Articles Posted in Dangerous or Defective Products

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Filing a claim in one state rather than another may have a number of benefits for a Texas plaintiff, including convenience and more favorable laws. In a recent Texas Supreme Court decision, the court explained why a case arising from an accidental death in Mississippi could be filed in Texas.

TractorIn that case, a man was killed while he was repairing his tractor at his house in Mississippi. The tractor was sold in Mississippi, and the accident occurred in Mississippi, but the man’s son lived in Texas and filed a negligence and product liability claim against the tractor company in Texas. The company moved to dismiss the claim based on forum non conveniens. The company argued that Mississippi was a more convenient and appropriate forum to have the claim heard. The man’s estate was there, and there were other connections to the accident there, since the man lived in Mississippi, bought the tractor in Mississippi, and died in Mississippi.

Forum Non Conveniens

Forum non conveniens allows a court to decline jurisdiction if another more suitable forum exists that is more just and convenient. Under Texas Civil Practice and Remedies Code § 71.051, a court can decline to exercise jurisdiction under the doctrine of forum non conveniens if it is “in the interest of justice and for the convenience of the parties.”

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product liabilityEarlier this month, the federal circuit court overseeing the federal district courts in Texas issued an opinion in a personal injury case discussing several pertinent issues for Texas product liability plaintiffs. The case required the court to determine if a jury’s $3.4 million verdict in favor of the plaintiff was supported by sufficient evidence. Ultimately, the court concluded that the plaintiff’s evidence did support the jury’s verdict, and thus the verdict was affirmed on appeal.

The Facts of the Case

The plaintiff, through his wife, filed a product liability lawsuit against his employer as well as the manufacturer of a crane that the plaintiff was operating at the time of his accident. According to the court’s opinion, the plaintiff suffered a serious injury when the counterweights attached to a crane he was operating slid into the operator’s cab, knocking the plaintiff out of the cab and sending him head-first onto the concrete eight feet below.

The plaintiff claimed that the crane manufacturer was liable under a “failure to warn” theory. Essentially, the plaintiff’s argument was that the manufacturer’s included warnings failed to fully inform users of the risks involved with the crane tipping over. Additionally, the plaintiff argued that alternative warnings would have better informed him and may have prevented the accident.

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Legal News GavelA recent Texas product liability decision arose from a one-vehicle accident. The plaintiff was driving his vehicle with his family when a back tire burst, triggering a rollover. Those inside the car were injured.

The driver had bought the car used from a car shop that had gotten it as salvage and repaired it before selling it to the husband. The tire in question was made by the defendant. However, the tire had triple the tread amount that is mandated by federal regulations at the time of the accident. The injured plaintiffs sued the tire manufacturer, claiming the tire was negligently or defectively designed and made. They also claimed gross negligence and failure to warn causes of action.

The plaintiffs hired a forensic tire analyst to provide expert testimony. He testified that the tire was made and designed with defects. The manufacturer moved for summary adjudication of the plaintiffs’ claims. It also tried to get the expert’s testimony excluded, arguing that he wasn’t qualified or reliable. Summary judgment was granted, but the request to leave out the expert testimony was denied. The claims against the manufacturer were separated from the plaintiff’s claims against the used car dealership that sold the car.

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Legal News GavelIn Iacono v. Stanley Black & Decker, a Texas product liability plaintiff appealed from a summary judgment motion brought by the defendant manufacturer. The case arose from injuries sustained in connection with the defendants’ automatic sliding glass doors at a hotel. The doors operate by using a controller. Three sensors located above and on each side of the door detect motion in order for the doors to open. A threshold sensor is located in the frame above the door. The latest date of installation of the doors in this case was early 1995. The hotel’s safety assurance manager testified that the hotel performed the service for the doors once they were installed, and they had been serviced twice since 1995, with replacement of certain parts.

The plaintiff went to a wedding at the hotel in 2013. As she came out with her walker, the automatic door closed on her. She fell and was injured. She sued the manufacturer on the grounds of negligence, product liability, breach of warranty, and gross negligence. The manufacturer claimed that the plaintiff’s suit was barred by the statute of limitations and the statute of repose, and it moved for partial summary judgment.

The plaintiff filed an amended complaint and summary judgment response. She argued that her negligence claims were based on the manufacturer’s acts and omissions in service call years, so they weren’t barred by the statute of repose. She also claimed her negligence cause of action wasn’t barred by the statute of limitations. However, the trial court granted the partial summary judgment motion. The manufacturer then filed a final summary judgment motion, arguing that all that was left were product liability claims based on the motion sensors, which were manufactured by a separate company, and that since it was a non-manufacturing seller, it could not be liable. This motion also was granted.

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WEDGWOOD FIRE UPDATE

It is now understood that the fire loss that occurred at Wedgwood Apartments on December 28, 2014, will go down in history as one of 20 worst high-rise fire tragedies in U.S. History.

We now also understand that the extent of the injuries and death at Wedgwood could have been avoided, if specific and somewhat relatively basic precautions would have been made, by management or the owners of Wedgwood.

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In re Zimmer, Inc., a recent Texas appellate decision, considered a product liability lawsuit brought by a plaintiff. The plaintiff argued he was hurt because of the Zimmer Periarticular Distal Medial Tibial Locking Plate, a metal plate used to provide internal stabilization when a patient has serious fractures in his or her lower leg. The plaintiff argued the metal plate had design defects. The plate was first placed in the plaintiff’s leg after a motorcycle accident. It failed within about a year. A second plate was implanted and also failed within about a year. The plaintiff sued the manufacturer, claiming he was permanently disabled because the two implants had failed.

The jury was selected after jurors answered a written questionnaire that asked if jurors had ever had a serious physical injury. The defense attorney also questioned the jury about the experience their family members might have had with injuries. Neither the plaintiff nor the defendant challenged a juror for cause based on an answer related to injuries. One juror who was seated had responded “none” to the question about physical injuries.

The jury found for the defendant Zimmer. The juror who had responded “none” had voted for the defendant. The plaintiff moved for a new trial, claiming misconduct by the jury and arguing that the verdict went against the weight of the evidence. He submitted affidavits from the jurors who dissented. These detailed incidents of alleged juror misconduct. Zimmer responded but didn’t offer counter affidavits.

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national-day-1394375-m.jpgFireworks are a long-standing tradition on July 4th. However, they can also be highly dangerous, especially if not handled appropriately. Recently, tragedy hit the Comanche area when one person was killed and four others injured in a fireworks accident.

The accident occurred when Kiwanis Club members were preparing fireworks for the 4th of July celebration the morning beforehand, on a baseball field near a high school. A trailer holding most of the fireworks suddenly exploded. The cause is not yet clear. One person was confirmed dead and the other four were rushed to the burn unit of Comanche County Medical Center, with injuries ranging from first to third-degree burns, mostly on their hands. All 4th of July activities were canceled as a result. This would have been the 24th year that the fireworks were held, and the event usually drew as many as 15,000 people.

There is no evidence as to whether the fireworks had been mishandled before they were placed in the van, or whether they were simply defective. However, this is just the latest in a series of serious accidents caused by fireworks. In 2011 alone, they caused an estimated 17,800 reported fires, including 1,200 structure fires, 400 vehicle fires, and 16,300 outside fires. These fires led to eight deaths, 40 injuries, and $32 million in property damage. In 2012, an estimated 8,700 people went to emergency rooms across the country due to fireworks-related injuries. Of these injuries, more than 55 percent were to extremities and 31 percent were to the head. The risk was highest for those between the ages of 15 and 24, followed by children under the age of 10.

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japanes-car-826481-m.jpgIt appears as though General Motors is not the only major automaker to order recalls of thousands of its automobiles. Now Japanese automakers Mazda, Honda, and Nissan have ordered recalls as well. Between the three, more than three million vehicles were slated to be recalled, due to faulty airbags supplied by Takata Corporation, a parts manufacturer.

The recalls specifically targeted vehicles that were sold in states with high absolute humidity in the southern United States, including Texas. The reason was because the front air bag inflators contained a defect that could cause them to explode. If air bags deploy with too much pressure, they can rupture, resulting in a failure to protect the vehicle occupants from injury.

The three automakers decided to order recalls after receiving information about the issue from Takata Corporation. This recall supplements one that was enacted in 2013, which affected as many as six million vehicles, including those manufactured by Mazda, Honda, and Nissan. For the current recall, Honda estimates that more than two million vehicles sold in the United States are affected. Nissan and Mazda have previously recalled 750,000 and 160,000 vehicles respectively.

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boxes-9315-m.jpgThe Texas Court of Appeals of the First District recently affirmed a trial court’s summary judgment motion against a plaintiff injured by an air compressor box at Lowe’s.

In Carpenter v. Campbell Hausfeld Company, Dwayne Carpenter was shopping for an air compressor at a nearby Lowe’s store in 2009. He tried to load a 1.2 HP 20-Gallon 125 PSI Electric Air Compressor, manufactured by Campbell Hausfeld, into his cart when the strap surrounding the compressor box suddenly broke. The box fell on Carpenter and sent him to the floor, causing him to injure his leg, left hip, arm, and shoulder.

Afterward, Carpenter filed a strict product liability lawsuit against the air compressor’s manufacturer, claiming that the strap was designed defectively, which made the air compressor unreasonably dangerous. In turn, Campbell Hausfeld filed for summary judgment, claiming that Carpenter had provided no evidence to support his lawsuit. Campbell Hausfeld put forth the elements of strict products liability, followed by the elements of a claim premised on a design defect and the statutory requirements for proving a “safer alternative design.” The manufacturer argued that Carpenter not only did not produce evidence of a product defect, but it also failed to produce evidence of a safer alternative design. Campbell Hausfeld argued further that Carpenter failed to argue that its actions were the cause of his injuries, or provide evidence of any damages.

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pick-up-744336-m.jpgGeneral Motors has come under the spotlight due to its recall of 13.8 million vehicles in the United States, including those sold in Texas. This has included the most recent recall of 500 new pickup trucks and SUVs due to an airbag malfunction and 2.6 million vehicles due to a faulty ignition that has led to 13 deaths.

The most recent calamity to hit GM was the faulty ignition defect. The defect led to a situation where key rings holding more than one key could cause the ignition to switch to the accessory position or the off position. That could lead to the loss of power, including power steering and breaking, as well as preventing airbags from deploying in the event of a front-impact crash.

According to the National Highway Traffic Safety Administration, GM was aware of the defect prior to 2014, but chose to do something about it only this year. The agency criticized GM for waiting so long, noting that the families and friends of those killed as a result “deserve straight answers about what happened.” In response, GM claims that it has launched a new unit that will quickly uncover any safety defects and issue recall notices for the applicable vehicles. For delaying the recall of vehicles with ignition problems, GM will pay a fine to the National Highway Traffic Safety Administration of $35 million. That is unlikely to be the last time GM issues a payout, given that many families of those killed will probably file wrongful death lawsuits. Some believe that the lawsuits against GM could force the company to pay out as much as $10 billion.

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