Archive for the ‘Product Liability’ Category

Toyota Again Puts Spin Before Safety

Monday, July 12th, 2010

Our Toyota car accident attorneys have commented on the rash of evidence coming to light of the negligent safety practices at Toyota Motor Corporation.  Just when many had become convinced that Toyota had turned a corner, and that we had learned all there is to learn about the auto company’s misdeeds and its disregard for the safety of its consumers, yet another delayed recall has come to light.

Last week, Toyota announced a recall of almost 139,000 Lexus automobiles.  This latest recall relates to potential defects in valve springs, which can leave to engine failures.  All told, the company expects this recall to extend to about 270,000 luxury vehicles, including Lexus cars and Toyota Crown autos.  The recall will extend to vehicles in the United States, as well as Japan, Australia, Canada, Europe, and elsewhere.  Toyota has now recalled over ten million vehicles worldwide over the course of a few short months.

In the first and most highly publicized of the recent recalls, Toyota recalled a series of vehicles whose accelerators could become stuck.  The public then learned that Toyota waited at least four months, after learning of this extremely dangerous sudden acceleration defect, before informing U.S. authorities.  The second publicity disaster involved the Toyota recall of SUVs and pickups whose steering systems can break, causing drivers to lose control of the vehicles.  Shockingly, in that instance it came out that after learning of the defect Toyota waited at least a year before informing U.S. authorities and issuing the U.S. recall.

The stories grow ever more shocking.  Our Chicago wrongful death attorneys were startled to learn that this time, Toyota waited over three years from the time it first learned of the defect until it notified U.S. authorities and issued a recall.  Indeed, Toyota first learned of the defect comprising last week’s recall at least as early as March of 2007.  Although there have not yet been any reports of accidents or deaths arising from this particular defect, it seems highly likely that a defect leading to complete engine failure would eventually result in fatalities or serious injury.  Toyota’s decision to gamble with the lives of its customers and those in their paths for over three years is simply inexcusable.

It seems that Toyota has a pattern of disregarding consumer safety and unreasonably delaying product recalls.  This makes the role of courageous victims that much more important in forcing the company, and others like it, to readjust its priorities.  Toyota Motor Corporation has now conclusively demonstrated that it cannot be trusted to itself take measures to ensure public safety.  Nor can the U.S. authorities effectively force compliance from the automobile industry:  indeed, the latest series of recalls indicates that the industry is actively flouting its reporting obligations.

It is sad but true that many corporations will only take steps to protect consumers and the public when forced to do so – and civil litigation seems to be the only effective tool.  If you or someone you love has been injured or lost their life due to a defective product (whether a Toyota or not) or as a result of negligence in some other context, your courage to take action against the company may be the only thing that can force action, and prevent further injuries and death.

Contact one of our top-rated Chicago car accident lawyers.  We urge those injured by the negligence of Toyota to come forward, and to not only  make them pay for what they have done, but make them think twice about doing it again, for the fourth time.

For a free consultation with an experienced Chicago personal injury lawyer at Passen Law Group, call us at (312) 527-4500.

Product Liability Lawyers Receive Guidelines for Defeating Summary Judgment

Friday, June 11th, 2010

A recent case from the Appellate Court of Illinois, Third District has outlined what an Illinois personal injury lawyer needs to do to defeat a defendant’s motion for summary judgment in product liability cases.  The opinion, which contains an extensive synthesis of prior caselaw, also clarifies the standards that apply when the allegedly defective product that caused plaintiff’s injuries is now missing.  To top Chicago products liability attorneys like those at Passen Law Group, this opinion provides helpful guidance in crafting expert affidavits and responding to defense summary judgment motions in order to bring our clients’ cases to trial for the results they deserve.

In Davis v. Material Handling Associates, Inc., the appellate court rebuked the trial court for applying an inappropriately exacting standard to plaintiffs opposing defensive summary judgment motions.  The plaintiff in Davis was injured when an “order picker,” a hydraulic lift used to elevate employees to “pick” items for shipment off high shelves in a warehouse, broke.  In particular, the accident was attributable to a broken hose and hose bracket.  The defendants took possession of the hose and bracket after the accident, then lost them.

The defendants maintained that the accident was caused by negligent use of the order picker, specifically by the plaintiff’s colliding the hose bracket into racks.  Plaintiffs, however, contended (among other theories) that the order picker was negligently designed so that tension was improperly placed upon the hose.  Plaintiff submitted an affidavit from an engineer-expert in support of this contention.

The defendant-manufacturer moved for summary judgment, and the trial court granted this motion.  The trial court held that in order to defeat a motion for summary judgment on a product liability case, the plaintiff “must eliminate misuse and all other causes before a cause of action can continue on a theory of defective design.”  The court held that plaintiff had not done so, because “a reasonable trier of fact could conclude” that negligent maintenance of the hose on the order picker was a cause of the accident.  The plaintiff then sought to file an amended complaint adding other theories of causation, a motion which the trial court denied.

On appeal, the Third District first conducted a survey of the many opinions stating that it is not necessary for a products liability plaintiff to conclusively exclude all other potential causes of her accident in order to defeat summary judgment.  Our products liability lawyers are pleased to see the Third District put to rest this recurring mistake in the law:  while this standard is plainly wrong, it persistently reemerges again and again.

The Third District then concluded that the trial court had improperly granted the defendant manufacturer’s motion for summary judgment.  The court held that to avoid summary judgment, a products liability plaintiff must simply create a genuine issue of material fact as to whether the product in question was defective when it left the custody and control of the defendant.  Because the Davis plaintiff had submitted an expert affidavit stating that the product was defectively designed, he had done just that.  It was thus for the trier of fact to determine the true cause of plaintiff’s injuries.

The Third District also specifically addressed several of the defendant manufacturer’s arguments in support of the trial court’s decision.  The court stated that the precedent clearly demonstrates that to defeat summary judgment, a products liability plaintiff need not eliminate all other possible causes of the accident.  Additionally, the court found that the engineer-expert’s affidavit was properly supported by reference to the facts:  an examination of the order picker, an examination of documents (including the service history of the order picker), and a review of the deposition testimony of the fact witnesses.

The court did note that, under its own precedent, in order to defeat summary judgment a products liability plaintiff must provide more than a possibility that a defect was the cause of the accident.  An expert’s opinion must thus not be speculative, and must be tied to the factual evidence – although that evidence can be circumstantial.  This guidance from the Third Circuit will help thoughtful personal injury attorneys and wrongful death lawyers to craft even better, more bulletproof expert affidavits.  Using the affidavit in Davis as a model, we can ensure that our clients reach trial and have the best chance of an appropriate award.

For a free consultation with an experienced Chicago personal injury lawyer at Passen Law Group, call us at (312) 527-4500.

Government Ineffective Against Pharmaceutical Misconduct Even When It Imposes Record Fines

Tuesday, June 8th, 2010

Those who follow the news may be impressed by the massive fines they have seen imposed against pharmaceutical companies for their misconduct, including off-label marketing.  Periodically, the press reports a fine against one of these companies reaching into the hundreds of millions of dollars.  Surely, with such fines imposed, the drug companies and the industry as a whole will begin acting responsibly?  Unfortunately, our Chicago personal injury lawyers of the Passen Law Group, among others, have observed that this is not the case.  These penalties have proven completely ineffective in reigning in the negligent and abusive practices of drug companies.

In addition to the large dollar figures, such settlements also often include what are affectionately known as “CIAs,” or Corporate Integrity Agreements.  These agreements, in theory, allows the government to keep an eye on the company’s future compliance efforts, even steering or directing those efforts.  The government apparently believes that a settlement containing a CIA will create compliance from that company in the future.   The evidence is to the contrary: some recent fines have even been leveled against companies who were already operating under such agreements from prior misconduct.

Moreover, our Chicago wrongful death attorneys believe that government fines, in addition to their ineffectiveness, may actually be harmful to Americans.  There is nothing preventing companies from passing these fines along to future customers in the form of increased drug prices.  Americans are thus hurt in a multitude of ways by the companies’ wrongful conduct – they pay for Medicare and Medicaid reimbursements for off-label and dangerous drug uses, they pay the societal and healthcare costs for treating and dealing with the severe, debilitating, or even fatal side effects, they pay the costs of government litigation against the drug companies, and then they pay higher prices for medicines in the future.

The perfect example is the recent fine leveled against drugmaker AstraZeneca for marketing abuses in connection with Seroquel, the company’s marqee psychiatric drug.  Seroquel has FDA approval – for a limited number of uses.  Seroquel’s FDA approval extended only to short-term treatment, of specific conditions:  schizophrenia and acute bipolar 1.  It is alleged, however – by both the Justice Department and numerous civil and class-action plaintiffs – that the company aggressively and consistently marketed the drug for long-term use, and for the treatment of a much wider array of conditions.  The Justice Department’s complaint stated that AstraZeneca marketed the drug “as a long-term cure-all for a broad spectrum of psychiatric maladies, including . . . aggression and agitation in children.”  The company also allegedly marketed the drug for the long-term treatment of dementia.  Making this off-label marketing even more egregious, clinical studies on Seroquel have had mixed results, but have often shown “serious and debilitating” side effects – particularly in the elderly and children.

The type of doctors to whom Seroquel was marketed was also part of the problem.  For its approved uses, Seroquel should most commonly be prescribed by psychiatrists.  But the company marketed the drug to general practitioners, staff at veteran’s hospitals and prisons, staff at nursing homes, and even to neighborhood physicians.  By doing so, AstraZeneca essentially used patients, including America’s veterans, elderly, and children, as test subjects for unapproved, unsupervised trials of the use of Seroquel for the treatment of additional conditions.  Our wrongful death attorneys are shocked by this betrayal of the public trust.

After the Justice Department filed its criminal complaint against AstraZeneca, the company decided to settle.  The company’s stated reason was, of course, to “avoid the delay, uncertainty, inconvenience, and expense of protracted litigation.”   The company worked out a deal with the government that included a record-breaking $520 million civil-only fine.  This fine was touted as a major victory in a press conference held by no less than the Attorney General, the Secretary of Health and Human Services, and the head of the FDA.

But despite the hype (and the fact that $520 million sounds like a lot of money to most Americans), the fine, like most, has proven far too small to be effective.  Indeed, this staggering fine is actually just over 15% of the amount Seroquel earned for AstraZeneca in the U.S. during the years that the company was actively marketing the drug to physicians for dangerous, unapproved, off-label uses.  In that time, the company made an unbelievable $8.6 billion dollars from U.S. Seroquel sales – making even this record fine little more than a slap on the wrist.

AstraZeneca was already operating under a CIA during at least some of the years in which it aggressively marketed off-label uses of Seroquel – a CIA was imposed in connection with a $355 million fine imposed for the marketing of an AstraZeneca cancer drug.

The personal injury attorneys of Passen Law Group know that there is every reason to question the government’s effectiveness in cases of drug company misconduct.  Along with the massive underfunding of both the FDA and the Justice Department’s enforcement, the government has several serious incentives to settle, rather than fully prosecute, these cases.  First, the government, and particularly the high-ranking officials, like to have an occasional large settlement to trot out to the press.  The risk of the bad press of a costly prosecution and a not-guilty verdict, from the perspective of the political fallout to these high-profile politicians, it considerable.  Additionally, if the government were to succeed in one of these prosecutions, the law would then require that it exclude the offending company from any federal healthcare programs.

Not only would such an exclusion deprive federally-funded patients of the medicines produced by these companies, it could have a profound negative impact on the industry.  Most pharmaceutical companies get between 30% and 40% of their revenue from federally-funded programs.  Exclusion could thus put a company completely out of business, rocking the industry and destroying countless jobs.  With these various settlement incentives, there is every reason to believe that the government is not really trying to win these cases.

Our top Illinois injury lawyers urge the government to begin to take these cases seriously.  Funding for prosecutions must be increased, and the government must begin When cases are settled, they must be for more that a token amount, and there must be conditions imposed preventing the company from passing the cost along to customers.  Finally, the government should remove the exclusion penalty, thus allowing it to aggressively litigate these cases, and see them through to completion.  Until then, however, the only true means of protecting consumers and punishing offending companies will be civil litigation brought by top products liability lawyers such as those at Passen Law Group.

For a free consultation with an experienced Chicago personal injury lawyer at Passen Law Group, call us at (312) 527-4500.