PRODUCT SAFETY
AT HOME & AT WORK

On December 23, 2008, the Consumer Product Safety Commission, in “cooperation” with Atomic Ski USA, announced the recall of alpine ski bindings manufactured in Austria between 1998 and 2002. The explanation given for the recall is that the plastic heel housing of the recalled bindings can crack, causing the bindings to release unexpectedly.
On its face, this recall might be considered a good thing. But is it really? What good does it do to recall six to ten year old ski bindings? Aren’t most of these bindings past their useful life anyway? How long has this problem been known to industry insiders? Is it significant that the recall comes at a time when the statute of limitations has expired on most injury claims that might be related to the failed plastic parts? How many people complained, between 1998 and 2008, that their equipment had failed them, and what response did they get? Who would guess that a client’s report that he was injured because his binding cracked unexpectedly would be any more than a freak incident? Or that there might be enough of these incidents to generate a recall of the bindings?
These questions remind us that manufacturers always have more information about their products than plaintiffs’ lawyers do, and that we must listen carefully to clients and dig deep for information about what really underlies a product failure.

The US Supreme Court recently issued two rulings that help keep the courts open to injured plaintiffs in product liability cases. Wyeth v. Levine involves a case against a drug company which sought dismissal of plaintiff’s case on the ground that any drug approved by the FDA cannot, as a matter of law be defective. Altria v. Good involved a case in which the cigarette company claimed that Federal law protected it against fraud charges. The Court allowed both cases to go forward to trial. The efforts of the plaintiffs and their lawyers in these important cases were supported by many others in the legal community who believe that people are entitled to their day in court, and that Federal regulation cannot be the only source of limits on the behavior of manufacturers. Federal regulation has consistently proved to be an inadequate regulatory power, from the days of the Ford Pinto to the Bernie Madoff scandal, which stretches back almost as far. Read more about the Altria and Wyeth cases at www.publicjustice.net

John Sedgewick

New York Giants wide receiver Plaxico Burress probably has a case of “Glock leg. ” Glock leg is a phrase that appears on many internet sites, and is used to describe self-inflicted injuries suffered by people reaching for their handgun. All too frequently, the victims are police officers.

The way the Glock handgun is made, its primary safety feature cannot be locked into the “safe” position. The safety on a Glock is nothing more than a lever built into the trigger itself. Once one’s finger is on the trigger, the first few millimeters of squeeze moves the safety backwards, into the body of the trigger. Once that happens, any additional squeeze results in pulling the trigger.

Glock leg occurs when a police officer (or someone like Plaxico Burress) reaches down to pull the gun up out of the holster (or the waistband of warm up pants). If one reaches down hurriedly and a finger inadvertently contacts the trigger, the act of pulling the gun up will retract both the safety and the trigger, all in one motion. This motion, with the gun in the holster (or the waist band), is what results in a bullet wound to the thigh, otherwise known as Glock leg.

It has been suggested that the Glock is a defective product because the safety acts almost simultaneously with the trigger. This argument is not very persuasive, however, because law enforcement personnel all over world know about this feature and select the Glock as a service revolver because of it. The Glock safety is an advantage to anyone who uses the gun carefully and who needs to be able to shoot very quickly. Because the gun is never locked in the “safe” position, a police officer who needs to shoot can be sure of doing so with a single motion.

Police officers swear by the Glock, and one can see why they might. Whether people like Plaxico Burress should feel safe while toting a Glock is a different subject. I hope that Plaxico gets back to playing football, and that other civilians learn that the Glock is not a good choice for the casual handgun user.

John Sedgewick

The Wall Street Journal reports, “Stork Craft Baby Manufacturing Inc. and federal regulators in the U.S. and Canada recalled more than one million cribs Tuesday because of metal support brackets that can break, the latest in a rash of crib recalls linked to hardware problems that have led to infant deaths or injuries.” The issues involving “U.S. crib safety have spurred the recalls of more than three and a half million units in the U.S. since September 2007, many prompted by reports of babies being strangled or injured in cribs with malfunctioning or missing hardware.” According to regulators there has been “one toddler injury and 11 incidents of malfunctioning hardware.” The AP added that in addition to the cribs, “about 16,000 Taggies Sleep’n Play baby garments, made in China and imported by Rashti & Rashti of New York,” have been recalled “because the snaps on the garments can detach, posing a choking hazard to young children.”

A Federal Jury recently found GM liable for a rollover accident that killed a 14-year-old boy and awarded $3.5 million in damages.  The boy was riding in a 1995 Chevy Blazer.  Plaintiff’s lawyer demonstrated to the jury that the Blazer’s track width was too narrow to support its height, making it unstable and prone to rollovers.  http://www.law.com/jsp/article.jsp?id=1202422377390

Similar claims have been made and proven with respect to other SUVs, including the Ford Explorer and Toyota 4-Runner.

The recent story about a news reporter’s injury while trying out a new ride at Lost Valley, a ski area in Auburn, Maine, raises all of the issues associated with cases against amusement parks. First, neither the host site nor the ride manufacturer had sought a license for the new ride, and both claimed that they “didn’t know” that either a license or a safety inspection of the ride were required. Second, the ride a Zorb, is a new form of attraction, at least in the USA. The basic idea is that the riders are sealed inside an inflated, clear plastic ball and rolled downhill. The problem is that the ride idea, the downhill course at Lost Valley, the seller of the ride (apparently), and the park owner were all new. The reporter fractured her back on a test ride (made available for publicity) before the park even opened. With little operating experience to draw on, those responsible for the safety of riders made a string of horrible decisions. Hindsight may be 20/20, but it wouldn’t have taken much foresight to guess that the unlicensed, uninspected, ride down a new course with new equipment and new operators might bring trouble. The third point to be made about this case and all other amusement park cases is that while the negligence of the operator may stand out clearly from the beginning, it is important to remember the product liability piece of the case, too. What standards have been promulgated by the amusement industry for this ride? What design analysis did the seller undertake with respect to not only the vehicle/safety restraints aspect of the ride but also the track or ridepath? What instructions, warnings and on-site testing were provided? Product defect theories may be very important, because they can survive comparative fault and “release” arguments that may be made by the ride operator. Release may be an issue where the rider buys a ticket that includes a release of liability.

There has been a spate of recent recalls of toys and other children’s products due to high lead levels. Two recent studies provide new proof of the danger in lead exposure during childhood. The studies, and a commentary by David C. Bellinger of Harvard Medical School, can be read in the May 27, 2008 edition of PLoS Medicine, and can be seen at http://medicine.plosjournals.org/perlserv/?request=get-document&doi=10.1371/journal.pmed.0050115
The studies used data collected in poor neighborhoods in Cincinnati beginning in 1979. Blood samples from pregnant mothers and their children were tested for lead levels over several years, and then the children were followed into early adulthood. The first study evaluated brain size in the young adults, and concluded that higher childhood lead levels could be correlated with smaller brain size. The second found that as childhood lead level increased, total arrests and arrests for violent crime also increased. The brain size study is the first to use brain imaging technology to show the harm associated with lead poisoning. Both studies may be helpful in proving damages in lead exposure cases.

When considering a ski binding failure case:

-always suspect the retailer/ski shop first. If there is a problem it is likely to be an adjustment problem;

-never put the ski boot into the binding as an informal “test” of the system. You may alter or destroy important information about the condition of the boot/binding interface;

-preserve the evidence by storing skis and boots in separate bags so that important parts do not scrape, rub or bang together;

-try to locate exemplar boots, skis and bindings and buy them for test purposes;

-screen potential experts carefully;

-consider the seriousness of the injuries. What would it really take to help the client? These can be expensive cases to pursue.

The Insurance Institute for Highway Safety has released information confirming what plaintiff’s lawyers have argued for years: passengers are safer in rollover accidents when the vehicle’s roof does not crush, or intrude into the passenger space. In testimony before Congress and in reports issued in May and June of 2008, details are provided about studies that show how roof strength reduces injuries in rollover accidents involving sedans and SUVs. See the testimony of Stephen Oesch at http://www.iihs.org/laws/testimony/pdf/testimony_2008-06-04.pdf