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.

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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.

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NPR Reports On Workplace Injuries Suffered By Nurses

NPR’s “All Things Considered”(2/4, 1.58M) examined the dangers nurses face at work, noting that the Department of Labor’s Bureau of Labor Statistics (BLS) found that more than 35,000 nursing employees suffer back and other injuries at work each year. According to the BLS, “nursing assistants are injured more than any other occupation, followed by warehouse workers, truckers, stock clerks and registered nurses.” The piece notes how some hospitals are trying to reduce the risk. However, “David Michaels, the assistant secretary of Labor who heads the U.S. Occupational Safety and Health Administration,” said Congress and the courts have severely restricted OSHA’s ability “to require hospitals to protect nursing employees.”

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OSHA To Fine Ashley Furniture $1.7 Million For Safety Violations

According to The New York Times (2/3, Abrams, Subscription Publication, 9.97M) Ashley Furniture, a major global furniture maker, is facing $1.7 million in OSHA penalties “to settle charges that unsafe conditions at its manufacturing plant in Arcadia, Wis., led to more than 1,000 injuries.” OSHA “cited the company for dozens of violations, including disregard for safety standards that led to a number of gruesome injuries.”

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Summer Football

On August 3, 2011, Michael Carvel of The Atlanta Journal Constitution (www.ajc.com) reported that two Georgia high school football players died on Tuesday, August 2, 2011. One of the players who passed away had spent more than a week in the hospital, as officials try to determine the effects of hot weather on both players.

Fitzgerald High School defensive lineman DJ Searcy died on the morning of August 2, 2011 following practice at a camp in northern Florida. According to the Atlanta Journal and Constitution, the 16-year-old was found unresponsive in his cabin by the Columbia County Sheriff’s Office.

Forrest Jones, Locust Grove High School offensive lineman passed away on the night of Tuesday, August 2, 2011, a family member told Channel 2 Action News. Jones passed out at a voluntary workout the week before. According to his family, physicians believe that Jones, 16, may have had a heat stroke or heat exhaustion. Jones collapsed the week before his death at a voluntary workout, which is not governed by GHSA rules and policies. The Atlanta Journal Constitution reports that most high school football teams have voluntary workouts for weightlifting, conditioning drills and 7-on-7 passing tournaments in June and July.

According to the Georgia High School Association, there had not been a heat-related death for a high school football player in Georgia in five years, until August 2, 2011.

The GHSA is the state’s governing body for high school athletics. Michael Carvel of The Atlanta Journal Constitution (www.ajc.com) reports that the GHSA mandated that all member schools develop their own heat policies after the death of Rockdale County football player Tyler L. Davis after a voluntary workout Aug. 1, 2006. The GHSA also suggested the use of a heat-index rating or wet-bulb temperature to determine whether practices should be held or modified because of extremely high temperatures.

Monday, August 1, 2011 was the GHSA’s first official day of football practice in helmets and pads.

According to the AJC article, GHSA executive director Ralph Swearngin said “[Our heat policy] does not address voluntary football workouts over the summer, although we do encourage that schools do this. In fact, it is my understanding that Locust Grove High School takes a wet-bulb reading before every one of the voluntary workouts over the summer, including the one where the young man went down.”

Michael Carvel reports that the GHSA may develop a more stringent and more uniform heat policy in the near future and that University of Georgia researchers are in the final stages of a three-year study on heat risks associated with high school athletics.

Ralph Swearngin is reported to have said “They’ve got 30 high schools around the state with state-of-the-art equipment, and they have trainers that are taking readings every 15 minutes, starting before practice until after practice — and then they keep up with any heat-related issues that come up during practice,” “When that study is over, we’ll have hard and fast data that will maybe cause us to change our policy.”

The AJC article states that over 32,000 high school students participate in football each year in Georgia. The deaths of the two players at Fitzgerald and Locust Grove have caused a lot of sadness and confusion in Georgia’s inner circles for football.

“It’s tragic and it’s sad,” Swearngin stated to the AJC. “When we try to find a solution to a problem like this, we get a little confused or we don’t know exactly what to do. There are so many different factors when dealing with this type of situation. There are thousands of kids under the same conditions and nothing happens to them.It’s tragic and bad, but we really can’t take strong measures when it doesn’t affect everybody. So many times when a tragedy like this occurs, so many people want an immediate stop to all activities. And what keeps us from doing that is so many kids under the very same conditions have no negative effects.We’re going to find out as much information [about the two situations] as we can and go from there” Swearingen told the AJC.

This is a dangerous time of year for kids who play football. Please keep them hydrated and keep an eye on them for symptoms of heat stroke and heat exhaustion.

For more information, visit us online at http://www.injurylawyerofatlanta.com.

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Social Media Posts Are Fair Game as Evidence in Court

The Wall Street Journal Legal blog recently reported on an issue that I routinely see in depositions. Insurance defense attorneys are mining social media sites for evidence against personal injury plaintiffs, and recent court decisions have affirmed the unprivileged nature of said information.

For instance, in Pennsylvania parties in a lawsuit asked a district judge to conduct a review of the plaintiff’s social networking profiles to determine what was subject to discovery. The court identified relevant information, such as “photographs and comments suggesting he may have recently ridden a mule,” which the court thought the defense could use to argue against the plaintiff’s claims that he had been injured in a car accident.

Another example comes from a lawsuit involving divorce in which the wife claimed an automobile collision and resultant surgery had left her unable to work, thereby justifying monthly alimony payments. Her spouse presented evidence from her Facebook and MySpace accounts detailing her belly dancing exploits four years after her surgery, which the judge considered and ultimately used to deny the wife the lifetime monthly support checks she sought from her ex-husband.

So next time you post a status update or Tweet something about your life, consider the possibility that it may become evidence in a lawsuit.

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Bus Company Should Have Been Shutdown Before Crash In Virginia

According to USA Today, hours after one of its buses rolled over on a Virginia highway and killed four passengers, the federal Department of Transportation closed down a North Carolina bus company.  The shutdown came months after the company had been given one of the worst safety records in the United States.  For the past two years, Sky Express of Charlotte, N.C. repeatedly violated federal rules that require bus companies to keep fatigued drivers from getting behind the wheel and to make sure their drivers have proper licenses, and medical certificates.  The Federal Motor Carrier Safety Administration had access to all of the information relating to the company’s terrible safety record, but allowed it to stay in business.

Sky’s Express’ score in driver fitness demonstrates that its record was worse than 99.7% of the nation’s bus operators.  The company had been caught seven times allowing drivers to work excessive hours since October 2009.

According to the USA Today, The Federal Motor Carrier Safety Administration on April 12, 2011 proposed shutting the company down after a safety review.  Sky Express appealed the shutdown proposal on May 11, 2011. The Federal Motor Carrier Safety Administration rejected the appeal two days later.  According to the Federal Motor Carrier Safety Administration, Sky Express could not be shut down immediately because it says it had to wait 45 days from when it proposes a shutdown.  Instead of shutting down Sky Express after 45 days, the agency decided instead to investigate new safety concerns.

The USA Today article stated that the Virginia State Police blamed the rollover crash on driver fatigue.  The Sky Express bus was carrying 58 passengers from Greensboro, N.C., to New York City when it ran off Interstate 95 near Richmond, Virginia near dawn and rolled over.  Fifty-four people were injured in the incident.  The driver, Kin Yiu Cheung, was not seriously injured and was charged with reckless driving

The Sky Express collision in Virginia is typical of many bus accidents. A tired driver drifted off a highway causing bus crash in 2008 that killed nine passengers in Utah. Similarly, in Arkansas in 2004 bus crash caused by a fatigued driver who drifted off the road killed 14 passengers and the driver, according to report by the National Transportation Safety Board.

Transportation Secretary Ray LaHood got involved and made sure the North Carolina bus company was finally shut down.  LaHood criticized his own agency by saying:

I’m extremely disappointed that this carrier was allowed to continue operating unsafely when it should have been placed out of service.

The Federal Motor Carrier Safety Administration is an agency of the United States Department of Transportation and is in charge of bus and truck safety.  LaHood criticized the agency for stretching its investigation beyond May 28, 2011 and ordered an immediate halt to such extensions, which federal rules allow but do not require before a bus company can be closed.  According to the Department of Transportation, eight bus companies facing closure have received extensions in 2011. It appears that LaHood will clamp down on his agency and will require it to do its job much better.  LaHood stated the following:

There is no excuse for delay when a bus operator should be put out of service for safety’s sake.  On my watch, there will never be another extension granted to a carrier we believe is unsafe.

The safety agency does in-depth examinations of companies that accumulate the most safety violations in random roadside inspections.  It says violations alone cannot be the basis to shut down a company.  The agency targets oft-cited companies for more thorough reviews and can issue a closure order after a review.  LaHood says he plans to propose in December that the safety agency be allowed to close bus companies with excessive safety violations and without a fuller review.

There are numerous examples of passenger injuries that result from driver fatigue.  On March 2, 2011 a bus crashed near New York City killing 15 passengers.  Investigators are looking into whether fatigue caused that crash.  The company operating that bus, World Wide Travel of Brooklyn, N.Y. had five violations of fatigued-driving rules in the 22 months prior to the crash.  Bus drivers may drive up to ten straight hours before being required to take eight hours off, and can work 15 hours, which include non-driving time, before having to take an eight-hour break.  The time-off requirements are not adequate to ensure drivers are sufficiently rested. 

Source: USA Today

For more information, contact Boyd B. Newton at 404-593-2630 or visit us online at http://http://www.injurylawyerofatlanta.com.

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Trial by Jury in the United States of America

In the United States today, both sides of the political aisle like to invoke the principles of our founding fathers. It doesn’t matter the subject, no matter how important or trivial, Democrats and Republicans claim to be upholding the Constitution. So what did our founding fathers actually say about the right to a trial by jury? Below are a few quotes: 

Without trial by jury we have no way to keep us from being ridden like horses, fleeced like sheep, fed like swine and clothed like hounds. John Adams (1774)

I consider trial by jury as the only anchor ever yet imagined by man, by which a government can be held to the principles of its constitution. Thomas Jefferson (1788)

Trial by jury in civil cases is as essential to secure the liberty of the people as any of the pre-existent rights of the nature. James Madison (1789)

The friends and adversaries of the plan of the constitutional convention, if they agree on nothing else, concur at least in the value they set upon trial by jury; the former regard it as a valuable safe guard to liberty; the latter present it as the palladium of free government. Alexander Hamilton (1788)

I am especially interested in what John Adams had to say about the right to a trial by jury in civil cases because he was a practicing attorney before devoting himself full time to public life. After obtaining a law degree from Harvard, he supported himself and his family by representing people in civil and criminal matters throughout the Massachusetts Circuit. He traveled throughout present day New England trying cases. He was a trial lawyer. Therefore, John Adams had in depth understanding of the importance the civil jury trial system.

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