Nissan and Toyota Expand Takata-Related Recall to 6.5 Million More Vehicles

ABC World News (5/13, story 11, 0:20, Muir, 5.84M) reported that Nissan and Toyota expanded “that massive recall over defective air bags – 6.5 million vehicles, those air bags made by the embattled manufacturer Takata. This time, fears that the air bags will rupture in a crash.” The AP (5/14, Kageyama) reports Toyota said Wednesday that it would recall nearly five million “more vehicles globally for the air bag inflator problem.” About 637,000 are in the US. The recall “affects 35 models globally, including the Corolla subcompact, RAV4 sport utility vehicle and Tundra pickup, produced from March 2003 through November 2007.”
USA Today (5/14, Woodyard, Healey, 5.01M) reported the latest recalls “show the Takata bag problem continues to deepen.” NHTSA is fining Takata “$14,000 a day for failing to cooperate regarding its air bags in which the inflators can explode with too much force and spew shrapnel.” Five US deaths have been “blamed on faulty Takata bags.”
The New York Times (5/14, Tabuchi, Soble, Subscription Publication, 12.24M) reported “one source of concern has been the airbags’ propellant, ammonium nitrate, a cheap but powerful explosive that engineers say can destabilize if contaminated with moisture.” The inflator itself, “and whether it corrodes over time,” has also been a concern. The Times notes that NHTSA Administrator Mark Rosekind said last month that Takata “was moving too slowly and his agency was reviewing options to speed up the recalls.”
The Los Angeles Times (5/14, 4.03M) reports that this is “different from an earlier problem with Takata air bag inflators that deployed with too much force, which has affected a range of automakers including Honda Motor Co., Chrysler, BMW and Ford Motor Co.”
Reuters (5/14, Kim, Saito), the Wall Street Journal (5/14, Fujikawa, Subscription Publication, 5.68M), and the Detroit Bureau (5/14) also have reports.


FDA Bans Indian Pharmaceutical Firm From Exporting To US Because Of Quality Control Issues.

The Wall Street Journal (3/26, 5.67M) reported in its “Pharmalot” blog that the FDA banned the import of medicines from India-based pharmaceutical firm Aarti Drugs after it failed an FDA inspection last August. The agency’s inspection followed a warning letter the company received the previous year over several manufacturing standard violations at two Aarti facilities during a 2012 inspection. The plant is one of several from India that have faced similar bans.


Jury Finds For Plaintiff In J&J Mesh Lawsuit

Bloomberg News (3/5, 2.94M) reported that a jury in California ordered Johnson & Johnson on Thursday “to pay $5.7 million to a woman who said one of the company’s Abbrevo vaginal-mesh implants eroded inside her, forcing her to have surgery, in the first verdict over that device.” In the first verdict “to find fault with the Abbrevo sling,” jurors determined that the product “was defectively designed and officials of J&J’s Ethicon unit failed to properly warn doctors and consumers about the device’s risks.”


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.”


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.


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.”


Sour Grapes from Trucking Associations Over New Safety Regulations

Trucking Associations across the country are not happy with new safety rules. The American Trucking Associations contend that the new rules governing hours-of-service will do nothing to improve highway safety.

ATA President and CEO Bill Graves complained that the “announcement of a new rule on the hours-of-service is completely unsurprising. What is surprising and new to us is that for the first time in the agency’s history, FMCSA has chosen to eschew a stream of positive safety data and cave in to a vocal anti-truck minority and issue a rule that will have no positive impact on safety.” Mr. Graves continued his rant by saying, “From the beginning of this process in October 2009, the agency set itself on a course to
fix a rule that’s not only not broken, but by all objective accounts is working to improve highway safety. Unfortunately, along the way, FMSCA twisted data and, as part of this final rule, is using unjustified casual estimates to justify unnecessary changes.”

ATA Chairman Dan England, Chairman of C.R. England, complained “Even with an uptick in truck-involved fatalities in 2010, since the current rules went into effect in 2004, fatalities have fallen 29.9%, even as overall miles traveled for trucks has risen by tens of billions of miles. ”

“By forcing through these changes FMCSA has created a situation that will ultimately please no one, with the likely exception of organized labor,” England whined.  “Both the trucking industry and consumers will suffer the impact of reduced productivity and higher costs.  Also, groups that have historically been critical of the current hours of service rules won’t be happy since they will
have once again failed to obtain an unjustified reduction in allowable daily driving time.  Further, it is entirely possible that these changes may actually increase truck-involved crashes by forcing trucks to have more interaction with passenger vehicles and increasing the risk to all drivers.”

Bill Graves further lamented, “This rule will put more truck traffic onto the roadways during morning rush hour, frustrate other motorists and increase the risk of crashes…By mandating drivers include two periods between 1 a.m. and 5 a.m. as part of a
‘restart’ period, FMCSA is assuring that every day as America is commuting to work, thousands of truck drivers will be joining them, creating additional and unnecessary congestion and putting motorists and those professional drivers at greater risk.  The largest percentage of truck-involved crash occur between 6 a.m. and noon, so this change is not only effectively destroys the provision of the current rule most cited by professional drivers as beneficial, but it will put more trucks on the road during the statistically riskiest time of the day.”

For more information visit Boyd B. Newton PC,  one of Atlanta’s Best Attorneys.


Summer Football

On August 3, 2011, Michael Carvel of The Atlanta Journal Constitution ( 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 ( 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.

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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.


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

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