want to know what they are ingesting into their bodies. Worse, though, is sometimes only the first three letters of an ingredient are listed on the label, making it impossible for the consumer trying to take safety precautions, from knowing exactly what he or she is taking.

The tweleve most dangerous supplements, according to Consumer Reports, are:

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Congress is considering a total ban on the manufacture and sell of drop-side cribs. The fact that Congress is even discussing this indicates how truly dangerous they must be, because, as we all know, the United States Congress moves at a glacial pace (read “slow as cold molasses as we say in Kentucky) and the fact that Congress is even now addressing the issue indicates how serious the hazard of drop-side cribs must really be.

Those of us who are parents of older children most certainly raised our children using drop-side cribs. They saved us from an untold number of backaches. No doubt none of us would have used them had we only known what a terrible danger they posed to the safety of our babies, the most precious things on Earth to us. When my children were infants, I was aware of a potential danger of having too much space between the mattress and the crib railings. We were told by our physicians that an infant could scoot between the mattress and the side of the crib and become wedged there and suffocate. The test was to make sure you could get nothing more than your fingers between the mattress and the side of the crib. The current danger being investigated is similar, but occurs when a piece of hardware from the crib is missing or the drop-side is installed incorrectly, which can easily occur.

Representative Kirsten Gillibrand from New York is leading the charge in Congress. “There’s a great urgency here. We have to make sure that no parent is unaware that drop-side cribs could kill their children,” Sen. Kirsten Gillibrand, D-N.Y., said in an Associated Press interview. There have already been recalls of hundreds of thousands of cribs recalled. At least 32 young children have strangled or suffocated in the past nine years due to defects and other problems of drop-side cribs. Even one death is too many. Although drop-side cribs may soon be obselete, they will still be found at yard sales, which may pose a problem for unknowing parents. Before buying any such product, I recommend you check the Consumer Product Safety Commission’s website to verify the product you intend to buy has not been recalled and doesn’t pose a safety risk for your child.