Yamaha Rhino goes to court in Georgia – not happy with verdict!

When the weather is warm, outdoor activities are the amusement. Expecting them to end in injury usually isn’t the case!

In Gwinnett County, GA, Roger McTaggart was injured in 2007 while riding his Yamaha Rhino recreational utility vehicle. Mr. McTaggart and his wife, Glenda, sued Yamaha Motor Corporation USA, which happens coincidentally to be located in Gwinnett County.

The McTaggart’s case is just one of over 100 cases that allege the Rhino recreational vehicles are unsafe. The Rhino vehicles are alleged to have latent stability defects which cause the vehicles to unexpectedly roll over.

Similarly, the McTaggart’s claimed early in their case that the stability defect caused Mr. McTaggart to unexpectedly roll his vehicle at a low speed and on relatively flat ground.

McTaggart was driving his Rhino and stopped the vehicle. He then starting going forward again and turned the steering wheel to the right, “and the Rhino tipped onto the driver’s side, trapping his leg under the vehicle,” according to McTaggart’s complaint.

McTaggart sustained a “crush” injury in which the “skin exploded” and bone was exposed, Childers said.

Mr. and Mrs. McTaggart also argued that the recreational vehicle should include a barrier which would keep the rider’s legs inside the vehicle. Yamaha rebutted the argument, claiming that doors for the vehicle were produced and added three the four months after Mr. McTaggart’s leg injury.

During the two week trial, all experts, including plaintiffs, concluded that the accident could only have happened while Mr. McTaggart was riding on a side incline, not on an relatively flat and uneven surface. Counsel for the McTaggart’s focused arguments on the fact that had the vehicle contained doors,  Mr. McTaggart’s legs would not have been injured when the unexpectedly vehicle rolled over.

After 10 hours of deliberation, a Gwinnett County jury awarded $317,002 to the plaintiffs. Compensation included pain and suffering, medical expenses, lost wages, future lost wages and loss of consortium for Mrs. McTaggart. The plaintiffs’ attroney, Andrew Childres, claimed that the jury was swayed by Yamaha’s lack of performance testing on the Rhino recreational vehicle, with particular focus on “occupant containment”.

Yamaha claims that the company is upset by the verdict and there is a chance for appeal in the Gwinnett County case. The well known motor-sport company further states:

[We are]…saddened whenever anyone is injured in a Yamaha product-related accident, and we urge all our customers to follow the safety recommendations on our products and, as importantly, to always operate the products in a safe and responsible manner.

As we enter the summer months, it is important to remember that safety is the number one key to outdoor activities. When operating motor vehicles, of any kind, be sure to heed all safety precautions to ensure safe amusement.

Connecticut Jury Awards Smoker $8 Million Against Tobacco Co.

Despite the national headlines over the past decade or more regarding tobacco litigation, the state of Connecticut had never before seen a successful product liability action against a tobacco company. That is, until Barbara Izzarelli recently prevailed in her case against tobacco giant R.J. Reynolds. Law.com recently reported that a federal jury awarded Ms. Izzarelli $8 million as compensation for larynx cancer that she developed at age 36 and which she contended was caused by smoking R.J. Reynolds cigarettes for more than twenty years.

The case focused on R.J. Reynolds’ marketing strategy, primarily the company’s alleged efforts to specifically target the teen market back in the 1970’s when Ms. Izzarelli was a teenager and first began to smoke. Her attorneys, led by David Golub of the law firm of Silver, Golub & Teitell, alleged that R.J. Reynolds conducted marketing research on the smoking habits of youths as young as twelve and implemented various business practices directed at luring young people to cigarettes.

[Golub] contended that in the 1970s, after young smokers were attracted to flip-top boxes in which Philip Morris’ Marlboro cigarettes were sold, R.J. Reynolds developed new products to appeal to 14- to 20-year-olds. Golub further argued that those cigarettes were sold in popular teen hang-outs and at reduced prices.

While the jury found in Ms. Izzarelli’s favor, it did not absolve her completely of her own conduct in choosing to smoke for more than twenty years. The original verdict had been $13.6 million, but the jury found that Ms. Izzarelli was 42% at fault so the verdict was reduced to $8 million (Connecticut recognizes the doctrine of comparative negligence, meaning that a jury award can be reduced depending on whether, and to what extent, the plaintiff was negligent.). Still to be decided is the issue of whether R.J. Reynolds should be subjected to punitive damages, i.e., a monetary award intended to punish the company and deter others from engaging in similar conduct. Should punitive damages be assessed, the total award could potentially be as high as $24 million.

For Ms. Izzarelli, who will soon turn 50, this verdict was a long time coming. She was originally diagnosed with larynx cancer in 1996. She filed suit eleven years ago in 1999. According to her attorneys, she is currently “very disabled” and is unable to breathe through her nose or mouth. She instead uses a tube inserted in her throat. Because of her injuries, her diet is restricted to soft foods. Despite these limitations, Mr. Golub calls her “a remarkable woman to overcome these health problems and lead a normal life as much as she can.”

Despite the decade-long efforts to seek redress for her injuries, the verdict and the jury award are still not final. According to David Howard, a spokesperson for R.J. Reynolds, the company has promised to appeal the verdict.

“We’re disappointed in the decision in this matter,” said Howard. “We have several grounds for appeal and we are confident in our defenses going forward.”

Early comments by the defense indicate that R.J. Reynolds will challenge the trial court allegedly denying it the right to put on a ‘full medical defense’ in which Reynold intended to show that it was improbable that the plaintiff’s injuries were related to her smoking. The second issue mentioned post-verdict was the perceived error by the trial judge allowing “all youth marketing evidence despite the fact that, before trial, one of the plaintiff’s claims was dismissed because there was no evidence that the plaintiff was affected by any quote, unquote youth marketing.”

We will keep you posted on any developments in this case.

Child Safety Tips: As mercury goes up, so do safety risks for kids!

By picpoke.com

Yes, it is really getting hot out there this week!!!  Coming from Florida to DC last year, I thought “OK, so it will not get nearly as hot up here, or at least not as early in the summer.”  Yes, I was wrong.  This thought brought me to thinking about some of the fun things to do in the summer, but also the dangers for our little ones during this time if we are not extra careful.  Lo and behold, I found this article today, courtesy of the Dallas Morning News and reprinted by the Kansas City Star:

Emergency-room professionals have their own name for the long, lovely, lazy days that kids look forward to in summer: trauma season. Because that’s when hospitals see a spike in drownings and heat-related accidents.

The article discusses several myths and related facts associated with those myths.  Here are a few samples from the article:

MYTH: Pool parties are safe as long as adults are around.

FACT: Many drownings happen when adults are close by. The problem is too much commotion. The key is to have a designated adult watching the water because that is where the danger is. The pool should be free of excess toys that can block the view of the water.

MYTH: Floaties keep little ones safe in the water.

FACT: Floaties are designed for fun, not safety. They give a false sense of security, can deflate and can slip off.

MYTH: The kids will be fine in the pool for the short time it takes to answer the phone or get a cold drink.

FACT: In a minute, a child can go under water. In two or three minutes, the child can lose consciousness. In four or five, the child could suffer irreversible brain damage or die. According to the Centers for Disease Control and Prevention, drowning is the second-leading cause of unintentional, injury-related death for children 1 to 14 years old, second only to car and transportation-related accidents.

The article states several other myths and facts, which include the hazards of leaving children unattended in cars and car seats, as well as sun exposure and dehydration.  We encourage you to read the article in its entirety.  Let’s all have a safe summer out there, please!!

IV infiltration leads to $1.5 million verdict when patient loses thumb.

Recent news from Georgia (where the state’s cap on non-economic damages was recently overturned): A patient, Johnnie Jackson, age 47, was awarded $1.5 million for pain and suffering in addition to recovery of his medical expenses, for injuries he sustained when delay in treating an infiltration of his IV ultimately led to the loss  of his thumb.

Mr Jackson presented to Coffee Regional Medical Center for complications resulting from a pancreatic condition on April 30, 2005. Mr. Jackson had a known history of diabetes and chronic pancreatitis.

Upon presentation, a nurse administered Phenergan and Demerol through an IV, which had been inserted into Mr. Jackson’s right wrist. At approximately 3:00 a.mm on the morning of May1, Mr. Jackson complained of swelling and pain at the site of the IV causing it to be removed 45 minutes later.

After nine hours of complaints, Mr. Jackson was examined by his physician, who found that the medications had leaked into the surrounding tissues. Mr. Jackson’s physician elevated the arm in a failed attempt to reduce the swelling. On the afternoon of May 2, Mr. Jackson was transported to the South Georgia Medical Center for advanced treatment.

A pretrial order revealed that Mr. Jackson was transported to  the medical center for the treatment of a blood clot that was found near his thumb.  During Mr. Jackson’s 24 day admission at the medical center, he underwent a multiple surgeries by an orthopedic surgeon, who was unable to salvage Mr. Jackson’s thumb.

Mr. Jackson’s attorney, Laura Shamp, filed suit against Coffee Regional and five treating nurses in 2007 alleging that Mr. Jackson was unable to work due to frequent hospitalizations caused by diabetes and pancreatitis, but that:

…the hospital gave him a ‘job’ of living without his thumb for the rest of his life, so he should be paid for it.

“Their defense was that the IV did not infiltrate and that even if it did, that was not what caused the loss of his thumb,” said Shamp. “They said it was simply that strange things happen and this was a coincidental blood clot that ended up contributing clotting at the same time.”

With the plaintiff’s permission, the named nurses were dismissed with the hospital remaining as the sole defendant. The Coffee County jury awarded Mr. Jackson $53,026 for medical expenses and $1.5 million for pain and suffering.

Wife suffers second-hand asbestos exposure from husband’s clothes. CA jury awards her huge verdict.

Bobby Evans was a loyal employee of the Los Angeles County Department of Water and Power (DWP) for nearly 25 years. Little did he know, he was exposing his wife to second-hand asbestos.

Rhoda Evans, wife of retired DWP worker Bobby Evans, was diagnosed with mesothelioma after years of washing Mr. Evans’ clothing that had been coated daily in asbestos fibers. For nearly 25 years, Mr. Evans unknowingly worked cutting cement water pipes that contained asbestos and brought these dangerous fibers home with him on his clothing. Certain Teed Corporation, the supplier of the asbestos cement pipes, neglected to warn consumers of the risks in using their products containing harmful substances.

Certain Teed Corporation had known about the risk factors of working with asbestos materials since the 1960’s, yet never placed warning labels on their products until 1985. By 1985, it was too late for Rhoda Evans, who now suffers from  a life-threatening, incurable cancer.

Mrs. Evan filed suit against the Certain Teed Corporation with the following accusations:

Certain Teed actually concealed the risk of asbestos exposure from DWP officials “in an effort to protect the $40 million in annual revenues the company made on selling asbestos-containing cement pipe to the county.”

The LA Department of Water and Power was also held partially responsible for the compensatory portion of the award for its failure to adequately protect Bobby Evans on the job.

Mrs. Evans was awarded $8.8 million for compensatory damages and an additional $200 million to be paid by the Certain Teed Corporation for punitive damages.  Attorney’s for the Corporation feel that the punitive damages award is unconstitutional and plan to appeal the verdict.

Since 1929, an estimate of 600,000 lawsuit have been filed for mesothelioma and asbestos disease. Whether the punitive damage award is lessened in the case of Mrs. Evans is unknown; however, it is expected to encourage manufacturers to settle such cases out of court, as opposed to trying them before a jury. Hopefully, this message sent by the jury will resonant among the manufacturing community as well: if you are aware of potential dangers to the users of your product, you better warn people about that danger while you are taking pr0active steps to correct it!

Actor Dennis Quaid sues drug maker

Last month, we reported in a blog through our website, how actor Dennis Quaid is involved as a patient advocate, after his newborn twins nearly lost their lives back in 2007, from a medical error that could have very easily been prevented.  Put simply, the precious twins were given two doses of Heparin instead of Hep-lock (an anti-coagulant medication widely used for children).  Why is this significant?  Heparin is a drug one thousand times stronger than what the twins were supposed to have received.

Earlier this week, it was reported in the Contra Costa Times, that Mr. Quaid has filed a lawsuit on behalf of his children.  As far as the extent of his children’s injuries, the article states “The children suffered internal injuries and shock, but the extent of what happened to them will probably not be known for years, according to the suit.”  The lawsuit alleges that vials of the 10,000 unit Heparin should have been recalled previous to what happened to his children, because other infants had already died from similar medication errors.  The suit also claims that the company responsible for making the drug, Baxter Healthcare, “was obligated to warn healthcare providers of the previous medication mistakes.”

We wish the best for the Quaid family, and hope that the discovery in this case shines a light on not only finding out exactly what happened in this case, but also makes information available that may be able to save the lives of other children from future similar medical errors.  We will continue to monitor the course of this case.

Child Health: Labels Urged for Food That Can Choke

Earlier this year, we posted a blog on our website in regard to the American Academy of Pediatrics (AAP) policy statement in regard to the prevention of choking among children.  Earlier this week, the New York Times featured an in-depth story on an issue that is very much a part of this policy statement:  food choking hazards among small children.  The article discusses the advocacy efforts to place warning labels on foods, which pose a choking hazard to small children, as well as the proposition that small children should not be allowed to eat certain foods at all.  The article starts with an all too familiar setting that ended in tragedy:

On a July afternoon in 2006, Patrick Hale microwaved a bag of popcorn for his two young children and sat down with them to watch television. When he got up to change the channel, he heard a strange noise behind him, and turned to see his 23-month-old daughter, Allison, turning purple and unable to breathe.

As a Marine, he was certified in CPR, but he could not dislodge the popcorn with blows to her back and finger swipes down her throat. He called 911, but it was too late: by the time Allison arrived at the hospital, her heart had stopped beating. An autopsy found that she had inhaled pieces of popcorn into her vocal cords, her bronchial tubes and a lung.

Does this story make you think twice before giving your little ones popcorn?  On a personal note, I called my wife immediately after reading this story, and we discussed the fact that we should no longer allow our son, who is now two and a half, to have any popcorn. Ironically, she was on her way to take him to a movie that was going to be serving….you guessed it, popcorn.

Now, some of you may say “Well, little kids can choke on anything.”  Well, that is true.  However, there are some foods that pose an increased risk of choking.  Consider the dynamics of how a small child eats, as well as the size of their airway:

Children under 4 are at the highest risk, not only because their airways are small (the back of a toddler’s throat narrows to the diameter of a straw) but also because of the way their eating abilities develop. Front teeth usually come in at 6 or 7 months — so babies can bite off a piece of food — but the first molars, which grind food down, do not arrive until about 15 months, and second molars around 26 months.

“Between the ages of 3 and 4, they’re developing their ability to chew adequately and prepare for swallowing,” said Dr. Nisha Kapadia, a pediatric resident at Johns Hopkins Children’s Center.

When young children chew foods like peanuts, raw carrots and popcorn, some is ground down and some is not, and they tend to swallow unchewed bits of food that can block the airway or be inhaled into the bronchial tubes and lungs.

This concern and the tragic deaths associated with this concern have prompted several organizations to propose various options to attempt to prevent these injuries and deaths.  One such organization is the Center for Science in the Public Interest:

Some advocates say the government should put hazardous foods off limits to young children.

“The F.D.A. needs to set a uniform standard for cautionary information on food that should not be consumed by children under 5,” said Bruce Silverglade, legal director of the Center for Science in the Public Interest, an advocacy group that lobbied unsuccessfully in 2003 for a bill to require the Food and Drug Administration to develop food labeling regulations.

Where this debate will end up, we don’t know.  However, to think that in 2001 there were 17,500 children 14 years old and younger treated in emergency rooms for choking, with 60% of those events caused by food, there must be a way to create a safer environment for our children when they are eating.  Any suggestions?

Medical Malpractice:woman awarded $3.5 Million for paraplegia after graft surgery.

53 year old Victoria Little, of Harford County, MD, walked into the hospital to have  surgery wearing four inch heel, but when the surgery was over, she was left a paraplegic unable to walk. Ms. Little underwent a grafting procedure in 2007 for blocked arteries.

Ms. Little filed suit in 2008 claiming that Dr. Rodger Schneider and Dr. Mark Gonze, partners and surgeons of Vascular Surgery Associates, used an improper grafting technique. Plaintiff’s counsel, two good friends of ours, Jim Cardea and Scott Kurlander,  argued that the procedure led to blood loss and damage to Ms. Little’s spinal cord, which left her a paraplegic.

The Baltimore Sun reported that after hearing all arguments and nine hours of deliberation, the jury awarded Ms. Little $1.3 million for non-economic damages, $2 million for future medical costs and over $200,00 for prior medical bills.

Attorney for the defendants, E. Phillip Franke, III, claimed that Ms. Little  simply had a poor outcome and that her injuries wee not the result of malpractice. The defense is currently reviewing the case for appeal. In light of Maryland’s cap on non-economic damages (e.g. pain and suffering) we expect that in the interim that the award will be reduced.

Harford County has traditionally been viewed as a conservative jurisdiction and not plaintiff-friendly. Well, the good people of Harford County got it right! Congratulations, Scott and Jim!

Medical Malpractice: Newborn Carbon Dioxide Poisoning Results in Verdict of $16.5 Million

Dwight Peterson, Army Staff Sgt., and his wife Shalay presented to Tripler Army Medical Center in Honolulu, HI for an elective cesarean section in January of 2005. Their son Izzy was born a healthy child, but now requires 24 hour care.

The Star Bulletin reported that within just one minute after the birth of Izzy Peterson, pediatrician Army Major Danielle Bird mistakenly administered carbon dioxide, used for stomach surgery, to the healthy newborn. It was not until nearly 42 minutes had passed, and the carbon dioxide tank was almost empty that someone realized this tragic error. Oxygen was supplemented, but by the time this intervention was attempted, Izzy had sustained irreversible brain damage.

Soon after Izzy’s birth, the Peterson family relocated to San Antonio, TX where they have obtained specialized care for Izzy. Izzy is fed through a gastrostomy tube and breathes through a tracheostomy, which he will do for the rest of his life.

Rick Fried, the Peterson’s attorney, filed suit in which it was alleged that Major Bird, a pediatrician doing her fellowship in neonatology, should have noted the difference between the carbon dioxide and oxygen tanks prior to administration. You think?!

Bird…would have had to adjust the upright regulator of the free-standing cylinder clearly labeled carbon dioxide, different from the clocklike regulator attached to oxygen tanks…

Attorneys for the defense tried to claim early on that Izzy had been born with some type of defect; an at-home video of Izzy’s birth as a healthy baby boy proved otherwise.

“You see him take his hand, trying to brush it (the carbon dioxide) away,” Fried said. “Even at birth he knew it wasn’t good for him.”

Although severely brain damaged, Izzy maintains self awareness, can track movement with his eyes and recognizes and responds to his parents. Izzy can feel pain and kick a ball, but will never perform as an average child.

Not present for the decision, the Petersons were informed that federal judge, David Ezra, ruled in favor of the family. Dwight and Shalay Peterson were awarded $16.5 million, which will help to pay for Izzy’s extensive medical care.

Tripler’s Maj. Gen. Carla Halwey-Bowland said in a news release: “Tripler Army Medical Center accepts responsibility for this tragic incident and respects the decision made by the Honorable David Ezra. Our command and well-trained staff are committed to doing whatever it takes to ensure an incident similar to this never happens again, such as improvements in medical gas safety — how they are labeled and handled and staff education.”

Tripler Army Medical Center is the largest Army hospital in the Pacific basin. It contains over 200 hospital beds and provides medical care to almost 400,000 eligible patients. The Medical Center is accredited with providing the best medical care in it’s region, but even in the best hospitals, mistakes can be made.

Allergic to Dairy? Read Before Eating Those Sunflower Seeds!

Ryt-Way Industries, LLC, a food packaging company, is immediately recalling some of the sunflower seed products that they have packaged, as they contain undeclared dairy ingredients.  The recall, which includes products that have been distributed nationwide, is a voluntary recall, and is being done in conjunction with the FDA:

Ryt-way Industries LLC of Lakeville, MN is voluntarily recalling select BIGS ® Original Salted & Roasted Sunflower Seeds because they may contain dairy ingredients that were not declared on the packaging.  The product is packaged in 5.35oz plastic bags with BEST BY Dates of 30MAY2011 and 31MAY2011 with an individual bag UPC code 896887002196.  People who have an allergy or severe sensitivity to dairy run the risk of serious or life-threatening allergic reaction if they consume these products.

It was discovered that the sunflower seed packages at issue, as manufactured by BiGS, do not disclose the presence of dairy within them.  Ryt-Way goes on in their announcement to instruct consumers that are allergic to dairy how to handle this situation, should they be in possession of these recalled items:

Consumers who are allergic to dairy and who have purchased the recalled products are advised not to consume the product and are urged to return it to the place of purchase for a full refund.  Consumers with questions may contact 1-877-722-7556

So, if you are allergic to dairy and/or have a sensitivity to dairy products, and love those sunflower seeds, please check your home for these recalled products.  As the weather gets warmer and we try to snack on “healthier” items to get that “younger figure back for summer”, don’t let this recall pass you by!