Baby products toxic tort cases heating up

An increasing number of toxic tort cases is claiming manufacturers of baby bottles, bottle liners and sippy cups have failed to tell consumers their products contain a chemical that poses a risk of cancer, deformities and other hazards to children.

The chemical – a strengthening agent that allows plastic to keep its clarity – is bisphenol-A, more commonly known as BPA. It has been the subject of congressional hearings, and a bill has been introduced to ban its use. BPA is already banned in Japan and Canada.

However, the Food and Drug Administration has deemed the use of BPA in baby products to be safe. The FDA says exposure levels to BPA in baby products are below those that may cause health effects in infants and children.

Dozens of lawsuits have been filed against a number of makers of baby products, including Gerber, Platex and Avent. Most of these suits are based on consumer protection claims, which include allegations of failure to warn, breach of warranty, and violations of consumer statutes.

The focus of the lawsuits is on the use of BPA in baby products, rather than possible health issues of consumers. They essentially claim a potentially toxic chemical should not be used in products that touch the lips of infants and young children.

Some studies have indicated a link between BPA exposure and number of health risks, including cancer, diabetes, Turner Syndrome, neurological ailments and learning disabilities.

Playtex has announced it will phase out the use of BPA in its products. The company defends the use of BPA, but says it wants to allay any concerns parents might have about its baby products.

Feds delay ‘roof crush’ rule

Individuals involved in vehicle rollover accidents can be seriously injured, or even killed, when the roof of their vehicle is crushed by the force of the accident.

The National Highway Traffic Safety Administration (NHTSA) is looking at toughening federal standards for manufacturing roofs of motor vehicles. However, on the eve of adopting a new rule this past summer, the agency announced it was going back to the drawing board under pressure from Congress and consumer advocates.

The new rule is expected to be issued in October.

The highway safety agency has not updated its rollover safety standards in over 35 years. It had considered

requiring roofs to support 2.5 times a vehicle’s weight, up from the current standard of 1.5 times a vehicle’s weight.

However, critics claim most new cars already conform to a 2.5 standard, and the standard should be raised even higher, to 3.5. A bipartisan group of senators sent a letter to NHTSA in June, urging it to take more time to develop a more stringent rule.

A study released earlier this year by the Insurance Institute for Highway Safety found that the stronger the vehicle’s roof, the lower the risk of injury to occupants of the vehicle. This boosts a key claim of plaintiffs – that weak roofs are the main cause of death and serious injuries in rollover accidents.

‘Pain pump’ lawsuits on the rise

A growing number of lawsuits filed around the country allege chronic pain and loss of shoulder cartilage is being caused by “pain pumps” implanted directly into shoulder joints.

Pain pumps are designed to minimize the pain associated with recovery from joint replacement surgery by applying pain medication directly to the site of the surgery.

One lawsuit involves a 33-year-old fitness enthusiast who had surgeries to repair tears in her shoulder tendons. The surgeries unfortunately failed to improve her condition.

She eventually had a partial shoulder replacement and a pain pump was implanted in her shoulder. The woman continues to suffer from chronic pain and expects to have additional surgeries.

The woman has a debilitating condition – known as glenohumeral chondrolysis – that has destroyed her shoulder cartilage. She alleges the pain pump inserted in her shoulder has caused

this problem.

The woman is among about two dozen individuals who are suing several pain pump manufacturers and drug makers that encouraged doctors to insert the devices directly into shoulder joints following arthroscopic surgery, even though the technique had not been approved by the Food and Drug Administration. Hundreds of similar cases are being investigated.

A recent article in the American Journal of Sports Medicine reported a strong link between the use of pain pumps and loss of shoulder cartilage.

The lawsuits contend the pain pump manufacturers have failed to adequately test the devices, and have failed to warn doctors about injuries that could occur from inserting the pain pump catheter into the shoulder joint.

The suits also contend makers of anesthetics used in the pain pumps have failed to adequately test the safety of the drugs.

Future income taxes shouldn’t diminish damages in wrongful death cases

The effect of future income tax should not be considered in calculating damages in wrongful death cases, the Colorado Supreme Court recently ruled.

A widow sued after her husband was killed by a collapsed wall at a landscaping supply store. She was seeking damages for lost future income as well as pain and suffering.

The landscaping supply company argued the woman was entitled to compensation only for the economic benefits she reasonably would have expected to receive from her husband had he lived. The store contended his

future income would have been subject to income taxes.

But the court ruled in favor of the woman, saying that tax policy involves the relationship between government and taxpayers, as well as future economic conditions. Potential income taxes in the future shouldn’t be applied in wrongful death cases, the court said, because the actual amount of the taxes is too conjectural and would also unnecessarily complicate cases.

Courts in New York, Washington and West Virginia have made similar rulings.

Remedies may exist for injured golfers

In the summer of 2006, a New Jersey woman was watching her boyfriend tee off from the 16th hole of a golf course when she was struck in the left temple and eye by an errant ball hit by a player at the next hole.

After suffering loss of vision in her left eye that required corrective surgery, she sued the golf course for $1 million and her case went to trial this summer. The course was poorly designed, she claimed, resulting in the 16th and 17th holes being too close to each other, and making errant shots likely.

There’s an inherent risk in the game of golf. Experts estimate 10,000 players and onlookers are injured annually by golf shots gone awry, and courts typically don’t allow lawsuits against fellow

players who hit an errant shot.

But golf courses can be designed to take bad shots into account. Lawsuits claiming bad course design are prevalent throughout the country, and courts often allow these claims to go forward. Courses are vulnerable unless design defects are addressed before the course is built.