The hidden cost of tort deform

General Motors knew that its ignition switches were faulty but allowed people to continue to drive Chevy Cobalts and other cars for years.  To date, 49 of those people have died in crashed related to the defective switches, and many more suffered horrific injuries.

burningcar

However, many families of these innocent victims have not been able to obtain justice.  Many states, including Ohio, place a limit on the amount of compensation injury victims and their families can get under the guise of “tort reform.”  As pointed out in this recent New York Times piece, it simply becomes too expensive to bring a case, in light of what the law allows to be recovered.  Said another way, by the time experts are hired to prove the case, the value of the injuries and suffering is not enough to obtain a successful result.

In fact, Ohio even takes the added step of cutting off the right to bring a case after the product is 10 years old.  This “statute of repose” applies even if it is defective and dangerous and even if the manufacturer knew of the problem.

What does this mean to you:  

No one would dispute that frivoulous lawsuits have no place in our legal system. The dispute is, what constitutes “frivolous” and who gets to decide?  Politicians or a jury of your peers?

Take a moment and repose yourself

Most people are familiar with a statute of limitations, a law that gives you a certain amount of time to bring a claim starting from the date of the injury.  That makes sense, since you know when you are injured.  A “statute of repose,” on the other hand, is a limitation on the amount of time starting from the date a product is made, whether you have been injured yet or not.

Seeking enlightenment

What makes these laws – such as Ohio’s law – particularly vicious is that they can cut off the ability to file a claim BEFORE THE INJURY HAS EVEN HAPPENED.  One a product had been made – whether that’s a medical device like a hip implant, a smoke detector, or a baby’s high chair – after 10 years, no claims can be made against the manufacturer.

What does this mean to you?

Not surprisingly, Ohio’s statute of repose has been described as “a victory for manufacturers.”  If manufacturers won, who lost?  And by the way, how does this make products safer?

Defeating Assumption of Risk

Just a quick post to say that I recently wrote an article for the Ohio Association for Justice on the defense of assumption of the risk in product liability cases in Ohio.  For those that are interested, you can read it here.

 

And now we wait

A jury in New Jersey has begun deliberating on one of the first trials involving surgical or transvaginal mesh.

waiting

The outcome of this early “bell weather” trial will impact how the mesh manufacturers approach the thousands of remaining cases where women suffered bleeding, infection, pain, and urinary problems from the mesh implants.

 

What does this mean to you:

Though it may seem distant and unrelated, early trials in cases like this can have massive legal ripple effects for the remaining individual claims.

 

Four score and seven fingers ago…

Now is the time you would expect a blog about product safety to post various tips and links about current fireworks law in Ohio and about how dangerous fireworks are, how you can be pretty badly hurt by them, and how you should really never use them.  Ever.  Well, not this blog.

Pew, pew, pew!

Instead, remember (just as I remind my kids each year when I read the Declaration of Independence to them) that one of the reasons we actually broke off and started are own, brand new country was the fact that King George III had taken away our right to have a jury trial.  That’s right.  Having your case heard before a jury – where both parties stand equal before the law- was so important to guys like Jefferson and Madison, that if they couldn’t have it, they were going to start their own country.  Jefferson even listed in the Declaration of Independence that the King was “depriving us in many cases, of the benefit of Trial by Jury.”  That, among other reasons, required our separation from Britain.

What does this mean to you:

Be well, and have a safe and happy Fourth of July.

We don’t know what we – I mean, you – are talking about

Baby Boomers appear to be here to stay.  I mean, they even have their own Association now, so you know they’re going to stick around and ask for stuff.  Stuff like hip implants that don’t fail after being implanted, causing pain, swelling, and metal on metal friction to throw off chromium and cobalt ions in to their blood streams.  Some people!  For what it’s worth, the medical research surrounding metal ions is ongoing, but as far as I know, no doctors have started prescribing chromium and cobalt ions to be taken once daily by mouth along with your Flintstones.

Doh!

But, the maker of many hip implants, a company called DePuy (pronounced “Dapew”) who is owned by Johnson & Johnson, knew for quite a while that its ASR hip implants were failing.  It was recently learned that, rather than tell the FDA of the product’s defects, or make a change to its design, or immediately recall the device, DePuy opted merely to not make any more ASR hips, but continue to sell the problematic hips it had remaining.

What does this meant to you:

Many times, patients may not know the brand or model of the particular implant they have.  That is, a person may have a DePuy ASR and not even know it.  If you’re having problems, its important to check with your doctor to see which type you have, and if need be, discuss it with a lawyer.

They are everywhere

Interesting post on defective truck brakes from friend of FSBD, The Moore Law Firm, on their blog.

What does this mean to you?

The cause of a truck accident might not always be the truck driver’s inattention.  Any legal case is a search for the truth, which requires investigation by counsel in to all potential causes of the wreck.

But let’s be honest, its usually the truck driver’s inattention.

 

Can we at least send them to their room with no dessert?

Every parent knows that, from time to time, a little punishment can be warranted.  We generally punish for the really bad stuff, and even then, the punishment has to “fit the crime.”  In really bad cases, juries can punish bad behavior too by awarding punitive damages. Punitive damages are hard to actually prove, and as a result, are rarely awarded.

The type of behavior punitive damages discourage is the worst of the worst – intentional, dangerous behavior.  The classic example is the infamous Ford Pinto, often recognized as one of the worst cars of all time.  Ford engineers knew its gas tank design was likely catch fire in a crash and knew how to fix it for only $11 per car, but decided it would be cheaper to let people burn and pay the lawsuits.

Why, then, did the Ohio Supreme Court recently make it even harder to punish wrongdoers when they deserve it?  And why are lawmakers in Arizona seeking to exempt manufacturers of dangerous products from being punished when their conduct warrants it?  How will this create jobs or make products safer?  Hint: It’s not a trick question.

What does this mean to you?

Know your legislators and judges.  Let them know that everyone, including corporations, should be accountable for their actions.

You know you want to

Is work ever “voluntary”? Setting aside questions of the neuroscience behind our actions, it is an interesting question to cogitate on.  Once at work, we essentially must do what our employer asks, or else be fired.  True, we certainly choose to have a job and go to work each day, but once there, can our actions be termed truly voluntary?  Especially in this economy?

Putting a finer point on it, should an employee who uses a defective product at work (a press missing a safety guard, etc.) be allowed to make a claim against the manufacturer of the defective product?

He really, really wants to run that press all day.

I’m defective? No, you’re defective!

We often hear of the concept of a “defective product” being something that physically breaks or malfunctions.  And, as a parent who just survived another Christmas filled with plenty of plastic horse pucky, I could certainly provide several recent examples of just this type of defect in many different products.

But in Ohio, as in many states, any product can be defective in one or multiple ways.  As an example, think of a riding lawn mower that rolls over and injures the driver.  It may be that something happened while this particular mower was being manufactured at the factory causing it roll.  This type of manufacturing defect is usually confined to one part coming off the line wrong.  This same mower may also be defectively designed.  That is, the way all the mowers were designed and created by the company creates a danger of rollover.  What’s more, if the company should have known their mower would rollover, the product can also be defective if there is not an adequate warning about the risks and dangers of their mower.

Let’s hope Santa invests in some good R&D between now and December.

Can you spot all the defects in this photo?