We have been asked to give an update on current activities in our firm’s Product Liability Section. Lawyers in the Section have been very busy and are handling cases in several states in both state and federal courts. Our lawyers will investigate any potential product liability claim involving catastrophic injury or death. The following are some of the cases lawyers in the Section are currently working on:
GM Ignition Switch Litigation
Our Product Liability section has been heavily involved in the GM ignition switch litigation. We have a number of cases filed in various state courts around the country involving death and severe injuries. We are pursuing those cases individually and will begin depositions and discovery soon. We also have submitted approximately 40 cases to the Feinberg Settlement Facility for their review and proposed settlements. So far, several of our cases have been approved and our clients have been pleased. We have a couple cases involved in the MDL filed in New York and are watching that carefully to be sure our clients’ interests are protected. The deadline to submit claims to the Feinberg Settlement Facility has been extended to Jan. 31, 2015, and we continue to investigate these cases around the country. Cases that are determined to be viable after the Feinberg cutoff date will be filed and pursued individually in state court.
Heavy Trucking Accidents
The United States of America and various other countries around the world greatly benefit from the transportation of commercial goods carried by trucks. It is estimated that more than 70 percent of the goods in the United States today are transported by approximately 1.9 million semi-trucks. The trucking industry produces revenues estimated at $255.5 billion and provides over 8.9 million jobs to people in the United States. The benefits of heavy trucks are unquestionable, but the dangers of trucks can be unparalleled.
The likelihood of a personal injury lawyer representing a person injured in a tractor trailer crash is strong. Within the next decade, it is estimated that if current trends continue 58,000 people will die in tractor trailer related deaths. In 2009, there were approximately 3,380 fatalities and 74,000 injuries as a result of heavy truck related wrecks. That number jumped to an estimated 3,757 fatalities in 2011 representing an 11 percent jump. There were 88,000 injuries in that same year. The ratio of injuries to trucks on the road is extremely high with approximately 90,000 accidents and injuries each year.
One of the most prominent defects with heavy trucks is unreasonable roof crush. To protect occupants in a rollover, maintaining survival space is very important. Survival space is the space around an occupant that remains free of intrusion in an accident. It is the area in which an occupant is able to “survive” the crash. A roof is part of the structural support of a vehicle and is therefore a critical component in keeping the occupant safe. If a roof crushes substantially during an accident, from a failure of the side rails, headers or support pillars, catastrophic injuries can occur. Often, this decreased survival space results in the occupant’s head impacting some portion of the vehicle causing death, paralysis or brain damage. Sometimes, the occupant can even be partially ejected through an opening created during roof crush.
Another defect we see in heavy trucking accidents is seat belt malfunctions. Greg Allen and Mike Andrews are set to try a case down in Mobile involving roof crush and seatbelt defects in February. In that case, our client had taken his 2004 Freightliner M-2 truck in to be serviced because he felt that the truck was bouncing. The mechanic unnecessarily loosened the control rod, which stabilizes the trailer, and did not tighten it back up. The same day our client picked the truck up from being serviced, the loosened control rod caused the truck to become unstable and our client lost control of the truck. The truck rolled over. His seatbelt became unfastened, and the roof crushed down into his survival space. Our client was thrown out of the back window of the truck and now is permanently paralyzed. We are confident that the jury will diligently consider the evidence at trial and will award our client a just and fair award of damages for his injuries.
Defective cab guards are another primary cause of serious injury or death in heavy trucking accidents. Cab guards are intended to prevent shifting cargo from contacting the cab of heavy trucks that pull trailers. Many cab guards are designed with welded heat treated aluminum, which results in a weakening of the cab guard over time. The weakening of the cab guard due to fatigue stress is relatively unknown to drivers. Many welding requirements established by national organizations are not followed by cab guard manufacturers. The failure to follow such guidelines results in poor welds, poor quality control, and poorly designed cab guards for their intended purpose of protecting truck occupants.
Sometimes, heavy trucking accidents simply involve a driver’s negligent and wanton operation of the truck. Chris Glover, a lawyer in the Section, recently handled a case involving driver negligence. On Dec. 13, 2013, Marilyn Nipper was driving her 2010 Pontiac G6 on AL Hwy. 14 in Elmore County, Ala. Lothario Swiggett was driving a 2006 Mack truck owned by Gale Creek Logging Company, on AL Hwy. 14 in front of the Nipper vechicle. Swiggett’s vehicle was carrying a load of logs at the time of the accident, and the load was in violation of §32-5-211 of The Code of Alabama because the load was not properly marked. His vehicle was stopped at the time of the accident. Ms. Nipper’s vehicle ran into the back of the Swiggett’s vehicle and a log came through her windshield and impaled her, causing injuries which ultimately led to her death.
The plaintiff in this case brought claims against Defendants under Alabama’s Wrongful Death Act. The plaintiff claimed that Defendant’s negligence and wantonness in his operation and use of the tractor trailer resulted in this accident. Plaintiff claimed that Defendant Swiggett was acting within the line and scope of his employment with Gale Creek when he failed to display, notify or warn other motorists of his log load after dark, including but not limited to having any kind of light at the end of his log load. Claims were also brought against Defendant Gale Creek which included negligent hiring, training and supervision of Swiggett, as well as claims based on agency. We recently entered into a confidential settlement with the Defendants on behalf of our clients in this case.
Handling a case involving an 18-wheeler, log truck or other commercial vehicle is significantly different than a standard automobile case. It requires a special investment of time and resources, and a detailed knowledge of the rules and regulations that govern the commercial trucking industry. A lawyer handling these types of cases must be familiar with all these rules in order to recognize a claim and effectively handle the case. Our firm will continue to push for safer roadways by holding trucking companies accountable for violating laws designed to keep roadways safe.
Heavy Industrial Equipment Accidents
Our Personal Injury and Product Liability lawyers routinely handle cases involving heavy industrial equipment accidents. Greg Allen, our lead Product Liability lawyer, has handled cases involving a wide range of industrial equipment accidents, including tractors, loaders, and post-hole diggers. His most recent case involved a Tigercat 620C Skidder, which is used for clearing sites for logging. Our client was using the skidder to help a friend pull his tractor out of the mud. The skidder also became stuck in the mud, so our client had to use a bulldozer to pull the skidder out. The only way to tow the skidder out of the mud is to connect a chain to the towing lugs on the front of the skidder behind the dozer blade. The towing instructions for this skidder require that the dozer blade be raised when attaching the chain. Therefore, the only way to connect a chain to the lugs for towing is to go beneath the raised dozer blade.
After our client had pulled the skidder out of the mud, he reached back under the dozer blade to disconnect the chain from the lugs. At this time, his friend was in the skidder cab. When the friend tried to exit the skidder cab, the friend’s shirt became caught on the dozer blade lever, which stuck out into the cab doorway and was not guarded. The dozer blade suddenly fell on our client, crushing him into the ground. He suffered numerous painful and permanent injuries as a result.
The unfortunate thing for our client is that Tigercat knew how to prevent this type of accident caused by inadvertent activation of a lever. In fact, Tigercat had designed the dozer blade lever with a button on top of the lever. The lever could not be moved without first pushing the button. Before manufacturing the 620C skidder, Tigercat decided to deactivate the button on top of the dozer blade lever, once again subjecting the lever to inadvertent activation.
Greg Allen, our most experienced lawyer in the Section, worked diligently on behalf of our client throughout the litigation against Tigercat. The defendant decided to settle the case for a confidential amount. Fortunately, Tigercat decided to change the design of the dozer blade lever in subsequent skidders to prevent inadvertent activation. Unfortunately, we probably have not seen the last of these types of cases from other manufacturers.
Tires are among the most important components of vehicle safety as they are the only points of contact between vehicle occupants and the ground. We have previously written on tire defects, but perhaps the most dangerous tire defect is one that cannot be seen – tire aging. A tire might look brand new and might not have ever been used, but research and testing shows that when tires reach a certain age, those tires can break down from the inside, de-treading upon use and causing fatal accidents.
Our lawyers have handled many tire aging cases. Rick Morrison, a lawyer in the Section, settled a crash resulting from the failure of a 10-year-old tire. In that case, our client took her car in to a tire and lube franchise to have one of her tires repaired for being low. When the tire technician informed her that her tire could not be repaired, he recommended that she use her full-size spare. Our client expressed concerns about her spare tire’s age and condition to the technician. She relied on the technician to tell her if the tire was unsafe or if she needed to purchase a new tire. The technician, without verifying the tire’s age, repeatedly assured her that her tire was safe. The tire was actually more than 10 years old. On her way back home, the tire failed on the interstate, causing our client’s vehicle to leave the road and roll over. This crash resulted in severe injuries to our client and her passengers.
LaBarron Boone, another lawyer in the Section, is getting ready to try a case involving the failure of a 16-year-old- tire. The tire was the original spare tire on a 1995 Ford Explorer. The tire looked brand new. However, while driving down I-85, just two days after a mechanic shop put the spare tire on the 1995 Ford Explorer, the tire de-treaded, causing the Explorer to roll over. This resulted in the deaths of our clients’ sister and son. LaBarron has successfully handled cases like this in the past, and will try the case this month.
Despite the dangers of tire aging, The National Highway Traffic Safety Administration (NHTSA) has still refused to establish a tire-aging standard. A tire aging standard would make it easier for consumers to determine the tire’s age. Right now, the only way to determine the age of a tire is to decipher the cryptic code on the tire’s sidewall. Also, a tire aging standard would make it mandatory for tire centers to take tires out of service at a specified date, regardless of what the tire looks like on the outside. Beasley Allen attorneys will continue to heavily pursue actions for tire aging until such standards are in place.
Our firm recently settled a case in Alabama involving the failure of a smoke detector in a house fire that occurred on Nov. 28, 2011. Three young children, 4-year-old twins and a 1-year-old girl, died during the fire as a result of inhaling toxic smoke, chemicals and carbon monoxide. The claim was brought against Walter Kidde and United Technologies Corporation, among others, as a result of the ionization smoke detector in the house failing to alarm.
Lawyers in our firm have handled cases of this sort in the past and will continue to handle them in the future. Smoke detector manufacturers have known for more than 30 years that a standalone ionization smoke detector is not adequate to protect a home involving a slow growth or slow smoldering fire. Testing reveals that ionization smoke detectors do not even detect smoke. They detect submicron particles, which may or may not be in sufficient quantity in certain types of fires. Smoldering fires tend to put off larger and cooler particles that may not set off an ionization detector even if the particles reach the detection chamber.
Ionization detectors are also dangerous because they lull people into a false sense of security. An ionization detector is often the detector that goes off when someone opens an oven door or burns toast. In such cases, there may be no visible smoke whatsoever. The sad truth is that folks who have these types of detectors assume that if their detector sounds in the absence of smoke, that it would certainly go off in a fire. That is a terrible misconception.
Another problem with the ionization design is that a person who has a battery operated detector may actually take the battery out to prevent nuisance alarms. This obviously can result in a dangerous and hazardous condition. The detector housings are made out of plastic so that when the fire does flame up and spread, the evidence is destroyed. The detector melts and burns. It may be impossible to determine the manufacturer of the detector or even whether there was a detector actually in the home.
There has been an alternative technology that makes the home much safer from smoldering fires. That’s the photo electric design, which does sense the presence of smoke in a smoldering fire. This technology has been around for years and has proven to be effective. On the other hand, on the slow smoldering fire, the ionization detector may delay from 30 minutes to an hour or it many never sound.
LaBarron Boone is currently investigating another death case in Mississippi involving the failure of a Kidde smoke detector. Our firm will continue to update you as we learn more about these dangerous products. If you have any questions regarding smoke detectors, you can contact LaBarron at LaBarron.Boone@BeasleyAllen.com.
Our Product Liability Section had much success over the last year battling some of the largest auto manufacturers in the world. A trial team consisting of Cole Portis, Graham Esdale, Ben Baker, and this writer secured a game-changing settlement with Toyota regarding an unintended acceleration issue in the case of Bookout v. Toyota. Subsequent to the Bookout case, Toyota began to settle all of its unintended acceleration claims. The Bookout trial team was recognized for its work in changing the course of the unintended acceleration litigation in its selection as a finalist for the 2014 Public Justice Trial Lawyer of the Year award.
Kendall Dunson, another lawyer in the Section, is currently handling a case against General Motors for removing a very important safety feature from its 2008 Chevy Impala—the side curtain airbags. These airbags protect occupants from head and neck injuries. In that case, our client was driving a 2008 Impala when her vehicle was struck on the rear driver side by another vehicle. Because side airbags, which were standard safety equipment on the 2008 Impala had been removed or “deleted” from the subject Impala, our client suffered enhanced injuries in the collision that she would not otherwise have suffered. Our client was paralyzed as a result of the wreck and subsequently died.
Another prominent auto defect involves airbag failure to deploy. Graham Esdale and Cole Portis recently settled a case involving a 2011 Dodge Avenger. Our client was on his way to work, was driving the speed limit, and was properly belted. Another driver coming in the opposite direction crossed the centerline, and despite our client’s efforts to avoid the collision, they hit head on. Our client’s seatbelt did not restrain him properly and the airbag failed to deploy. The failure of the belt and airbag allowed so much forward excursion that his head was able make contact with the center of the windshield. While striking the windshield did not cause his fatal injuries, the failure of the belt and airbag to slow his forward excursion and provide the needed “ride down” did cause his death. We determined there were some issues with the airbag control module that failed to deploy the driver’s side airbag. In addition, the seatbelt included a feature referred to as a load limiter. These devices allow for additional belt payout during an accident. The real benefit of these devices is that it allows the auto makers to pass Federal Motor Vehicle Safety Standards related to frontal crash protection. In real world crashes, it allows occupants to experience dangerous excessive excursion and increases injury potential instead of reducing it.
In this case, we were able to contrast the performance of the Challenger with a defective system to one that performed as intended in the same crash. The driver of the vehicle that crossed the center line and struck our vehicle head on was alert and walking around the scene after the accident. His airbag deployed and his seatbelt did not allow excessive forward excursion. Airbags failing to properly deploy or failing to deploy altogether are not uncommon. This failure is not limited to the vehicle involved in this crash. In fact, we have seen several GM airbag failures that did not involve the ignition switch turning off.
Nursing Home Negligence
Ben Locklar, a lawyer in the Section, is currently handling many cases against nursing homes for negligence and wanton care of residents. Typically, these cases involve nursing home employees allowing residents to develop bedsores, to choke, or to fall because the employees are not providing adequate medical care. The most prominent issue we have faced in nursing cases involves the arbitration agreements that nursing homes require residents to sign before the resident can be admitted for treatment. Often times, the resident is not able to sign the arbitration agreement because of physical or mental incapacities. When a resident is incapacitated, the nursing home lets whoever is with the resident sign the agreement, regardless of whether that person is the resident’s chosen legal personal representative. This practice forces the resident to unknowingly waive the resident’s Seventh Amendment right to trial by jury, which is against legal precedent and public policy. We are currently fighting this issue at the Alabama Supreme Court and will continue to fight this issue until nursing homes change their mandatory arbitration agreement practices.
If you need additional information on any of the above, contact Sloan Downs, the Section Administrator, at 800-898-2034 or by email at Sloan.Downs@beasleyallen.com. She will put you in touch with a lawyer in the section.
Contact us today for a free legal consultation with an experienced attorney.
Fields marked *may be required for submission.
If you would like to subscribe to the Jere Beasley Report digital edition, simply visit our Subscriptions page and provide the necessary information or call us at 800-898-2034.
Attorney Advertising - Prior results do not guarantee a similar outcome.