Friday, April 29, 2011

Faulty DePuy Hip Implants

Johnson & Johnson subsidiary sued for peddling faulty hip implants.

The New Jersey Law Journal (4/26, Gialanella) reported Johnson & Johnson subsidiary DePuy Orthopaedics faces a Federal putative class-action suit for consciously selling defective hip implants and delaying a recall for two years. The latest suit, from North Jersey Municipal Employee Benefits Fund is one of at least 139 against DePuy. The Fund alleges "tens of thousands of patients" received the implants and "thousands of third-party payers" purchased them. DePuy allegedly continued to tout the implants' safety after the FDA received nearly 400 complaints "from patients suffering from malfunctions such as device loosening, misalignment, dislocation, fracture and the generation of harmful metal debris from metal-on-metal friction." Johnson & Johnson and subsidiary Johnson & Johnson Services Inc. are also named in the suit.

Thursday, April 28, 2011

NHTSA reviewing Jeep Liberty corrosion issues

Federal safety regulators have opened an investigation into 370,000 Jeep Liberty vehicles over corrosion issues.

The National Highway Traffic Safety Administration said in a notice posted Friday it is reviewing the 2002-2005 Jeep Liberty after receiving nine complaints about rear control arms failing due to excessive corrosion.
Two of the complaints alleged the failure occurred at speeds of 50 mph or greater. Three complaints alleged that the failure resulted in a loss of vehicle control.
This is the third NHTSA probe into corrosion issues on Jeep Liberty vehicles.
In November 2003, the DaimlerChrysler recalled 336,000 2002-2003 Jeep Liberty SUVS because some experienced a loss of lubrication that led to corrosion of the lower control arm ball joints. In some instances, drivers lost control of vehicles.
In August 2006, DaimlerChrysler recalled 825,000 2002-2006 Jeep Liberty SUVs over the same issue after NHTSA had opened an investigation.
The automaker again replaced lower ball joints because they could be corroded and lead to a possible separation causing a loss of control.
Three years later in April 2009, Chrysler LLC recalled 42,469 2002-2003 Jeep Liberty for corrosion issues in 22 cold-weather "salt belt" states to address upper ball joint separation issues, including Michigan.
That followed at least five reports of incidents at speeds of 40 miles or greater. NHTSA closed its 18-month-old investigation after Chrysler announced the recall.
Chrysler -—which has it corporate offices closed today — didn't immediately respond to a request for comment.
NHTSA's preliminary investigation is the first step. In some cases, the government closes an investigation if it doesn't find a safety defect or it may upgrade the investigation to an engineering analysis.

Nissan recalls 271,000 SUVs on steering risk

DETROIT -- Nissan Motor Co. recalled nearly 271,000 older-model Pathfinder and Infiniti QX4 SUVs in North America due to the chance that road salt and water could collect to cause a loss of steering, U.S. safety regulators said.

Affected in the United States and Canada are about 225,650 Pathfinders from model years 1996 to 2004 and about 45,330 Infiniti QX4 SUVs from model years 1997 to 2003.
The recall affects Pathfinders and QX4s in Canada and 20 cold-weather U.S. states where road salt is used to keep roads clear of snow and ice.
Road salt and melted snow can collect in the strut housing and may cause corrosion that could lead to difficulty in steering and even loss of steering, which could cause a crash, regulators said.
Nissan will inform customers of the recall be mid-May, and its dealers will inspect and fix the issue free of charge.
No injuries have been reported due to this issue and there is a report of an accident that was caused by it, but Nissan said that report could not be confirmed as linked to the corrosion issue.
Nissan said their tests have indicated that only a small portion of the recalled vehicles are expected to need repair.
Inspection at Nissan dealers should take a half hour to an hour but repair or replacement will take longer, said a Nissan spokesman

Toyota to recall 308,000 RAV4s, Highlanders for airbag fix

DETROIT -- Toyota Motor Corp. said today it would recall about 308,000 RAV4 and Highlander SUVs because of the risk airbags sensors could fail and cause the curtain airbags to deploy.
About 214,000 RAV4s and 94,000 Highlanders and Highlander HVs will be recalled from the 2007 and 2008 model years, according to a company statement.
The recall only affects vehicles sold in North America, Toyota said.
Toyota said owners of the vehicles would be notified of the recall by mail in May.
Toyota said that, in cases where two sensors fail at almost the same time, the side curtain airbags designed to protect passengers in a rollover accident could be inflated outside such an accident.
In cases where just one of the sensors fails, the airbags warning light will be activated, the automaker said

Eliminating Joint and Several Liability will Ultimately Burden Victims and Taxpayers

Pennsylvania litigator says erroneous theory behind efforts to eliminate joint and several liability. Civil litigator Larry Coben criticized the theory behind legislation eliminating joint and several liability in Pennsylvania, writing in the Legal Intelligencer (4/26, Coben) that "an apportionment statue ...assumes the reliability of allocating percentages of fault" and "relies upon the false inference that any tortfeasor, once found liable, is only partly responsible because there are other negligent parties." Coben said corporations and wealthy defendants use apportionment to avoid liability by hiring top-notch attorneys to "deflect responsibility to those with limited resources and avoid paying for the harm caused." Coben said eliminating joint and several liability will ultimately burden victims and taxpayers.

Medical malpractice reform said to increase US deficit.

Medical malpractice reform said to increase US deficit.

Writing for the Huffington Post (4/27), Joanne Doroshow of the Center for Justice and Democracy highlighted a March analysis from the Congressional Budget Office determining that savings from malpractice reforms would be minimal. Doroshow argued that reforms imposed by HR 5, which includes a $250,000 noneconomic damage cap will actually increase the US deficit. According to Doroshow, malpractice victims who cannot secure compensation through litigation will turn to avenues like Medicare and Medicaid. The CBO's prediction that reform will reduce health spending by 0.4 percent doesn't account for this. Nor does the CBO consider "that these kinds of extreme 'tort reforms' would weaken the deterrent potential of the tort system, with accompanying increases in cost and physician utilization inherent in caring for newly maimed patients."

Wednesday, April 27, 2011

Recent Product Recalls

Product Recalls

The U.S. Consumer Product Safety Commission (CPSC) is charged with protecting the public from unreasonable risks of serious injury or death from thousands of types of consumer products under the agency's jurisdiction. Like the attorneys at Atlee, Hall & Brookhart, LLP, the CPSC is committed to protecting consumers and families from products that pose a hazard or can injure children. Below is a list of the recent recalls that people should be aware of.

Consumer Product Safety Commission Recent Product Recalls

April 25, 2011

-Children's Scooters Recalled by Kiddieland Due to Laceration Hazard
-Disney Princess Plastic Trikes Recalled by Kiddieland Due to Laceration Hazard
-75 Drownings and Near-Drownings in 15 Weeks; Pool Safely PSAs Urge Parents to Watch Children At All Times Around Pools and Spas This Summer
-June Deadline Set for End to Globe Fire Sprinkler Model J Sprinkler Recall; Property Owners Should Act Now To Request Replacement of Sprinkler Heads
-Aquarium Heaters Recalled by United Pet Group Due to Fire and Laceration Hazards
-Photon Climbing Carabiners and Quickdraws Recalled Due to Risk of Injury
-Pacific Trade International Recalls Candles Due to Fire and Burn Hazard
-Spot Recalls Satellite Communicator Due To Loss of Emergency Communications Capability
-Lithium-Ion Batteries Used with Bicycle Lights Recalled by GeoManGear Due to Fire Hazard
-CPSC Approves New Mandatory Standard for Toddler Beds
-ADP Recalls to Repair Unit Heaters Due to Fire Hazard
-Lennox Industries Recalls to Repair Garage Heaters Due to Fire Hazard
-Wrist Rattles and Baby Booties Recalled by Midwest-CBK Due to Choking Hazard
-Cub Cadet Recalls Riding Lawn Mowers Due to Fire Hazard
-Girl's Clothing Recalled by My Michelle Due to Risk of Lead Exposure
-Redken 5th Avenue NYC Recalls Guts Spray Mousse Foam Due to Risk of Rupture
-Rogue Fitness Barbell Brackets Recalled by Coulter Ventures Due to Injury Hazard
-CPSC: Parents, Caregivers Should Consider Safety Before Opening Windows
-Active Leisure Tents Recalled Due to Fire Hazard; Sold Exclusively at Costco
-Fashionviews Inc. Recalls P.Jamas Children's Sleepwear Due to Violation of Federal Flammability Standard
-Stained Glass Soldering Irons Recalled By Cooper Tools Due to Burn Hazard
-Williams-Sonoma Recalls Hot Chocolate Pots Due To Burn and Laceration Hazards
-Pampers® Natural Stages Pacifiers Recalled by Key Baby Due to Choking Hazard
-Arm's Reach Concepts Recalls Infant Bed-Side Sleepers Due to Entrapment, Suffocation and Fall Hazards
-Infantino Recalls Toy Activity Trucks Due to Choking Hazard

Tuesday, April 26, 2011

Judge rules to end NFL lockout

Judge rules to end NFL lockout, antitrust claims remain unresolved.

The Washington Post (4/25, Maske) reported on Monday, a Federal judge sided with NFL players in lifting the league-imposed lockout, "ruling that they are suffering irreparable harm from the shutdown of the sport and that the owners' action is improper because the players no longer are represented by a labor union." According to sources, both sides "believed [Judge Susan Richard] Nelson's ruling" opened the free agent market and "several people on the players' side of the dispute said they expected some players to show up for work Tuesday at teams' facilities."

Reuters (4/26) reports in her 89-page ruling, Nelson wrote, "This particular employment dispute is far from a purely private argument over compensation," noting "the public interest represented by the fans of professional football, who have a strong investment in the 2011 season, is an intangible interest that weighs against the lockout." How league owners and players will resolve disputes over the NFL's nine billion-dollar yearly revenue is still unclear.

The Wall Street Journal (4/25, Futterman, Subscription Publication) reported in response to Nelson's ruling, an NFL statement asserted, "We will promptly seek a stay from Judge Nelson pending an expedited appeal to the Eighth Circuit Court of Appeals...We believe that federal law bars injunctions in labor disputes." Referring to players' antitrust claims, the league added, "But we also believe that this dispute will inevitably end with a collective bargaining agreement, which would be in the best interests of players, clubs and fans. We can reach a fair agreement only if we continue negotiations toward that goal."

Thursday, April 21, 2011


Jeff Tambroni is one of the most promising young coaches in all of lacrosse. He’s widely respected for his ability to do more with less, and seems destined to slip on a National Championship ring during his career. He’s guided Cornell to eight consecutive Ivy League titles, three Final Four appearances, and one championship game in ten years as the head of the Big Red.
In taking the reins at Penn State, a collective gasp spread throughout D-I. Tambroni has proven himself a winner in the Ivy League, and has everyone wondering what kind of damage his teams can do at a state school that seems committed to seeing lacrosse succeed. With a new recruiting base, the resources of a vaunted athletic department, and the ambition of Tambroni, Penn State could quickly become a national contender. With all that said, what is it that’s so special about Tambroni? What does he do to develop his players, motivate his teams, and churn out one successful season after another?
When talking about his coaching style and philosophy, Tambroni speaks definitively of two events. First, he talks about the 2004 Cornell team and George Boiardi. For Tambroni, Boiardi was “the ultimate team guy”, and that year’s team was “the greatest team, genuinely investing in one another.” Boiardi was known as a selfless leader, a captain, who passed away on the field during a game in 2004. Boiardi’s untimely death set off a spark in Tambroni and that year’s squad that pushed them together. Through that experience, and the questions and concerns that naturally followed, Tambroni gave pause and looked inward. “Through his passing,” Tambroni recalls, “it put my profession in perspective.” In looking more closely at his job as a coach, Tambroni came back to the importance of relationships, heartfelt and meaningful relationships with players, assistants and parents.
Through the experience, Tambroni not only looked inward, he was keenly aware of the grief and strength those around him displayed. In particular he speaks of the “inspiration the Boiardi family has provided us.” In watching the Boiardi family, Tambroni seems to have found a bit of a guiding beacon, a depth of fortitude and compassion he not only respects, but seemingly strives to emulate. As he says, the Boiardi family was “unbelievably powerful in their message of faith and their message of life.”
At this point in the conversation it’s clear that Tambroni’s not slinging the same old coaching clich├ęs. He’s not simply trying to build up accountability by empowering his athletes to be self-motivated achievers. It’s as if he’s trying to stay true to unwritten principles that a life-altering experience instilled in him. At different moments he seems to have stopped and truly questioned himself, his practices, and what’s important. Through those moments he’s gained a sense of clarity that, “nothing is more gratifying than those hugs and longstanding connections.” In short, he’s committed himself to investing in players as people, developing relationships that will thrive long after the last whistle blows.
Tambroni has seen the face of grief in his locker-room, and emerged with a resolve to commit himself to his players and the promise of connecting. He then explains how he works to connect, and the second experience that has shaped him as a coach.
He directs the conversation to an unlikely source: three girls. As the father of three daughters, the challenges of being a good dad guide his coaching. “For me personally, I try to treat kids here the same way I’d want someone to treat my kids.” His voice is gritty with conviction as he talks about what the ideal caretakers of his children would do, explaining that they’d “look my kids in the eye, tell them what they need to hear, not what they want to hear.” It doesn’t sound easy when he says it, and the difficulty seems to be the point.
As a coach, Tambroni seems to be continually balancing two drives: Build relationships, and push those same people to be better. It’s a delicate balance, but he doesn’t flinch. “Admittedly so, we’re really hard on our players,” he offers, but he also describes his efforts to call a player after he was particularly demanding, text guys when they take exams, have off-field meetings, and check up on guys who are sick or hurt. Spring breaks are filled with team events: movies, comedy clubs, hanging out as a group of guys.
It’s not to say that Tambroni isn’t willing to be like the players. In fact, he wants them to know he likes to enjoy himself. However, he also wants to maintain the boundaries of the coach-player relationship. He’s willing to extend himself, be there for players, but he’s not going to stop pushing them.
Tambroni’s focus on his players may not be unique, but his self-awareness and struggle to balance two goals that often radically conflict may be. He cares for his players immensely, but he also cares about seeing them succeed. He’s balancing compassion with the conviction that the people around him can be something better than they are. Perhaps that single struggle is what makes him one of the very best.
It’ll be exciting to watch Penn State emerge in the up-coming seasons. It seems predestined that they’ll become a national contender. But in the mean time, take note of the coach on the sidelines. He may look calm and controlled, but he’s likely frenetic inside – if not from the desire to see his players develop, than from the pride he has in watching the people he cares for achieve.

How Our Cars Got Safer

How our cars got safer

Traffic deaths in the United States have dropped to their lowest level since 1949, according to a report released this month by the National Highway Traffic Safety Administration (NHTSA). Remarkably, this drop occurred even as Americans drove 21 billion more miles in 2010 than they had the previous year.
The drop in fatalities is due in large part to the fact that cars are getting safer. Since the introduction of the Ford Pinto nearly four decades ago — a car synonymous with danger, destruction and executives putting profits ahead of consumer safety — amazing advancements have been made in auto safety. The technology is better, regulations are stronger and buyers have more information. Not surprisingly, consumers are drawn to cars with the latest safety features.

Yet these factors alone do not tell the whole story. History shows that litigation and the civil justice system have served as the most consistent and powerful forces in heightening safety standards, revealing previously concealed defects and regulatory weaknesses and deterring manufacturers from cutting corners on safety for the goal of greater profits.

The Ford Pinto litigation sent a strong message to the auto industry. Unfortunately, manufacturers have still sold dangerous cars. In June 2004, a Dallas-area mother stopped her Ford F-150 truck to speak with her husband through the driver’s side window. Her 3-year-old daughter leaned out the passenger’s side window and accidentally hit the rocker switch, causing the window to close on her neck. When her parents noticed moments later, it was too late — their daughter was strangled.

As power windows became more common, so too did instances of children being strangled. Seven children died within a three-month period in 2004. Manufacturers were aware of the issue, and the fix was relatively simple and inexpensive. In response to regulations in other countries, European and Asian cars already used a safer switch — one that must be pulled up to raise a window — and so did many U.S. manufacturers on cars they offered to foreign markets. Yet incredibly, U.S. manufacturers did not install the safer switches on domestic cars because NHTSA had no rules governing power-window safety. Litigation eventually forced universal acceptance of the safer switches in 2006.

It is easy to take for granted just how much safer vehicles have become and how safety measures have been standardized. For years, the auto industry has worked to undermine regulations and limit its liability by pushing for complete immunity from lawsuits when their vehicles comply with minimum federal safety standards. This would, in short, be devastating for consumers.

Recall that the Pinto’s design met all government standards of the time. Had compliance with federal standards been a complete defense of vehicle safety, Ford could not have been held accountable for the many burn victims that the company was later shown to have anticipated.

Put another way, without the civil justice system, gas tanks would still explode in rear-end collisions, seat belts and airbags would not be standard, and cars would roll over onto roofs that would be easily crushed.

There are multiple reasons behind the welcome news that traffic deaths continue to decline. But the role of the civil justice system is often overlooked. Litigation has spurred safety innovations in vehicles for more than half a century and will continue to be essential in keeping Americans safe and holding manufacturers accountable.

Thursday, April 14, 2011

Ford Recalling more F-150 Trucks for Airbags that Could Deploy Unexpectedly

Ford expands F-150 recall by 1 million pickups, U.S. says

WASHINGTON (Reuters) -- Ford Motor Co. and U.S. safety regulators have agreed to a greatly expanded recall of the best-selling vehicle in North America, the Ford F-150 pickup truck.

The recall is for a possible short circuit that could cause airbags to deploy unexpectedly and involves nearly 1.2 million F-150s and some Lincoln Mark LT vehicles, said the National Highway Traffic Safety Administration. The recall covers F-150s from the 2004 to 2006 model years and Lincoln Mark LTs from model year 2006.

Previously, 144,000 of the pickup trucks were recalled. The expansion comes after talks between the automaker and the safety regulators in Washington.

Wednesday, April 6, 2011

Jaime Jackson has been Selected to Serve on the 7th Circuit Electronic Discovery Pilot Program.

Jaime Jackson has been Selected to Serve on the 7th Circuit Electronic Discovery Pilot Program.

The 7th Circuit Electronic Pilot Program has been on the forefront of identifying and dealing with electronic discovery issues in litigation. The 7th Circuit Electronic Discovery Pilot Program was developed as a result of a recognized need by business leaders, and practicing attorneys for reform of the civil justice pre-trial discovery process. The 7th Circuit Electronic Discovery Committee, is co-chaired by The Honorable James Holderman, Chief Judge of the U.S. District Court for the Northern District of Illinois, and The Honorable Nan Nolan, E.S., Magistrate Judge, and includes trial judges, lawyers, including in-house counsel, private practitioners, government attorneys, academics, and litigation support experts. The committee’s aim is to reduce the rising burden of cost of discovery of electronically stored information. As part of its work thus far, the committee has produced the Principles relating to the discovery of electronic stored information. The committee continues its work in addressing electronic discovery issues that have far reaching ramifications across the United States.

Mercedes-Benz recalls M-Class SUVs over cruise-control concerns

Mercedes-Benz recalls some SUVs over cruise-control concerns.

Reuters (4/5, Woodall) reported Mercedes-Benz issued an international recall of some of its M-Class SUVs over cruise control malfunctions that could cause a crash. Over 130,000 US vehicles are being recalled and approximately 50,000 in Germany. Rob Moran, spokesman for Mercedes-Benz USA attributed the problem to a faulty brake lamp switch, which makes it difficult to disengage vehicle cruise control. Mercedes will begin replacing switches on model year 2000 to 2002 vehicles and a few 2000 to 2004 AMG models in the beginning of September.

The New York Times (4/5, Jensen, Subscription Publication) "Wheels" blog reported Mercedes noted "other ways to disengage the system," including "the cruise-control stalk." Drivers can also disengage by braking harder or decelerating to speeds below 25 mph. Moran said "the company is not aware of any accidents."

Monday, April 4, 2011

Deal Reached on Access to Toyota's Source Code

Toyota Motor Corp. has agreed on the final details about how to turn over its source code, the "crown jewels" of the company, to the lead plaintiffs lawyers in the multidistrict litigation over sudden acceleration.

The plaintiffs lawyers insist that the source code will provide evidence that defects in the electronic throttle-control system caused sudden acceleration in Toyota vehicles. Toyota has maintained there are no problems with the electronics but has agreed to turn over its source code to plaintiffs' engineers under stringent security.
On March 31, U.S. District Judge James Selna, who is overseeing the case in Santa Ana, Calif., signed an order under seal approving the deal.
"Toyota is pleased to have reached an agreement on a source code protective order that ensures the security and strict confidentiality of this invaluable intellectual property," said Toyota spokeswoman Celeste Migliore.
"Even after more than a year of litigation, plaintiffs' counsel have still offered no credible scientific theory or even a description of an alleged defect in Toyota's Electronic Throttle Control System, and we are confident the evidence will show that no such defect exists," she said. "We hope the source code review will proceed expeditiously so this case can move to trial as soon as possible, and we look forward to defending ourselves vigorously in court at that time."
Among the security measures in place are iris scans required for entry into a secure room in a neutral facility where the source code can be accessed. Engineers are required to print documents on numbered paper containing radio-frequency tags.
Both sides were close to an agreement but hit an impasse in recent weeks over which computers would have access to the source code. During a March 15 court hearing, lawyers on both sides came up with a compromise to have the source code provided on a single computer located in a locked vault, while the engineers worked in the secured room.
But Toyota's lead lawyer on the source code issues, Joel Smith, managing partner of the Columbia, S.C., office of Bowman and Brooke, told Selna at that time that he was having trouble getting approval from Toyota executives in light of the March 11 earthquake and tsunami in Japan.
Mark Robinson, a senior partner at Newport Beach, Calif.-based Robinson, Calcagnie & Robinson, who is co-lead counsel on one of the plaintiffs' steering committees in the case, confirmed to The National Law Journal that the parties had reached an agreement on the final issue.
"Without getting into the specifics of the security at this place, we did come to an agreement on this protected vault or lock box," he said.
Robinson has said that he expects the secure room to be set up quickly so that his engineers can analyze more than 8 million lines of Toyota's source code.
Toyota has recalled 8 million vehicles and paid $48.8 million in civil penalties due to defective gas pedals and floor mats attributed to sudden acceleration.