Articles Posted in Product Defect

fitness-series-2-1467446-1024x768Summary judgment is a judgment entered by a court for one party and against another party without a full trial. More specifically, summary judgment may be granted where the legal claim or cause of action can be decided upon certain facts without a trial. Can you receive summary judgement in a negligence case against a squat machine manufacturer?

In order to succeed in a motion for summary judgment, a movant must show (1) that there is no genuine issue of material fact, and (2) that the movant is entitled to judgment as a matter of law. La. C.C.P. art. 966. A “material fact” is any fact that may be important, valuable, or critical in deciding a case, the suppression of which may reasonably result in a different decision. The movant, then, bears the burden of showing that there is no genuine issue of material fact, but the movant need only identify the absence of factual support for one or more elements essential to the opposing party’s claim. If the opposing party then fails to produce factual support for the challenged elements of his claim, summary judgment in favor of the movant is proper.

In the present case, Thomas Nearhood incurred injuries while exercising on a squat machine at an Anytime Fitness gym in Pineville, Louisiana. The accident happened as a result of Nearhood’s failure to properly secure the weighted bar with the latching mechanism provided for that purpose. One year after sustaining his injuries, Nearhood filed suit against a number of defendants, including Precor, the manufacturer of the squat machine. In his petition, Nearhood claimed that the squat machine did not provide sufficient warnings or instructions to prevent injuries such as his.

rack-of-tires-1187131-1024x768Caveat Emptor. This is a common consumer warning, more easily recognized in English as “Buyer Beware.” But what if a defective product wasn’t actually bought, but given away for free? Monroe resident Jason Falcon faced this issue. In April 2012, Falcon called several local tire stores looking for a new tire for his pickup truck. He spoke to the manager of Ink’s Firestone (“Firestone”) of Monroe, Emmett “Ink” Cobb, who said he had a tire meeting Falcon’s specifications in stock. However, when Falcon arrived at Firestone to purchase the tire, Cobb said he did not have a new tire in the correct size available. Instead, Cobb invited Falcon to select a used tire from one of the piles outside the store for free. Falcon declined Cobb’s offer to mount the tire for $8.00 because Falcon, a mechanic at a local car dealership, planned to do it himself.

A few days after he installed the used tire, Falcon and his fiancee were returning from a trip to Baton Rouge when the tread came off the replacement tire. The tread separation caused Falcon to lose control of his truck, ultimately steering the vehicle into the median where it flipped over, landing upright. Falcon wasn’t injured, but his fiancee sustained minor injuries. The truck, damaged significantly, was a total loss

After the accident, Falcon filed a lawsuit against Firestone claiming that the defective tire caused the crash. The trial court rejected Falcon’s claim, reasoning that the tire could not have been defective because Falcon, as a professional mechanic, would have recognized the defective condition when installing the tire on his truck. Falcon appealed this judgment, claiming the trial court made three errors:  first, in deciding that the tire was not defective; second, in holding that Firestone was not negligent; and third, in finding that there was no sale of the tire in question from Firestone to Falcon.

ear-1419038-905x1024This afternoon a lawsuit was filed by the Berniard Law Firm and Martzell, Bickford and Centola Law firm on behalf of Yuri M. Johnson against the 3M Company in the United States District Court for the Eastern District of Louisiana. The Plaintiff, Yuri M. Johnson, is a US Army combat veteran. During his time with the Army, he was stationed at Jackson Barracks located at New Orleans, Louisiana. Yuri was deployed overseas in Iraq in 2005, deployed to Camp Shelby in Mississippi in 2007 and also was deployed to a base in Michigan, in 2009. Yuri alleges that while serving with the army he was supplied defective dual-ended Combat Arms™ earplugs to protect his hearing.

Unfortunately, the earplugs supplied to Yuri during his time with the army were the same earplugs that were the subject of a whistleblower lawsuit that alleged the earplugs contained a dangerous design defect. The whistleblower lawsuit went on to allege that when the earplug is used the way it is supposed to be used it can become loose in the ear canal which leads to a failure to provide hearing protection. As a result of that whistleblower lawsuit, the Defendant 3M agreed to pay $9.1 million to resolve allegations that it supplied the United States with defective dual-ended Combat Arms™ Earplugs. See United States of America ex rel. Moldex-Metric, Inc. v. 3M Company;

As a result of using these earplugs during combat and training, Mr. Johnson alleges that he continues to suffer daily from tinnitus, hearing loss, and other damages. According to the allegations of the lawsuit, 3M employees were aware of the defects as early as 2000, several years before 3M/Aearo became the exclusive provider of the earplugs to the military. The lawsuit goes on to state, that despite this knowledge, in 2003, Aearo submitted a bid in response to the military’s Request for Proposal to supply large quantities of these defective earplugs and entered into a contract pursuant to which it became the exclusive supplier of earplugs to the military.

rawImage-1024x683
In May of 2016, a groundbreaking whistleblower lawsuit was filed against the 3M company. In this lawsuit filed in the United States District Court for the District of South Carolina, the Plaintiff alleged that the Defendant 3m sold defective earplugs (hearing protection) to the United States government for more than a decade. The lawsuit alleged that not only were these defective earplugs sold to the government but the allegations in the lawsuit were that 3M knew of the defect during the time they were sold. The earplugs were sold the United States government for use by the armed services from 2003 to 2015.

The lawsuit went on to claim that the earplugs were standard issued dual-ended Combat Arms™ brand that was issued to branches of the military service during times of combat. Due to the defect, the lawsuit alleged that it could have caused significant hearing loss to thousands of soldiers during the relevant time period. If a member of the armed services has hearing loss that they contracted during their time while serving the country the United States ultimately is on the hook for their medical cost related to the hearing loss. Therefore, the lawsuit alleged that these earplugs could end up costing the United States government through the Veterans Affairs medical treatment system millions or even billions of dollars for treatment related to hearing loss and tinnitus. The allegations of this lawsuit were absolutely shocking and justice must be sought for these claims.

On July 25, 2018, 3M settled with the United States for the claims made in the whistleblower lawsuit. 3M did not admit any of the allegations made in that lawsuit, but they did agree to pay over nine million dollars to end the litigation. The Justice Department of the United States put out a press release after the settlement stating that they are committed to using the False Claims Act to protect the taxpayer dollars from waste, fraud, and abuse. The Berniard Law Firm applauds the Justice Department in the prosecution of all whistleblower claims.

rifle-scope-1-1576601-1-1024x683What do injured parties do when products are defective and unreasonably damaged? In Louisiana, injured parties may file lawsuits against a manufacturer for damages caused by his products. The following case out of the Western District of Louisiana describes the Louisiana Products Liability Act (“LPLA”).

In mid-2011, Toby Arant purchased two 1” ratchet straps at a Wal-Mart store, manufactured by Tahsin Industrial, Corp., USA (“Tahsin”). On September 9, 2012, Mr. Arant used the straps to secure a tree for hunting. Mr. Arant was seriously injured after falling 20 feet to the ground because the tree straps failed when he climbed onto the tree stand.

Mr. Arant filed a lawsuit in Louisiana state court against Wal-Mart Stores, Inc. (“Wal-Mart”) and Tahsin under the LPLA, alleging that the straps were defective and unreasonably dangerous. More specifically, he claimed that the straps were defective in construction and had an inadequate warning. Wal-Mart and Tahsin removed the case to federal court and filed a motion for a summary judgment. A motion for summary judgment is properly granted if there is no genuine issue of material fact. The motion was granted and Mr. Arant appealed the district court’s dismissal of his products liability suit to the U.S. Fifth Circuit Court of Appeal.

drywall-mess-1506462-1024x683Do you know someone who owns a condo or a home? In some instances, the drywall used to construct the condo complex or home is built from Chinese-Manufactured Drywall.  From 2005-2008 Chinese Drywall was imported into the U.S. and used in the construction of thousands of buildings. Strangely, residents who lived in those buildings began to notice corrosion of metal building components, failure of electrical wiring and in some cases, even physical ailments that ranged from skin irritation to respiratory problems. Ralph Mangiarelli was one the residents who suffered injuries but of a rather different kind.

Mr. Mangiarelli owned a condo unit at Lauderdale One Condominium complex in Fort Lauderdale, Florida. Sixty-Fifth and One, L.L.C. (“Sixty-Fifth”) developed the complex and Banner Supply Company Pompano, L.L.C. (“Banner”) supplied the drywall used to construct the complex. The Lauderdale One Complex had two buildings called “Building 1” and “Building 2.” Only Building 1 was built using Chinese Drywall.  Mr. Mangiarelli owned a condo unit in Building 2.   

Mr. Mangiarelli and other Building 2 residents filed a class action lawsuit in Florida asserting that Building 2 residents suffered a loss in market value for their condos because of the association with Building 1’s Chinese drywall.  All federal actions alleging damages resulting from Chinese Drywall were transferred in 2009 to the United States District Court for the Eastern District of Louisiana.  

chinese-text-1-1314353-1024x768Res Judicata, also known as claim preclusion, is a Latin term that literally means “for a matter judged.” In the legal system, res judicata is a doctrine that prohibits a second lawsuit from being filed for a matter that has already been judged or decided on the merits. Once parties to a lawsuit have had the opportunity to be heard by the court and the court rules on the claims asserted in the lawsuit, those parties are generally not ever again allowed to bring a lawsuit against the same parties for the same claims that arose from the same transaction or occurrence.

Res judicata prohibited a Mandeville, Louisiana man, George Cepriano, Jr., from being allowed to file a lawsuit against Lowe’s Home Center (Lowe’s).  But, Mr. Cepriano, never personally filed the first lawsuit against Lowe’s. Mr. Cepriano’s lawsuit against Lowe’s was not barred solely due to res judicata, but due to an already adjudged class action lawsuit of which Mr. Cepriano was a class member.  A class action lawsuit permits one or more people to bring a lawsuit on behalf of all class members. A class action ruling results in a res judicata blanket application for all members of the class.

Mr. Cepriano’s journey to the Louisiana First Circuit Court of Appeal began after he bought a newly built home in Mandeville, Louisiana. About two years later, while trying to sell the home to a potential buyer, Mr. Cepriano learned the home was manufactured with defective Chinese-made drywall.  Mr. Cepriano filed a lawsuit against Diamond Investments of Louisiana, L.L.C., the property seller, and B Square Builders, L.L.C., the contractor/builder, and Lowe’s.

pregnant-1-1431161-683x1024While having a child and starting a family is something that many couples look forward to in their lives, pregnancy can be very painful and burdensome on the mother. There are many drugs that can help prevent the negative side effects of pregnancy, like nausea and morning sickness, however, those drugs can sometimes do more harm than good. Nothing is worse than going through a difficult pregnancy, and then having a child born prematurely with birth defects because of drugs that were supposed to help.

One case on appeal from the Eastern District of Louisiana involves such a situation. Lindsey Whitener (“Ms. Whitener”) had a son who was born both prematurely and with birth defects after she was prescribed metoclopramide in order to treat her nausea and morning sickness that she frequently experienced during her nine months of pregnancy. Ms. Whitener and her husband filed a lawsuit against a number of different pharmaceutical companies, and their main argument was that these companies had promoted the use of the drug to treat morning sickness, which was an “off-label” use. An off-label use means that a drug is prescribed for uses that are not approved by the FDA. The District Court dismissed the claims brought forth by the Whiteners because they failed to show that the defendants promoted these off-label activities. The Whiteners appealed the decision of the District Court, and the case went before the United States Court of Appeals for the Fifth Circuit.

Ms. Whitener began experiencing morning sickness very early on in her pregnancy and was prescribed the metoclopramide shortly after she began to complain of the sickness to her doctor. Metoclopramide is a generic version of the drug Reglan, and Reglan does not list morning sickness as an FDA approved the use. In 2010, the Whiteners sued PLIVA, Inc., Barr Laboratories, Inc., Teva Pharmaceutical Industries, Ltd., Alaven Pharmaceutical L.L.C., Meda Pharmaceuticals, Inc., and Schwarz Pharma, Inc. PLIVA, Barr, and Teva manufactured metoclopramide; and Alaven, Meda, and Schwarz manufactured Reglan. The Whiteners first claimed that the defendants had failed to warn them about the dangers of using metoclopramide during a pregnancy. Some of the defendants however relied on the Supreme Court decision from PLIVA, Inc. v. Mensing which held that, “because federal law requires generic drug labels to be the same at all times as corresponding brand-name drug labels, state-law inadequate warning claims based on a generic drug manufacturer’s failure to provide a more adequate label are preempted.” HPLIVA, Inc. v. Mensing, 131 S. Ct. 2567, 2577-78 (2011). Essentially, this means that when the state and federal drug laws conflict, the federal drug laws will preempt or replace the state law. Ms. Whitener’s state law claim that the defendants had failed to warn them about the dangers of the drug conflicted with the federal law and the District Court thus held that the state law claim was preempted.

dumbbell-1306867-1024x683When a products-related injury occurs, multiple parties may be at fault. In litigating personal injury claims, among the most important legal questions, are whom may the plaintiff recover from, if anyone, and under what theory of liability. The following case provides a good discussion of some typical theories of liability involved in products-related injury cases.

In 2013, Russell Maricle was involved in a serious car accident that resulted in him needing to use a wheelchair. Mr. Maricle’s bad fortune continued after the accident one day as he rolled up a wheelchair ramp. The fabric on the back of his wheelchair ripped causing Mr. Maricle to fall out of his chair and re-injure his neck. Mr. Maricle rented his wheelchair from Axis Medical and Fitness Equipment, L.L.C. (Axis) in Alexandria, Louisiana. The wheelchair was manufactured by Dalton Medical Corporation and Dalton Instrument Corporation (Dalton).

Mr. Maricle filed a lawsuit against Dalton and Axis, alleging that the wheelchair produced by Dalton was defective and that Axis was negligent in failing to inspect it before renting it to him. These are two separate legal theories. Mr. Maricle’s claim against Dalton is a products liability claim. The Louisiana Products Liability Act (LPLA) sets out the exclusive products liability theories against manufacturers caused by their products. La. R.S. 9:2800.52. Under the LPLA, a manufacturer of a product is liable for damages foreseeably caused by a defect in the product which renders it unreasonably dangerous. The damage suffered by the claimant must arise from “reasonably anticipated use” of the product by the claimant or someone else. A product can be considered unreasonably dangerous for purposes of liability in four ways: (1) construction or composition; (2) design; (3) inadequate warning; or (4) nonconformity to an express warrantee.

drugs-1442720We live in an age in which modern medicine can do wonders for people suffering from various illnesses and conditions. These drugs are designed to provide patients with the ability to live healthy and fulfilling lives. However, there are always side effects to consider when taking any drug. Each patient should discuss these possibilities with their doctor and make an educated decision whether to take the drugs or not. Even after this “due diligence” there can still be unintended consequences from certain drugs. Through no fault of their own, after having weighed the decision and exploring all of their options, patients may find themselves in much worse condition than what they were in before taking the drug. In cases such as these, a good products liability attorney is essential to securing the relief you’re entitled to.

This particular case is set in Shreveport, Louisiana. GlaxoSmithKline (GSK), the defendant, is a drug company who manufactures and markets Paxil, a selective serotonin reuptake inhibitor, or SSRI, used to treat depression. The plaintiff, Cinda McLaughlin, began taking Paxil in 2003 for depression. In June of 2010, Cinda had two valves replaced in her heart. Her doctor alleged that her heart valves showed damage that was caused by exposure to increased levels of serotonin. Cinda took Paxil and its generic equivalent, Paroxetine, for years prior to her heart surgery. These were the only drugs that she took that could account for the higher serotonin levels.

Shortly after Cinda’s surgery, she met with an attorney to discuss her options. Her attorney then met with her doctor regarding product liability issues.  The doctor said he had no knowledge that Paxil caused abnormalities of the valve, but he did not dismiss altogether that it was a possibility. Their meeting concluded with the doctor promising to document any evidence that could have shown Cinda’s drug induced valve failure.