Articles Posted in Product Liability

Most electronic devices are powered by lithium ion batteries.  This includes cell phones, portable music players, GPS devices, notebook computers and many others.  Lithium ion batteries have long run times, are small and produce a relatively greater amount of energy than other batteries.  However, they do pose certain risks.

The lithium ion cell has a carbon anode (positive) and a metal oxide cathode (negative).  Lithium molecules leave the carbon anode and lose a negatively charged electron leaving behind a lithium ion.  These ions flow through an organic solvent between the anode and the cathode.  This produces electricity.  If the battery is overcharged or produces too much current, or if there are impurities in the cell as a result of sloppy manufacturing procedures, this can result in a short circuit which leads to something called “thermal runaway.”  This is a rise in heat and pressure which is impossible to stop and can cause fires or even an explosion.  Thermal runaway can produce temperatures of over one thousand degrees Fahrenheit.

Needless to say these fires and explosions can cause serious personal injury.  Fortunately, the types of failures that lead to these incidents are extremely rare.  However, electronic devices that have lithium ion battery components have been the subject of many safety recalls and product safety warnings.  Many laptop computers were recalled in 2006; the FAA has recommended restricting their cargo carriage on flights and the International Civil Aviation Organization has banned the shipment of these batteries as cargo on passenger flights.  Recently Samsung issued a massive recall of its Galaxy Note 7 smartphone because of the risk of these batteries exploding.

Electronic cigarettes seem to have become very popular. It is commonly believed that E cigarettes are safer from a health perspective than regular cigarettes. However, there are some serious risks. An electronic cigarette has three basic components: 1) a cartridge that stores the liquid nicotine, 2) an atomizer which heats the liquid nicotine and 3) a battery. The battery is the source of the explosion risk.

Electronic cigarettes use lithium ion batteries. These are very powerful. They are also very common and can be found in any number of electronic devices such as cell phones, cameras and lap tops. The difference with electronic cigarettes is the proximity of the lithium ion battery to the atomizer which is a heating source. Lithium ion batteries are sensitive to extreme temperatures and have been known for some time to have a risk of explosion if they get too hot.

A lithium ion battery explosion is a very significant and destructive event. This is a very hot explosion that can cause significant burn injuries. Sometimes referred to as a thermal runaway, it can cause and has caused serious injury and in rare cases even death.

Every year, approximately 36 million people are injured and 34,000 people are killed by using everyday consumer products.  This includes everything from falls off ladders to appliances that malfunction and catch fire.  These are staggering numbers.  While many of the injuries and deaths are the result of someone misusing a product, many also result from dangers built into the products themselves that could be prevented.

There is a concept in design engineering called the safety hierarchy.  It is also called the hazard control hierarchy.  It is supposed to govern decisions about how products are made, tested, and redesigned before they come to market and are used by the public.  It is a set of checks to eliminate or drastically reduce the number of injuries and deaths associated with using a product.  If a danger is found in a product, the hierarchy goes like this:  1. Design out the danger, 2. Guard against the danger, 3. Warn against the danger.  Unfortunately, the hierarchy is not always followed.

Design out the danger

            In recent months there have been developments that have raised public awareness of the dangers and prevalence of brain injuries.  Last month a federal district judge in Chicago gave preliminary approval to a reworked head injury settlement between student athletes and the National Collegiate Athletic Association (NCAA).  Under the terms of this proposed settlement a seventy million dollar fund would be established to test for brain trauma.  In addition, the NCAA is required to strengthen return-to-play rules after a brain injury.  U.S. District Judge John Lee also suggested removing an across-the-board prohibition from future class action lawsuits relating to concussions.  This announcement regarding the NCAA settlement follows an earlier settlement of the National Football League’s (NFL) concussion related lawsuits.  The NFL settlement involved the payment of $765 million in potential compensation.

Just this week it was disclosed that former University of Alabama football great Ken Stabler was suffering from Stage 3 chronic traumatic encephalopathy (CTE) when he died.  Stabler succumbed to colon cancer this summer but for years before his death he displayed symptoms suggestive of CTE.  CTE is a degenerative brain disease that is believed to be caused by repetitive head injuries.  It was originally found in boxers but has now been diagnosed in football players and even baseball players.  Unfortunately, CTE can only be diagnosed positively after death by a microscopic examination of the brain.  CTE involves neurological and physiological changes to the brain including the presence of an abnormal protein called tau.  CTE causes symptoms similar to Alzheimer’s disease and eventually to a progressive deterioration of the brain that leads to dementia.  The NCAA and NFL settlements were, in part, recognition of the prevalence of CTE among student and professional athletes.

The research into these types of brain injury is still in its infancy.  There are many unanswered questions.  It is not known how many concussions it takes to cause CTE or over what period of time this might develop.  The Center for the Study of Traumatic Encephalopathy (CSTE) was only created in 2008.  It is believed that repeat head injuries are required to cause CTE.  For this reason the focus of research has been on athletes.  However, this research may eventually assist medical professionals and trial lawyers in evaluating the length and severity of traumatic brain injury in their patients and clients.  What we are learning from this, however, is that the symptoms of TBI can be permanent and even degenerative.

When Alabama consumers purchase a product, they assume the product will be safe to use. However, some products are dangerous and cause harm even when used according to the manufacturer’s instructions. Section 6-5-521 defines a products liability action as a lawsuit brought for a personal injury, a death, or property damage caused by the manufacturing, design, assembly, installation, marketing, testing, or labeling of a manufactured item when the action is based on a theory of negligence, misrepresentation, the manufacturer’s liability doctrine, the Alabama Extended Manufacturer’s Liability Doctrine (AEMLD), or breach of warranty.

In Alabama, unlike in some other states, those who simply act to pass along a product, such as retailers and wholesalers, often may not be held responsible through a products liability action. You cannot file a products liability lawsuit against a distributor, retailer, or seller unless that entity is also a manufacturer or assembler of the final product, and the entity’s actions caused the product’s defect; the entity had substantial control over designing, testing, manufacturing, or packaging a product, and its control had a causal connection to the product’s condition; or the entity altered the product, and this played a substantial role in causing the relevant injuries.

Entities are not protected from suit when their independent negligent, fraudulent, or wanton actions, not related to design or manufacturing, cause an injury. When you use due diligence but still can’t identify the manufacturer of a dangerous product, however, you can sue a distributor, dealer, seller, or business using the product in producing its own products or services. The defendant in that suit can file an affidavit certifying the identity of the manufacturer and be excused from the case.

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Buy a new car today and it’s likely to be missing something you traditionally expect with a car — a key.  Starting about 5 years ago, keyless ignition systems became very popular with vehicle manufacturers.  Consumers were drawn to the system because of the convenience of not fumbling around for your keys while you’re entering your car plus safety factors of not being distracted while you’re approaching your car. Who hasn’t been frustrated by not being able to find your keys in your purse (or your wife not being able to find her keys in her purse)?

A problem quickly became apparent, though, once the systems hit the market.  People would get out of their cars without turning them off.  This was even more prevalent with the gasoline/electric hybrid vehicles when the motors might not be running and making noise when the passenger left the car.  Thus, the driver could believe the car was off and not realize it was still running.

Early accounts of this problem arose in 2010, when a 29 year old Florida woman died after she left her vehicle running in her garage.  This was followed by a death in New York and, in 2012, the death of Harry Pitt, a former superintendent of Montgomery County Schools, who died in his Washington, D.C. home after accidentally leaving his vehicle running in his garage.   In these instances, carbon monoxide filled the garage and the homes where the vehicle owners were sleeping, causing their deaths. Continue reading

Car seats designed for babies and young children help protect our precious cargo from serious injuries in the unfortunate event of an automobile accident.  In some cases, however, manufacturing defects of car seats can cause those products to fail, often prompting massive recalls.  Some of the most common car seat defects include the following:

– weak shells

– defective handles

The first step in any successful automotive product liability case is a careful evaluation of the facts.  First, of course, there must be a determination that the vehicle was defective and unreasonably dangerous.  But a careful attorney has to take it one step further.  It must be proved that the defect was the cause of some injury or harm to the client.  In order to do this there must be some analysis of the movement of the bodies of the occupants within the car during the crash sequence, or the movement of a body that was ejected up until the final point of rest.  This is where the field of occupant kinematics comes in to play.

Kinematics is simply an analysis of the motion of objects.  Occupant kinematics is an analysis of how the occupants’ bodies moved relative to the movement of the vehicle and a determination of why those bodies moved in the way that they did.  Occupant kinematics is based upon Newton’s Laws of Motion.  His first law is that a body in motion will stay in motion and that a body at rest will stay at rest unless acted on by some external force.  A corollary to this is that motion is always in a straight line unless there is the action of an external force.  In a collision the motor vehicle may decelerate rapidly, accelerate rapidly or make an abrupt lateral movement, depending on how the collision occurred.  If the bodies of the occupants tend to stay in motion in a straight line, they will come into contact with some part of the occupant compartment unless the restraint system prevents them from doing so.

The restraint system in a motor vehicle is designed to allow the occupants to ride down the forces in a crash without being seriously injured or killed.  Seat belts and air bags, when properly designed and manufactured, can be very effective in avoiding injury or death.  Once it has been determined that there is a defect in the restraint system, an analysis of the occupant kinematics must be done to establish whether that defect was the cause of injury or death to the occupant.  In order to do this, there are a number of other concepts that come in to play.  The difference in velocity, referred to as delta v, must be determined.  In a very oversimplified example, if two vehicles are in a frontal collision, each going 50 mph, the delta v would be the difference in velocity from 50 mph to whatever speed was achieved by the vehicle immediately following the crash.  If the vehicles crashed and then recoiled by 5 mph the delta v would be (50 + 5 = 55) 55.  Another concept that is used to evaluate occupant kinematics is barrier equivalent speed.  This is the speed at which a vehicle hitting an immovable barrier would demonstrate crush identical to the subject vehicle.  This is not the same as delta v.  Another factor that must be determined is the principal direction of force.  Once these various factors are determined then an analysis can be done of the occupant kinematics.

Look at this picture.  It’s called a stereogram, also known as a 3D image within an image.  They were popular in the 90s and have been around ever since.  Within the beautifully colored image is hidden the words “Happy New Year.”  It takes practice and a lot of time to be able to see the image, but it’s there.  You may have to cross your eyes and uncross them, or get real close to the screen and slowly back away, but eventually you can see the hidden image.

Being a trial lawyer can be a lot like looking at a stereogram.  Some of the greatest results we’ve ever had for clients came from cases that, on the surface, may not have looked like much of a case.  People have a natural tendency to see what is on the surface and not look much further.  They also have a natural tendency to not want to keep looking to see if the situation really is as it initially appears.  But any good trial lawyer will tell you that you’ve got to keep staring at the picture, and if you stare long enough, if you dig into the facts deep enough, you can often find another picture hidden in plain sight.*  Here are a few examples:

A car gets blindsided by a big truck, killing the occupants of the car.  The driver of the 18 wheeler says the car pulled right out in front of him, and he never had a chance to stop or put on the breaks.  The officer then writes the accident up as the car pulled out in front of the big truck.  Many families, struck with grief over the situation, will accept what the officer reports and move on.  Some, however, will hire a lawyer to look into it.  We have seen this scenario many times.  When this case comes to us, we hire a professional engineer to do an accident reconstruction to tell us exactly where the vehicles were, how fast they were going, where the impact took place on the road and on the vehicles, and what happened in the accident.  We hire a trucking expert to look at the records of the trucking company and driver to see if they have any major safety violations.  In short, we do a very thorough job of investigating the case.  And what we’ve found out many times is at odds with what was reported – the 18 wheeler was exceeding the speed limit; the driver was over his time driving and was rigging his log books so he could drive more; the big truck veered into the other lane and hit the car instead of staying in his lane and missing it; the 18 wheeler driver, had he been paying attention, had 5 or 6 seconds to see the car and avoid the collision; the truck driver was distracted and on his cell phone.  What was reported as an accident that was our client’s fault turns out to be a really good case against the trucking company.

When beginning to evaluate a potential automotive product liability case, a good place to start is with the applicable Federal Motor Vehicle Safety Standard. The Federal Motor Vehicle Safety Standards (FMVSS) are regulations published by the United States Government for motor vehicles related to design, construction and performance. The purpose of these standards is to insure “that the public is protected against unreasonable risk of crashes occurring as a result of the design, construction or performance of motor vehicles and is also protected against unreasonable risk of death or injury in the event crashes do occur. “ The National Highway Traffic Safety Administration (NHTSA) is the agency of the federal government that is responsible for enforcing the Federal Motor Vehicle Safety Standards.

During the 1960s Congress held public hearings regarding highway safety. Out of these hearings came legislation that eventually created NHTSA. The FMVSS, which had already begun to be written and published, beginning with a requirement for the installation of seat belts, fell under the preview of NHTSA. In addition to enforcing the FMFSS, NHTSA has also, from time to time, conducted investigations into safety related issues with motor vehicles, including the ford explorer rollover problem and the Toyota sticky accelerator problem.

The federal safety standards are minimum safety performance requirements. These can form the basis for a thorough investigation and evaluation of a potential crashworthiness case. The regulations themselves are found at 49 C. F. R. 571. These safety regulations address crash avoidance (the 100 series), crashworthiness (200-series), and post-crash survivability (300-series).

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