Dangerous Products

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As a a trial attorney based in Atlanta, some of the more interesting cases on which I have worked have involved defectively designed or manufactured vehicles.

This week the National Highway Safety Traffic Administration launched an investigation of the safety of gas tanks on three million Jeep Cherokees. The investigation covers Grand Cherokees in model years 1993 to 2004.

The advocacy group Center for Auto Safety in October asked NHTSA to review whether the gas tank’s position below the rear bumper and behind the rear axle could cause fuel to spill if the SUV were struck from behind. The group also said that the neck of the fuel tank could tear off in crashes.

The risk of explosion, fire and catastrophic injuries with that design cannot be ignored.

Fortunately for people harmed by explosion of one of these gas tanks, Chrysler Group LLC agreed to assume legal responsibility for injuries drivers suffer from defects in vehicles produced before it emerged from bankruptcy protection..

The Center for Auto Safety says that the Grand Cherokee fuel tank storage system was defective and posed a hazard in a crash in that the plastic fuel tank  was behind the rear axle, extended below the rear bumper, and had inadequate shielding, leaving it vulnerable to rupturing or leaking in a crash. Chrysler put the fuel tank in front of the rear axle and shielded it in the 2005 model year.

Accutane is a drug originally developed for cancer treatment but that has been widely used for treatment of acne. Unfortunately, there have been widespread reports of terrible side effects, including bowel diseases including Crohn’s disease and ulcerative colitis. It was taken off the market last year.  As an attorney in Atlanta, Georgia, handling civil liability cases including products liability, I have been interested in this topic.

Earlier this month, according to a news article by Laura Clarizio, actor James Marshall was in court for a lawsuit against pharmaceutical manufacturer Roche in which he asserts that Accutane taken for acne caused the loss of his colon.

Personally, I have spent many a long night on cots in hospital rooms attending to a family member suffering horribly with Crohn’s disease. No one who has not seen the effects of this disease can really know how painful and debilitating it can be.

An Atlanta area woman was just sitting at a traffic light on Good Friday in her Honda Civic when the air bag deployed spontaneously and a shard of metal from it sliced her carotid artery. Fortunately, she survived.

Honda issued a recall last February on some models of its car because of a defect with the driver’s side airbag. In that recall, metal pieces from a part in the airbag could cause injury or death to the driver.  Of course, Honda denies that this incident was in any way related to the recall. Right.

Coincidentally, a consumer survey released this week found that slightly more Americans now say the United States makes better-quality vehicles than Asia does.

This week a carpet mill worker at the Beaulieu plant in Murray County, Georgia, was injured falling into a tufting machine. He was airlifted to Erlanger Hospital in Chattanooga.

Workers compensation provides the exclusive remedy of an injured worker against the employer in work accidents.

However, sometimes an injured worker can recover additional compensation for an injury from a third party, such as an equipment manufacturer. Since Georgia law was changed in 2005 to require apportionment of damages among both parties and non-parties to a lawsuit, that has been made more difficult as an equipment manufacturer can try to shift more blame to an employer’s negligent maintenance, training and supervision.

However, every case is different.  Over the years we have successfully represented workers injured by carpet mill machinery, poultry processing equipment, commercial bakery equipment, plastic extrusion machines, wood chippers,  forklift trucks, and a wide variety of other industrial and commercial equipment.

Manufacturers of industrial equipment may be liable to injured workers under legal doctrines including negligent design; failure to adequately test and inspect;failure to provide adequate instructions, warnings and labels; and failure to issue an adequate recall notice.

In one carpet mill case we handled, the manufacturer of a laminating machine had installed an emergency stop cord switch backwards — contrary to instructions from the switch manufacturer — and failed to install any safety stop cord on the side of the machine where a worker was most likely to fall in.

 

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.

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.

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.