Articles Posted in product defects

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cigaretteCivil lawsuits involving personal injuries are subject to a time limit, or “statute of limitations,” for filing. This time period usually begins to run on the date that a person is injured or killed due to the negligent, reckless, or intentional conduct of another person or a business. Some actions are also subject to a “statute of repose,” which may place additional time restrictions on the filing of a lawsuit. The applicability of the statute of repose for fraud was at issue in the recent case of Hess v. Philip Morris USA, Inc.

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bikeDefective products are everywhere. It seems like there is a new recall announcement concerning a car, truck, or SUV every week. It’s enough to make one consider alternative transportation. Unfortunately, those other forms of transportation – particularly bicycles with carbon fiber forks – may not be safe either.

In the case of Trek Bicycle Corporation v. Miguelez, the plaintiff was a man who had an accident on the Rickenbacker causeway while riding his newly purchased Trek road bike on the shoulder of the road. According to the plaintiff, the bike stopped abruptly, causing him to fall and hurt his face, jaw, and shoulder. After looking at the bike, it was the plaintiff’s belief that an object had ended up caught in the rotating spokes of the front wheel, then hit the front carbon fiber forks’ back sides; this caused the wheel to stop rotating. The object then hit the front forks, cracking them and causing them to buckle and the bike to collapse.

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360px-ColdCatHeaterComfort.jpgThe Eleventh Circuit Court of Appeals recently upheld a district court’s grant of summary judgment to the defendants in a products liability claim. The product in question, a propane-fired portable heater, allegedly caused the plaintiff’s house to catch fire when she used it indoors. At issue was whether the warnings included with the product were legally sufficient to notify plaintiff of the dangers of indoor use of the heater, particularly since the warnings were written in English in a largely-Spanish-speaking area of Miami. The district court, in granting summary judgment for the defendants, held that the warning met Florida’s standard for accuracy and clarity, despite any language barriers.

Plaintiff Lilybet Farias, a naturalized U.S. citizen from Cuba who primarily speaks Spanish, purchased two “propane gas-fired infra-red portable heaters” from Home Depot. She claimed that she used the heaters inside her house, not knowing of the danger of fire because she could not read the English-language instructions. On the night of February 9, 2009, she reportedly left a heater on and failed to close a valve on a gas tank. Her home caught fire that night. She claimed the damages equalled around $300,000. She sued the manufacturers of the heater, Enerco Group, Inc. and Mr. Heater, Inc., as well as Home Depot, in state court in Miami-Dade County on November 17, 2009. She alleged negligence and strict liability for failing to warn of a product defect against the three defendants.

The defendants removed the case to federal court that December based on diversity jurisdiction. Farias is a resident of Florida, while both Enerco and Mr. Heater have principal places of business in Ohio. Home Depot is a Delaware corporation. The U.S. District Court in Miami granted the defendants’ motion for summary judgment on November 19, 2010, finding that her claims of inadequate warning were barred as a matter of law.

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308201_7286.jpgA federal judge in Miami has dismissed multiple claims without prejudice in a putative class action lawsuit against two football helmet manufacturers. The claim was filed by a father who purchased the defendants’ helmets for his two sons, both of whom are high school football players. Concern over injuries to youth in sports, particularly traumatic brain injuries and spinal cord injuries, has led to closer scrutiny of athletic equipment and more claims for damages when equipment malfunctions or defects cause injuries to players.

Most lawsuits rely on the legal theory of products liability, which holds the manufacturer or distributor of a faulty or defective product liable for damages caused by the product. In this case, the plaintiff pleaded breaches of contract and warranty, as well as violations of consumer protection statutes. The court found that he did not plead his claims with sufficient substance, but gave him until July 20 to amend the complaint.

Frank Enriquez filed suit against Easton-Bell Sports, Inc. (EBSI) and Riddell, Inc. in February 2012 over the line of football helmets known as Revolution Helmets. He states in his amended complaint that the defendants marketed the helmets as offering greater protection against concussions in young players, claiming a thirty-one percent reduction in the likelihood of concussion in athletes that used Revolution Helmets.

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As a Fort Lauderdale car crash attorney, I have followed reports on unintended acceleration in Toyota cars with great interest. Auto industry watchers may remember that Toyota had to recall millions of cars after a series of investigations showed certain Toyota vehicles were accelerating without a clear cause, causing serious and sometimes fatal crashes. The automaker blamed incorrect floor mats and later “sticky” gas pedals, but some believe the real problem is with the car’ electronic throttle systems, also known as “drive by wire,” and with the lack of an override. Toyota is fighting numerous lawsuits from individuals who claim they were hurt in unintended acceleration crashes. Now, the Los Angeles Times reported Jan. 3, insurance companies have piled on with lawsuits seeking to recover money they paid to insureds involved in sudden acceleration crashes.

Altogether, seven insurers filed lawsuits Dec. 30 in Los Angeles Superior Court. They say certain Toyota vehicles have defects causing unintended acceleration, causing at least 725 crashes among their customers. The companies claim Toyota should have included an override feature that stops acceleration when the brake and gas are pressed simultaneously. The claims follow a similar lawsuit filed three months ago by a lone insurer, Allstate. All of the insurer lawsuits seek reimbursement for the money they paid in insurance claims to drivers involved in such crashes. Toyota consistently denies that defects in electronic throttles have caused any crashes. Its recalls for unintended acceleration problems focused first on problems with floor mats blamed for trapping gas pedals, then on “sticking” gas pedals themselves. Federal investigators have blamed some, but not all, of the accidents on human error as well.

As a Miami Gardens auto accident lawyer, I think it’s a good thing for individuals that insurance companies are getting involved. Drivers and accident victims won’t benefit directly if the insurers’ claims succeed — but just the fact that the lawsuits were filed shows insurers believe the claim can succeed. That vote of confidence bodes well for the claims made by the individuals, which are mostly based on the same facts and legal theories. As the Times reported, federal records show Toyota discussed the possibility of an override system as early as 2007, two years before the first reports of unintended acceleration arrived. However, the company didn’t start installing the systems until 2010 — and the technology has existed since the early 1990s. That failure to act could be perceived by juries as placing financial concerns over safety.

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As a Davie product defect attorney, I have kept an eye on the Toyota recall. Last year, the automaker announced the largest recall in its history, of 4.3 million vehicles implicated in multiple reports of sudden and unintentional acceleration. In that recall, Toyota said improperly positioned floor mats were causing accelerator pedals to stick open, sometimes causing panicked drivers to launch into walls or over cliffs. The defect has caused at least 19 deaths, including the August death of an off-duty California Highway Patrol officer trained in vehicle safety and three members of his family. Now, the Los Angeles Times reported Jan. 23, Toyota is recalling 2.3 million more vehicles, saying a mechanical problem is causing the pedal to stick.

The new recall is raising eyebrows, the Times wrote, because Toyota had previously denied any problems other than the floor mat problem. The automaker didn’t explicitly say it no longer believed this, but most of the vehicles involved in the new recall are the same vehicles in the floor mat recall. Some safety experts quoted by the newspaper said they believe the real problem is actually Toyota’s “drive by wire” system, which controls acceleration through an onboard computer rather than mechanical parts. Toyota says the pedal can stick down when it gets worn. It doesn’t have a solution to the pedal problem yet, but has asked drivers who encounter the problem to apply the brakes and call a dealer immediately. Experts also suggest that drivers deal with unintended acceleration by turning off the car or shifting into neutral. Drivers can find more information from Toyota here and a list of vehicles involved in both recalls here.

According to the article, Toyota rejected the computer-bug theory when investigating an incident that led to the most recent recall. This recall is probably still good for drivers, but it disturbs me as a West Palm Beach defective product lawyer that Toyota didn’t investigate the idea that its drive-by-wire system could be the real culprit. In fact, it was basically forced to concede the pedal problem after a sudden-acceleration incident that seemed unrelated to floor mat problems. Mechanical parts are much cheaper to fix than computer systems — but if computers are the problem, that hardly matters. If the expert quoted in the newspaper is right, Toyota’s failure to face the problem will continue to put people at risk until it’s impossible for the automaker to ignore it — putting more lives in danger.

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As a Hollywood auto product defect attorney, I was very pleased to read Dec. 26 that Toyota will recall 4.26 million vehicles to address reports of unintended, uncontrollable acceleration in late-model Toyota and Lexus cars and trucks. Responding to more than 1,000 incidents that caused at least 19 deaths, the company said it would change the shape of the gas pedals in seven models; replace floor mats that may cause the pedals to stick; and reconfigure on-board software to override the throttle when both the gas and the brakes are pressed at the same time. But according to a Nov. 29 article from the Los Angeles Times, many Toyota owners and safety experts believe these fixes miss the real problem — the electronic throttle system that replaced mechanical throttles during this decade.

The electronic system, also called drive-by-wire, uses sensors and a computer system, rather than a physical structure like a cable, to determine how much pressure the driver is putting on the accelerator. According to the article, there was an average of about 26 complaints a year about unintended acceleration in 1999-2001 model year Camry and Lexus ES sedans. After the electronic throttle was introduced, that average shot up by five times, to 136 complaints a year, in 2002-2004 model years. Similarly, the average number of complaints about sudden acceleration in Toyota Tacoma trucks shot up by 20 times after the trucks got drive-by-wire. Toyota denies that the electronic system is to blame for the problem, but the only independent test of the electronic throttle — conducted by the federal government — found that engine speed surged when a magnetic field was applied to the computer.

Perhaps most damning was the article’s story about Eric Weiss of Long Beach, CA. After Weiss survived one sudden acceleration incident in his 2008 Toyota Tacoma, his dealer removed the floor mats. Months later, he was stopped at a red light when his truck — without the floor mats — began accelerating, requiring him to stand on the brakes to avoid another accident. He told the newspaper that he doesn’t want to drive his truck anymore, but doesn’t want anyone else to drive it either.

As a North Miami Beach defective auto attorney, I am disappointed and concerned by this news. If the allegations the article makes are true, Toyota has failed to address a life-threatening problem. The government’s records show that sudden acceleration events have killed at least 19 people, and caused many, many more accidents. Toyota is a popular brand in the United States, which means there are many millions of late-model Toyota and Lexus vehicles with the drive-by-wire system on the road. Even if only a handful have sudden acceleration problems, they could still cause dozens of deaths and catastrophic injuries. The Times reported elsewhere that the cost of the announced recall could easily be more than $250 million, which is a lot to pay for a recall that might not actually solve the problem. Under these circumstances, it seems wise for Toyota to delay action until it can eliminate the possibility of electronic throttle system defects — or can eliminate the defects themselves.

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As a Pembroke Pines auto accident attorney, I was sorry to see reports of a serious accident affecting four students from Marjory Stoneman Douglas High School in Parkland. According to a Nov. 16 article in the South Florida Sun-Sentinel, Anthony Almonte, Sean Maxey and Robert Nugent died just after midnight on Sunday morning after their vehicle crashed through a guardrail and into a canal off Broken Woods Drive in Coral Springs. The fourth teen in the car, 15-year-old Evan Sinisgalli, was able to escape and stumble to the shore, where he called to neighbors for help. The four were out celebrating their high school’s homecoming weekend.

The accident may have been a mistake by Maxey, the driver, who had had his license for less than a month. Maxey reportedly had a fender-bender with another driver when trying to make a turn from Broken Woods onto University Drive. After that crash, Maxey put the car into reverse and apparently just kept going, traveling at least 242 feet and hitting a street sign before hitting the guardrail and going over the edge. Sinisgalli told police he had unbuckled his seatbelt after the crash, expecting to get out. The other young men were all wearing seatbelts when rescue workers found them drowned. Broward County’s Chief Medical Examiner said their injuries weren’t serious enough to stop them from trying to escape and suggested that water pressure may have made it difficult to open the doors.

My heart goes out to the families and friends of these young men. The victims’ friends say that they weren’t drinking, but suggested that Maxey may have been trying to flee the scene because he was out later than teenaged drivers are allowed under Florida law. This accident may have been a panicked overreaction by an inexperienced driver. But as a Tamarac car crash lawyer, I will be very interested to see whether the investigation turns up any defects in the 2007 Volkswagen they were using. Thanks to the Toyota and Lexus recall, we already know that electronic systems in late-model vehicles are suspected of causing problems, or exacerbating mechanical problems they were not designed to handle. If the rapid backward acceleration Maxey experienced was not intentional, he and his friends may have been victims of a serious safety flaw that could affect more Volkswagen drivers.

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As a South Florida product defects lawyer, I was disappointed, along with many other Floridians, to see an Oct. 29 report from the South Florida Sun-Sentinel on Chinese drywall. As I have written before, homeowners in Florida and around the U.S. believe the drywall is tainted with chemicals that make residents of the homes sick. A group of federal agencies, including the Centers for Disease Control and Prevention, the Consumer Products Safety Commission, the Environmental Protection Agency and the Department of Housing and Urban Development, set out to test that theory. The agencies found elevated levels of some chemicals. But as the Sun-Sentinel reports, the chemical levels found are not associated with human health risks. This answer has disappointed and angered many homeowners who feel driven out of their homes by the drywall.

During the housing boom in the middle of this decade, many builders ran out of American drywall and imported substitutes from China. After moving in, homeowners around Florida and the nation discovered terrible sulfurous smells and health symptoms including persistent headaches, corroded metal, breathing problems, frequent illness and complications of asthma. For some, the problems were so bad that they moved out. In all, the newspaper said, the problems have generated 1,900 complaints from 30 states, including 1,317 from Florida alone. The test results released in October are preliminary, involving just 10 homes in Florida and Louisiana as well as new, uninstalled Chinese drywall. Results of more thorough testing in 50 homes are expected by Thanksgiving.

As the newspaper notes, the federal studies have focused on the health effects of Chinese drywall — not the financial effects on homeowners. But as our Parkland defective product attorneys know, the financial side of the problem is very real for the homeowners who are affected. Those in the article include one woman who is renting, but also paying her mortgage and homeowner’s fees, while waiting for an answer. Another homeowner moved his family into a rental while paying a contractor to rip out and replace their home’s drywall. Not surprisingly, these homeowners are frustrated by the government’s lack of conclusions or support. Florida’s Sen. Bill Nelson (D) has called for FEMA aid, but at the moment, homeowners are stuck being their own rescuers.

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As a Broward County injuries to minors lawyer, I was relieved to see a happy ending to a South Florida case that got national attention. Firefighters from Key Biscayne and Miami spent a tense hour Aug. 24 rescuing a three-year-old girl who got stuck in a swimming pool’s drain. According to the South Florida Sun-Sentinel, the little girl was swimming under adult supervision in a backyard pool at a condominium building on Key Biscayne when her arm got stuck. Rescue workers eventually managed to free her, but had to cut a part of the pipe and attached concrete in order to do it. According to the paper, the girl’s hand was slightly crushed, but she was not seriously injured.

It was unclear how the unnamed little girl got stuck in the drain, but the suction created by the drain kept her, and rescuers, from being able to simply pull her arm out. Instead, they tried draining the pool to relieve water pressure, then realized that pressure was not the problem and began cutting out the pipe. While the firefighters worked, the girl’s parents jumped into the pool and helped hold her head above water so she could breathe. After she was freed, she was airlifted to a hospital for further treatment.

Safety advocates told the newspaper that the case underscores the importance of a new federal law intended to prevent just this kind of accident. The Virginia Graeme Baker Pool and Spa Safety Act requires public pools and spas — including apartment and condo pools like this one — to install dome-shaped or large and flat drain covers that children cannot get their hands into. Poolsafety.gov, a government Web site explaining the law, said the suction can entrap small children, causing deaths or serious brain damage due to drowning. The U.S. Consumer Product Safety Commission reported 83 swimming pool entrapments between 1999 and 2008, including 11 fatalities and 69 injuries. Nonetheless, safety advocates said pools around the nation, including the Key Biscayne pool, are not complying with the law, and states have not enforced it, suggesting there may be “a huge safety problem.”
As a Boca Raton child injury attorney, I am particularly concerned about this because South Florida is full of swimming pools, many of which are not in compliance with the Act or not obligated to be. However, manufacturers of swimming pool drains and equipment, like all manufacturers, have a legal obligation to make products that are safe to use and free of defects — or at least warn their customers about potential safety problems. And operators of public and apartment-complex swimming pools are obligated to comply with the Act. In this case, failing to fulfill those duties puts children at risk of death, which I believe everyone can agree is unacceptable. When children are hurt as a result of this negligence, they and their families have a legal right to hold the negligent people legally liable for the injuries and the often-steep financial costs they cause.

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