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Articles Posted in Product Liability Cases

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(NATIONAL RECALL: February 2020) The Food and Drug Administration (FDA) has issued a recall for an insulin pump that thousands of people use with Type 1 diabetes. The recall is centered around certain Medtronic MiniMed 600 series insulin pumps.

One person has died, 2,175 people have received injuries and there have been more than 26,000 complaints, according to a statement released by the FDA.

Medtronic is recalling the specified insulin pumps due to a missing or broken retainer ring. That ring helps lock the insulin cartridge into place, according to the FDA.

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Bryan, Texas, February 8, 2020:  A  second explosion happened at one of Chesapeake Energy’s oil wells in the Eagle Ford Shale just two weeks after a Jan. 29 deadly explosion at a Chesapeake Energy oil well site in nearby Burleson County. Three men were killed and one man was left hospitalized in the Burleson incident. Bryan Maldonado, 25, and Windell Beddingfield died in what is the deadliest oilfield accident since January 2018.

Authorities are investigating the accident which occurred about 1 a.m. Saturday at a storage tank on the company’s Luther lease off Sandy Point and Old San Antonio Roads in a rural area of Brazos County about eight miles northwest of Bryan.

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Earlier 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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In re Michelin North America, Inc. is a recent product liability case. The case arose when a woman driving a 2013 Ford Explorer was hit by Robert Coleman’s Ford F250 pickup. The pickup crossed the center line when its left front tire failed, and it crashed into the Explorer, killing the woman. The driver of the pickup and his passengers were seriously injured.

The woman’s heir filed a wrongful death lawsuit, alleging negligence and strict product liability against Michelin and a negligence claim against the driver of the pickup. The pickup driver filed a petition to intervene in the wrongful death lawsuit against Michelin.

The tire at issue was manufactured at a Michelin plant in 2011. The pickup driver claimed the tread peeled off the left front tire, and it lost air quickly because of tread separation, resulting in the pickup driver losing control. Before filing suit, the pickup driver’s attorney asked that specified evidence be preserved. The pickup driver’s attorney made several discovery requests to Michelin, which objected and claimed trade secret privilege, among other things. The court granted the pickup driver’s motion to compel access. The order allowed videotaping, limited to an hour.

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In Verticor, Ltd. v. Wood, an appellate court considered whether personal injury lawsuits against a medical device manufacturer count as health care liability claims for the purposes of the Texas Medical Liability Act (TMLA). The case arose when a surgeon treated a herniated disc in the plaintiff’s lumbar spine by using a device called the “Eclipse Sphere,” which was manufactured by the defendant. After suffering complications, the plaintiff sued the doctor and the manufacturer.

The plaintiff argued that the surgeon had used the device in a non-fusion procedure, although it was only approved by the FDA for use in fusion procedures in the lumbar region. The FDA had also required that the device’s packaging and manuals include a warning about how its safety in non-fusion procedures hadn’t been established yet.

The plaintiff argued that the doctor was professionally and grossly negligent in using the device in an off-label, experimental fashion and not getting his informed consent for it. He also claimed that the manufacturer had solicited the off-label use, alleging strict liability theories of failure to warn, negligent marketing, a breach of the implied warranty of merchantability, and fraud. The manufacturer claimed as an affirmative defense that it is a health care provider as defined by the TMLA.

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The Texas Supreme Court recently decided Genie Industries, Inc. v. Ricky Matak, a product liability case. In Texas, manufacturers are not liable for design defects unless there is a safer alternative design and the defect makes the product unreasonably dangerous such that its risks outweigh its usefulness.

The case arose when a worker was supported 40 feet in the air by an aerial lift made by the defendant. The base of the lift was small and on wheels, and an electromechanical interlock prevented the platform from being elevated unless all outriggers were in place and leveling jacks were pressed to the ground. Others tried to move the lift with the worker on it. There were signs on the machine and instructions in the user manual that warned the machine could tip over, causing the worker to fall from a great height. The worker in this case did fall and died of massive head injuries. There have been only three reported accidents like the one in this case.

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In some Texas personal injury cases, it is difficult to know which theory of recovery to pursue. In Pilgrim’s Pride Corporation v. Mansfield, a manufacturer appealed from a judgment in a product liability case that on the surface might have looked like a slip and fall. A jury had found that the product, which was a bag of frozen chicken, had a manufacturing defect when it was sold to a retail grocer.

While shopping at the retail grocer, a customer slipped and fell on liquid that leaked through the defective bag of chicken. The store manager helped her get up, and she stated she thought she was okay and wouldn’t need an ambulance. The manager filled out an accident report on the store form, noting that the customer had slipped on blood that came through a leak in the bag of chicken while she was pushing her grocery cart.

At trial. the store manager testified that he noticed there was a trail of liquid spots behind the plaintiff’s cart just after the accident, and that he’d inspected the bag as well. He took the bag to the meat department, noticing that the bag was open, not just torn or cut. The meat department manager and his assistant also noticed that the corner of the bag was unsealed. The manager testified there was an opening at the bag’s seam, a defective seal, which allowed the liquid to leak.

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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 Texas, to prove a product liability case, a plaintiff must show the product was defective, the product reached the plaintiff in a defective condition, the defect made the product unreasonably dangerous, and the defect caused the plaintiff’s damages. In a 2014 products liability case, a deceased woman’s estate appealed a summary judgment in favor of the company Respironics.

The case arose when the woman contracted Lou Gehrig’s and became paralyzed. She needed a respirator to breathe. The woman’s husband bought a home respirator and hired a nurse through a nursing service. In 2004, a nurse was caring for the woman and allegedly adjusted a valve on the respirator incorrectly.

The deceased woman’s husband sued the medical staffing agency for negligence. The plaintiff’s third amendment joined Respironics, which designed, manufactured, and sold the respirator. He claimed the ventilator was designed and manufactured to allow a patient to suffer respiratory arrest without sounding an alarm. He also claimed the ventilator was marketed with inadequate warnings that there would be no alarm for respiratory arrest. Continue reading →

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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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