Abell's Kentucky Law Blog

Sealing Court Records Harms Public

Sealing court documents prevents families from learning about dangerous products and is harmful to the public interest. Congress is considering the Sunshine In Litigation Act to end the practice and promote family safety. 

Here's an example according to the American Association for Justice:  Bausch & Lomb has settled more than 600 contact lens solution cases in the last year. The solution is said to cause fungus infections and can cause blindness. Yet Bausch & Lomb forced all court documents in the case to remain sealed, keeping contact solution users and doctors without any knowledge of the causes of the infections.  Among the sealed documents are internal investigations into the cause of the fungus infections and details of outdated company testing procedures used for market approval-standards which are widely used by other contact solution manufacturers. Read here the AAJ's press release: Loophole In the Courts Leaves Dangerous Products On the Market: Car Tires and Contact Lens Solution Just Two Examples.

Another example is a lawsuit filed against Cooper Tires contending defects allowed the tread to separate from the tires and caused the deadly rollover that killed eight students and a teacher from Utah State University.  A key piece of evidence is a memo that the lawyer representing the families located in a court record in Mississippi.  The memo shows that Cooper Tires did away with the basic safety feature that would have prevented the deadly tire separations and associated rollover problems.  The families' lawyer, Bruce Kaster, testified to the House Judiciary Committee:  "Tens of thousands of Americans, if not hundreds of thousands, have been killed or seriously injured by defective products that manufacturers are aware of, but the public is not," because they manage to seal sensitive documents in court. The Deseret News reports further: Do Courts Sanction Suit Secrets?

Robert L. Abell
www.RobertAbellLaw.com

Salmonella Outbreak Produces Lawsuit by Vermont Family

A Vermont family, whose 7 year old son was stricken by salmonella after eating peanut butter, has filed a lawsuit against the Peanut Corporation of America biz.yahoo reports, "Vermont Couple Sues Over Salmonella Outbreak." The lawsuit claims that the child was sickened after eating Keebler Cheese & Peanut Butter Crackers, which have been recalled by Kellogg's.  The salmonella outbreak, which has killed at least six people and sicked 470 spread over 43 states, was linked by the FDA to a peanut butter processing plant in Georgia operated by the Peanut Corporation of America. The FDA maintains a searchable database of products recalled due to the salmonella outbreak that can be accessed by clicking here.  

Robert L. Abell

www.RobertAbellLaw.com

Kentucky Lacks Emergency Dam Collapse Plans

Kentucky is one of 10 states that does not require dam owners to have emergency plans in the event of a collapse, according to a report in the Lexington Herald-Leader, "More Scrutiny Likely For Ponds." Following the massive failure on December 22, 2008 of the TVA dam near Kingston, Tennessee, which sent loose over 1.1 million gallons of coal slurry destroying three homes, ruining forty-two properties and fouling water supplies, and the much smaller gypsum spill from a TVA pond near Stevenson, Alabama on Friday, Kentucky may be stirring to action, although not too much action. A legislator, Robin Webb D-Grayson, intends to sponsor a resolution but not a bill urging state regulators to require such emergency plans.  But even this small step is welcomed:

Judith Petersen, executive director of Kentucky Waterways Alliance, welcomed the news that state officials are looking into emergency action plans.

"We think it's a very good idea and a very appropriate step," she said. "At least you give the people downstream a better chance."

The alliance is concerned about the potential for an ash spill in Kentucky. It is preparing a request for records so it can look into the issue of safety at ash impoundments, including how they are monitored.

"We've got to stop kidding ourselves that these accidents will never happen."

Robert L. Abell
www.RobertAbellLaw.com

Coal Ash Class Action Lawsuit Settled

A class action lawsuit claiming that coal ash had contaminated drinking water supplies has been settled and awaits judicial approval, the Maryland Daily Record reports, "Fly-Ash Settlement Up For Final Approval."  The lawsuit claimed that a power company dumped its coal ash into two quarries while knowing that toxic substances would leach and contaminate their drinking water.

The settlement requires the utility to pay the costs for 84 homes to connect to the public water system, to pay their water bills for up to 10 years, to place $10 million in a trust fund for the injured homeowners and residents, and to stop dumping coal ash in the quarries.

Robert L. Abell

www.RobertAbellLaw.com  

Dangers From Tennessee Coal Ash Spill

More than a billion gallons -- some 5.4 million cubic yards -- of coal ash sludge broke through an earthen dam at the Kingston Fossil Plan some 40 miles west of Knoxville flooding the nearby Emory River and swamping many homes and properties nearby.  A billion gallons of coal ash sludge can flood more than 3000 acres one foot deep, according to the New York Times, "Tennessee Ash Flood Larger Than Initially Estimated."  The spill is the worst environmental disaster of its kind, exceeding recent, similar spills in 2000 of approximately 300 million gallons in Martin County, Kentucky and in 2005 in Northampton County, Pennsylvania, which dumped about 100 million gallons into the Delaware River.  

A draft report of the Environmental Protection Agency found that coal ash contained significant amounts of carcinogens.  Coal ash is also known to contain high levels of arsenic, lead and selenium, all of which are known to contribute to neurological problems in humans.

Robert L. Abell

www.RobertAbellLaw.com  

Safe Kid's Toys Website

Parents concerned about the safety of kid's toys can find helpful information on a website, amomsblog.wordpress.com, established by an Alabama mother, Trisha Gilbert, the Detroit Free Press reports, "Web Sites Helping Parents Choose Safer Toys For Kids."  Although the Consumer Protection Safety Commission banned the use of a toxic substance, phthalates, in the manufacture of toys the ban does not take effect until February 10, 2009, and toys made before that date containing phthalates may still be sold.  Parents may also find additional, helpful information at healthytoys.org and on the CPSC's website, www.recalls.gov.

Robert L. Abell
www.RobertAbellLaw.com

Hospitals Liable For Patient Infections

Patients and patient's families are having increasing success in holding hospital's liable for preventable infections, according to the Wisconsin Law Journal, "Hospital Infections Spread, So Do Lawsuits."  Patients in Missouri, Massachusetts and Utah have recently succeeded in holding hospitals' liable for injuries caused by infections such as Methicillin Resistant Staph Aureus (MRSA) and necrotizing fasciitis, a flesh-eating bacteria. 

The Center for Disease Control (CDC) reports that 90,000 deaths occur annually from hospital-acquired infections and about 2 million hospital-acquired infections are reported each year.  In recognition that most hospital-acquired infections are preventable, Medicare stopped reimbursing hospitals for treatment related to hospital-acquired infections on October 1, 2008.  

A leading family safety advocate on the issue of hospital infections is the Committee to Reduce Infection Deaths (RID), whose website has much helpful information.

Robert L. Abell
www.RobertAbellLaw.com

Tainted Toys To Remain For Sale, Consumer Product Safety Commission Says

Children's toys, including teethers and pacifiers, tainted by the presence of the controversial chemical phthalate will remain for sale for now and even after a ban takes effect on February 10, 2009, provided they were manufactured before that date, according to a decision by the Consumer Product Safety Commission, the Washington Post reports, "Some Toys With Banned Plastics Will Stay On Market." 

Phthalates are a chemical used in soft plastics and are linked to reproductive problems.  Their use was banned by a law passed in August.  However, the Commission's ruling will allow products made before that date which use the banned substance to be sold, even after February 10, 2009. 

The Commission proposes a remedy that is unworkable; it says that concerned parents can call a product's manufacturer and find out when the item was made.  This is a proposal untethered from reality.  One can first question the reliability of any information a parent would receive.  Do you call before the item is purchased?  Do you identify the item on the store shelf, call and return later hoping to find the same item on the shelf?  Ignoring these realities the Commission caved into industry's complaints about complying with this law protecting families and their children.

Robert L. Abell
www.RobertAbellLaw.com

"Get Out of Jail" Free Cards For Corporations -- American Association for Justice Details Undermining of Family and Consumer Protections

The American Association for Justice has released a report, Get Out of Jail Free: How the Bush Administration Helps Corporations Escape Accountability, detailing the systematic and widespread undermining of family and consumer protections by Bush Administration agencies and political appointees.  Through documents and emails obtained via the Freedom Of Information Act the AAJ report traces the evolution and development of a federal preemption strategy, a legal doctrine by which state law protections for families and consumers are eliminated or "preempted" by federal regulations that insulate corporations from liability, accountability and responsibility for their defective products.

Robert L. Abell
www.RobertAbellLaw.com

Tired Truckers Targeted By New Technology

Tired truckers posed a danger on our nation's highway and the National Transportation Safety Board is urging the adoption of new technologies.  Drivers drifting off because of fatigue poses great dangers and both old and new technologies can increase safety.  New technologies include a dash-mounted camera that would track and driver's eyelids and sound an alarm when detecting fatigue, alarms that would sound when a truck begins to veer and automatic brakes, a measure that requires further research.  Old technologies have also proven effective and their expanded use is also recommended; those technologies include rumble strips, which have been shown to reduce crashes by up to 60%.  The Board also urged that the National Highway Safety Administration step up its monitoring and enforcement efforts regarding the number of hours truckers can drive.

Robert L. Abell
www.RobertAbellLaw.com