GM: Additional Recall Affects Millions of Vehicles After History of Accidents

As CEO Mary Barra was preparing to testify before congress about a recall of 2.2 million vehicles which demonstrated an ignition switch problem leading to 13 deaths, a new recall was announced for a problem which can cause a sudden loss of power steering.  The new recall affects an estimated 1.3 million vehicles, some of which were already affected by the ignition switch recall.  Cars included in the recall include Saturn Ion, Chevrolet HHR, Chevy Cobalt, Chevrolet Malibu, Malibu Maxx, Saturn Aura and Pontiac G6.  Some of these models had previously been recalled for the same issue but are being recalled again as the efforts of GM to solve the issue did not go far enough and still present a safety risk.  If you have one of these models of vehicles manufactured between 2004 and 2010, please contact your dealer to determine your rights to a repair.  These defects are major problems and can cause accidents leading to critical injuries or death.

MOTORCYCLES: The Great Helmet Debate

For as long as motorcyclists can recall, the debate over whether motorcycle helmets should be mandatory has flourished.  Forty-seven states, including Nebraska, as well the District of Columbia, Guam, Mariana Islands, Puerto Rico, and the U.S. Virgin Islands, have laws in place requiring the use of a helmet for some riders.  Nineteen states, the District of Columbia, the Northern Mariana Islands, Puerto Rico and the U.S. Virgin Islands have a universal law, while the other twenty-eight states and Guam require helmets only for specific riders.  Only four states (Illinois, Iowa, Michigan, and New Hampshire) do not have a motorcycle helmet law for any riders.

Still the debate continues and states continually attempt to introduce legislation to repeal helmet laws.  Tennessee’s most recent effort to adjust their law to exempt those over 25 years old with at least $200,000.00 in medical insurance and $100,000.00 in liability coverage, failed in committee this week.  Two years ago, Michigan repealed its motorcycle helmet law.  Nebraska has had a helmet law in place since 1989.  Last year, Nebraska introduced a bill which would have required eye protection in operating a moped, while exempting anyone over 21 years of age from the requirement of wearing a helmet.  The bill now has been removed from the Unicameral’s agenda and has virtually no chance to be reviewed again in this legislative session.  This was the fifth time Nebraska had considered measures to alter the motorcycle helmet laws.  The most recent vote showed the repeal might have reached the 25 votes it needed to pass if the vote to cut off debate on the bill had been successful, which kept the bill from the voting floor.

As an attorney who has focused a good portion of his practice on motorcycle accident litigation, I have seen the massive head trauma that can occur during motorcycle accidents.  If you live in a state which requires you to wear a helmet, be sure to choose one that is DOT-Compliant.  Where do you stand on the helmet law?

YAZ: Birth Control Lawsuits Suggest Stronger Warning Labels Necessary

Yaz or Yasmin has now been linked to the deaths of at least 23 Canadian women, over half of which were under the age of 26.  In addition, over 600 adverse reactions to Yaz and Yasmin were reported between 2007 and February of 2013.  Although the FDA ordered clot risks to be added to some birth control labels, the drugs are still in circulation by their manufacturer, Bayer.  An estimated three in 10,000 women who have tried the “new-generation” birth control pills will develop blood clots, which are three times the risk taken by women using more traditional contraceptives, according to Health Canada.  The risk of blood clots in women taking birth controls has always been a factor; however drugs such as Yaz and Yasmin contain Drospirenone, which is a synthetic progestin that increases the risk.

Regulators are now considering ordering additional warning labels specific to the increased risks of blood clots, heart attacks, strokes and blockages in lungs or blood vessels, which can be fatal.  Bayer continues to allege that its own studies have shown no difference in blood clot risk between various birth control methods, although independent studies suggest the risk with Yaz and similar medications is slightly higher.

Over 4,000 lawsuits have been filed against Bayer arguing that any additional risk with the newer drugs should have been not only detected, but emphasized to the public.  If you or a loved one has been affected by Yaz, please contact an attorney knowledgeable in these types of mass tort claims.

GENERAL MOTORS: Cobalt Recalled for Ignition Defect Linked to Accident Deaths

On March 6, 2010, Brook Melton dropped off her 2005 Cobalt from the dealership after experiencing a problem with the ignition shutting off while she was driving.  She had lost her power steering and brakes and had to pull over the car to restart it.  Her father insisted she take it to the dealership for repairs.  She picked it up from the dealership on March 9, 2010.  The next day, Brook was tragically killed when her vehicle spun out of control and sent her into the path of another vehicle.  She had suffered fatal injuries from a broken neck.  An expert examined the “black box” inside the Cobalt and discovered that three seconds prior to the accident, the key had slipped from the “on” position to the “accessory” position, shutting off her power steering and brakes and causing the fatal accident.

Now, four years later, General Motors is recalling 1.6 million cars, including the 2005 Cobalt, for problems with the ignition switch.  This problem has been linked to twelve deaths.  Although General Motors has admitted the company was aware of ignition problems prior to Brooke purchasing her car in 2005 and in fact, nearly a decade prior to issuing a recall, they only proposed an insert as a solution, rather than changing the keys, as recommended by engineers.  The insert was made available only to car owners who came in to complain about ignition shut-offs.  Under the program, fewer than 500 drivers received the inserts.  The Cobalt’s program engineering manager, Gary Altman, stated the inserts were an “improvement, it was not a fix to the issue”.

For Ken Melton, Brooke Melton’s father, the information that General Motors had made a “business decision” not to implement a proposed solution that would stop some ignition shut-off incidents was difficult to hear.  “I was furious that this information was known about and not taken care of before in 2005,” said Ken Melton. “If it had been, my daughter would still be here and we would not be here talking about this.”  General Motors alleged that if GM had felt that changing the key was a 100 percent fix, it would have spent the money to make the change.  Testimony in the case from Mr. Altman alleged that the Melton’s car was not “unsafe” and that it “could still be maneuvered to the side of the road”.

General Motors settled the lawsuit by the Melton estate, however would not comment on the lawsuit as a dealer lawsuit is still in progress.  The terms of the Melton settlement with GM are confidential.

 

 

DISTRACTED DRIVING: Can a device protect my teen from texting and driving?

We have all seen the pictures.  Everyone knows of the dangers of texting and driving, yet the message doesn’t seem to be sinking in.  In 2011 alone, 3,331 people were killed in car accidents involving distracted drivers and an additional 387,000 others were injured, according to the National Highway Traffic Safety Administration.  Even though distracted driving encompasses different types of distractions, from applying makeup to fiddling to the radio to talking to passengers in the car, texting is especially dangerous.  Teens, especially believe that sending a quick text is safer than talking on the phone and a quick Facebook update is really “no big deal”.  Studies have shown that three things actually happy when a driver is distracted, even for a second.  It removes the mind from driving, removes your hands from the wheel and removes your eyes from the road.   

Talking about it isn’t enough.  Teens are being asked to make the commitment to not text and drive and, in fact, avoid distracted driving altogether, and to honor that commitment.  However, it is not always as easy as making a promise and keeping it.  Some teenagers are taking the commitment one step further and shutting off their phones in the car.  But what about those who find this a difficult commitment to make?  Others have downloaded apps to their phones which disable a smart phone while driving.  Esurance has developed a device called DriveSafe for its customers. 

DriveSafe is a device that can be inserted into the onboard diagnostics port of any non-hybrid/electric car made after 1996.  The device communicates via Bluetooth with the Esurance smartphone app and allows parents to fine-tune what their kids’ phones can do.  They can disable texting, limit cell phone use, with the exception of the ability to dial 911, and even track how a teen drives, including how fast they went, how quickly they accelerated, how hard they braked and where they went.  Basically giving full parental oversight to a teen’s driving habits.  If a teen tries to remove the device from the car, the parents receive notification.  If you are not an Esurance customer, there is a device called Cellcontrol which has many of the same features.

Will this curb the trend towards texting and driving in teenagers?  It has the potential to make a serious difference in the statistics.  If you have a teenager who drives, or know someone who does, please make sure they are aware that devices do exist to help protect their teen from the dangers of distracted driving.    

Social Networking: Is the potential cost worth the rant?

Social networking has provided us with the ability to keep in contact with old friends and relatives, as well as trusted colleagues.  It allows us to share personal and professional information easily, including photos and life events.  While this is wonderfully convenient, it is important to be cautious about what you are actually sharing on social networking.  While everyone knows that sharing photographs of a personal nature is not advisable, you must also be aware of the statements you post.  There is no expectation of privacy on social network sites, such as Facebook.  The golden rule is to avoid putting anything online that could reflect bad on your business or you personally.  You must also be aware that what you post online can actually cost you financially.

In February of 2014, a Facebook posting by his daughter cost Patrick Snay, 69, an $80,000.00 settlement he won in an age-discrimination lawsuit according to the Miami Herald.  The settlement came with a confidentiality agreement prohibiting Snay from disclosing the “terms and existence” of the settlement.  Snay’s daughter, only days after the agreement, posted to 1,200 Facebook friends that “Mama and Pap Snay wond the case against Gulliver.  Gulliver is now officially paying for my vacation to Europe this summer.  SUCK IT.”  As Snay’s daughter was a recent graduate of Gulliver, her posting, in effect, announced to current and former students that Gulliver lost the case with its former headmaster, violating the confidential terms of the settlement, and thus, rendering the settlement void, after an appeal by Gulliver to a Motion to Enforce the Settlement.

It is not just a potential settlement that can be lost through social networking, however.  There have been many stories of people losing their jobs over Facebook postings.  In May of 2013, a Chili’s waitress lost her job when she posted “Stupid cops.  Better hope I’m not their server”, with a picture of Oklahoma County deputies arriving at the restaurant.  The deputies in the photograph had spent five hours of their day volunteering on a funeral procession and the posting cost the restaurant business from the law enforcement community and the waitress her job.  Others have lost their jobs by posting about their bosses or co-workers online.  In May of 2013, a Denver employee was fired for complaining about his working conditions online after a co-worker reported his conduct.

More and more lawsuits are being compromised by postings on Facebook and other social networking sites.  For example, if you are involved in an automobile accident and like to brag on your Facebook page about speeding, that can come back to haunt you later.  Divorce cases frequently bring up social networking posts for purposes of child custody and determining the suitability of one parent.  Deleting a post doesn’t necessarily protect you either.  Through subpoenas and computer forensics, often referred to as “e-discovery”, those posts can still be retrieved and used against you in a Court of law.

The moral – don’t post anything on social media you wouldn’t want the whole world to see.

CDC Reports Fewer Children Dying in Car Crashes

The U.S. Center for Disease Control and Prevention has released a new study showing death rates of children in car crashes fell by 43 percent from 2002 to 2011.  Even more death could be prevented with use of adequate safety measures.  The study showed that one of three children who died in a car crash in 2011 was not using a seat belt or child safety seat.  More than 9,000 children age 12 and younger died in a car crash from 2002 to 2011.  A much higher proportion of black and Hispanic children were not buckled, compared with white kids, 45 percent for blacks, 46 percent for Hispanics and 26 percent for white kids.

The study reports that seat belt use increased from 88 percent in 2002 to 91 percent in 2011 with children age 7 and under.  Children age birth to 2 should be in a rear-facing car seat.  Children age 2 to 5 should be in a forward-facing car seat until they reach the upper weight or height limit of the seat.  Children age 5 and older should use a booster seat until the adult seat belt fits them properly, generally when the lap belt lays across the upper thighs and the shoulder belt lays across the chest, but not the neck.

Data collected from the National Highway Traffic Safety Administration.  Safekids.org offers 5 tips for making sure that your child is safe in their car seat.

  1. Make sure your child is in the appropriate seat. Check the label on your car seat for the manufacturer’s recommendations on age, height and weight.
  2. Make sure your child is sitting in the back seat until age at least 13.
  3. Make sure your child is facing the right direction. Infants and toddlers should be in a rear-facing car seat until age 2. Once he or she outgrows the rear-facing seat, move your child into a forward-facing booster seat. Make sure to attach the top tether after you tighten and lock the seat belt or lower anchors.
  4. Perform the inch test. Once the car seat is installed and the harness is tightly buckled give it a good shake. A properly installed seat will not move more than an inch.
  5. Perform the pinch test. Make sure the harness is tightly buckled and coming from the correct slots (check car seat manual). Now, with the chest clip placed at armpit level, pinch the strap at your child’s shoulder. If you are unable to pinch any excess webbing, you’re good to go.

Correct use of safety seats can reduce the risk of death as much as 71 percent.

 

Pradaxa Complications Lead to Irreversible Damage

Pradaxa is a medication used to prevent stroke and blood clots in patients with atrial fibrillation.  It has been widely prescribed since it’s release in 2010.  Unfortunately, studies in the New England Journal of Medicine have warned that the lack of an effective treatment for severe bleeding caused by Pradaxa may put patients at risk.  Unlike Warfarin (generic for Coumadin), patients who use Pradaxa cannot be given a reversal agent to halt the anticoagulant effects of the drug and stop severe bleeding.  In December of 2011, the Food and Drug Administration launched an investigation into the side effects of Pradaxa after dozens of patients experienced extensive bleeding.

In the past two years, more and more patients have demonstrated complications with the drug, often leading to serious internal bleeding or death.  Certain patients are at a higher risk for bleeding, such as patients age 75 or older, patients with pre-existing kidney problems, current stomach or intestinal bleeding due to ulcers or patients who are underweight.  The drug has also been associated with a higher risk of heart attacks and chest pains.  Critics of the Food and Drug Administration question why this dangerous drug had not been recalled.  In 2011, a limited recall of Pradaxa was conducted as some lots were improperly labeled, but the drug itself is still being prescribed to patients.  By the middle of 2012, more than 3.7 million patients in the U.S. alone filled Pradaxa prescriptions.  Thousands of lawsuits are expected and will be consolidated to a special federal court in Illinois.

In 2012, the FDA determined Pradaxa did not pose an excessive risk of bleeding, however failed to address the potential for uncontrollable bleeding and the inability to reverse it.  Instead, the FDA warned clinicians not to prescribe Pradaxa to mechanical heart valve patients.  In 2013, the manufacturer added a black box warning cautioning that discontinuing the drug could raise the risk of a stroke in patients with atrial fibrillation and recommended use of another anticoagulant if the drug was discontinued.  The black box warning also detailed a connection between Pradaxa and low blood platelet counts.

If you have suffered kidney failure, stroke, or other side effects of Pradaxa, contact a mass torts lawyer knowledgeable in these types of claims.

 

Johnson & Johnson: Are Patients or Profits Taking the Lead in Risperdal Lawsuits?

Over the past several years, there has been an increase in lawsuits against Johnson & Johnson for various products including NuvaRing, vaginal mesh, and even a broad recall of children’s medicines.  Although each lawsuit against Johnson & Johnson has its own individual facts and considerations, what has become clear is that Johnson & Johnson has a number of dangerous products on the market leading to harmful side effects.  In 2010, the antipsychotic drugs Risperdal and Invega were added to this list.  These drugs, while marketed as antipsychotic medications, can cause serious side effects, including rapid weight gain and the growth of breasts in boys and young men.  Over the years, hundreds of lawsuits have been filed alleging the same side effects, some of which have gone to trial and been settled.

The lawsuits surrounding Risperdal allege inappropriate marketing as well as failure to warn issues.  While Johnson & Johnson alleges Risperdal helps countless people throughout the world who suffer from debilitating mental illnesses, it also has caused embarrassing side effects further contributing to the problems it claims to address.  In September of 2012, Johnson & Johnson settled one such lawsuit with a 21 year old who had taken Risperdal and grown breasts which had to be surgically removed.  The settlement was allegedly agreed to by Johnson & Johnson in order to avoid having the Judge in the trial order Chief Executive Officer Alex Gorsky to testify.   According to court filings, Gorsky was using the increases in Risperdal sales on his resume’.  The plaintiff sought to secure testimony regarding Gorsky’s role in getting psychiatrists to promote Risperdal for uses not approved by the FDA.

In addition to the lawsuits, Johnson & Johnson has also faced criminal charges from the federal government over allegations related to off-label marketing and payoffs to a nursing-home pharmacy company.  In November of 2013, Johnson & Johnson agreed to plead guilty to a misdemeanor charge and pay $2.2 billion to settle allegations that it illegally promoted the use of its antipsychotic drugs for unapproved uses, including the marketing of Risperdal to children and the elderly.  Although Risperdal and Invega were approved mainly for the treatment of schizophrenia, Johnson & Johnson expanded the promotion of the drugs for other medical problems to increase sales and driving the cost up for everyone in the health-care system, according to U.S. Attorney General Eric Holder.

Still, the most troublesome side effect of Risperdal is the embarrassing and abnormal growth of breasts in males, most significantly troublesome in young boys and young men.  These types of claims are time sensitive and require a timely evaluation of the facts of your case.  If you or a loved one has experienced this side effect and have a history of taking Risperdal or Invega, contact an attorney knowledgeable in the handling of mass tort claims.

Banged, Bumped and Bruised at Work – What are My Options?

You have a right to a safe workplace.  In 1970, the Occupational Safety and Health Act (OSHA) was passed to prevent workers from being killed or seriously harmed at work.  The Act created a government agency to set and enforce protective workplace safety and health standards, provide information, training and assistance to workers and employers.  The purpose was to prevent and lower the number, frequency and extent of worker injuries and deaths.  However, accidents at work still occur.

In Nebraska, if you are injured at work, your exclusive remedy against your employer is workers’ compensation, unless there is an express contract between the employer and a third-party to indemnify the third-party for the loss, as was the case in in the 1988 Union Pacific Railroad Co. v. Kaiser Ag. Chem. Co., 229 Neb. 160 (1988).  Railroads are governed by the Federal Employers’ Liability Act  of 1908 (FELA), rather than workers’ compensation, which falls under a different set of guidelines.

In a straight workers’ compensation case, however, the negligence of your employer does not give you a better case against your employer.  The Nebraska Workers’ Compensation Act eliminates an employee’s common law cause of action for an employer’s negligence.  In return for this immunity, the employer is held strictly liable for payment of workers’ compensation benefits regardless of fault Ray v. School District of Lincoln, 105 Neb. 456 (1920).  This includes any actions for an employer’s intentional tort.  It is for this reason that your employer is required to carry workers’ compensation insurance if they have one or more employees in a regular trade, business or profession, with exceptions such as household domestic servants, employees of agricultural operations, railroad employees, executive officers under a certain threshold, volunteers and independent contractors.   Workers’ compensation insurance is intended to provide compensation for work-related injuries, regardless of negligence, provided your injury was incurred in the scope and course of your employment.

Even though workers’ compensation is your exclusive remedy for the negligence of your employer, you may have other claims.  Should your injuries be the fault of a third party, you may be able to seek compensation from the third party.  In this case, the workers’ compensation carrier may still pay your bills, however they are entitled to recovery of their payments from any settlement with the negligent party.  The employer is, however, protected from the third-party defendant’s attempts to seek contribution against an injured employee’s employer or co-workers.

There is one exception to the exclusive remedy provision, however.  If an employer who is subject to the Workers’ Compensation Act fails to carry workers’ compensation insurance or an acceptable alternative, Neb. Rev. Stat. § 48-145(3) provides that an employee can either elect to proceed under the act’s benefits or to seek to recover damages in a common-law action against the employer.

Workers’ compensation claims have a shorter time period in which to bring your claim than a normal negligence suit in Nebraska as well.  You should consult with an attorney knowledgeable in worker injuries to evaluate all potential claims as a result of the particular facts of your injury.