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?

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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?

In addition, Marlboro will sponsor the Komen 5k race

Mark Twain once said that golf is a good walk spoiled.  Truth be told, I  tend to agree with him.  But people nonetheless seem to enjoy the activity, whether they’re out strolling the fairway or going for the long ball.

hip

Hopefully, then, the irony was not lost this week when it was announced that the PGA Tour would be sponsored by – wait for it – Stryker Orthopedics.  Yes, that Stryker Orthopedics.  The one that made 20,000 defective ABG II and Rejuvenate metal hip implants.  The ones that would be bad for golfers (or anyone else who likes to, you know, move) to use.

What does this mean to you:

Remember that advertising and corporate sponsorship can be as much about framing and creating a positive public image as about selling products.

And in other news, people no longer buying Ford Pintos

Change is hard.  I get it.  The people in the horse and buggy business probably didn’t like to see the advent of the automobile.  But as technology changes, especially in the the area of safety improvements, business must change and adapt along with it.

secret handshake

It is disappointing, then, but perhaps not surprising, to learn that many manufactures of table saws, such as Bosch, Black & Decker, Makita, and Ryobi, have been conspiring to thwart new safety rules to require automatic blade stop technology, called Saw Stop, in their saws.  And this is no small issue.  67,000 U.S. workers and do-it-your-selfers suffer blade contact injuries every year, according to the Consumer Product Safety Commission.

What does this mean to you:

Its one thing if they don’t want to adopt the safer technology, but its quite another to actively try to stop safer technology from being adopted as the standard.

Shop around before making a major tool purchase.  What you don’t know can hurt you.

Testing, schmesting.

You would think that medical devices  implanted inside your body would be some of the most highly-tested products in the world.  Not so, though, for hip implants made by the Stryker company, who began selling its hips without going through clinical trials first.

science experiment

Stryker claimed its hips were similar to DePuy’s metal on metal hips that were already for sale.  The fault in this logic, if you can call it that, is that DePuy’s hip implants are the ones having problems with fretting and corrosion of the metal, which causes pain and swelling.  This defect may even lead to metalosis – metal toxicity in the blood stream caused by metal ions and shavings from the implant itself.  This, despite the fact that the industry has known for some time that as much as 40% of metal-on-metal hip implants would fail.

Stryker has since recalled its Rejuvenate and ABG II hip implants.  DePuy has since settled many of the claims against it for $2.5 billion.

What does this mean to you:

Someone with a recalled hip implant probably does not know the make or model they have.  If an implant patient continues to have, or suddenly develops, pain or swelling around their hip implant, they should check with their surgeon right away.

The itsy, bitsy baby climbed out of the high chair

I saw this story in the Columbus Dispatch today noting an increase in the number of injuries to babies caused by high chairs.  On average, 9,400 kids are hurt every year due to high chairs – a number that has been on the rise.

Baby in highchair

To be sure, some injuries were caused by children climbing out, while other are related to defects in the chair itself.

What does this mean to you:

Always register your baby products with the manufacturer so you are kept abreast of recalls.  Or, you can sign up to receive alerts from the Consumer Product Safety Commission.

 

A better mousetrap

Whenever time allows, I try to get into the workshop for some quality time woodworking.

This is a stand-up desk I built. I now use it in my office at work.

Half the fun or working on projects are the tools you get to use.  But to say that these tools can be dangerous is an understatement, and few tools are more dangerous than the table saw.  Every year, more than 3,500 people lose a finger on a traditional table saw.

This saw does not have SawStop, much less a guard.

But there is a technology that can prevent virtually all finger amputations from table saws.  Its called SawStop.  It works by sensing the electrical  current in a finger and immediately stops the blade from spinning.  However, none of the major manufacturers of table saws have incorporated this technology into their saws.  The companies, through their trade group – The Power Tool Institute, are even fighting making this technology mandatory for all table saws.

What does this mean to you:

Does everyone know that table saws are dangerous?  Sure.  But does everyone know that the manufacturers could make their table saws safer and avoid the horror of amputations, but have chosen not to?  Methinks not. Even when a product does not malfunction, it may still be defective based on the design choices made by the manufacturer.

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.

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?