Articles Posted in Product Liability

Some defective Personal Emergency Reporting System (PERS) Transmitters are being recalled by Linear because the battery clips in the transmitters can corrode causing the transmitters to operate intermittently or not at all, without generating a warning.

The recalled Linear PERS transmitters allow users to push a button on the transmitter to summon assistance. Models recalled are:

• The DXS-LRC, a gray plastic pendants with a black circle in the center and can be worn as a pendant around the neck or on a wristband.
• The DXS-LRP, a white pendant with a green swirl design on the front.
• The DXS-LRW a solid black wristband with a black plastic face and black button in the center.

A defective electrical component in Philips HeartStart defibrillators may fail to deliver a needed shock in case of emergency, warned the FDA yesterday. This safety alert by the FDA follows the recall by Philips of three models of its HeartStart devices in September 2012 due to an internal electrical malfunction.

The recall affects about 700,000 defibrillators sold between 2005 and 2012. The FDA recommends Customers who have received the affected devices contact Philips at 1-800-263-3342 to receive a replacement.

A defective air pressure switch in some Crown Home Heating Boilers can fail to shut down the burners allowing the boiler to emit excessive amounts of carbon monoxide, exposing consumers to CO poisoning hazard. Carbon monoxide poisoning is extremely dangerous because it is a deadly odorless gas. Carbon monoxide poisoning is the leading cause of poisoning death in the United States.

The models involved in the recall are Crown Boiler CWD series cast iron hot water boilers that use natural gas or liquid petroleum to heat water in home baseboard, floor or radiator heating systems. The boilers are red and gray, about 37 inches tall, about 23 inches deep and range from about 16 to 42 inches wide. The Crown Boiler logo is on the front of the boiler. Recalled boilers have model numbers that begin with CWD and were manufactured between May 1, 2005 and July 1, 2013.

For complete information on model numbers and repair go to the CPSC website

To prevent dangerous and defective products from reaching American consumers, the CPSC has been using a state-of-the-art risk assessment tool pilot called risk assessment methodology (RAM) for its port surveillance. As a result, the screenings led to the identification of about 680 shipments containing violative or defective products, totaling about 6.1 million units for the first half of the 2013 fiscal year. About 600 of the product shipments stopped were children’s products totaling about 1.2 million units. This compares to approximately 450 product shipments stopped with a total of 900,000 units during the same period in the 2012 fiscal year.

Read more on the CSPSC website

All GemStar Infusion Pumps that were either manufactured or had a pressure sensor replaced during servicing of the pump since January 1, 2009 are being subjected to a FDA Class I recall because of a potential pressure sensor calibration drift.

A calibration drift is a gradual degradation of the sensor and other components that can make readings offset from the original calibrated state. A pump with this issue may, instead of reporting an error, not detect occlusions or issue false occlusion alarms, which will stop the infusion and invoke visual and audible warnings to the user. This issue may also result in the pump shutting down.

As a consequence the patient therapy may be delayed or interrupted which may result in significant injury or death.

Some potentially defective Anesthesia workstations and service kits manufactured by Spacelabs Helathcare are subject to a class I recall by the FDA. The recalled models are the BleaseSirius Anesthesia Workstation, the BleaseFocus Anesthesia Workstation, and Service Kits Part Number 050-0659-00 and 050-0901-00.

These products are used in hospitals. They provide respiratory support to deliver oxygen, air, and nitrous oxide in a controlled manner to various patient-breathing circuits with or without the use of a mechanical ventilator, and may be used to deliver anesthetic vapor.

The defective products may cause serious adverse health consequences, including death.

By Anthony Gair

A. COST

Product liability cases are different from general negligence cases and even medical malpractice cases for several reasons. First and foremost is the cost involved in litigating these cases. The costs involved for the plaintiff’s attorney can be astronomical. It is not unusual to accumulate well over $100,000.00 in expenses prior to trial. Obviously, much more may be expended should the case proceed to trial. Thus, when you, as a plaintiff’s attorney, are considering the representation of an injured plaintiff, the first question that must be answered is whether it is worth the cost, time and resources that will have to be put into the prosecution of the case. It is suggested that, with some exceptions, a case not be undertaken unless it has a value in excess of seven figures. However, if you are dealing with a product with a documented manufacturing flaw or defect which you know has been previously litigated or recalled, the potential value of the case can be less. Similarly, in a design defect case, if there has been a product recall, the same applies. Further, if you have previously successfully litigated a case involving the same product there is no reason not to take it, even if it is not a seven figure case.

The plaintiff’s attorney must also understand that manufacturers are proud of their products and will not simply roll over and play dead. Many manufacturers have defense firms on retainer to handle cases brought against them throughout the country. These attorneys know the product involved, are generally highly experienced and have the best experts at their disposal in addition to the design engineers who designed the product. These national counsel have relationships with local attorneys who also have expertise in defending these cases.

Since most of the cases you will see are those involving alleged design defects and/or failure to warn this article will focus on those types of cases. It is suggested that if the only theory you can come up with is that of failure to warn, unless it is clear cut, you should be cautious about taking the case, since in New York culpable conduct is a defense to a Product Liability case. In practice, if you have a failure to warn case, you will usually have a design defect case as well.

B. TIME AND PUTTING IT TOGETHER

If you undertake to handle a product liability case, be prepared to spend a countless number of hours on it. Not only will you have to learn all there is about the particular product, as discussed further, you must learn the principles of safety design engineering. Similar to a medical malpractice case in which you must learn the area of medicine involved so as to effectively cross-examine the defendant doctors and their experts, the same is true as to the field of design engineering.

The most important first step is to choose the right expert or experts. Under no circumstances pick a generic expert, one that testifies in any type of case. It is imperative that you choose a case specific expert who has actually worked in the industry and will survive a Daubert/Frye preclusion motion.
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Some defectives guidewires manufactured by Medtronic can cause serious injury or death. The voluntary recall initiated by Medtronic in October was recently classified as a Class I recall by the US FDA.

Guidewires are inserted in arteries to guide and place stents. Those being recalled have a coating that can break off and block a blood vessel.

Medtronic initiated the recall after four problems were reported including one patient who suffered cardiac arrest but was resuscitated according to WebMD