GM Death Toll From Cars With Defective Ignition Switches Hits 100

The CBS Evening News (5/11, story 3, 2:20, Glor, 5.08M) reported, “Today the death toll from defective ignition switches in General Motors’ vehicles reached 100 with at least 184 others injured.” The report said GM knew about the problem for over a decade but ordered the recall only last year. Reporter Jeff Glor spoke with a family of the earliest victims and said the Averills have until July 19 to accept GMs payment offer but if they don’t accept and choose legal action, “pursuing the old GM prior to their bankruptcy could be challenging.”

The New York Times (5/11, Vlasic, Subscription Publication, 12.24M) reports the death-toll from the faulty GM cars “far exceeds the 13 victims that G.M. had said last year were the only known fatalities” connected to ignitions that could suddenly shut off engine power and disable airbags. The Times says as the “number of victims mounts, the ignition-switch crisis is cementing its status as one of the deadliest automotive safety issues” in US history. The Times adds that Kenneth Feinberg, an independent compensation expert hired by G.M., has “made settlement offers to the families of people who died in the vehicles with faulty ignitions.”

The Detroit News (5/11, Shepardson, 523K) reports of the 184 injury claims that Feinberg has approved, “12 are for serious injuries and 172 are for less severe injuries.” The News says some Wall Street analysts have “speculated GM may have to pay a fine to resolve the investigations that could top $2 billion.” In May 2014 GM paid a $35 million fine to the NHTSA to resolve the safety agency’s investigation and “agreed to up to three years of intense monitoring.”


Nissan Increases Altima Recall To 640,000

The Chicago (IL) Tribune (3/9, Undercoffler, 2.42M) reported that Nissan has increased the number of 2013 Altimas involved in last year’s October recall from 220,000 to 625,000 in the US and 15,000 in Canada due to “a flaw that can cause the hood to fly open while the car is being driven.” The Tribune reported that Nissan does not currently have a fix to the issue but will attempt to mitigate the defect with a plan to “inspect and lubricate the potentially defective secondary latches free of charge at dealerships and will be notifying owners of affected vehicles.” Nissan is not yet aware of any injuries or accidents related to the defect.


Chrysler Recalls 703,000 Vehicles Because Of Ignition-Switch Problems

Bloomberg News (3/8, Plungis, 2.94M) reported on Fiat Chrysler Automobiles NV’s “second recall of 703,000 minivans and SUVs with a defective ignition switch that can rotate out of position,” a problem similar to “the faulty General Motors Co. part tied to dozens of deaths.” NHTSA announced that the recall affects several models from the 2008-2010 years.


NHTSA Reports That GM And Honda Recalls Are Biggest In History

According to the USA Today (3/3, Healey, 10.32M), “two of the biggest auto recalls in history took place last year” citing the NHTSA summary of recall activity, referencing GM’s 5.8 million vehicle recall for faulty ignition switches and Honda’s 5.39 million vehicle recall for defective airbags. Fifty-seven deaths are linked to the GM defect so far, and could rise as more claims are evaluated. The Honda defect is linked to five deaths. The GM recall “provoked federal fines, lawsuits, government investigations, an embarrassingly candid internal probe at the automaker, Senate and House subcommittee hearings and an overhaul of how GM regards safety concerns.” The AP (3/3) reported that the two recalls make up “more than half of the record 64 million vehicles recalled last year.”


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.”


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.


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.