... and Justice for All

Drop Side Crib Recall

Following the death of one child and harrowing incidents involving others the Consumer Product Safety Commission announced today the recall of about 600,000 drop side cribs manufactured by Delta Enterprise Corp.  The drop side of the defective cribs can detach when its spring peg is not engaged.  Further and detailed information can be obtained at the CPSC website by clicking here.

Robert L. Abell
www.RobertAbellLaw.com

Increased Efforts To Prevent Injured Families From Holding Corporations Accountable

The Wall Street Journal reports that the Bush Administration, as it winds down amidst the meltdown of our national economy causing the loss of some $2 trillion of Americans' retirement savings and the faltering wars in both Afghanistan and Iraq, is moving aggressively to erect further bars preventing injured families from holding accountable the corporations responsible.  See "Bush Rule Changes Could Block Product-Safety Suits."  The latest instance of lawsuit-protection language for corporations that have harmed and injured American families is a rule announced Oct. 8 that establishes a limit on the number of seat belts car manufacturers can be required to install and prevents lawsuits by injured persons who were unable to be protected by a seat belt.  This is the latest installment of the Bush Administration's efforts to insulate corporations from responsibility, accountability and liability for their wrongful actions through the legal doctrine of "preemption."  The Bush Administration has wholly abandoned long-standing rules and practices to aid and protect American families in favor of rewarding the corporate interests that it serves.  Unlike the $750 billion bailout for the financial services industry that American families were recently touched upon to fund, the preemption bailout goes on by stealth and largely unnoticed.  Both achieve the same result: shifting to American families the burdens created by irresponsible and wrongful corporate actions.  

Robert L. Abell
www.RobertAbellLaw.com 

Nursing Home Safety & Health Violations Reported

94% of nursing homes were cited last year for violations of federal health and safety standards.  Unsurprisingly, for profit homes were cited for violations more frequently than not for profit or government-operated homes.  Nearly 20% of the violations involved "actual harm or jeopardy" to patients. Frequently cited problems included medication errors, failure to feed properly, infected bedsores and abuse and neglect of patients.  The New York Times reported on the review conducted by the federal Department of Health and Human Services, "Violations Reported at 94% of Nursing Homes."  The report can be viewed at the Department's website by clicking here.  

Robert L. Abell

www.RobertAbellLaw.com

 

ATV Age Guidelines Unsafe

Age guidelines regarding safe operation of ATVs do not assure the safety of young riders.  Far more important concluded a study conducted at the University of Kentucky is the size of the rider.  142 Kentuckians died in ATV accidents between 2003 and 2006.  The Lexington Herald-Leader story can tell you more by clicking here.

Robert L. Abell
www.RobertAbellLaw.com

Family Member Of Asbestos Worker May Sue For Cancer Death Caused By Asbestos Exposure

The daughter of a worker who carried home from work asbestos fibers on his clothing developed mesothelioma, a rare form of cancer whose only known cause is exposure to asbestos.  She (and upon her death her estate) sued Alcoa, Inc., her father's employer, claiming that it had a duty to prevent the exposure to asbestos of family members of its workers.  After her suit was thrown out by a trial court, the Tennessee Supreme Court reinstated it and ruled it should proceed to trial.  Recognizing the great dangers posed by asbestos exposure, which have been well-known for decades now and the relative ease and inexpense of preventing that exposure to workers' families, the court stated, "In light of the magnitude of the potential harm from exposure to asbestos and the means available to prevent or reduce this harm, we see no reason to prevent carpool members, baby sitters, or the domestic help from pursuing negligence claims against an employer should they develop mesothelioma after being repeatedly and regularly in close contact with an employee's asbestos-contaminated work clothes over an extended period of time."  A copy of the opinion, Satterfield v. Breeding Insulation Company, can be read by clicking here.

Exposure to asbestos generally produces two types of illnesses: asbestosis and mesothelioma.  Exposure to asbestos is the only know cause of mesothelioma, which is a cancer that initially forms in the exterior lining of the lung.  Asbestosis is a condition resulting from the accretion of asbestos fibers in the lung interior that eventually and over time causes greatly decreased respiratory capacity and can develop into cancer itself. 

Robert L. Abell
www.RobertAbellLaw.com

Drugs Being Investigated Listed by FDA

The Food and Drug Administration (FDA) has begun posting quarterly lists of drugs that it is investigating for possible safety issues.  That a drug is listed does not mean that it has safety problems, just that a report has been received from a patient, doctor or even a drug company itself about a possible safety issue with a drug.  The FDA will list each drug and the general nature of the problem reported regarding it but will not detail the number of complaints about it or the seriousness of any of the events.  The current list can be seen by clicking here.

Robert L. Abell
www.RobertAbellLaw.com 

Pregnant and New Mothers Endangered by Proposed FDA Rule

Pregnant and new mothers are endangered by a proposed FDA rule that will allow drug companies to omit information on their warning labels about dangerous side effects of their products.  For leaving out this important information the drug companies would receive the prize of immunity from lawsuits through the doctrine of preemption.  That's justice under the Bush Administration: create a rule that allows drug companies to harm pregnant and new mothers and get away scot-free.  The ever-vigilant American Association for Justice has protested adoption of the proposed rule that you can read by clicking here. 

Robert L. Abell
www.RobertAbellLaw.com

Hospital Death Rates Online

Patients and their families may review online hospital death rates for heart attacks, heart failure and pneumonia.  The federal government's Centers for Medicare and Medicaid Services has posted the statistics at www.hospitalcompare.hhs.gov.  Also posted are statistics on the percentage of each hospital's patients getting quality care for various illnesses and ten measures of patient satisfaction. 

Robert L. Abell
www.RobertAbellLaw.com 

Drug Makers Should Be Liable For Defects Under State Law, New England Journal of Medicine Editors Argue To Supreme Court

Approval of drugs by the Food and Drug Administration (FDA) should not preempt any liability under state tort laws for pharmaceutical manufacturers, editors of the New England Journal of Medicine argue in a brief to the United States Supreme Court.  One of the most closely watched cases of the Supreme Court's upcoming term is Wyeth v. Levine.  Levine, a musician, lost an arm after an injection of the nausea drug, Phenergan.  She sued Wyeth, claiming that it failed to adequately warn of the drug's risks and she won a $8.6 million judgment in a Vermont trial court.

Wyeth argues that it is insulated from any liability for Levine's injuries because the FDA approved Phenergan.   This is the legal doctrine of "preemption." 

The NEJM editors argue that "the FDA the FDA is in no position to ensure the safety of prescription drugs.  Not only is the FDA seriously hampered in its ability to determine the risks of drugs before they are approved for sale, but it has proven inadequate to the task of addressing hazards that only become apparent after a drug has been widely marketed to an unsuspecting public. Post-approval dangers posed by drugs placed into the market are unfortunately quite common. However, the FDA’s ability to either anticipate these risks or react expeditiously once they have been revealed has been limited by serious information-gathering constraints in both pre- and postapproval settings." The brief can be read by clicking here.

Two former FDA Commissioners, Donald Kennedy and David Kessler, have also submitted a brief supporting Levine.  They argue that the pro-preemption position advanced by the drug companies and the Bush Administration "threatens to undermine, not advance, the underlying goal of our nation’s drug safety laws, which is 'to protect consumers from dangerous products.'”  A copy of their brief may be read by clicking here.

Robert L. Abell www.RobertAbellLaw.com

Railroad Crossing Safety Requires "Active" Warning Systems

Research shows that a stop sign is the most dangerous type of warning system at a railroad crossing.  The safest is an "active" warning system which include flashing lights and gates.  Despite this research, the Federal Highway Administration proposes only to require a stop or yield sign at every railroad crossing in the country. 

Stop signs at railroad crossings pose two types of specific dangers.  One is that large vehicles, such as school buses, require about 10-15 seconds to clear a crossing.  This may not be enough time to clear the crossing before an oncoming train would arrive, even one that could not be seen when the vehicle began crossing.  The second is that some stop signs are placed too far from the crossing to allow a clear line of sight to see if there is an oncoming train.  These problems are why the National Cooperative Highway Research Program has strongly and continually recommended that engineering analysis determine the safest warning system at each railroad crossing.  The American Association for Justice has urged the FHWA to drop this proposal based on decades of research and experience and its letter may be reviewed here. 

This proposed agency rule also offers an illustration of the continuing efforts to use the preemption doctrine to insulate corporations from accountability, responsibility and liability.  The preemption doctrine would hold that installation of a stop sign and the compliance with federal regulation that it would entail would bar any liability under state law for an unsafe crossing.  That is no justice: issue an unsafe federal regulation that encourages dangerous practices and prevents any responsibility or liability. 

Robert L. Abell
www.RobertAbellLaw.com