Product Liability

Exposure to Lead from Consumer Products is Not a Thing of the Past

June 1, 2012 | Gregory J. Brod

Since 1986, Proposition 65 requires that businesses with more than ten employees give clear and reasonable warning before knowingly exposing Californians to toxic chemicals. In the last five years, lead has been found in numerous products by non-profit testing centers. The California Attorney General has filed multiple lawsuits against high profile companies for notice violations and for exposing consumers to levels of lead that exceed federal standards.

For example, in 2008 the Attorney General and the Center for Environmental Health (CEH) filed suit against two of the largest manufacturers of artificial turf: FieldTurf USA, Inc. and Beaulieu. The CEH found instances of artificial turf fields that were installed before 2004 that had high levels of lead. The lead is found with the plastics that help keep the turf’s color bright. list of synthetic turf fields that it has tested for excessive lead levels, including three in Alameda County and one in San Mateo County.

In August 2010, the California Attorney General filed a lawsuit against multiple bounce house companies that failed to warn consumers of high levels of lead found in the vinyl with which the house were made. Once again the lead helped to keep the vibrant colored inflatable houses bright. The manufacturer of the vinyl had labeled it as lead free, yet when tested lead was found at high levels. Two of the biggest inflatable bounce house companies, Ninja Jump and eInflatable, agreed in a settlement to better monitor for toxics present in their product.

Man and His Wife Awarded $11.4 Million for Injury on the Job Caused by Defective Hub

May 25, 2012 | Gregory J. Brod

Back%20wheel.jpg Most people who are injured on the job look to worker’s compensation to support them while they are unable to work. In some cases there may be another option as well. Raymond Mariolle, a garbage collector for Waste Management, sued the manufacturer of the truck he used at work for product liability and won to the tune of $11.4 million.

In 2007, the front tire of the garbage truck Raymond Mariolle was using during his rounds came off due to a defective hub assembly. The hub houses the wheel bearing, which supports the weight of the vehicle. Worn down or defective bearings may allow the wheel to become loose and vibrate. The wheel on Mariolle’s garbage truck loosened and came off as a result of the defective hub assembly and Mariolle suffered a compression injury to his spine, which ultimately made him permanently disabled. According to the Contra Costa Times, the manufacturer of the hubs, Consolidated Metco, Inc. realized that some 15,000-25,000 defective hubs were being used on large service trucks as early as 2004, but they never noticed the truck owners. The hubs had the propensity to break under loads they should have been able to carry.

Because a third party contributed to his workplace injury, Mariolle sued the manufacturers involved with the production of the garbage trucks used by Waste Management. Products liability, such as in the above case, is one of the most common personal injury claims for injuries that occur on the job. The Contra Costa Times reported that the $11.4 million that the U.S. District Court jury awarded Mariolle breaks down as $2.4 million for past and future medical expenses and lost earning capacity, $7.5 million for pain and suffering, and $1.5 million for Mariolle’s wife for loss of consortium. The high award in this case is consistent with the findings of research on the topic. A study by RAND found that product liability cases are harder to win than auto accident cases, but that the awards tend to be much higher. The paper Putting a Price on Pain-and-Suffering Damages from the Northwestern University Law Review cites a study that found (logically) the more serious and permanent an injury is, the higher the award. In many personal injury cases pain and suffering can add up to around 50% of the total award for damages. In Mariolle’s case, pain and suffering constituted about 66% of the total award.

It is important to search out a lawyer who understands how juries monetize non-economic damages in injury cases in order to obtain a higher award according to the client’s circumstances.
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Controversial Pesticide Pulled By Manufacturer From California Market

March 23, 2012 | Gregory J. Brod

As your San Francisco dangerous chemicals law firm, the team at The Brod Law Firm believes that it is vital for both companies and regulatory officials to prioritize consumer safety. We are prepared to help victims of chemical exposure file San Francisco products liability lawsuits and other related claims to help residents recover when dangerous chemicals cause illness or injury. We fundamentally believe, however, that preventing the community from being exposed to harmful chemicals upfront is always preferable to dealing with illness and injury in the aftermath of exposure.

The San Francisco Chronicle reported this week on a positive move towards safety in California’s agricultural arena. Manufacturers of methyl iodide, a pesticide used in growing strawberries, have announced that the product will be pulled from the market in California and throughout the United States. Arysta LifeScience Corporation, a Japanese company, has cited economic factors in the decision to discontinue sales. The company has also voluntarily cancelled its registration permitting the sale of methyl iodide in California.

Although the company did not cite safety concerns in their statements, environmental groups have been lobbying against the product since it was first approved for use in our state. In 2007, federal authorities approved the use of methyl iodide as a temporary bridge between methyl bromide, a product known to contribute to the depletion of the ozone layer, and to-be-developed environmentally friendly options. In 2010, the pesticide was specifically approved by the state for use by California farms. Opponents to the product, including many in the public health arena, believe that the company is a possible carcinogen and that use of methyl iodide exposes residents who live or work near treated fields to fumes that might raise their cancer risk. Use of the pesticide has been limited, likely due to a high-profile campaign against the chemical

Local Authorities Move to Limit Dangerous Rodent Poisons

February 24, 2012 | Gregory J. Brod

Our Oakland product liability lawyer believes consumers should be protected from dangerous products in Northern California. We especially applaud efforts by our communities to protect children, a group that is particularly vulnerable to dangerous household goods.

The Oakland Tribune reported this week that Richmond is joining several area communities in attempting to protect our children and pets from dangerous rodent poisons. The Richmond City Council approved a measure, similar to those already in place in Albany and San Francisco, asking retailers to voluntarily stop sales of certain pest control products. Similar products have already been banned by the federal Environmental Protection Agency. The ban covers particularly toxic formulas as well as loose pellet poisons. In 2008, EPA officials requested that manufacturers re-tool their products so that the poisonous bait is in stations that are inaccessible to children and household pets. Manufacturers were asked to comply by June 2011 but not all makers have done so and the EPA is taking steps to remove the offending products. This process, however, takes time to accomplish and moves like that in Richmond attempt to control the ongoing problem.

The Tribune cites the American Association of Poison Control Centers, noting that between 12,000 and 15,000 cases of children being exposed to rodent poison are reported annually. Unreported cases make the actual number of children impacted significantly higher. The fact that rodent poisons are often placed on the floor makes young children especially vulnerable. Pets also frequently ingest the products, with one group noting that nearly half of all animals test positive for exposure to rodent poisons.

Malfunctioning Spinbrush Brand Toothbrushes Cause Chipped Teeth and Other Serious Injuries

February 18, 2012 | Gregory J. Brod

The Federal Drug Administration (FDA) released a Consumer Update on February 16, 2012 warning consumers of multiple issues with the Arm and Hammer Spinbrush (called the Crest Spinbrush before 2009). All nine models of the Spinbrush are being recalled, including the Spinbrush for Kids and the replacement heads themselves.

The Spinbrush has a removable head which has been known to detach unexpectedly exposing the metal piece to which it is connected. The metal piece has jabbed brushers in the cheek, lips, and even eyes causing multiple injuries. In other cases, the toothbrush head popped off in the mouth, chipping teeth, which, if swallowed constitute a choking hazard. Although the Spinbrush for Kids does not have a removable head, problems have been reported with this model as well. Reportedly, bristles may become loose and detach posing a choking hazard to children. Other reports include cut lips and burns from overheating batteries.

Unfortunately, the Spinbrush has a dogged history. Proctor and Gamble initiated a recall for its Crest Spinbrush in November 2004, admitting that the removable head had detached in a small number of brushes. At that time, there were 7.5 million Spinbrushes were in distribution nationwide. Since then, the number has risen to over 22 million distributed internationally, as cited in the latest recall of the Spinbrush.

In May 2011, the FDA issued a warning letter to Church and Dwight Co. Inc., which manufactures the Spinbrush, admonishing the company for repeatedly failing to file Medical Device Reports within 30 days of being notified about serious mouth injuries and chipped teeth caused by the Spinbrush. Moreover, once the company submitted the late Medical Device Report, it failed to designate the injuries as serious, although chipped teeth, cuts to the mouth and eye, and reports of choking are deemed serious by the FDA’s, and most people’s, standards.

The next recall followed on January 25, 2012 for the same reasons. The FDA’s latest Consumer Update is yet another sign that the problems with the Spinbrush have not been addressed. Church and Dwight Co. Inc. has recently taken actions to remedy the problem with the Spinbrush. It added a label to the packaging warning consumers to change the replacement head every three months to avoid wear that could lead to the head malfunctioning. It also added colored bristles that fade to signal that the replacement head should be changed. Finally, it issued safety notices on television and in print.

California law places strict liability of companies doing business in the state. Manufacturers and distributors that send out defective products are generally liable for harm caused by their products. There are also more specific causes of actions, which may apply to the Spinbrush, including, but not limited to, design defect and consumer expectations and negligence to recall/retrofit.

The California Civil Jury Instructions states that a design can be proved to be defective if it did not perform as safely as an ordinary consumer would have expected it to perform. To establish this claim, a plaintiff must prove all of the following:

That the defendant manufactured/distributed/sold the product;
That, at the time of the use, the product was substantially the same as when it left the defendant’s possession or that any changes made to the product after it left defendant’s possession were reasonably foreseeable to defendant;
That the product did not perform as safely as an ordinary consumer would have expected at the time of use; and
That the product was used or misused in a way that was reasonably foreseeable to defendant.

The California Civil Jury Instructions states that a plaintiff may claim that the defendant was negligent because defendant failed to recall or retrofit the product. To establish this claim, plaintiff must prove all of the following:

That defendant manufactured/distributed/sold the product;
That defendant knew or reasonably should have known that the product was dangerous or was likely to be dangerous when used in a reasonably foreseeable manner;
That defendant became aware of this defect after the product was sold;
That defendant failed to recall or retrofit or warn of the danger of the product; and
That a reasonable manufacturer/distributor/seller under the same or similar circumstances would have recalled or retrofitted the product.

As with most causes of action, the plaintiff must also prove for both causes of action that:

That the plaintiff was harmed; and
That defendant’s product and/or negligence were a substantial factor in causing plaintiff’s harm.

Product Liability Law: Protecting the Public

February 17, 2012 | Gregory J. Brod

We should be able to trust the products we buy. Our San Francisco products liability attorney believes that properly filed civil suits play an important role in helping hold companies responsible for their products and their production decisions.

Negligently designed or manufactured products are dangerous to all of our residents. Recognizing the danger of defective products and the evidentiary difficulties of these cases, courts use a strict liability theory in Northern California products liability cases. This means the plaintiff does not have to prove that the manufacturer or seller acted negligently, an evidentiary standard that would be tough to meet. Instead, a plaintiff only needs to show three things: 1) That the product was not safe; 2) That the plaintiff was injured; and 3) That the product caused of that injury. For example, a plaintiff burned by an electric device that got overly hot would only need to prove the product posed a danger and caused an injury. The plaintiff would not need to show that the manufacturer was aware of the danger or was otherwise negligent in releasing the product for sale.

Plaintiffs will still generally present a theory of the case to the court in a San Francisco product liability lawsuit. Common theories include:

Kia Recall Could Affect Bay Area Drivers

January 31, 2012 | Gregory J. Brod

On January 13, 2012, the National Highway and Traffic Safety Administration announced that KIA Motors America, Inc. noticed a recall on Kia Optima sedans manufactured from September 29, 2005 through January 29, 2008. In addition the company is recalling Kia Rondo vehicles manufactured from September 13, 2006 through March 21, 2008. Both models were manufactured with an air bag clock spring that may become damaged over time. Over 145,000 vehicles are potentially affected by the recall, which starts in March 2012.

An air bag clock spring is named for its coiled shape. It provides an electrical connection between the airbag and the controlling computer. The clock spring sits inside the steering column along side the horn and cruise control. Its coiled shape allows the wiring to make a connection without blocking the steering wheel’s functionality. If the clock spring becomes too worn it will develop a high resistance to electrical current, which could block the signal that activates the air bag. In this case, the driver’s side air bag may not deploy in an emergency situation. If the horn or cruise control on a car is not functioning properly, it is a sign that the clock spring may be damaged and the air bag may also be non-functional.

Kia vehicles owners experienced a flurry of recalls in 2011.The Kia Spectra was recalled in April, 2011 because corroded straps supporting the fuel tank could allow the tank fall to the level of the road. In May, the Kia Sorrento and Kia Soul were recalled for faulty interior lighting which could potentially cause a fire. The Kia Sorrento was also recalled for a second reason- it was susceptible to transmission failure due to a misaligned drive shaft.

A search of customer complaints submitted to the National Highway and Traffic Safety Administration reveals that in addition to the problem with the driver’s side airbag, many consumers submitted complaints about faulty passenger side airbags for multiple Kia models manufactured in 2006-2008. The chief complaint was that the passenger side airbag would not register as active although the car was carrying someone in the passenger seat.

California upholds strict liability for product defects. Therefore, even if a car company took reasonable safety measures to prevent manufacturing defects, it will still be liable for damages caused by any defective products were available to consumers. The California Civil Jury Instructions require 5 factors in order to find that a company is liable for a defective product.

The defendant must have manufactured, distributed, or sold the product. The product must have already contained the defect when it left the company’s possession. Moreover, the plaintiff must be actually harmed by using the product in a way that was foreseeable to the defendant. Finally, the product must be a substantial factor in causing the harm.
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Ensuring Toys and Other Products are Safe for Our Children

December 26, 2011 | Gregory J. Brod

Whatever holidays you celebrate, we hope the current season is bringing great joy, the presence of loved ones, and many delicious meals. Children seem to believe there is no greater joy than unwrapping a present with the mix of anticipation, the tearing action as the paper rips, and then the moment when the spot the much-desired prize. To a child, this is pure bliss. A few decades later, however, the true meaning of happiness emerges as the very same scene is viewed from a parent’s eyes. There is truly no greater pleasure than watching a child’s face light up with surprise and joy.

We hope all the children in your lives were thrilled by the presents that come with Christmas, Hanukah, Kwanza, and other late-in-the-year celebrations. These presents should be the source of smiles and many hours of joy, ideally bringing the family together for an added bit of enjoyment. While we do not wish to set a gray cloud on such happy times, we do want to remind parents to always exercise caution. As San Francisco products liability lawyers, we know that children’s products (toys, foods, cribs, clothing, etc) are a common culprit in product-related injuries. When a client approaches us after a child has been harmed in a product-related injury in Northern California, we can help ensure the companies that made and marketed the item are held responsible for their failures.

One danger that makes the news every few months is lead in toys. Lead can be found in either plastic or paint and children are especially vulnerable because their natural tendency is to put objects, and their fingers, in their mouths. Additionally, the developing brain makes children under six particularly vulnerable to the ill effects of lead exposure. There are standards that companies must follow to limit lead, especially in items intended for kids, but it can still be lurking. Older toys and imported items, including those sold at discount “dollar stores,” are particularly dangerous. Lead poisoning often has no immediate symptoms, but over time it can impact a developing brain as well as the nervous system, red blood cells, and heart. Thankfully, heavy enforcement and education has resulted in improvements and the Center for Disease Control reports a significant drop in the percentage of tested children who had elevated lead levels between 1997 and 2008 from 7.61% to 0.83%. California has many state-specific programs aimed at reducing lead exposure. Testing of children’s lead exposure levels, is often recommended and is required at age one and two for children on public health programs.

Raw Milk Recall Lifted But Caution Still Key to Prevent Food Related Illnesses

December 19, 2011 | Gregory J. Brod

The move towards natural foods can be a healthy shift away from processed foods and the over-reliance on fast food that can lead to expanding waistlines and increased health risks. However, sometimes foods marketed as natural carry their own hidden dangers. As San Francisco products liability lawyers, the Brod Law Firm team urges the public to use caution when purchasing food for their family. Likewise, we urge residents harmed by dangerous food products to seek legal recourse and hold companies responsible for selling unsafe food in Northern California.

As reported in the San Francisco Chronicle, California has just lifted a ban that resulted from concerns about unsafe food products. The ban was issued after five children in our state became ill after drinking raw milk produced by Organic Pastures in Fresno. All of the children were found to have the same strain of E. Coli. Three of the young people were hospitalized with hemolytic uremic syndrome, a dangerous illness that can lead to kidney failure. Although investigators did not find the bacteria in samples of the milk, it was deemed the likely source since all five children had consumed the dairy’s raw milk in the period before they fell ill. The state shut down production at the dairy temporarily and recalled Organic Pastures products. At the time of the Chronicle’s report, the dairy had passed necessary inspections and was allowed to resume production of all products with the exception of raw colostrum. Investigators have continued to quarantine the final product out of concern that it may carry dangerous bacteria.

There is a lot of controversy over raw milk products. Proponents believe that raw milk contains more nutrients than the more common pasteurized variety and also that the pasteurization process kills “good” bacteria that can have health benefits including the potential prevention of asthma and other health woes. However, others warn that raw milk can contain harmful bacteria including E. coli, salmonella, and listeria. Worldwide, some countries have total bans on raw milk while others permit the drink, particularly when it is bought directly from the farm. In the United States, federal law prohibits the sale of raw milk across state lines. Other regulation varies by state with about half of states prohibiting its sale for human consumption. California does permit licensed facilities to sell unpasteurized milk. Two facilities appear to have obtained such licenses and additional sales occur directly at some farms.

Legal Perspective on Property-Related Accidents

December 11, 2011 | Gregory J. Brod

According a report in The Oakland Tribune, a poorly constructed chimney was the likely cause of a fire in West Oakland that left at least three residents unable to return to their homes. A home fire is tragic at any time but is especially difficult to imagine as the holidays approach. As your Oakland property damage lawyers, the Brod Law Firm believes in helping residents recover after such an untimely event.

The fire sparked in the early morning hours of Tuesday December 6 in a West Oakland duplex. The home, a Victorian-style two-story located at 30th and Chestnut, had recently been remodeled with an apartment on each floor. In addition to displacing three residents, the fire caused at least $30,000 in damages. According to the reports, the fire was caused by faulty chimney construction. The chimney had been built without a flue and the fire started after the upper-level residents used the fireplace in their unit. The embers from the fireplace were unable to exit and sparked a fire in the attic that then spread to the roof. Luckily, no one was injured and a team of twenty firefighters were able to control and extinguish the flames.

Every accident has its own story. Part of the reason you should always seek out an Oakland accident attorney when you suffer a physical injury or economic loss due to someone else’s wrongdoing is to be sure you explore the full range of legal claims. Thankfully no injury occurred in the West Oakland fire, but the Brod Law Firm notes several different claims that might arise from a property-related accident, especially one that does result in physical injury. A lawsuit might include claims based on: