Automobile Recalls Are Likely To Remain High in 2015

Relying on an automotive industry warranty and recall study from the financial advisory firm Stout, Risius and Ross, the Detroit Bureau (2/26) reported that automotive recalls in 2015 are likely to be higher than normal, though unlikely to reach 2014 figures. The Bureau adds that the forecast is unsurprising, because the new head of the National Highway Traffic Safety Administration, Mark Rosekind, “has already predicted it would happen,” as he hopes to double the size of the NHTSA investigative staff.


Federal Regulators Want Dealers To Fix Recalled Vehicles

The AP (2/25, Krisher, Durbin) reported that currently, dealers and individual sellers are not legally required to repair recalled cars before the vehicle is sold. Sellers are not even obligated to notify buyers that a vehicle is subject to a recall. Later, the AP says that several attempts to pass legislation that requires dealers to fix recalled vehicles or “disclose problems have stalled under opposition from carmakers, auto dealers and the U.S. Chamber of Commerce.” However, it adds that NHTSA Administrator Mark Rosekind and Transportation Secretary Anthony Foxx are “making another push.” Rosekind is quoted as saying, “We cannot allow vehicles with potentially dangerous defects to leave used-car lots without the necessary repairs.”


Great Advice From Consumer Reports

February 18, 2015 6:00 am • From the editors of Consumer Reports

In an ideal world, respectful treatment from health care providers would be the norm. In the real world, you may have to insist on it. Consumer Reports suggests increasing the odds of a good hospital experience with these strategies:
•Choose the right hospital. A study published in the New England Journal of Medicine linked low patient satisfaction with less-than-stellar hospital performance in areas such as pain control, discharge instructions and communicating about medication. And research in the American Journal of Managed Care showed that people who were satisfied with their care after a heart attack, heart failure or pneumonia were less likely to be readmitted to the hospital within 30 days.
•Help providers see you as a person. Once you get to the hospital, chances are you won’t know many of the folks taking care of you. Reminding people that you are more than a diagnosis can change that. Bring in pictures, maybe one showing you playing golf or tennis. Add a personal detail when you describe your medical problems to a doctor.
•Invite your doctor to have a seat. In a recent study, Norwegian researchers created simulations in a hospital setting, using real doctors and actors as patients and comparing electronic devices with paper medical records. The patient actors thought the doctors were so busy with their devices that they shouldn’t interrupt to ask questions. If you experience that dynamic, you can change it and make it easier to communicate by inviting your doctor to sit down and have a conversation.
•Have your people with you. An advocate can help in a number of ways — for instance, making sure you are comfortable, getting information from the doctor or nurse, helping you make decisions about treatment and speaking for you if you aren’t able to speak for yourself.
•Know when errors tend to occur. In a new national Consumer Reports survey of 1,200 recently hospitalized people, patients who thought there weren’t enough nurses available were twice as likely to experience some kind of a medical error and 14 percent less likely to think they were always treated with dignity and respect. Shift changes can also create safety hazards, as can care transitions, such as moving from an intensive care unit to a hospital floor. If you know when and where errors are most likely to occur, you can make a special effort to have your advocate be present then.
•Find a “troubleshooter.” Navigating the hospital is much easier with an “insider” ally. You or a family member should introduce yourself to the head nurse on duty or seek out the nursing supervisor, attending physician or even a physical therapist or aide with whom you feel comfortable. Then, if something goes wrong, you will have already established a personal connection with someone who knows the system and can help.
•Be assertive and prepared, but always be courteous. Think about what you want to ask your doctors when they rush in for that early morning visit, and say it out loud a few times so that you get what you want from the encounter.
•Write things down. With doctors, nurses, technicians, medical students and social workers in and out of your hospital room, it can be very difficult to keep track of what is being done, especially when you are ill. Consumer Reports recommends listening to what they have to say, asking questions and taking notes.
•If you don’t understand something, ask again. Medicine is complicated stuff, and sometimes doctors forget you haven’t studied it. “This is so much a part of their lives and their vocabulary. Sometimes they rush through an explanation without realizing that the person in front of them has no clue how to interpret what they just said,” says communications specialist Carolyn Thomas. “I simply raise a hand in the ‘stop’ position, and politely remind them that I haven’t been to medical school, so please slow down and translate.”


General Motors Expands Recall Of Vehicles In US And Canada For Power Steering Problems.

The New York Times (2/15, Jensen, Subscription Publication, 9.97M) reported that General Motors issued a recall for “more than 81,000 cars because their power steering systems could suddenly fail, making the vehicles harder to turn,” in what is a follow-up to the recall of 1.3 million vehicles last March. According to the story, about 11,000 of the vehicles are in Canada, and GM “said it was recalling the additional vehicles after an inquiry last April by Transport Canada, that country’s counterpart to the N.H.T.S.A.”
Bloomberg News (2/15, Barinka, 2.94M) reports that GM will alert owners of vehicles with the defect “and replace the torque sensor assembly without charging for the fixes.” In a letter, NHTSA recall management chief Jennifer Timian said, “If power steering assist is lost, greater driver effort would be required to steer the vehicle at low speeds, increasing the risk of a crash.”
The Wall Street Journal (2/15, Bennett, Subscription Publication, 5.67M) also reports.


NHTSA’s Daily Fines For Takata Corp.

The Transportation Department announced that it would start fining Takata Corp. $14,000 per day for violating two Department of Transportation orders. Transportation Secretary Anthony Foxx made statements in Richmond, Virginia on the final leg of his Grow America Express bus tour through the Southeast, while NHTSA sent Takata a letter about its failure to cooperate with the Department throughout the Federal investigation into the company’s defective airbags. The story is receiving extensive national coverage in the top newspapers and has a broad distribution in wire reports, as well as regional outlets and local TV broadcasts, although national broadcasts coverage was lacking. The DOT decision is being treated as an “escalation,” as the New York Times and the Associated Press put it, in the Takata investigation, an “aggressive” move, to quote Bloomberg News.
The New York Times (2/21, Tabuchi, Ivory, Subscription Publication, 9.97M) reports, the NHTSA letter to Takata accused the company of not reacting “fully or truthfully” to the DOT orders to hand over documents about the airbags and burying “information that it is legally obligated to supply,” as well as not “being cooperative in aiding N.H.T.S.A.’s ongoing investigation of a potentially serious safety defect.” Takata denied that it was circumventing or stalling in the investigation. The New York Times points out, too, that Foxx used the penalties as a talking point in “promoting stronger auto safety rules.”
Bloomberg News (2/21, Plungis, 2.94M) reports that Foxx stated, “We are using the maximum available penalty until Takata finds itself in compliance,” adding that “We will not tolerate this.” NHTSA Administrator Mark Rosekind said that transportation officials “still don’t know the root cause” of the airbag defect. According to the story, the penalties bring up the question of “how transparent and proactive automakers are when it comes to dealing with potential safety defects,” which is why the Transportation Department is requesting more resources from Congress. Additionally, the Administration wants to give NHTSA the ability to fine automakers up to $300 million.
Foxx stated, “Safety is a shared responsibility and Takata’s failure to fully cooperate with our investigation is unacceptable and will not be tolerated,” Reuters (2/21, Chiacu) reports.
The AP (2/21, Lowy, Krisher) reports, the defective airbag inflators are “in cars made by 10 companies.” This new “escalation in the public fight between NHTSA and Takata” also included a warning in the letter that Takata employees could face depositions or other court action from the Justice Department.
The Wall Street Journal (2/21, Spector, Subscription Publication, 5.67M) points out that the fine is twice as much as what DOT made General Motors pay last year for its own recall scandal. NHTSA’s letter to Takata referred to a meeting with the company on February 4 where Takata was supposed to explain the documents it had submitted, claiming that the meeting yielded no results.
Takata faulty airbags continue to have ramifications for Honda. USA Today (2/23, 10.32M) reports “Honda has joined other automakers in recalling cars with Takata air bags” and 17 million airbags from all brands have been recalled since 2008. USA Today says “air bag issues shows no signs of going away anytime soon” as on Friday, Federal officials announced they will “levy fines of $14,000 a day against Takata for refusing to cooperate with a probe” by the NHTSA.
The AP (2/23, Kurtenbach) reports US regulators have “fined Honda $70 million, which was the largest civil penalty levied against an automaker, for not reporting” 1,729 complaints that its vehicles caused injuries and deaths, and also for failing to report warranty claims. The AP also says Takata airbag maker refused the NHTSA’s “demand to issue a nationwide recall of driver’s side air bag inflators, though automakers have recalled the cars on their own.”
Bloomberg News (2/23, Ma, 2.94M) reports “Honda Motor Co.’s Takanobu Ito will step aside as president of Japan’s third-largest carmaker after quality lapses led to record vehicle recalls last year.”
Jaguar Land Rover puts out recall on tens of thousands of vehicles for air bags defect. ABC News (2/21, 3.41M) reported online that Jaguar Land Rover North America issued a recall on “61,793 vehicles because the front, passenger-side air bag may be disabled if a lightweight adult sits in the seat,” affecting certain Range Rover vehicles between the 2013 and 2015 model years.
The AP (2/22) reports with similar coverage.


IIHS List of Safest Cars Grows Amid Record Recalls in the U.S.

As we know all too well the reports of massive numbers of recalls by the auto-makers dominated the news during 2014. That overshadowed some good news in the automobile industry. A report was released by the Insurance Institute for Highway Safety (IIHS) last month that contained some positive news. The insurance industry’s list of cars and trucks that do the best job of keeping owners alive in a crash jumped 82 percent last year. The number of vehicles ranked best for keeping occupants safe in a crash rose to 71 for 2015 models from 39 in 2013. Reportedly, that occurred even though the crash tests used to pick winners got harder. The IIHS report indicated that certain cars are now safer. Interestingly, Toyota Motor Corp. has the most models on the list. Adrian Lund, President of IIHS, had this to say in a recent interview:

Our tests show that the designs of vehicles to protect and even prevent crashes are greatly improving. The key thing people need to keep in mind is that defects are the rarity. Automakers are trying to get ahead of the problems and that’s why there’s so many recalls.

While I disagree with Mr. Lund on his reason for the massive number of recalls, I do believe current models are safer than older cars. The recalls now being made should have come about much sooner. Safety improvements among the newest models have been overshadowed by reports of known safety problems being concealed from the National Highway Traffic Safety Administration (NHTSA) and the public. Now NHTSA is issuing fines and subpoenas to pressure automakers to fix ignition switches and air bags in models that for more than a decade have been linked to deaths and injuries. The revelation of the defects has pushed U.S. recalls in 2014 to more than 60 million, almost double the previous record.

General Motors recalled 27 million cars and trucks in the U.S. last year, a record for any single automaker. The Detroit-based company has issued 10 safety actions of more than one million vehicles each, according to the NHTSA database. While defective GM ignition switches in small cars have officially been linked to at least 50 deaths and scores of injuries, lawyers in our firm know those numbers are very conservative.

Honda Motor Co, the third-largest Japanese automaker, has recalled 5.4 million vehicles to replace Takata Corp. air bags. Shrapnel from exploding Takata air bags has been tied to at least five fatalities in the U.S. and more than 100 injuries. Unstable propellant in air bag inflators can cause the devices to explode with too much force and spread shrapnel through the car in a crash.

IIHS, which does its own crash tests and enforces safety designs that are more strict than those required by NHTSA, is urging automakers to add technology that applies the brakes without driver control to avoid a crash along with stronger bodies for certain kinds of frontal crashes.

Among the safest 33 vehicles, which IIHS labels “Top Safety Pick+,” the Chrysler 200 sedan from FCA US LLC was the only model from a traditional U.S. brand. Toyota dominated the safest group with eight selections, and had a dozen models among the 71 top picks. IIHS has ratings on 195 vehicles.

The 38 vehicles in the less restrictive “Top Safety Pick” category included 10 models from the Detroit automakers and the rest from foreign brands. GM, with five models, had the most of the U.S. automakers. Honda, in contrast with recalls of older models for Takata airbags, trailed only Toyota with 10 selections among the safest for 2015.


Judge Affirms Jury’s $2 Million Verdict in Bard Mesh Bellwether Case

West Virginia federal judge Joseph R. Goodwin has affirmed a $2 million jury verdict against C.R. Bard Inc. in a bellwether trial over alleged defects in its vaginal mesh implants. The Judge ruled that the company had not proven a miscarriage of justice and denied Bard’s motion for a new trial. But U.S. District Judge Goodwin also refused to find unconstitutional a provision in Georgia’s Tort Reform Act of 1987 that requires prevailing product liability Plaintiffs to pay 75 percent of their punitive damages to the state. The lawsuit was originally filed in Georgia before being transferred to the multidistrict litigation (MDL) in March 2011. The ruling dealt a blow to Plaintiffs Donna and Dan Cisson, who had been awarded $1.75 million in punitive damages and $250,000 in compensatory damages by a West Virginia federal jury in August 2013.

The case had been the first federal suit to go to trial within seven multidistrict litigations concerning the use of transvaginal surgical mesh to treat pelvic organ prolapse and stress urinary incontinence. In denying Bard’s motion for a new trial, Judge Goodwin said the court wasn’t wrong to exclude evidence relating to the fact that the device maker had complied with the U.S. Food and Drug Administration (FDA) rule requiring device makers to notify the agency 90 days prior to marketing a medical device.

With an eye toward submitting its case to the Fourth Circuit, Bard had asked the court to rule on its motion for a new trial, according to the opinion. The seven MDLs still contain more than 70,000 cases that are currently pending, of which approximately 10,000 are in the Bard MDL, according to the opinion. The Cissons are represented by Henry G. Garrard III, Gary B. Blasingame, James B. Matthews III, Andrew J. Hill III, and Josh B. Wages all with Blasingame Burch Garrard & Ashley, a firm located in Athens, Ga. The case is Cisson et al v. C.R. Bard, Inc., in the U.S. District Court for the Southern District of West Virginia.


Transvaginal Mesh Litigation

Major activity is underway in the seven transvaginal mesh multidistrict litigations in the Southern District of West Virginia. While American Medical Systems (AMS) continues to settle claims involving its mesh products, C.R. Bard, Boston Scientific, Johnson & Johnson, and Cook Medical are gearing up for more bellwether trials this year. Here are some of the highlights:

C.R. Bard

Early last year Judge Goodwin selected 200 cases (Wave I and 2) for case specific discovery to include depositions of the Plaintiffs as well as treating physicians. In an effort to spur continued progression in these cases given the large number of pending claims, the Court later designated approximately 300 more cases (Wave 3) for discovery on cases involving only the Bard Avaulta mesh product used for pelvic organ prolapse repair.

Believing that it would be impossible to actually depose every treating physician responsible for the care and treatment of 300 Plaintiffs, the Court determined that depositions by written question would be the most efficient means of handling the deposition process; however, the process quickly became cumbersome and problematic for all the parties.

To address these concerns, the Court designated a Miniwave process, which reduced the number of Plaintiffs in the wave to 60. Once discovery is completed on these cases, they will be deemed trial ready, and will be either transferred to a federal district court of proper venue, or in the alternative, remanded to the federal district court from which the case was transferred to the MDL, if applicable.

Despite this movement, Bard continues to seek to delay trials and has even argued that trials should be delayed because comments by U.S. District Judge Joseph R. Goodwin served to prejudge Bard’s liability in these cases. Judge Goodwin rejected its argument and ruled that Bard had not demonstrated good cause to further delay trials. The next trial against Bard is scheduled to begin February 18.

Boston Scientific

Early 2014 resulted in the selection of approximately 200 cases (Wave 1 and 2) for case specific discovery. This litigation is currently in the Daubert motion phase and these cases will be deemed trial ready early this year. In September 2014, Boston Scientific lost its first trial in Texas state court when a jury awarded a $73.4 million verdict to a Plaintiff implanted with the company’s Obtryx midurethral sling. The jury found that there was a safer alternative design available than the Obtryx device and that it was unreasonably dangerous as marketed. The jury also found that Boston Scientific has acted with gross negligence. Trials against Boston Scientific are currently scheduled for February (Dallas, Texas), May (Delaware), and June 2015 (Texas and Massachusetts).

Johnson & Johnson

Cases against Johnson & Johnson and Ethicon have not been designated for case specific discovery through a wave process like in Bard and Boston Scientific. Instead, the Court chose six bellwether cases for trial designation, the last two of which are scheduled to be tried in March 2015 in West Virginia. These cases involve the Ethicon Prolift product for pelvic prolapse repair. The Prolift vaginal mesh system was associated with many negative side effects, prompting the company to voluntarily recall the product from the market.

Last September, a jury in West Virginia federal court awarded a $3.27 million verdict finding that Ethicon’s transvaginal sling was defectively designed. Prior to that, a jury in Texas state court found for the plaintiff and awarded a $1.2 million verdict. In addition to the federal trial in March, more trials are expected against Johnson & Johnson and Ethicon in state courts this year, with one scheduled for February 2015 in Austin, Texas and another scheduled for April in Dallas, Texas.

Cook Medical

Recently, the MDL court ordered four cases against Cook Medical to be tried as bellwether cases, with the first case to be ready to try on April 20, 2015. If that case is dismissed or otherwise not ready for trial, a back-up case will be tried in its place. The next trial is set for May 18, 2015, and if that case is dismissed or otherwise not ready for trial, another back-up case will take its place. The final trial date will be June 8, 2015.


NHTSA Data Shows That Vehicle Recalls More Than Doubled In 2014

According to The Detroit Bureau (2/14, Strong) automobile recalls in the US in 2014 surpassed recalls in 2013 by “more than 100%,” with 63.95 million vehicles having been recalled, according to NHTSA. General Motors accounted for most of the recalls at 27 million vehicles recalled in 84 different events. The article partially focused on NHTSA resources to handle recalls and monitor automobile safety nationwide, noting that NHTSA Administrator Mark Rosekind wants more funding for investigating possible vehicle issues, warning that more vehicles could be recalled this year than in 2014. Secretary Foxx agrees, having stated for the press earlier this week that “It’s no longer reasonable frankly to expect an office with 8 screeners and 16 defects investigators to adequately analyze 75,000 complaints a year.”
The International Business Times (2/14, Young, 1.19M), video from CNBC (2/14, 2.81M), and Law 360 (2/13, Field, 9K) also report with similar coverage.


Chrysler To Be Sued Over Jeep Fuel Tanks

The AP (2/11) reported that a lawyer for the family of Kayla White, who burned to death after her Jeep Liberty was hit from behind last November, intends to sue Chrysler over its recall of certain fuel tanks. Many older Jeep models have “plastic fuel tanks mounted behind the rear axle,” which makes them vulnerable “to punctures and fires” during rear-end collisions. Chrysler announced a recall in June 2013, but attorney Gerald Thurswell contends that “the recall notice from Chrysler gives no sense” of the actual danger.