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June, 2007: Hot Legal Topics


June 01, 2007
Topic: Ricci~Leopold Podcast

Thank you for your interest in Ricci-Leopold's June podcast. My name is Spencer Kuvin, and I am an attorney with Ricci~Leopold. This month we are going to address four topics:

  • First, we I will discuss the problem of vehicle blind zones and the case of Mustafa v General Motors.
  • Next, Lawn tractor rollovers and the extension of a legal theory first explained in a case named D'Amario v Ford called the "crashworthiness doctrine"
  • Then, Federal Motor Vehicle Safety Standards, regional recalls and technical service bulletins and the effect on auto crashworthiness litigation.
  • Finally, Oxycontin. Abuse, misuse and fraud committed by Purdue Pharma.

First - Vehicle Blind Zones

A blind zone is the area behind a vehicle that cannot be seen by an operator in the driver's seat. The amount of rearward visibility one has depends on two things, the vehicles design and the driver's height. For example, the average five-foot eight inch male is unable to see a small child within 12ft for a minivan, 14 ft for an SUV, and 16ft for a pickup truck. Blind zones increase dramatically when a shorter driver is behind the wheel. For example, a 5' 1" driver's blind zone can extend 28 ft. behind a minivan, 38 ft. behind an SUV, and 45 ft. behind a pickup truck. Since the rising popularity of pickups and SUVs in the past years, deaths and injuries due to vehicle backovers has increased dramatically.

Kids and Cars, a non-profit consumer advocacy group, estimates that at least 50 children a week are injured or killed by backing vehicles. Of these 50, an average of 2 children die and 48 are treated in emergency rooms. The National Highway Traffic Safety Administration, or NHTSA, does not keep good data on backover incidents. This is because NHTSA's data only accounts for injuries and fatalities occurring on "highways" and most vehicle backovers occur in parking lots and driveways. For example, during from 1997 to 2001, 138 children were fatally backed over compared with 474 children being backed over from 2002 to 2006. This dramatic increase in child deaths is directly related to an increase in the purchase of large vehicles, such as SUV's, with inadequate rearward visibility. SUVs and pickup trucks have significantly larger blinds zones than passenger cars.

Drivers should not rely on their mirrors and direct line of sight when backing up a vehicle. Instead, drivers ought to walk around vehicle and be aware of any children or obstacles in the area. Better yet, drivers should make sure the vehicles they purchase come equipped with safety devices such as back up radar and rear cameras to prevent these tragedies.

On October 3, 2006, Sima Mustafa, a young child, was backed over by her uncle's Hummer H2, causing catastrophic injuries. Despite looking in all of his mirrors and behind the vehicle, Sima's uncle had no way to detect his niece was behind him. The Hummer H2's blind zone is one of the worst in the industry. Designed to resemble an aggressive military vehicle, the H2 has low-profile side and rear windows and a mounted spare tire that makes it extraordinarily difficult to see behind this passenger truck.

Ricci-Leopold is representing Sima Mustafa against General Motors for failing to equip the 2005 Hummer H2 with any type of backup warning device. Despite GM's awareness of the visibility design defect, the manufacturer chose not to equip the H2 with a warning device or camera to aid drivers moving in reverse. It was not even an option on this vehicle. Consequently, the H2 backed over Sima's causing permanent catastrophic injuries.

Manufacturers have a have promoted SUVs as family vehicles or the modern day station wagon. Therefore, manufacturers must be forced to redesign these vehicles to reduce the hazards to children. Ricci-Leopold believes that all vehicles should be equipped with backup cameras and rear parking sensors.

Next, we turn to lawn tractor rollovers. Ricci~Leopold represents two experienced landscapers who drowned to death in separate incidents because each was operating a zero-turn lawn tractor that rolled into a body of water, asphyxiating the operator. Zero-turn riding lawn mowers have a propensity to roll over when operated on slopes and uneven terrain. Despite the high incidence of rollover, there is a simple way to protect an operator from serious injury and death. A two-point safety frame ensures that an operator will not be crushed to death by preventing the machine from rolling more than 90 degrees. To reduce the significant toll of death an injuries caused by tractor rollovers, safety frames have been in use on other types of tractors since the mid-1960s. Because tractor manufacturers design these machines to operate in areas where rollovers can occur, safety frames are critical to protect operators regardless of the cause of the rollover.

Under Florida's "Second Collision Crashworthiness Doctrine" adopted by the Supreme Court in D'Amario v Ford, a Plaintiff may recover for the enhanced injuries caused by an automobile's defect. The Court reasoned that an automobile manufacturer has the duty to design and produce crashworthy vehicles because the occurrence of collisions is reasonably foreseeable. Historically, the industry has blamed drivers for getting in a collision to distract from the manufacturer's duty to make collisions survivable. After the D'Amario decision, a defendant manufacturer was prevented from blaming the driver for causing the "primary collision." Instead, the issue is whether the plaintiff suffered any enhanced injuries in the "second collision" which was caused by a design defect.

Similarly, we believe at Ricci~Leopold that lawn tractor manufacturers (who know that these machines roll over) must not be permitted to blame the operator for causing a rollover when the enhanced injuries could have been mitigated from a practical and economical design change.

Next, I will discuss the misuse of government safety standards in auto crashworthiness or auto defect litigation. Manufacturers often claim that their vehicles are safe because they meet existing government safety standards and the vehicles are not defective because they have not been recalled. However, Federal Motor Vehicle Safety Standards represent only the minimum level of safety performance that a manufacturer must provide and the lack of a products recall does not mean that a vehicle is free of safety related defects. The National Highway Safety Administration's Office of Defect Investigation is an ineffective department that is not allocated enough funds to fulfill its mission. The office determines whether to issue a recall notice based on the number of consumer complaints filed with the agency and also based on data compiled in the early warning database.

After receiving consumer complaints regarding a vehicle safety problem, the agency typically issues "technical service bulletins;" the agency puts manufacturers on notice of the potential safety defect. However, the agency does not require that manufacturers notify vehicle owners, and any necessary repairs must be paid by the consumer. "Voluntary service campaigns" are another tactic employed by the industry to ward off a statutorily defined recall. Such campaigns are not formal defect determination and are not subject to the far more effective notification or reporting requirements inherent in a recall. A service campaign shifts the cost of fixing a vehicle problem to the consumer, where as with a recall, the manufacturer is required to cover the cost of any repairs. Manufacturers have also subverted the recall process by instituting what are called "regional recalls." The government has been allowing manufacturers to conduct regional recalls by providing notice and a guaranteed free repair only to those owners whose cars are registered in selected states, which usually covers less than half the country. Under the Motor Vehicle Safety Act however, all owners with defective motor vehicles are supposed to receive notice and a free remedy and it is not supposed to be limited to a particular geographic region. Regional recalls do not make sense, especially in our mobile society where people drive from region to region. If the vehicle has a defect that makes unsafe, it ought to be fixed on all similar vehicles, not just vehicles in a particular region. In conclusion, the absence of a national recall does not mean that a vehicle is free of safety related defects. Attorneys are advised to research technical service bulletins and regional recalls if they are unable to find a nationwide recall pertaining to a suspected safety defect.

Finally, Oxycontin Abuse, fraud and misrepresentations made by drug manufacturer Purdue Pharma. As most of the country has heard by now, on May 10, 2007, three current and former executives of Purdue Pharma plead guilty in federal court to criminal charges that they misled regulators, doctors and patients about the drug OxyContin's risk of addiction and its potential to be abused. The parent of Purdue Pharma, the company that markets OxyContin, agreed to pay more than $600 million in fines. The three executives that plead guilty included its president and its top lawyer, who agreed to individually pay $34.5 million in fines.

OxyContin was initially introduced by Purdue Pharma in 1996 and aggressively marketed as a "less addictive" drug alternative to Percocet or Vicodin. Just a few years after its introduction and Purdue's aggressive marketing campaign, annual sales reached $1 billion. Purdue Pharma's representatives specifically targeted doctors like general practitioners who had little training in the treatment of chronic pain or in recognizing the signs of drug abuse in patients. Its false marketing went so far as to allow company sales officials to draw their own fake scientific charts that they then distributed to doctors to support their misleading abuse related claims. By 2000, several parts of the United States, including Florida, began seeing skyrocketing rates of addiction and crime related to the drug's use.

Eventually, in 2001 Purdue Pharma dropped its aggressive marketing campaign, but by then the damage had been done. Many patients were already hooked on this drug which has been likened to heroin. These addicted patients have suffered serious side effects and death as a result of involuntary overdose.

Due to corporate greed and fraudulent conduct by a company who's only concern was putting profits over people, Ricci~Leopold is representing clients who have been injured by Purdue Pharma. If you know of someone who was first prescribed OxyContin by their doctor before 2002 and has suffered serious injury or death as a result of their addiction, they may have a claim. Please call us at Ricci~Leopold, P.A., for more information.

Attachments:
RicciLeopoldPodcastJune07.mp3


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