Articles Posted in Product Liability

All kinds of legal issues are in the headlines and available to read about on internet these days. Facebook has been facing legal problems regarding their privacy settings…Yelp has had to face a class action over their advertising and sales tactics…Google faces a class action by artists, authors, and photographers, and illustrators seeking to be paid for what they create…Toyota faces class action suits regarding the recent recall and the billions lost in the value of owners’ vehicles…TLC Lasik Surgery Centers faces a class action suit accusing them of operating on patients with certain pre-existing conditions, which made them unsuitable for surgery…Denture Creams, such as Fixodent and Poligrip, have faced class action suits due to serious life threatening side effects…and, here in San Francisco, a shady landlord is being sued by City Attorney Dennis Herrera for violating building and health codes.

Here at the Brod Law Firm, we are committed to helping the victims. Our Firm’s philosophy is based on one basic principal: anyone who comes to us with a personal injury issue should be treated equally and with dignity and fairness. We find it remarkable, the lawsuits that are in the daily news, from class action cases to small personal injury cases. The potential for personal injury suits exists, always. No one can foresee if or when they will fall victim to an injury. If you think you have personal injury case, don’t hesitate to call us at (800) 427-7020 for a free consultation.

It is no secret that obesity is an epidemic in this country and that not knowing the nutritional content of the foods we eat can lead to weight gain. Remember Jones v. Dineequity, the class action lawsuit brought against Applebee’s Restaurants for advertising inaccurate nutritional content of its Weight Watchers menu items? Well, it is becoming more and more obvious that people make better, healthier decisions when equipped with the right tools, such as accurate nutritional information. A new study from Seattle Children’s Research Institute shows that parents pick healthier foods for their children if they understand more about the meals they are buying. In the study, parents were given a hypothetical fast food menu on which nutritional contents were displayed next to menu items. The study found that parents chose items that had fewer calories than what they would normally select and suggests that labeled menus can result in reducing the calories eaten at restaurants. New York has already adopted restaurant menu labeling regulations, and legislation that would require federal labeling standards, known as the Lean Act (H.R. 1398), is currently making its way through the legislative process.

The LEAN Act would provide consumers dining out at chain restaurants with comprehensive nutritional labeling informationin menu items-such as fat, carbohydrate and sugar content, not just calorie content– and allow them to make decisions suited for their specific health needs. The Lean Act is based on the federal Nutrition Labeling and Education Act (NLEA), which provides consumers with comprehensive nutrition information in packed food items. Under the LEAN Act, restaurants would also be required to post statements on their menu boards indicating that the daily caloric intake is 2000 calories. Just as the NLEA has had a powerful effect on choices Americans make at the grocery store, the LEAN Act can provide millions consumers with the opportunity to create profound changes, in terms of health conscious choices, when dining out. Here at the Brod Law Firm we believe passing of the LEAN Act is an important step government can take to protect consumers from inadvertently hurting themselves when eating at restaurants. And considering the current debate over health care reform, the passing of this bill would be a means of preventive care for millions of Americans who want to take a proactive approach to their health.

Who doesn’t love raw cookie dough? Have you heard of the recent recall by Nestle of its raw cookie dough? The cookie dough has been voluntarily recalled by Nestle due to its link to a recent E.Coli outbreak. Here at the Brod Law Firm, we think this current recall should spur into action the much needed overhaul the food-safety system. This recall brings into the spotlight one of the FDA’s major handicaps: it does not have the authority to order a recall on its own and relies on the cooperation of food providers to voluntarily recall products.

According to the Wall Street Journal, Nestle refused to give Food and Drug Administration inspectors documents on pest-control and consumer complaints during earlier inspections in recent years. Companies are not required by law to open up their books, but many food companies do, an FDA official told the Wall Street Journal. The agency can only demand access to records if it shows a reasonable belief that the foods are a serious health threat. So far, the E. coli outbreak has affected 69 people, 34 of which have required hospitalization. The bacteria is usually found in cattle feces and can cause severe illness, kidney failure or death. Federal officials are inspecting the Danville facility for clues as to how the bacteria could have gotten in the dough. The CDC is collaborating with public health officials in many states, the FDA, and the United States Department of Agriculture Food Safety and Inspection Service to investigate the outbreak.

Nestlé’s cookie dough is packaged with labels warning consumers not to eat it raw, but that warning should not mean Nestle can’t be sued. Everyone knows that Americans love raw cookie dough. It has even been introduced in certain flavors of ice cream. Victims can’t be blamed for not reading the warning label – it seems accepted by most people that eating raw cookie dough has become, in a way, like a national pastime. Nevertheless, the FDA advises not to eat any varieties of pre-packed Nestle Toll House refrigerated cookie dough due to the risk of contamination. If consumers have any prepackaged, refrigerated cookie in their home they should throw them away. Cooking the dough is not recommended because consumers might get the bacteria on their hands and on other cooking surfaces.

According to a recent article put out by Bloomberg, Eli Lilly & Co. urged doctors to prescribe Zyprexa for elderly patients with dementia, an unapproved use for the antipsychotic, even though the drugmaker had evidence the medicine didn’t work for such patients. Lilly pleaded guilty in January to a federal misdemeanor charge of illegally marketing Zyprexa for off-label use to elderly consumers. Zyprexa was introduced in 1996 and was developed to help control hallucinations and delusions associated with Schizophrenia and sever mania. Shamelessly, after Lilly had sent the U.S. Food and Drug Administration study results that showed it didn’t alleviate dementia symptoms in older patients, it started marketing the drug to dementia patients. One sales representative admitted that she persuaded a doctor to write Zyprexa prescriptions for use in elderly patients for help with insomnia or irritability. A different sales person asked a doctor to give Zyprexa to elderly who are not thinking clearly and are suspicious and hostile.
In 2002 Zyprexa sales grew after Lilly expanded their label off-label marketing campaign-widening their prescriber base to include primary care physicians-encouraging its use for Post Traumatic Stress, mood disorders and insomnia. Lilly officials have not only marketed Zyprexa for off label use but they are accused of hiding the drug’s health risk and failure to properly warn patients they could develop diabetes by taking the medicine. Even more disturbing is the fact that Lilly acknowledged death among patients taking Zyprexa was significantly greater than placebo-treated patients. By lying about Zyprexa’s benefits and downplaying its risks-in their effort to pump up sales–Lilly has damaged the lives of countless consumers. Consumer safety is seriously violated when they place their trust in their doctors who are prescribing drugs, drugs that come from a company, such as Lilly– who’s website states on their Ethics and Compliance page– that they “conduct business consistent with all applicable laws, are honest in their dealing with customers, and maintain an environment built on respect and concern for all the people they touched and are touched by their company.” Thankfully, consumers can rely on the law for protection after being harmed and lied to by big pharma. Here at the Brod Law Firm, we are dedicated to protecting the rights of consumers who have been injured from drugs prescribed for unapproved uses.

Skimming over the news today I noticed another article regarding recalled products. This time, according the Associated Press, the recalled products are fitness balls, made in China and manufactured by New York based EB Brands. The fitness balls have been recalled because the balls can unexpectedly burst during use if they are over inflated. The company received reports of people sustaining fractures and multiple bruises when they fell after balls had burst. In the same article, another recall alert was posted for Shape-O Toy Maracas imported by Tupperware. This toy was also made in China. The toys are considered hazardous because they can brake and expose small parts, which children can choke on. The handles are also a suffocation hazard for children.
This issue of hazardous products manufactured in China is becoming more and more prevalent. Whose fault is it that these products are injuring consumers? Is it China for not ensuring products manufactured in their country are safe, or our fault, for not monitoring or inspecting imports? Product safety lies with both exporters in China and importers in the United States. When companies here choose to do business with the world’s leading manufacturing power, they need to ensure quality and safe standards are met within the entire supply chain. Companies are often not dealing with only one supplier, but often are dealing with the supplier’s suppliers. The sourcing becomes invisible when companies choose China to manufacture their goods, potentially placing the innocent U.S. consumer at risk. In the wake of massive product recalls, we need to wake up to the fact there seems to be a serious lack of integrity at all business levels on all sides. Just as we need a huge overhaul in our nation’s food safety regulatory agencies, we also need an improvement in how we choose to produce and manufacture products. More stringent laws and regulations must be applied to companies that choose to commit fraud against consumer safety. In the meantime, injured people are left to seek recourse in our civil system.

According to an article by the Associated Press released earlier this week, a government study has found traces of a chemical used in rocket fuel in samples of powdered baby formula, and those traces could exceed what’s considered a safe dose for adults if mixed with water also contaminated with the ingredient. Apparently the study, released last month by scientists at the U. S. centers for Disease Control and Prevention, looked for the chemical, perchlorate, in different brands of powdered baby formula. Also according to the article, the study was brought to the publics’ attention when a Washington based advocacy organization, The Environmental Working Group, issued a press release Thursday. The article goes on to point out that the study was not a study of health effects, so it is unknown how dangerous the product is or the risks involved.

Apparentely, the chemical has turned up in several cities drinking water supplies and that it can occur naturally and most perchlorate contamination has been tied to defense and aerospace sites. The EPA, however, does consider perchlorat exposure a serious issue and expects to announce a decision soon about future steps in dealing with the chemical. The article also noted that certain health authorities emphasize the formula is safe, one of whom is Curtis Stevens of the international Formula Counsel, which represent formula manufacturers. Surely consumers are and will be confused by the conflicting and unverifiable information regarding the risks of consumption of this chemical.

Here are some facts. According to the FDA’s interim health advisory, human exposure to high doses of perchlorate may disrupt how the thyroid gland functions. In adults, the thyroid plays an important role in metabolism by making and storing hormones that help regulate the heart rate, blood pressure, body temperature, and the rate at which food is converted into energy. In fetuses and infants, thyroid hormones are critical for normal growth and development of the central nervous system. Perchlorate can interfere with the human body’s ability to absorb and iodine into the thyroid gland which is a critical element in the production for thryroid hormone. So how are we the consumers supposed to react to the varying reports about the risks associated with this chemical?

First it was spinach, then it was tomatoes, then peppers, then peanuts, and now it’s pistachios that have been contaminated with salmonella. The Food and Drug administration is investigating Setton International Foods Inc. of Commack, N.Y., along with its sister company, Setton Pistachio of Terra Bella Inc. in the San Joaquin Valley plant as sources of the scare. According to the Los Angeles Times, nearly two dozen dead cockroaches, rodent droppings and one live cockroach on an ingredient rolling rack were found inside the Commack plant during a state department health inspection. The San Joaquin Valley plant then recalled 2million pounds of nuts over fears of possible salmonella contamination.

Sadly, food producers are not legally bound to meet the FDA’s recommendations for a well run plant. Most consumers don’t know that not mandatory for plants to release testing and reporting results . Consequently, consumers in California have every right to feel a little scared when it comes to food safety. The solution to this growing problem is for both public and consumer advocates to place pressure on food processors and food manufacturers and for government to beef up their food safety guidelines. Another solution would be for the FDA to emphasize to all food processors and manufacturers the fact that efforts, efforts that initially seem costly, such as purchasing or investing in equipment that helps their plants churn out safe products, can save them millions in the long run or prevent bankruptcy.

Requiring everyone along the production process to perform rigorous testing will also help make sure ingredients are safe, which ensures consumers are safe. And since during the production process food products can start in one state and end up in several different companies in different states for repackaging or for use as ingredients, and finding the source of an outbreak can be nearly impossible, it is important that all states set in place stringent food quality safety standards. A bit of good news regarding reform comes from California, where a bill by two Los Angeles Democrats, Assemblyman Mike Feuer and Assembly Speaker Karen Bass, would require food processors in the state to have plans in place to require periodic testing and to prevent contamination and to respond quickly if it occurred. It may seem glib to say, but, here at the Brod Law Firm, we believe now is the time for food safety reform not just in California but in the entire country– as it looks like we are all inextricably linked when it comes to our safety and the foods we eat.

The other day I wrote about drugmakers putting profits before safety when they engage in off-label marketing and how drugmakers and their labeling strategies are coming under the scrutiny of the law. Interestingly, yesterday, the Supreme Court said state juries can award damages for harm done from unsafe drugs, even if their labels satisfied the FDA. This ruling is important because drugmakers can no longer protect themselves from lawsuits merely because their labels are in compliance with the FDA’s requirements. The underlying case, Wyeth Pharmaceuticals v. Levin, started in 2000 when Diana Levine went to a clinic to seek relief for a migraine and was injected with Wyeth’s drug Phenegran to help her with symptoms of nausea. Days later gangrene set in and her harm had to be amputated. She was awarded 6.7million in damages.

The fallout from this case? It is unknown how this decision will affect pharmaceutical companies, but it is likely that they will start strengthening and lengthening the language on labels. It was only until recently, under the Bush administration, that federal agencies were given the final word on drug product safety, and the FDA would claim that state law interfered with their business. This court ruling has turned the FDA’s fears upside down, along with our former administration’s effort to protect drugmakers from lawsuits. And now that these types personal injury claims are no longer pre-empted, more plaintiffs will feel less pressure to settle and be given the opportunity to be heard by a jury and receive compensation. Here at the Brod Law Firm we are prepared to take on product liability suits against drugmakers, now more than ever, due to the outcome of this case.

Yesterday, Bloomberg.com reported that the drug maker AstraZeneca pushed salespeople to tell U.S. doctors its antipsychotic drug Seroquel didn’t cause diabetes more than two years after warning physicians in Japan of possible links to the disease. This report brings into the foreground the dangerous practice by drug makers of making false and misleading statements to sell drugs. This phenomenon was recently noted in article in LawyersandSettlements.com, where the makers of Seroquel were cited for downplaying the side effects associated with the drug and for the practice of prescribing the medication for conditions it was not designed to treat, also known as off-label marketing. The article states that “Seroquel is an anti-psychotic drug that was approved by the FDA for the treatment of Schizophrenia and manic episodes associated with Bipolar I disorder …and is being prescribed for everything from anxiety, to children with attention deficit disorder. ” Sadly, as noted in the article, “it is this off-label marketing that creates a boost in sales for drug makers.” The article also adds, because “drug companies are prohibited from directly advertising a product for use beyond that which it has been approved by the FDA”…they take advantage of a loophole that exists in the system, the” loophole that gives doctors and qualified health care professionals the capacity to make subjective decisions based on perceived or assumed benefit.” Consequently, drug makers focus their marketing on the medical community. Medication that is prescribed off-label to healthy people represents the largest market for drug makers.
Cases such as these, where drug companies put profits before people, are becoming more and more common. FDAnews.com reported in September of last year that Cephalon agreed to pay $444 million in damages and penalties to settle allegations of improper off-label drug marketing. A public interest group called The New Jersey Public Interest Research Group has been researching these practices and put out a report titled “Turning Medicine into Snake Oil” in 2006. The report highlights the issue of off-label marketing and the FDA’s inability to police drug marketers. They state: “When drug marketers promote off-label by broadening the drug’s indication-meaning they urge doctors to ignore the safety-based limitations the FDA imposed on a drug’s use- they are promoting the drug for uses it is effective for, but which the FDA decided are not justified, given the drug’s risks. Patients given these prescriptions are by definition exposed to unnecessary, excessive risks.” In turn, patients who are exposed to excessive risks can or will be injured, even killed. Patients place trust in their doctors, and are violated when unnecessarily prescribed drugs with dangerous side effects. Here at the Brod Law Firm we are prepared to help anyone who has been injured or has lost a loved one due to a dangerous prescription drug.