Atlanta Injury Law Blog

Sunday afternoon on I-20 near Six Flags Over Georgia, two people were killed when tire failure led to a rollover of a Ford Explorer. I learned of it not as an Atlanta personal injury, wrongful death an products liability attorney, but because my mom was stuck in the traffic on her way to accompany wife wife to a concert at our church.

The problem with Ford Explorers rolling over after tire failure is well known. I have seen video of test track exercises demonstrating how easily the Explorer rolls over in certain reaction maneuvers, and that if the Explorer wheelbase were widened by four inches it would not roll over.

Of course, I don't know the details of why this particular incident occurred. We have turned down Explorer rollover cases after investigating the details of specific incidents. While the answers regarding this tragedy are not yet known, the questions about Explorer handling characteristics are all too well known.

 

 

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My personal injury litigation law practice in Atlanta has included a number of serious defective product cases. Among them have been tire defect cases.

Last week, a Texas jury returned a verdict of nearly $12 million against a tire maker after determining that a defective tire caused a wreck that killed six people and left a 12-year-old boy paralyzed.

The jury found that a manufacturing flaw in a Goodrich tire made by  Michelin North America contributed to the New Year's Eve 2006 crash outside Matamoros, Mexico. A tire on a pickup truck separated from its tread, causing the vehicle to swerve into oncoming traffic, where it collided with another vehicle killing all six passengers inside the SUV.

One of our cases here in Georgia involves a tread separation of a tire from another manufacturer. Our experts concluded that the layers of the tire never properly adhered due to a defect in the manufacturing process. The tread separated on a college van loaded with a dozen cheerleaders, causing three deaths and one serious brain injury, as well as several lesser injuries. Our team of lawyers representing all the cheerleaders ultimately resolved the case for a total of $9.3 million before trial.

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Events of the past week lead me to think it may be time for a basic overhaul of the FDA process for approval of drugs and medical devices and a uniform national system for pharmaceutical and medical device liability.

 Recently we have seen an unsuccessful proposal to give civil immunity in Georgia for manufacturers of FDA-approved medical devices and pharmaceuticals that employ at least 200 people in manufacturing or R&D in Georgia.  Even Georgia's conservative legislators decided immunity was a bad idea.

 And earlier this week the U. S. Supreme Court decided, in Wyeth v. Levine, that FDA approval does not preempt products liability claims under state laws.

 Now there’s an interesting article by Alicia Mundy in today’s Wall Street Journal about political lobbying overcoming scientific objections to approval of a medical device at the Food and Drug Administration.

 The article focuses on the fast-track FDA approval of Menaflex, an implant for repair of torn meniscus in knees. Made of cow collagen, it is intended to stimulate regrowth of tissue that acts as a shock absorber within the knee. The current standard treatment is to sew up the torn meniscus tissue.

 The manufacturer of Menaflex apparently started out applying for FDA approval on the standard track that requires clinical trials, but grew frustrated with an agonizingly slow process. Then, the critics say, it started political lobbying for fast-track approval, bypassing the scientific review process.

 Having dealt with slow, unresponsive government bureaucracies many times, I can understand their frustrations. And having seen too many efforts by companies to immunize themselves from accountability, I understand the medical review scientists’ concerns about elevating politics and profits over scientific integrity.

 The WSJ article points out that Menaflex has been used in Europe for years. European regulators generally require only that medical devices perform as stated and don't apply a risk-benefit evaluation akin to the FDA's full approval process.

 My perspective on this is a little different from many of my trial lawyer colleagues. I have a child with neurofibromatosis (NF), a genetic disorder that made her deaf and for which there is currently no treatment approved by the FDA. She and I have both run marathons as fundraisers for NF research.

 The NF market is too small a market to make it a profitable priority for drug companies, who can make bundles on drugs and devices for common but less devastating ailments. The process of gaining FDA approval for a promising new drug  for NF would be prohibitively slow and expensive. We can’t compete with the profitability of Viagra or Menaflex. So when I spoke to an international medical researchers conference last June, I encouraged them to look for bridge therapies (e.g., nutritional supplements, off-label uses of already approved drugs, etc.) that could, without the need for FDA approval, provide help for the current generation of kids with  NF.

 As the majority of the Supreme Court recognized in the Wyeth case, and as Georgia legislators recognized in stalling the FDA immunity bill, the FDA approval process has problems. Between a medical review process that is sometimes too slow and expensive, and end-runs that put profits ahead of science, confidence is lost.

 Perhaps it is time for Congress to change the process in order to both encourage innovation and rapid delivery of improved products and preserve accountability. 

 They could adopt a more streamlined approval process, somewhat akin to that in Europe, that requires only that drugs and devices perform as stated, without exhaustive risk-benefit analysis.

 But the tradeoff would be preservation of the secondary regulation role played by tort laws, which the majority of the Supreme Court recognized in Wyeth.

 f unbridled tort liability under the laws of 50 states is too much of a deterrent to innovation, as the industry claims, then devise a new set of uniform federal rules governing liability of pharmaceutical and medical device manufacturers. The tradeoff there could be a less onerous and less expensive process, defined by federal law, to obtain fair compensation, perhaps in exchange for capping punitive damages in pharmaceutical and medical device cases.

This suggestion would likely draw fire from both sides -- the manufacturers who want immunity and my trial lawyer brethren who want no restrictions of civil liability.  However, something along these lines may be needed to serve the public interest in both economic viability of medical progress and fair compensation for those who suffer the consequences when the train runs off the tracks.

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Yesterday, in the case of Wyeth v. Levine, the U. S. Supreme Court ruled 6-3 that a claim of failure to warn of hazards related to a drug were not precluded by FDA approval of the drug warnings.  Though my practice in Atlanta deals mostly with truck accident cases in Georgia, I spent a few hours last night picking apart the 80-page decision. I won't try to brief the case here, as it would put too many readers to sleep.

The far-reaching impact of the decision will extend beyond pharmaceutical  and medical device cases to other areas of product liability. In recent years several federal agencies asserted that their actions should preempt any state law tort claims. Now the majority of the Supreme Court has rejected that, at least in the context of this case.

The analysis of when federal law preempts state law under the Supremacy Clause of the U.S Constitution is seldom simple. The Wyeth decision and the dissent cover most of the major  arguments on both sides.

Whether we argue for or against federal preemption in particular context, we will parse the words of the Wyeth case to find support for our positions.

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Sometimes quality control and financial stability go hand in hand.

This week I saw two announcements from Cooper Tire.

First, they recalled Cooper CS4 Touring (VR tires) size 215/55 R17 produced between September 7 and October 11, 2008.  This is part of a long history.  According to the NHTSA recall campaign these tires may have been cured for an inadequate amount of time. This condition can lead to tire tread separation, possibly resulting in the loss of vehicle control and a vehicle crash. Cooper Tires has agreed to notify owners and replace, mount and balance any defective tires free of charge. Owners may contact Cooper Tire Consumer Relations toll free at 1-800-854-6288.

Second, Cooper Tire announced it was closing its manufacturing plant in Albany, GA, which employs about 1,400 people.  I really feel for those folks who are not responsible for their employer's quality control and management decisions, or for the general collapse of the auto industry and the economy in general.  I have not heard of quality control issues at the Albany plant.

Tires are an important and complex area of defective products litigation.  Tread separation is an extraordinarily dangerous defect that often results in death and catastrophic injuries. Improper manufacturing and curing of tires can cause a tread belt separation, which often leads to a tire blowout. Tread separations ordinarily cause the driver to lose control of the vehicle even when the tire does not lose pressure.

I have worked on such cases in the past.  When you combine a delaminating tire with a 19 passenger van operated at high speed, the outcome is tragic.

 

 

 

 

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The Georgia Fair Business Practices Act was enacted in the 1970's. In the early nineties I sifted through the original legislative committee files at the archives in researching legislative intent. It is clear that this Georgia law encompasses personal injury and wrongful death claims based upon unfair or deceptive acts or practices in commerce, and provides for treble damages, punitive damages and attorney fees for such claims.

At that time in the early nineties, I used that statute to recover from a product distributor that would not have responsibility for a fatally defective forklift under Georgia product liability law that shields sellers from liability. However, by classifying the forklift and attachment as an "office supply" we were able to get the job done. After surviving a barrage of motions and an interlocutory appeal, we settled for policy limits on the eve of trial.  The judge on that case still mentions it every time I see him.

Now my friends at Finch McCranie have blogged about Altria Group v. Good, in which the U. S. Supreme Court has held that federal law neither expressly or impliedly preempts a lawsuit filed under the Maine Unfair Trade Practices Act by Maine smokers.

It may be worth noting that while the Georgia Fair Business Practices Act does allow personal injury and wrongful death claims, it bars class actions based upon it.  The Georgia FBPA can be useful, however, in individual products liability claims where there was an unfair or deceptive act in the promotion or advertisement of the product.

 

 

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Those ugly and ubiquitous Crocs shoes -- and the cheaper knockoffs -- have been involved in an international wave of serious injuries to the feet of young children on escalators.

At first I was skeptical when I began hearing last year of kids' toes being mangled on escalators at the Atlanta airport. However, this article from Consumer Reports lays it out.  Safety organizations in the U.S. and Japan have issued warnings about  Crocs and other soft-sided clogs posing safety hazards to escalator riders. Typically, the shoe becomes entrapped when the rider is stepping on or off the escalator or standing too close to the side. 

The Consumer Product Safety Commission reports that 77 escalator entrapment incidents have been reported since January 2006, half of which resulted in injury. All but two of the incidents involved soft-sided flexible clogs and slides such as Crocs. The CPSC doesn't reference the brand Crocs in its announcement but acknowledges that Crocs fall into the category of soft shoes they are warning about. In Japan, where 3.9 million pairs of Crocs were sold last year, the Trade Ministry asked the Colorado-based maker of Crocs to change the design of its shoes after receiving 65 complaints of Crocs and Crocs knockoffs becoming stuck in escalators between June and November of 2007.

Crocs is naturally pointing to every other possible cause of these injuries, including loose shoe laces (no laces on Crocs), escalator design, "improper use," etc. The CPSC joins in the obfuscation by issuing a long list of every possible rule for use of escalators known to humankind. I have noticed signs at the Atlanta airport that take the same broad, vague approach.

Most of the incidents appear to involve little children on escalators, often in airports where they are tagging along with parents in a hectic, somewhat unfamiliar environment where parents are likely to be in a rush, managing carry-on bags, and perhaps not totally focused on how the children are amusing themselves on escalators. Little feet in little, soft-sided shoes are more vulnerable to getting caught in the mechanism that bigger feet.

Interestingly, I haven't seen any comparable stories of essentially bare feet in flip flops or sandals, or feet clad in sneakers or other lace up shoes, being injured on escalators.   I don't know of any statistical analysis of the risk of escalator injuries in Crocs, and expect that any product liability suit against the manufacturer would be met with a barrage of pseudo-scientific studies sponsored by the company, and exhaustive Daubert motions to exclude any evidence for the injured children.

However, if it looks like a duck, walks like a duck and quacks like a duck, maybe it's a duck. If I still had young children, I would decide for them what my college kids have apparently decided for themselves: don't buy those "(expletive deleted) ugly shoes." At minimum, I wouldn't let them wear them when going to places with escalators.  There are plenty of other shoe styles that can be slipped off and on easily at airport security that don't present a known risk of injury.  If bigger kids or adults, with bigger feet and more discretion, want that style, that's their choice.

 

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Here's a product defect you don't see every day.

Wal-Mart has been selling a baby doll that bears the Fisher-Price logo, manufactured in China, that would teach your child to say "Islam in the Light."  

Remember when Sam Walton was alive and Wal-Mart advertised its loyalty to products made in the USA?  I suspect Sam is spinning in his grave at the very idea of his stores, which now sell almost no American-made products, helping to indoctrinate a generation of American children in favor of Islam. 

What's next? A "Jihad Joe" action figure?

 

 

 

 

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In my law practice in Atlanta, Georgia, we get inquiries about hospital, nursing home or home health care patients who die or suffer serious injuries due to being entrapped in a gap between the mattress and guard rail in a hospital bed.

If you have ever spent night after night in a hospital room keeping vigil with a heavily sedated family member, as I have too often and too recently, you can imagine how mismanagement of the hospital bed could pose that danger.

The Hippocratic Oath from days of ancient Greece admonishes physicians, "first do no harm." That should apply to the hospital or nursing home as well as the doctor.

The risk of entrapment and even death due to the positioning of hospital bed rails has been well known for a long time. Data on this has been publicly available since 1985.  The Food and Drug Administration first issued a warning to home health agencies, nursing homes and others in 1995.

Generally the defendant in such a case would not be the individual physician or medical practice group. Rather, it would be the equipment supplier, hospital, nursing home or home health agency that supplied and managed use of the hospital bed,  or the manufacturer of the bed.

We are always available to review potential cases resulting from such incidents.

For more information about the foreseeability of such incidents to professionals in the nursing and medical management fields, see:

• FDA Issues Guidance on Hospital Bed Design to Reduce Patient Entrapment (2006)
• FDA Proposes Hospital Bed Entrapment Rules (2004)
• FDA Safety Alert: Entrapment Hazards with Hospital Bed Side Rails (1995)
• Reducing risk of entrapment in hospital beds (2006)
• Bed-rail entrapments still a serious problem (McKnight's, 2008)(includes illustrations of entrapment patterns)
• Another hospital bed entrapment concern: 'power down' versus 'gravity down' (McKnight's, 2008)
• DEVICE SAFETY: Waking up to hospital bed entrapment risks  (NursingCenter.com, 2008)
• Warnings Do Little To Prevent Bed Rail Entrapment (Chicago Nursing Home Abuse Blog, 2008)

 

 

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This year, with foreclosures and unemployment rates soaring, more people will focus on discount prices when buying boys for their children and grandchildren. The harbinger of this season may have been when a Wal-Mart employee was trampled by the crowd entering a store at 5 AM on the day after Thanksgiving.  Others in the depths of economic pain may shop at Goodwill or consignment stores for used toys.

Whether toys are new or used, before giving a beloved child a low priced toy, one should check for product recalls. The U. S. Consumer Products Safety Commission maintains an online listing of all toy hazard recalls since 1975.  A couple of minutes checking this list could help prevent a lifetime of regrets.

 

 

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When Ford acquired Volvo a few years ago, I thought it was quite a mismatch of corporate cultures. Volvo had a reputation for building the world's safest cars.  Ford, on the other hand, sometimes seemed only slightly ahead of Yugo in that regard. 

I have owned Volvos for 20 years.  I bought the first one, a 240 DL wagon when our first child was an infant.  She now drives an S40 while I drive an S80 with about 120,000 miles on the odometer.  My wife and son drive other models, but not Fords. 

The safety reputation of Volvo is impeccable.  In the past 20 years, I have become aware of fatalities in Volvos only in a couple of types of situations -- where a deer or a falling oak tree came through the windshield, or where a drunk wrapped himself around a utility pole at 100 mph.

Ford is another story altogether.  I won't begin to catalog the horror stories.  Some I'm not at liberty to tell.

However, hope breathes eternal, and I hoped that Volvo's influence might be a healthy one in the Ford corporate family.  But now it appears that the marriage didn't work out, as Ford prepares to sell  its high-end European brands -- Volvo, Land Rover, Aston Martin and Jaguar.  Ironically, Volvo ranks as one of Ford’s best-selling brands. It has generated profits of $800 million to $1 billion a year, provided Ford with expertise in safety development.  That's just not enough to offset the losses from other Ford brands.

I wonder what had happened if Ford had subsumed itself into the Volvo identity, including the Volvo tradition of safety consciousness, and adopted Volvo safety technology for all its brands.  Just a thought.

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Tires manufactured in China and sold in the U.S. under brand names Westlake, Compass, Telluride and YKS have been ordered recalled due to life threatening defects.  My bet is that no one will ever be able to hold anyone financially responsible, and certainly not in Georgia. The problem is compounded by the inability to enforce a U.S. court judgment in China.

The Chinese tire manufacturer, Hangzhou Zhongce Rubber Co., chose to leave out a gum strip which helps bind the belts of a tire to each other, preventing tread separation.  When tire treads separate at highway speeds, catastrophic crashes often result.  This was the cause of the massive Firestone / Bridgestone  tire recall several years ago.

The response from the Chinese tire manufacturer was to deny everything.

This recall involves tires imported and sold by a small New Jersey importing company that does not have the resources to complete the recall and replace the tires.  The chance of getting the Chinese company to take responsibility for the recall, or for the injuries and deaths caused by these tires, is just about nil. 

Of course, the Chinese plan to start exporting cheap cars to the U.S. too.  See a 40 mph crash test of a Chinese sedan.  The A-pillar collapses and folds up, forcing the driver's door to pop largely out of its frame, while the lower portion of the car buckles under.  The results to the occupants would be catastrophic.  My German is more than a little rusty, but the frontal and side impact videos really require no translation.

Aside from any interest in protecting American manufacturing jobs, the Chinese lack of safety standards or financial responsibility for resulting damages is another reason to avoid buying Chinese products in any category at any price.  Unfortunately, our retailers such as Wal-Mart have too often abandoned American manufacturers and workers and sell hardly anything that was not manufactured in China and other low-wage countries.  It is just one more instance of corporations exporting American jobs and the safety of American consumers.  See the discussion of this topic at Free Republic.

The tire recall reminds us yet again of the shortcoming of "reformed" Georgia tort law that shields sellers from all liability for defective products, even when they import substandard products from third-world manufacturers that cannot be held accountable in U.S. courts.  I wonder if we might get around that through creative use of the Fair Business Practices Act, though it would be tough.

Caveat emptor.  How do you say that in Chinese?

The Latin phrase "caveat emptor" (buyer beware) is often referred to as an ancient principle of the law.  However,  "caveat emptor" entered the legal vocabulary as a caustic comment of people cheated by itinerant peddlers and horse traders beyond the effective reach of local courts and by dishonest merchants who had won the favor of kings and nobles who controlled the courts. Lawyers began to use the convenient phrase in arguments.  Eventually Blackstone lent it more dignity. Around 1800 it was endorsed in English case law, and American courts followed suit. The doctrine of caveat emptor, wrapped in the convenient cloak of a Latin phrase, arose contemporaneously with philosophies of moral relativism in time to serve the interests of developing mercantilism. See generally, W. H. Hamilton, "The Ancient Maxim Caveat Emptor," 40- Yale Law Journal 1188 (1931).  To borrow language of Justice Frankfurter  in describing "assumption of risk,"  the phrase "caveat emptor" is "an excellent illustration of the extent to which uncritical use of words bedevils the law. A phrase begins life as a literary expression; its felicity leads to its lay repetition; a repetition soon establishes it as a legal formula, undiscriminatingly used to express different and sometimes contradictory ideas." 318 U.S. at 68-69.

While products liability insurance is to Chinese manufacturers exporting to the US, it is unclear whether most such manufacturers carry insurance or have any motivation to do so.  In Georgia, where product sellers have virtually no exposure to liability, there is no economic motivation for sellers to require their Chinese suppliers to carry such insurance.

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The U. S. Supreme Court has decided to hear a case concerning the scope of federal regulations preempting higher standards under state health, safety and tort laws. Preemption is the principle that a federal law can supersede or supplant any inconsistent state law or regulation. When preemption occurs, state law on a given subject is invalidated and the federal law substituted in its place.

Some federal statutes clearly state that regulations issued pursuant to the statutes will preempt any contradictory state laws, while some clearly state that the federal standards define a national minimum standard that states may exceed.  Other statutes are silent about preemption, preemption comes about through federal agencies claiming preemption in their regulations, or by courts implying preemption.

Under the Bush administration, a wide variety of federal agencies have taken the position that their regulations preempt all state laws and tort claims where manufacturers and other corporations comply with minimal federal regulations.  Sometimes those regulations are ghost-written by industry lobbyists to meet the minimum level to which even the least safety conscious already comply.  By setting the standard that low, and preempting any legal claims that there should be greater attention to safety, the regulators remove the economic incentives for safety that have been provided by products liability litigation. 

The specific case the Supreme Court has agreed to hear involves medical devices.  However, the issues is much broader, involving everything from pharmaceuticals to railroad safety to auto safety. 

It is noteworthy that not all Republicans follow the Bush administration's line on this issue. Fred Thompson, a former Tennessee Senator and prospective Presidential candidate, recently wrote an article critical of federal regulations preempting state laws, on the basis of the conservative constitutional principle of federalism. 

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A rash of recent news stories about dangerously defective products from China points to the need to amend a tort reform law that was passed in Georgia twenty years ago. In 1987, long before so much manufacturing was outsourced to China, the Georgia General Assembly passed OCGA 51-1-11.1, which provides:

(a) As used in this Code section, the term "product seller" means a person who, in the course of a business conducted for the purpose leases or sells and distributes; installs; prepares; blends; packages; labels; markets; or assembles pursuant to a manufacturer's plan, intention, design, specifications, or formulation; or repairs; maintains; or otherwise is involved in placing a product in the stream of commerce. This definition does not include a manufacturer which, because of certain activities, may additionally be included within all or a portion of the definition of a product seller.

(b) For purposes of a product liability action based in whole or in part on the doctrine of strict liability in tort, a product seller is not a manufacturer as provided in Code Section 51-1-11 and is not liable as such.

(c) Nothing contained in this Code section shall be construed to grant a cause of action in strict liability in tort or any other legal theory or to affect the right of any person to seek and obtain indemnity or contribution.

The legislators back in 1987 were probably thinking about protecting "mom and pop" retailers from liability due to defects in products as to which they had no influence or control.  It is extremely unlikely that they had in mind a gargantuan retail chain with the power to dictate product specifications and outsource the bulk of American manufacturing to China.

Before passage of this statute, Georgia law recognized the doctrine of "ostensible manufacturer" whereby a company that puts its label on a product manufactured by another company was held responsible for the product as if it were the actual manufacturer.   Courts later determined that this statute abolished the "ostensible manufacturer" doctrine in Georgia.

The situation now is that a huge percentage of manufacturing has been outsourced to China. While it is theoretically possible to sue a Chinese manufacturer, as a practical matter it enormously difficult, expensive and unrewarding to seek to hold a Chinese manufacturer fully accountable. With no feasible opportunity to seek compensation from the "ostensible manufacturer" that puts its label on a product imported from China, or to sue a "product seller"  such as Wal-Mart that dictates specifications and imports vast quantities of cheap products from China, Georgians have no practical recourse for injury or death caused by defective Chinese products.

At minimum, OCGA 51-1-11.1 should be amended to provide an exception where the product seller puts its own label on a product manufactured by another company, or sells imports that were manufactured upon its order.  If there are unreasonable risks associated with products manufactured in China, all that risk should not fall upon the American consumer.  I haven't worked out the wording of such an amendment, and of course the devil is in the details.


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A leading industry in Northwest Georgia is the manufacture of tufted carpet. A vital element of the local economy of Dalton, Calhoun and surrounding communities, the carpet industry provides a good living for a substantial portion of the local population as well as thousands of hard-working immigrants. Unfortunately, however, we have seen that the companies that design and manufacture the equipment used in carpet production sometimes cut corners regarding worker safety. In one case against a major manufacturer of carpet equipment we found that a direct applicator was designed to be accessed on two sides but the emergency stop cord was installed only on the safer of the two sides, and even then was installed backwards so that it did not work. The worker whose arm was pulled between rollers was lucky to avoid worse injury or even death. We continue to hear of incidents in which even experienced carpet mill workers are mained or killed by defectively designed or manufactured carpet production equipment.

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A coalition of lawyers who have sued tobacco companies says it is close to filing a class-action lawsuit against soft-drink makers for selling sugared sodas in schools.

Leading the litigation effort is Richard A. Daynard, an associate dean at Northeastern University School of Law in Boston, who is also president of the Tobacco Control Resource Center and chairman of the Tobacco Products Liability Project, both of which have provided legal support to attorneys suing tobacco companies. Joining Daynard is Stephen A. Sheller, a Philadelphia lawyer who came up with the legal theory that tobacco firms deceived consumers into thinking their low-tar and -nicotine cigarettes were safer to smoke than regular cigarettes. Also involved in the prospective lawsuit is the Center for Science in the Public Interest, a consumer advocacy group that has aggressively pressed for more explicit food labels and less fat and sodium in all kinds of food.

Note that these are not the meat-and-potatoes trial lawyers who typically represent individuals and families who have suffered a grievous injury. They are public health crusaders who try to find a client to fit a theory, and use the courts to change public policy and large-scale corporate behavior. Referring to them as "trial lawyers" or "personal injury lawyers" would be misleading, but I am sure the tort reform zealots will do just that.

I have serious reservations about this kind of food and beverage class action litigation. And not just because I went to law school at a univeristy (Emory) that was built on Coca Cola money. Some of my concerns are:

* Unless they can prove the sinister use of toxic or physically addictive additives in food and beverage products, they appear to be complaining about things that are obvious common sense characteristics. We have all known since childhood that too much sugary soda and too much fatty food is likely to make you fat and rot your teeth. We choose to indulge anyway. Just today I decided to skip the low-fat, low-calorie salad at lunch, and indulge in a double hamburger with fries and a full-sugar, non-diet soft drink. I knew exactly what I was doing, but hey, I ran a marathon in October and a half-marathon in November, and I'll run it off tomorrow.

* A massive class action that strikes the average citizen as silly and overreaching will only feed the climate of "tort deform" by which corporate America seeks to strip rights and redress from average citizens. It will enter the litany of "frivolous lawsuits" along with the real but misrepresented (McDonalds hot coffee case) and the merely mythical (guy holding up lawn mower to use as hedge trimmer). It will hurt the system upon which people with real and serious injuries depend.

The change of behavior these crusaders seek -- to stop sales of sugary soft drinks to children at school -- is probably good. I am sure they mean well. But I think their use of tort law for this purpose will hurt more than it helps.

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Back in the 1970's, Ford made the Pinto with a gas tank mounted behind the axle, with a protrusion on the axle positioned to puncture the gas tank in a rear end collision. When that happens, a cloud of vaporized gasoline envelopes the vehicle, and any spark can ignite a fireball. After a number of Pinto occupants were incinerated, trial lawyers exposed Ford's bad choices. Eventually, it became standard practice for auto manufacturers to mount fuel tanks in a protected position under the passenger compartment, guarded by the frame and axles.

Now the behind-the-axle fuel tank design is found in only one vehicle manufactured in the United States. And, yes, Ford is at it again.

The Ford Crown Victoria, Mercury Grand Marquis and Lincoln Town Car are the same except for the trim. The gas tank is mounted behind the axle, with several protruding parts that can puncture the gas tank upon rear impact.

The Crown Victoria is widely used as a police interceptor. After several policemen were burned up, Ford came up with a retrofit kit to guard the parts capable of puncturing the tank. That kit has been 100% effective in preventing gas tank ruptures and fires in rear end collisions at speeds up up to 100 mph.

However, Ford has not informed non-police consumers of the hazard, and has not made the guarding retrofit kit available to customers other than law enforcement. How many more innocent consumers must die before Ford fixes the problem?

See table of fatal fire crashes, 1993-2000, and report of recent police car fire in Seattle.

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According to an article in the New York Times (free registration required) on 3/31/05, a study from the consumer advocacy group Public Citizen and documents from a recent lawsuit against the Ford Motor Company suggest that Ford ignored evidence that stronger roofs would lead to fewer injuries. Also on Wednesday, a plaintiffs' lawyer in several prominent rollover lawsuits said he had obtained internal Ford documents that show that several years ago the company rebuffed assertions from its Volvo subsidiary that stronger vehicle roofs prevent injuries and deaths in rollover accidents. Documents connected with a trial this year involving Ford show that the automaker decided not to strengthen roof supports on the Explorer, a sport utility vehicle, although engineers at the company recommended the change.

A new study by Martha Bidez, a biomedical engineering professor at the University of Alabama, concludes that "roof crush can and does cause catastrophic injury and death." The study re-examined Ford's own rollover crash data from 1998 and 1999 and concluded that the most catastrophic neck injuries occurred when the Explorer's roof caved in and smashed into the crash dummy's head. It further found that in test cases where the Explorer's roof was not crushed, no serious injuries were recorded in the dummies.

The Explorer's roof has become the subject of further scrutiny after the disclosure that more than a decade ago, Ford dismissed suggestions from its engineers that the vehicle's roof supports be strengthened. A 1993 memorandum from two Ford engineers, which was reported in The Detroit News on Tuesday, suggested that the company reinforce support pillars that connect the body of the 1995 Explorer to its roof.

Ford did not, and produced Explorers in at least three subsequent model years that were more susceptible to having their roofs crushed in a rollover, according to documents introduced in the Florida case earlier this month

We have had successful recoveries in several cases of automotive product liability, including roof crush cases. While the specifics of settlements are subject to confidentiality covenants, our clients were satisfied and these types of issues are familiar to us.

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The Consumer Product Safety Commission has announced the following product recalls in recent days:

- Portable cribs from Delta Enterprises -- crib slats can separate from the headboard, posing an entrapment risk to young children.

- Rear projection TV from JVC - fire risk.

-- Carpet from Shaw Industries -- fire risk due to uneven application of fire retardant.

-- High intensity light fixtures from Lithonia Lighting -- fluid leak causing lenses to break.

-- Children's sweaters from J. C. Penney - choking hazard.

-- Stuffed yarn bunnies from Ocean Desert Sales -- choking hazard.

-- Soother Baby pacifiers -- choking hazard.

-- Lands End infant & toddler parkas -- choking hazard.

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Throughout the United States, and in Georgia, manufacturers have a duty to provide adequate warnings and instructions with regard to foreseeable dangers in the use of manufactured products.

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In a rare case, a wrongful death action in Georgia may be based upon unfair and deceptive acts and practices in violation of the Fair Business Practices Act which allows recovery of treble damages, punitive damages and attorney fees for intentional violations. This theory may be particularly applicable in products liability cases where a manufacturer has systematically deceived consumers with regard to product hazards.

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Enforcement of manufacturers'' legal accountability to consumers helps make products safer and better for all of us. With the U.S. economy the strongest in the world, protection of consumers does not restrain innovation and legitimate corporate profits.

Under Georgia law, a manufacturer may be liable for injury or death caused by a defective product under three separate legal theories.

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