Products Liability

Maryland Drinking Water Found to Contain Pollutants

February 4, 2013 | Lebowitz & Mzhen

The discovery of contaminated drinking water in Salisbury, Maryland last year reportedly led to a quick response by both the state and federal governments. Households in the area have received bottled water and filters, in the hopes of making the water safer for consumption. Investigators are still trying to determine the source of the contamination. The pollutant, an industrial solvent known as trichloroethylene (TCE), has unfortunately been a rather common contaminant in drinking water supplies around the country, and not every affected population has received as thorough a response as this Maryland town. Lawsuits against businesses and government entities, including a multi-district litigation (MDL) case against the federal government in Georgia, have asserted claims for negligence related to TCE contamination.

TCE is a volatile organic compound (VOC) used primarily in degreasing fabricated metal parts and other industrial processes. It does not occur in nature, but can end up in groundwater due to industrial use and disposal. It is usually colorless, nonflammable, and has an odor similar to chloroform. In large concentrations, it can have serious health effects. Contact with the skin can cause rashes, and consumption can cause liver problems and a heightened risk of cancer. The EPA, under the Safe Drinking Water Act, must establish a level for chemicals at which adverse health effects should not occur. For TCE, the level set by the EPA is zero.

TCE contamination in groundwater just south of Salisbury was first discovered in the fall of 2012. At least eighty-two homes have been affected by the pollutant. In tests of 227 private wells conducted by the Maryland Department of Environment (MDE), ninety-three tested positive for varying levels of TCE. The safety limit set by the state for TCE is 2.18 parts-per-billion (ppb). Some of the wells in Salisbury had TCE levels as high as fifty-six ppb. The source, or sources, of the contamination remains unknown. Investigators are reportedly puzzled by test results, some of which show one well with excessively high TCE levels and another well less than one thousand feet away showing almost no contamination.

Supreme Court Reviews Class Action Reform Law

January 21, 2013 | Lebowitz & Mzhen

Class action lawsuits have long provided a means for large numbers of claimants to consolidate their claims into a single action, when they might not have the resources to pursue individual lawsuits. This has allowed countless people to seek compensation in cases involving products liability, bad faith insurance practices, and other types of personal injury. Class actions are also common in areas like consumer protection law and certain types of securities litigation. For a variety of reasons, class action lawsuits have also been the subject of much controversy, and legislation supported by businesses, many of whom often appear as defendants in class action cases, has placed limits on the amount class action plaintiffs may recover. The U.S. Supreme Court recently heard arguments in a case, The Standard Fire Insurance Co. v. Knowles, No. 11-1450, that involves a federal statute regulating large state and federal class action lawsuits.

Congress passed the Class Action Fairness Act of 2005 (CAFA) in response to an alleged pattern among trial lawyers of filing class action lawsuits in specific state courts where they could obtain favorable verdicts. Calling this an “abuse” of the class action system, the Republican-led Congress passed the bill by a wide margin, and President Bush signed it into law in February 2005. CAFA applies to class action lawsuits that seek damages in excess of $5 million, and in which more than two-thirds of the plaintiffs are from a different state than the principal defendant. CAFA requires the automatic removal of lawsuits meeting these criteria to federal court, which supporters of the law believed would be less predisposed towards the plaintiffs. CAFA’s opponents called the law an assault on individuals’ legal rights.

Insurance Companies Ask Court to Declare They Are Not Obligated to Defend Four Loko Manufacturer in Products Liability Lawsuits: Netherlands Ins. Co. v. Phusion Projects, Inc.

November 30, 2012 | Lebowitz & Mzhen

Two insurance companies have brought a declaratory judgment action, Netherlands Ins. Co. v. Phusion Projects, Inc., asking the court to declare that they are not bound to defend or indemnify Phusion in several products liability and wrongful death lawsuits relating to the company’s product, Four Loko. The plaintiffs state that they have obtained similar declaratory judgments in the past, and that the present lawsuits present the same underlying issues. The declaratory judgment case could significantly impact the pending personal injury cases, along with any potential future claimants, by making recovery of damages more difficult.

Four Loko is a beverage marketed as an “energy drink,” containing alcohol and a variety of stimulants like caffeine and guarana. It has been the subject of numerous lawsuits related to injuries and deaths from intoxication allegedly caused by the drink. The declaration sought by the plaintiffs in the present case would affect five pending lawsuits:

– Fiorini v. Phusion Projects, LLC, Superior Court of Fresno County, California. The plaintiff is suing for the wrongful death of his son, who drank two 23.5-ounce cans of Four Loko and allegedly became disoriented and paranoid. He began firing a shotgun, and was subsequently shot and killed by police.

Court Denies Motion to Dismiss Brought by Manufacturer of Four Loko in Putative Class Action Lawsuit: Yourth v. Phusion Projects, LLC

October 24, 2012 | Lebowitz & Mzhen

A federal judge in New York denied Phusion Projects’ motion to dismiss a putative class action lawsuit alleging damages caused by its product, the energy drink Four Loko. The lawsuit, Yourth v. Phusion Projects, LLC, alleges that the company failed to warn consumers of potential negative effects of the beverage’s allegedly high levels of both caffeine and alcohol. Phusion argued that the plaintiff’s claim was moot because of a settlement offer the company made, and that federal law preempted the plaintiff’s state law claims. The court rejected the defendant’s arguments and denied its motion.

Four Loko is a beverage containing both caffeine and alcohol, marketed to young adults as an “energy drink.” The plaintiff, Jeremiah Yourth, alleges in his amended complaint that a typical unit of Four Loko, which is sold in 23.5-ounce cans, potentially has the same effect as six beers and two cups of coffee. Because of its composition, the beverage can allegedly mask the effects of alcohol consumption and thereby cause injury. According to the plaintiff, Phusion did not disclose the potential harm of its beverage to consumers.

The plaintiff did not assert any personal injuries in his complaint, but rather violations of New York’s deceptive business practices law, false advertising, and unjust enrichment. He alleges that he purchased multiple Four Loko beverages in reliance on the company’s marketing and labeling, and that this gives him standing as a consumer to bring suit. His damages consisted of economic injuries sustained by his purchase of the beverages at what he called a “price premium,” when the products were in reality worthless. Had he known the alleged reality of Four Loko’s health effects, he claims that he would not have purchased the product. He asserts grounds for certification as a class action under the Federal Rules of Civil Procedure, although at the time of the defendant’s motion to dismiss, he had not moved for class certification. The amended complaint requests restitution and other damages for the plaintiff and the class members.

Federal Court Denies Class Certification in Medical Products Liability Claim

July 25, 2012 | Lebowitz & Mzhen

A U.S. District Judge in Pittsburgh has denied a plaintiff’s motion to certify a class in a products liability lawsuit. In Haggart v. Endogastric Solutions, Inc., the plaintiff claimed that a medical device manufacturer failed to warn of certain risks associated with a device used to treat his gastroesophageal condition. The court ruled that he failed to demonstrate the prerequisites for class certification, finding that the potential class members did not have the common experiences or interests that would make a class action an efficient way to resolve their claims.

The plaintiff, Daniel Haggard, suffers from gastroesophageal reflux disease (GERD), a condition where stomach contents, including stomach acid, flow back into the esophagus. It causes irritation to the esophagus and conditions like heartburn. He declined a common device used to treat GERD, known as a Nissen Fundoplication, because it required permanent implantation. He opted for a device known a an EsophyX, allegedly based on representations from the manufacturer, defendant Endogastric Solutions, that the procedure is “reversible.”
He had the device implanted in June 2009, but he learned three months later that the device had failed to properly implant. On his doctor’s advice, he went ahead with the Nissen Fundoplication, and he learned that the EsophyX was not “reversible,” but rather “revisable.” The fasteners for the EsophyX were not removable, because tissue had grown around them. This allegedly foreclosed other medical options that might have otherwise been available. After the Nissen Fundoplication, he alleged that his GERD symptoms grew worse.

Samsonite Recalls 250,000 Pieces of Luggage After Positive Carcinogen Tests

July 5, 2012 | Lebowitz & Mzhen

Samsonite, the world’s largest luggage manufacturer, has voluntarily recalled its “Tokyo Chic” line of luggage after tests on several samples found high levels of carcinogenic compounds in the handles. The tests, conducted by the Hong Kong Consumer Council (HKCC), led to a recommendation by the government of Hong Kong to stop selling the allegedly defective luggage models. Samsonite, despite maintaining that the luggage is safe, says that it is recalling the line of luggage to “allay any concerns that consumers may have.” The luggage line is primarily sold in Hong Kong and elsewhere in Asia, but it is not clear if the line is also available in the United States. The recall process is similar to that used in Maryland and elsewhere in the country.

The HKCC tested several samples of the Tokyo Chic luggage. It announced in mid-June that the handles on four of the samples tested positive for high levels of polycyclic aromatic hydrocarbons (PAHs). PAHs are a byproduct of incomplete hydrocarbon combustion, resulting from the burning of oil or coal and found in auto exhaust and other emissions. They may also be found in grilled food. Extended exposure to PAHs has been shown to increase the likelihood of cancer in humans.

Federal Port Investigators Block Importation of Nearly 650,000 Allegedly Dangerous Products in Last Quarter of 2011

April 26, 2012 | Lebowitz & Mzhen

The Consumer Product Safety Commission (CPSC), the federal agency that monitors most consumer goods sold or imported in the U.S., recently reported on a collaboration with U.S. Customs and Border Protection (CBP) agents to monitor shipments of goods arriving at international ports from abroad. The CPSC says that it either seized or blocked over 647,000 units of goods deemed dangerous, according to federal safety standards, in the last three months of 2011. The report offers interesting information on how the government assesses the safety of consumer products and monitors shipments from abroad.

The CPSC is an independent federal agency that regulates all consumer goods not specifically assigned to a different agency. For example, federal law gives authority over the safety of pharmaceutical products to the Food and Drug Administration. The Bureau of Alcohol, Tobacco, and Firearms regulates guns, and the National Highway Traffic Safety Administration regulates the safety of automobiles. The CPSC has the authority to ban products it deems dangerous, keeping them out of the marketplace entirely. It can also issue recalls of products that have already reached consumers if it determines that the product poses a risk to the public.

The CPSC determines the safety of products by drawing on several sources. A national system that collects data from hospitals regarding injuries caused by consumer products allows the CPSC to estimate the probability of injuries from specific products. A consumer hotline and website, known as SaferProducts, allows consumers to report injuries or concerns directly to the agency. The CPSC began operations in 1973 and commenced product screenings at U.S. ports that same year. It states that it “intensified its efforts” in 2008, when it launched its import surveillance division.

During the fourth quarter of 2011, investigators with CPSC and CBP screened at least 2,900 shipments at U.S. ports of entry. CBP monitors ports of entry in all fifty states, D.C., and the major U.S. overseas possessions. It identifies Baltimore as the port of entry in Maryland. CPSC’s report does not indicate how many ports of entry were included in its screening.

Energy Drinks Allegedly Cause Maryland Teen’s Death from Caffeine Toxicity

March 21, 2012 | Lebowitz & Mzhen

Fourteen year-old Anais Fournier, of Hagerstown, was at the mall with friends on December 16, 2011. Her friends told the Record Herald that Fournier drank one 24-ounce energy drink that day, and that she drank another one less than twenty-four hours later. On December 17, she went into cardiac arrest. Doctors at a Baltimore hospital induced a coma to prevent her brain from swelling, but six days later, she died, having never regained consciousness.

Fournier’s death certificate lists “cardiac arrhythmia due to caffeine toxicity” as her official cause of death. She reportedly suffered a complete lack of oxygen to her brain when she lost consciousness. Fournier had a heart condition that can cause heart valve malfunctions. Doctors did not directly connect her heart condition to the arrhythmia that caused her death, but heart conditions are among the risk factors in scientific studies of energy drinks.

The forty-eight ounces consumed by Fournier reportedly contained 480 milligrams of caffeine, which according to TODAY Health is almost five times the limit that the American Academy of Pediatrics recommends, and roughly equal to the amount of fourteen 12-ounce cans of Coca-Cola. Many beverages marketed as “energy drinks” contain ingredients like guarana and taurine that themselves contain caffeine, as well as high levels of sodium and sugar. The Record Herald reports that doctors advise parents to keep such energy drinks away from children, citing potential side effects like high blood pressure, seizures, and even death. Energy drinks can be especially dangerous for people with diabetes, high or low blood sugar, or heart conditions.

Fournier’s death has led her family, friends, and others to call for regulation of energy drinks by the U.S. Food and Drug Administration (FDA). Energy drinks are reportedly categorized as “nutritional supplements,” and so are not subject to the FDA’s limit of 71 milligrams of caffeine per 12 ounces in soda. They are also not subject to the FDA’s safety testing and labeling requirements. A press release from the American Beverage Association, issued about a month before Fournier’s death and quoted by the Record Herald, alleged that energy drinks have FDA approval, and that they contain less caffeine than a typical cup of coffee. While an 8-ounce energy drink contains between 60 and 100 milligrams of caffeine, according to the press release, a similar amount of coffee contains between 104 and 192 milligrams.

Maryland Teen Dies After Falling from Moving Vehicle, Mother Blames Alcoholic Beverage Manufacturer

March 5, 2012 | Lebowitz & Mzhen

A Maryland teenager died the evening of Saturday, February 18, 2012, when he fell from a moving car and was struck by another vehicle. Michael Truluck, age 13, had allegedly consumed an energy drink containing alcohol earlier in the evening with friends. He was reportedly feeling sick, and his friends said he had vomited twice when his mother’s fiance came to pick him up. During the ride home, he reportedly removed his seat belt and opened the car door, while the car was in motion, in order to vomit again. He fell out and was struck by a Ford Explorer. Police have said they will not file charges against the driver of the Explorer.

Initial news reports indicated that the boys were drinking Four Loko, an alcoholic beverage once marketed as an energy drink. Subsequent reports from the Associated Press said that it was not clear exactly what drink they were consuming. Police were also not sure who provided them with the drinks, although they suspect an adult in the neighborhood. Truluck’s mother has stated that she believes the drink caused her son’s death by making him so ill that he lost control of his actions. She told the Baltimore Sun that she believes he was so sick because of the drink that he was not aware of anything except the need to vomit. She is now speaking out against underage drinking.

The beverage marketed as “Four Loko” has already had a controversial history. The U.S. Food and Drug Administration (FDA) issued warnings that mixing caffeine or other chemicals often used in energy drinks with alcohol posed a number of health risks. It can prevent a person from full awareness of their own intoxication because the caffeine or other supplement masks the direct effect of the alcohol, but the person is nevertheless impaired. The FDA called this a “wide-awake drunk” effect. Four Loko’s manufacturer, Phusion Projects, reportedly reformulated the drink in 2010 to remove caffeine, but it continued to include alcohol in the formula. Some states banned the sale of the drinks when several college students died after allegedly consuming Four Loko.

The family of a teenager in the D.C. area who died in a car accident after allegedly drinking Four Loko filed suit against Phusion in 2011 fro wrongful death, alleging that the company was negligent in producing a drink that “desensitizes users to the symptoms of intoxication,” thus increasing the risk of injury. His death occurred a few weeks before Phusion announced its reformulation.

Reliability of Federal Product Safety Database Questioned in Lawsuit

October 27, 2011 | Lebowitz & Mzhen

A lawsuit filed by an anonymous “Company Doe” seeks to block “baseless allegations” on a new website that allows consumers to post information on hazardous products. The website, SaferProducts.gov, represents an effort to “crowdsource” reporting of dangerous and defective products in the marketplace. The Consumer Products Safety Commission (CPSC) created the site and lunched it about six months ago. The lawsuit brings to light concerns raised by business groups that the website creates the potential for consumers to defame companies by posting false, misleading, or inaccurate information. One side of this dispute involves the right of manufacturers to do business without false disparagement. On the other side is the public’s interest in freely available information on hazardous products.

The CPSC is an independent agency of the federal government with a mandate to protect the public “against unreasonable risks of injuries associated with consumer products.” It regulates over 15,000 different consumer products by investigating claims of faulty, defective, or hazardous products. It can then issue recalls of products already released into the market or ban products yet to be released. In addition to SaferProducts.gov, the agency operates the National Electronic Injury Surveillance System (NEISS) which collects data on injuries caused by dangerous products from emergency rooms. Congress passed the Consumer Product Safety Improvement Act in 2008, which authorized the creation of a public database to collect information on product concerns.

In its first four months, according to the Government Accountability Office, the website received 5,464 consumer complaints. Of those, the CPSC found 383 of them to be “materially inaccurate.” In 204 of those reports, consumers had incorrectly identified the manufacturers of the allegedly hazardous products. The total number of reports received, while possibly low because of lack of widespread knowledge of the system yet, may be considerably lower than the number of reports received by the CPSC through its other programs. Annually, it collects over 360,000 reports through NEISS, 23,000 reports directly from manufacturers, and around 15,000 reports through the agency’s website and hotline.

SaferProducts.gov is the first service that gives members of the public the opportunity to directly report problems, and to access information reported by others. The CPSC clearly disclaims that it “does not guarantee the accuracy, completeness, or adequacy of the contents” of the website’s database. This potentially presents a problem both for manufacturers who may find themselves unfairly maligned, and for a public needing accurate and up-to-date information on hazardous products.