Articles Posted in Dangerous Products

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Earlier this month, the National Transportation Safety Board (NTSB) opened up an investigation following a fatal Florida car accident involving a Tesla vehicle that killed two teenagers. According to a recent news article discussing the tragic accident and subsequent investigation, the vehicle was traveling southbound on Seabreeze Boulevard in Fort Lauderdale when it left the roadway and crashed into a concrete wall. The vehicle then immediately caught fire.

The driver and front-seat passenger were both pronounced dead in the accident. The rear-seat passenger was ejected from the vehicle and sustained major injuries but is expected to live. Police believe that speed may have been a factor in the fatal accident.

Following the accident, the NTSB opened an investigation, focusing not on the autopilot feature that has been a matter of recent concern but instead on the vehicle’s electric battery and the possibility that it was responsible for the fire.

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For many, when anxieties run high, physical symptoms can set in. Commonly, symptoms of heightened anxiety are sweaty palms, heart palpitations, dizziness, or nausea. However, when a triggering event is serious enough – like witnessing a fatal Florida car accident – the symptoms can get much worse.

Recognizing this reality, Florida courts have determined that those who suffer physical symptoms as a result of witnessing a psychologically traumatic event may be able to recover for their injuries – both physical and emotional. This claim is called negligent infliction of emotional distress, or NIED.

Interestingly, NIED is not mentioned anywhere in the Florida Statutes. Instead, this cause of action was developed entirely through the court system. Essentially, courts were getting cases in which those who witnessed serious accidents involving a loved one were attempting to recover for the injuries they sustained from the person who caused the accident. Since there was no statute guiding the courts on how to handle these matters, the courts had to decide for themselves what the elements were to substantiate such a claim.

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In any South Florida personal injury case, one of the judge’s primary roles is to instruct the jury on the applicable law of the case. To help make sure that all Florida judges are providing similar instructions to juries across the state, a set of standard jury instructions has been created. The standard jury instructions provide the jurors with guidance, asking the jurors to answer individual questions that eventually lead to the ultimate conclusion. Once the jurors answer the questions, the judge will announce the decision and render a verdict.

In Florida, there are several types of product liability claims, including manufacturing defect and design defect claims. When a Florida product liability case is brought under a theory of strict liability, Standard Jury Instruction 403.7 applies. Strict liability can be seen as “liability without fault,” meaning that a defendant manufacturer can be found liable without a determination that the manufacturer was negligent. In other words, the mere fact that the product was unreasonably dangerous is sufficient to establish liability.

Instruction 403.7 pertains to both design defect and manufacturing defect claims, and it allows for a manufacturer to be held liable when a product is “unreasonably dangerous.” The instruction defines an “unreasonably dangerous” product as one that “fails to perform as safely as an ordinary consumer would expect when used as intended or when used in a manner reasonably foreseeable by the manufacturer and/or the risk of danger in the design outweighs the benefits.”

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The technology being used in vehicles is evolving quickly, and self-driving cars have started to hit the roads in increasing numbers. These cars present new risks and new legal issues that can complicate the issue of liability in Florida car crashes. For example, there is the question of who is controlling the car in a self-driving car—the driver or the self-driving system?

Generally, existing laws only consider the driver for liability purposes, but in some cases, a manufacturer may be to blame. As self-driving cars continue to expand, many are pushing for legislative changes that consider the use of automated cars. Until then, it may be up to the courts to sort out the legal issues.

Investigation Finds Tesla Automated Car to Blame in 2016 Fatal Florida Crash

Accident investigators determined that Tesla’s autopilot system contributed to a 2016 Florida crash. According to one news source, in May 2016, a former Navy SEAL died after his Model S hit a truck that was crossing the highway in front of him. The accident victim was driving at 74 miles per hour when the truck made a left turn. The driver apparently did not try to brake or steer the car to get out of the way, and investigators later determined that the car had been on autopilot.

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When someone is injured while using a product, that person is entitled to file a product liability case against the manufacturer of the allegedly dangerous product to seek compensation for their injuries. In most cases, the injured party will not need to prove that the manufacturer was negligent; however, an injured party will need to prove that the product was unreasonably dangerous.

Florida courts allow product liability plaintiffs to prove dangerousness in one of two ways:  the risk-utility test or the consumer-expectations test. A recent Florida appellate court opinion briefly mentions each test and notes how under the current state of the law, a jury may be instructed on the elements of both tests.

Florida’s Risk-Utility Test

One way in which a Florida product liability plaintiff can establish that a product was dangerous is through the risk-utility test. This test asks the jury to consider the risks posed by a product’s design and weigh those risks against the benefits of the design. Courts applying this test look at a number of factors, such as the obviousness of the danger presented by the product and the availability of other reasonable designs that may be less dangerous. Since it can be argued that most products present some risk, this test is less plaintiff-friendly in most circumstances.

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Last month, a federal appellate court decided a case involving a man’s claims against the manufacturer of a cleaning solution that spontaneously combusted when he was using the product to clean his basement floor. In the case, Suarez v. W.M. Barr & Co., the plaintiff filed three related product liability claims against the manufacturer of the “Goof Off” brand cleaning solution. Ultimately, the court determined that the plaintiff presented enough evidence on two of the claims to proceed. However, the court affirmed the dismissal of the plaintiff’s failure-to-warn claim, based on the adequacy of the warning on the product’s label.

The Facts of the Case

Suarez was using “Goof Off” brand cleaning solution to clean his basement floor. Like any responsible homeowner, Suarez read the instructions on the product’s packaging prior to using the product. In preparation, he opened several windows and the door to the basement to allow ventilation, as the instructions recommended.

Following the instructions, Suarez poured the cleaning solution onto the basement floor and used a broom to evenly spread a thin layer of the solution across the entire floor. However, as Suarez was brushing the solution, it caught fire, severely burning him. After he recovered, Suarez filed this case against the manufacturer.

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Over the past few months, Johnson & Johnson has been found liable in several product liability lawsuits, based on the continued use of its talc-based baby powder. According to one recent financial news source, the company was most recently found liable for over $67 million, which puts the total amount for all of the baby powder lawsuits brought against the company at about $195 million.

The cases proceed under a product liability theory and rely on recently discovered evidence that the continued use of talc-based products can result in certain kinds of cancer. Specifically, the research indicates that the use of baby powder in women’s genital areas can lead to ovarian cancer. There are currently about 2,500 lawsuits pending filed by women who have suffered from various sicknesses – mostly ovarian cancer – after the continued use of the product.

Johnson & Johnson denies that its product causes cancer. According to the news source, the company plans to appeal the most recent ruling, based on an alleged tainting of the jury pool. Johnson & Johnson claims that the woman’s lawyers ran several ad campaigns prior to her trial in the jurisdiction where the trial took place. The woman’s lawyers deny the company’s claim, and a court has yet to rule on the issue. For now, all of the verdicts in favor of the plaintiff will stand.

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Earlier this month, a federal appellate court issued a written opinion in a product liability case, holding that a new trial was not warranted because any questionable evidence that was admitted by the trial judge had only a speculative effect on the jury’s verdict. In the case, Coterel v. Dorel Juvenile Group, the court skipped analyzing whether the evidence at issue should have been admitted, and it focused only on the effect that it had on the jury. Since the court determined that the plaintiff failed to prove that the jury relied on the evidence in question, the court held that even if the evidence were improperly admitted, a new trial was not warranted.

The Tragic Facts of the Case

The Coterels were given a door-knob guard manufactured by the defendant as a gift. The guard was designed to prevent young children from unlocking doors and getting out of a home unsupervised. On the day in question, the Coterel’s young son successfully negotiated the door-knob guard, escaped from the home, and drowned in a nearby pond. The Coterels filed a product liability case against the defendant manufacturer, alleging that the defendant’s dangerous product caused their son’s death.

At trial, the defendant manufacturer wanted to provide the court with evidence that the Coterels knew that their son had successfully disengaged the door-knob guard in the past. The defendants also had evidence that the parents normally locked the deadbolt in addition to using the door-knob guard, but on the day in question they forgot to lock the deadbolt. This evidence was obtained in post-incident interviews with the Coterels that were unrelated to the personal injury lawsuit.

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The Federal Court of Appeals for the Third Circuit just handed down a decision affirming a verdict in favor of the plaintiff in a birth injury lawsuit stemming from the use of Topamax by pregnant women. According to one news source covering the case, the young plaintiff in the case was born with a cleft palate as well as a cleft lip after her mother took Topamax during the first trimester of pregnancy. The jury’s verdict was split; $1.5 million was designated to go to the parents to help pay for the future care of their child, and $1.5 million was designated to go to the young girl herself to help compensate her for her non-economic damages.

The Facts of the Case

Back in 2007, the plaintiff’s mother was taking Topamax for her migraine headaches. In December of that year, she learned that she was pregnant with the plaintiff. She discussed the use of Topamax with her doctor, and she was advised to taper off the use but not to stop taking the medication altogether.

When the plaintiff was born, she suffered from a cleft palate and a cleft lip. To this day, she has undergone 14 surgeries to help correct the injuries with which she was born. However, she still suffers from hearing loss and speech problems. Her parents told the court that she is teased and bullied by other children as a result of her appearance and speech.

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Over the past few years, it has come out that the birth control medication, Essure, can cause a host of very serious negative side effects, including severe pain and bleeding, unplanned pregnancies, miscarriages, and still births. In response to the increasing number of women who say they have been negatively affected by Essure, as well as the research indicating the same, the Food and Drug Administration recently announced that it will not be issuing a recall. Instead, it plans to implement a “black box” warning.

The Black Box warning, according to the FDA, is the most serious warning that they can issue for a prescription medication. In fact, the warning requires that doctors get a patient’s written consent to take the drug after they have been made aware of all the potential side effects the drug can have. However, for the thousands of women who have already suffered from the side effects they claim came about from their use of Essure, the recent action by the FDA is too little, too late.

According to another news source, plus an advocate group comprised of women who have used Essure and experienced negative results, the warnings being given to patients will not be sufficient to illustrate the likelihood or the severity of any potential negative side effects they may experience. The group claims that the waivers will just be seen as another deluge of paperwork that patients are constantly requested to sign, and the importance of the danger will ultimately be overlooked.

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