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Leading the NewsToyota, NHTSA tests on California Prius fail to produce sudden acceleration.Coverage of Toyota's recall crisis focuses on doubts that are being raised by Toyota and NHTSA investigators about the case a week ago, in which Prius owner James Sikes reported a case of unintended acceleration on a California highway. ABC World News (3/15, story 3, 2:30, Sawyer) reported on whether it was "all a hoax by the driver or...something real," noting that yesterday, "Toyota said there are significant inconsistencies between the driver's story of what happened and what Toyota found in their own investigation." Toyota would not comment on whether it thought that Sikes was perpetrating a hoax, ABC reports, but the company said that its data indicates that if Sikes' description of his actions is accurate, the car would have stopped. The CBS Evening News (3/15, lead story, 3:10, Couric) recalled the "terrifying" 911 call that brought the story to national prominence, noting that Sikes "claimed the accelerator on his Toyota Prius was stuck and his car was speeding close to 100 miles an hour and he couldn't stop." However, "Toyota says its investigation found the gas pedal was normal and the braking system should have been able to stop the car." Moreover, a DOT spokesman "said 'We have not been able to find anything to explain the incident Mr. Sikes reported.'" Moreover, "The hybrid's unique self-diagnostic system found [the brakes had] been pressed lightly but repeatedly during Sikes' drive." Bob Waltz, Vice President, Product Quality and Service Support, Toyota: "The data that we were able to measure off of the vehicle indicates that the brakes were applied approximately 250 times during that particular ride." Reynolds: "But Toyota engineers said that had Sikes been standing on the brakes, as he claimed to police, that would have overridden the accelerator and stopped the car." NBC Nightly News (3/15, lead story, 3:00, Williams) reported on the story's impact on Toyota's already tarnished image for safety and quality. "But then the rumbling started. Was the driver telling the truth?" NBC reports that neither NHTSA nor Toyota were "able to replicate the stuck accelerator. ... Toyota says there's evidence...Sikes lightly rode the brakes off and on 250 times over 30 miles rather than applying constant pressure like he told police. While Sikes version has been questioned, he stood by his story." The Los Angeles Times (3/16, Perry, Olivarez-Giles) reports that Toyota says its findings are "'inconsistent' with the driver's account" and that "two days of testing failed to reproduce...Sikes' reportedly stuck accelerator, leading to a nearly 30-minute ride on Interstate 8 before he could get the car stopped. An examination of Sikes' car shows that it would have stopped if the driver had stepped aggressively on the brake, said Bob Waltz, the auto company's vice president of product quality and service support." Meanwhile, NHTSA, "which has also been examining Sikes' 2008 Prius, said that testing might not be able to reproduce the incident. 'We would caution people that our work continues and that we may never know exactly what happened with this car,' the agency said in a statement." Toyota drivers sue seeking refunds for recalled cars. MarketWatch (3/16) reports that the Hagens Berman law firm says that "Toyota owners have added a new demand in the ongoing struggle with the car manufacturer concerning a long litany of safety complaints and issues: a refund. In the first-of-its-kind class-action case, attorneys charge that the world's largest auto manufacturer produced vehicles so profoundly flawed with safety defects, and completely botched the recall process, that the only remedy is for owners to return the cars to Toyota." Bloomberg News (3/16, Schneider, Harris) adds that customers in Washington State have sued Toyota "demanding refunds for cars being recalled over defects that include sudden acceleration. Toyota was accused of breach of warranty, sale of unsafe vehicles and unjust enrichment in the complaint, filed today in federal court in Seattle. The complaint, which seeks class- action, or group status, is the first against Toyota to seek full refunds, lawyers for the car owners said." Toyota drivers sue over acceleration problems. The Washington Post (3/16, Hedgpeth) reports that two Toyota drivers from the DC-Metro area filed lawsuits against Toyota, saying "they suffered severe injuries after the cars they were driving suddenly accelerated. ... Their attorney, Todd Walburg of Lieff Cabraser Heimann & Bernstein, blamed an electronic throttle system for the unintended acceleration and said the system also operated without a brake override system that could have prevented throttle problems." The Kansas City Business Journal (3/16) reports on class-action litigation filed in Kansas and Missouri "in response to Toyota's massive recall of various vehicle models for safety issues." They "zero in on so-called 'sticky accelerator' issues, which allege that Toyota models in question had accelerators that stayed depressed even after the drivers stopped pushing the pedals, or accelerators that caught on the floor mats." Toyota hit with RICO claims. The National Law Journal (3/16, Bronstad) reports, "Plaintiffs lawyers spearheading the litigation against Toyota on behalf of consumers whose vehicles have been recalled have added racketeering claims. They allege that the Japanese automaker falsely denied for the past decade that its vehicles are subject to sudden unintended acceleration and other defects." The latest claims "were added by a consortium of 29 law firms in more than 20 existing lawsuits and accuse Toyota of violating the federal Racketeer Influenced and Corrupt Organizations Act (RICO)."
Civil Justice SystemOverdraft fee class-actions may proceed, judge rules.The Daily Business Review (3/16, Kay) reports, "A Miami federal judge has denied requests by the nation's biggest banks to dismiss a class action suit by checking account customers who claim they are being charged abusive overdraft fees on debit cards. Senior U.S. District Judge James Lawrence King's 50-page ruling Thursday keeps alive a closely watched consumer lawsuit that could be worth hundreds of millions of dollars and is shining a national spotlight on what plaintiffs lawyers say are egregious bank practices." Co-lead counsel Bobby Gilbert of Alters Boldt Brown Rash Culmo said that "if the suits are successful...damages could run into the hundreds of millions of dollars, pointing to a recent report by the Center for Responsible Lending indicating U.S. banks generated $24 billion in overdraft fees in 2008."
Jury awards $50M verdict in fraud case against Shell Oil subsidiary.The Recorder (3/16, Moser) reports, "It wasn't a typical case for San Francisco plaintiff malpractice specialist William Gwire, but last week, his decision to stick with it paid off. 'Once in a while something like this comes along that's really interesting,' Gwire said about the case, a week after a Los Angeles jury awarded his client $50 million in punitive damages." Gwire won the "case against Shell Oil subsidiary Equilon Enterprises, which allegedly" sold his client a gas station "while concealing from him information about pending state water districts' environmental actions targeting the Texaco station site." Christina Imre, "a punitive damages expert in the Los Angeles office of Sedgwick, Detert, Moran & Arnold who isn't involved in the case, said there was a 'good chance' the judge would reduce the award." South Carolina Supreme Court overturns $18M verdict against Ford in fatal SUV crash.The AP (3/16) reports, "South Carolina's highest court on Monday overturned an $18 million verdict against Ford Motor Co. in a fatal crash, ruling that one expert shouldn't have been allowed to testify about cruise-control problems." Sonya Watson was paralyzed and Patricia Carter was killed after they "were ejected" from Watson's Ford explorer in a 1999 crash. "Electrical engineer Antony Anderson testified at trial that electromagnetic radiation had interfered with the cruise control system and caused Watson's sudden acceleration. But Anderson didn't know enough about Ford Explorers or their systems to testify as an expert," said Chief Justice Jean Toal in his opinion. Georgia jury returns $15M verdict in car accident, but finds no liability for Chrysler.The Fulton County Daily Report (3/16, Land) reports, "A Georgia state court jury has held an alleged drunk driver responsible for $15 million in damages to a girl injured in a car accident, but the plaintiff likely will get only a fraction of the award because the driver has few resources and the designer of the girl's seat, which broke during the wreck, was cleared by the jury. Complicating matters, according to the plaintiffs lawyers, was the bankruptcy-mandated dismissal of what was then DaimlerChrysler Co. from the case." Law & Moran partner E. Michael Moran said that the jury "wanted to attribute some portion of the liability to Chrysler," but "had concerns about the fairness issue, because Chrysler didn't have a lawyer there defending them." Third Circuit rules firm can be sued for work on harassment case, despite not representing plaintiffs.The New Jersey Law Journal (3/16, Gallagher) reports, "A federal appeals court says a law firm can be sued over its work in a sexual harassment case against a Rutgers University professor, even though it didn't represent the plaintiffs. The ruling, in Speeney v. Rutgers, No. 07-4527, reinstates a suit by three former Rutgers graduate students against McElroy, Deutsch, Mulvaney & Carpenter and two partners, Irving Hurwitz and Linda Celauro. The plaintiffs allege that the firm - which Rutgers retained as counsel in proceedings against the professor - acted as their lawyers, too, and they accuse the firm of malpractice and breach of a fiduciary duty for how it resolved the case." New Jersey Assembly approves deadlines on actions against regulated professionals.The New Jersey Law Journal (3/16, Booth) reports, "The state Assembly on Monday gave final approval to legislation that would impose deadlines on actions against regulated professionals and restrict how local governments change zoning ordinances. By a 77-0 vote, the Assembly passed S-936, which requires that consumer complaints involving professionals regulated by the Division of Consumer Affairs be resolved within 120 days of the filing of a complaint." The bill "does contain a provision that would allow the division to toll the 120-day period if more time is needed to investigate or obtain expert witnesses or if the professional is the subject of a criminal investigation." NYTimes urges Congress to approve tribal settlement.The New York Times (3/16, A22) editorializes that Congress has not yet signed off on the $3.4 billion settlement reached last year between the US and "hundreds of thousands of American Indians" of "claims that reached back to the 19th century." The Times calls this failure "disgraceful, especially since there seems to be no serious substantive opposition to the deal." The Times adds that the "main enemy is sloth" and that "the Indians have waited long enough."
CongressDodd unveils new financial reform bill.The AP (3/15, Kuhnhenn) reports that Senate Banking Committee Chairman Chris Dodd unveiled a new financial regulation bill that "would give the government new powers to break up firms that threaten the economy, force the industry to pay for its failures and create an independent consumer watchdog within the Federal Reserve." Despite these powers, the plan "falls shy of the ambitious restructuring of federal financial regulations envisioned by President Barack Obama or contained in legislation already passed in the House." However, Dodd stood alone when announcing his plan, "a sign of the difficult task ahead of him," and "lobbyists were already mobilizing to change several of its features." Drug SafetyWSJournal blasts suits blaming vaccines for autism.The Wall Street Journal (3/16) editorializes in support of recent rulings by the Court of Federal Claims against the parents of autistic children who alleged that the autism had been caused by vaccines. The Journal decries such suits, arguing that they lack hard evidence. Employment/Workplace Safety
Eleventh Circuit to rehear Home Depot harassment case.The National Law Journal (3/16, Baldas) reports, "Two men who are suing Home Depot USA Inc. for alleged sexual harassment and retaliation will have their case heard by the entire U.S. Court of Appeals for the 11th Circuit - and they didn't even have to ask. In an order that surprised the plaintiffs' attorney, the 11th Circuit on March 10 said that it decided on its own to have the whole court rehear the case, which claims that a male human resources manager made numerous, unwanted sexual advances toward the plaintiffs." The appeals court "said that one judge had requested a poll on whether the full court should rehear the case and that a majority of the judges voted for an en banc hearing." Third Circuit finds combination of expert, own testimony sufficient for employee to seek FMLA leave.The National Law Journal (3/16, Baldas) reports, "A doctor's note may be enough to seek time off under the Family and Medical Leave Act, but the sick employee's testimony counts for something, too. So held the U.S. Court of Appeals for the 3rd Circuit last week in an issue of first impression before the court, concluding that a combination of expert and lay testimony can be used to prove that an employee was incapacitated for more than three days under the FMLA. The March 11 opinion involved medical receptionist Racheal Schaar, who had sued her employer in 2007 for allegedly refusing her leave for a urinary tract infection and subsequently firing her." Medical Errors/HealthcareGeorgia SC upholds higher standard of proof in med-mal cases, "offer of judgment" rule.The AP (3/16, Bluestein) reports, "A sharply divided Georgia Supreme Court on Monday upheld a key part of a sweeping 2005 law that made it more difficult for patients to win medical malpractice cases involving emergency healthcare providers." The ruling, "a blow to plaintiff's attorneys and other critics of the legislation," requires a "higher standard of proof" by "patients injured by emergency room workers to win malpractice claims." The legislation required the plaintiffs "to prove emergency room doctors acted with 'gross negligence'" when they failed "to order a test that would have detected" a brain aneurysm. The plaintiffs argued that "the requirement was unconstitutional, saying it's a nearly insurmountable hurdle." The Fulton County Daily Report (3/16, Palmer) reports, "The court also divided 5-2 to uphold a fee shifting rule that is supposed to deter the filing of frivolous suits and encourage settlements." Under the "offer of judgment" rule, "a party can be ordered to pay the other side's attorney fees if it rejects a settlement offer but doesn't fare much better than the offer when the case is decided in court." The high court's "treatment of the case showed not only that the court was split over the state Constitution's treatment of access to courts but also that the court's newest justice, [David E.] Nahmias, thinks that the value of court precedent is diminished in the context of constitutional interpretation." The Atlanta Business Chronicle (3/15, Williams) also covered the story. Texas SC upholds med-mal filing deadline.The Fort Worth Star-Telegram (3/15, Hunt) reported, "A Texas woman who discovered that a sponge had been left inside her during a hysterectomy does not have the right to sue the hospital and doctor because more than 10 years had lapsed before the surgical error was discovered, the Texas Supreme Court has ruled. The court, overturning an appeals court decision, upheld a state law that sets a 10-year limit for consumers to file medical malpractice claims, even when a medical error is not discovered within that period." Critics, "however, said the ruling denies patients injured by negligence the right to have their cases heard in court if it takes years to figure out what's wrong." Some hospitals establishing procedures to handle staff members who make medical errors.In the Wall Street Journal (3/16) Informed Patient column, Laura Landro writes that the April edition of the Joint Commission Journal on Quality and Patient Safety includes an analysis of a fatal medical error that occurred when a nurse accidentally mistook penicillin for an epidural. The review concludes that the nurse bypassed several safety procedures, and that flaws in the hospital's system of delivering care contributed to the error. But, in an accompanying editorial, Charles Denham, co-chairman of a National Quality Forum safe-practices committee, among other experts, criticized how the nurse was left to defend herself against charges brought by the state without support from the hospital. Landro notes, however, that some hospitals are now trying to improve safety by establishing procedures for handling staff members who make errors. FDA issues warning letter to Florida psychiatrist.The Miami Herald (3/16, Miller) reports that in a Feb. 4 letter, the Food and Drug Administration said that South Florida psychiatrist Sohail Punjwani, MD, "failed 'to protect the rights, safety, and welfare' of children enrolled in clinical drug trials," by over-medicating participants in "trials for undisclosed drugs." Punjwani also "failed to 'adhere to the applicable statutory requirements and FDA regulations governing the conduct of clinical investigations.'" The Herald points out that some of the medicines prescribed by Punjwani had not received FDA approval for use in children and were associated with an increased risk for suicide in pediatric patients. Product SafetyOpening arguments begin in bellwether Chinese drywall case.Bloomberg News (3/15, Van Voris, Johnson) reported, "Knauf Plasterboard Tianjin Co., a Chinese drywall maker, ruined a young family's new home with its defective product," Chris Seeger, "a lawyer for Tatum and Charlene Hernandez, said today in his opening statement to U.S. District Judge Eldon Fallon, who is hearing the case without a jury." The case, "part of coordinated multidistrict litigation over allegedly defective drywall, is intended as a bellwether to help determine property damage issues in other cases against manufacturers." Knauf "disputes the amount of money the Hernandez family claims is needed to repair the damage." The AP (3/15) reported that Knauf "is arguing that the Hernandez home can be restored for about $54,000. The plaintiffs argue that cost is closer to $211,000." The Sarasota (FL) Herald Tribune (3/16, Kessler) reports, "The plaintiffs' attorneys argued...that the only way to solve the problem is to essentially take the home down to the studs -- removing all drywall, wiring, piping and other components." The "defense team for KPT argued that a much more limited remediation would do the job, saying that while it agreed on removing the drywall itself, nearly everything else -- the electrical system, plumbing and items like appliances -- could remain behind." One of "the most contentious issues -- that of 'taint,' or reduced value of a home because of the stigma of Chinese drywall -- will not be argued at this week's trial."
Chinese drywall repairs may be expensive for builders.The South Florida Business Journal (3/15, Brinkmann) reported that at a "demonstration for local builders, contractors and homeowners in Parkland," FL, Kogen Construction presented a case in which the company built a home for $1.7 million, and had to spend $220,000 "on approved fixes for Chinese drywall problems." Boston Scientific recalls two implantable heart defibrillators.The Wall Street Journal (3/16, Rockoff) reports that Boston Scientific Corp. announced a recall of its implantable heart defibrillators Monday, saying that the company failed to tell regulators about certain manufacturing changes to the devices. The New York Times (3/16, B1, Meier) reports on the front page of its Business Day section that a spokesman for the FDA "indicated that the matter did not involve a safety issue for patients who had the devices." "The company said it uncovered two production changes that were not cleared with the" FDA, the AP (3/16, Perrone) reports. Boston Scientific "said it will retrieve all the affected devices from suppliers and hospitals." But, "it was unclear when the company would resume sales." Bloomberg News (3/16, Olmos, Larkin) reports that some analysts expect "the suspension of...the ICDs and cardiac resynchronization therapy defibrillators" to "benefit market leader Medtronic Inc. and smaller competitor St. Jude Medical Inc." The Minneapolis Star-Tribune (3/16, Moore) reports, "Product families named in the advisory include Cognis, Confient, Livian, Prizm, Renewal, Teligen and Vitality, all of which were manufactured since March 2009. The recall encompasses cardiac resynchronization therapy defibrillators, but not pacemakers." FEMA trailers planned for sale should be destroyed, says columnist.In his Washington Post (3/16, A19) column, Eugene Robinson says the Administration's plans to sell "more than 100,000 contaminated trailers and mobile homes" left over as "a legacy of the Bush administration's botched response to Hurricane Katrina" may "make people sick." Noting findings that the units contain unsafe levels of formaldehyde, Robinson says they should be destroyed, and calls on the EPA "to finally set standards for the presence of formaldehyde in indoor air." Also in the NewsAs House readies for vote, Democrats' healthcare strategy creates controversy.Speaker Nancy Pelosi on Monday suggested that House Democrats may use a procedural tactic, already tagged with the label "the Slaughter Solution" (after Rules Committee Chairwoman Rep. Louise Slaughter (D-NY)) to pass healthcare reform. The tactic, which the Washington Post (3/16, Montgomery, Kane) calls a "sleight of hand," would allow her caucus members to vote on the reconciliation package of fixes to the Senate healthcare bill without taking a recorded vote on the Senate bill itself. The move comes as House Democrats geared up to advance the measure, with a first vote in the Budget Committee. McClatchy (3/16, Lightman) reports that while the maneuver "would enable House members to avoid casting a politically risky vote on the Senate package," using "such a dicey procedure to enact President Barack Obama's biggest domestic initiative - the most far-reaching social policy change in decades - could inflame a public that's already annoyed at the legislation's tortured path and disgusted with Congress." The Hill (3/16, Allen) reports Republicans "criticized the move, and said it would allow Democrats to avoid taking a tough vote on the Senate healthcare bill, which is under attack from the anti-abortion rights Democrats as well as Hispanic members and liberals." | ||||||||||||||
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