Texas Injury Law

Toyota Tacoma recall

Blake Bailey — Sat, 13 Feb 2010 21:41:06 -0600

The drama continues. Toyota now is recalling 2010 Tacomas because of cracks in the front drive shaft. This could lead to "...separation of the drive shaft..."

Honda airbag

Blake Bailey — Wed, 10 Feb 2010 13:09:15 -0600

Honda Motors Inc. has issued another recall to replace of more than 430,000 faulty airbag deflators that could rupture, causing death or harm to the driver. This is the third recall Honda will issue for this problem. The latest recall applies to 2001 and 2002 model-year Accord, Civic, Odyssey, CR-V, Pilot and 2002 Acura TL and CL vehicles in the United States.

http://www.bailey-law.com/lawyer-attorney-1215486.html

Lexus E350 acceleration

Blake Bailey — Fri, 05 Feb 2010 15:44:47 -0600

Information has now come to light that there was an acceleration problem causing crashes in the Toyota made Lexus. Although the incidents were high enough to cause concern, there was no recall or publicity. Toyota never found a conclusive reason for the crashes. Yet here we are in 2010 with a massive recall of other Toyota vehicles with the same problem. Toyota first blamed floor mats and now a sticky gas peddle rod. My guess is that the true problem has yet to be discovered.

http://www.bailey-law.com/lawyer-attorney-1215486.html

Prius brakes

Blake Bailey — Wed, 03 Feb 2010 18:12:29 -0600

As if Toyota didn't have enough safety quality issues, now there is evidence of a serious safety problem on their hybrid Prius. The brakes fail causing injury and death.

Toyota recall

Blake Bailey — Thu, 28 Jan 2010 14:14:39 -0600

Toyota is recalling 2,000,000 of its cars because of a defect in its accelerator. Tragic injuries and even death have resulted from a sudden acceleration of Toyota vehicles. At first Toyota announced that the mat could hold the gas peddle down but now it appears the the problem is in the system itself. These problems have had a ripple effect as to some American cars such as the Pontiac Vibe.

http://www.bailey-law.com/lawyer-attorney-1215486.html

A law suit in Virgina alleges that there are considerably more vehicles manufactured by Toyota that are defective and could potentially cause the gas pedal to cause an acceleration and resulting injuries and death.

Candidacy for Supreme Court

Blake Bailey — Mon, 28 Dec 2009 13:24:54 -0600

"When can a plaintiff win in the Texas Supreme Court?"
"When one insurance company sues another." -- from Judicial Tort Reform in Texas

That’s a joke among law clerks in the Texas Supreme Court, a reference to the court’s reputation for ruling in favor of corporations and insurance companies.

It’s included in a recent study by a University of Texas law professor that documented that bias, finding that the court ruled in favor of corporations or the insurance industry 87 percent of the time.

A separate study by Texas Watch, a non-partisan, advocacy organization reached much the same conclusion based on the court’s rulings for 2007-2008, stating in a recent article that “Texas families and consumers do not have a level playing field at the Texas Supreme Court. The Court has exhibited a clear bias towards insurance and corporate special interests for several years.”

As a candidate for Place 9, Blake Bailey is seeking to restore balance to the court. "We don’t want unfair decisions against insurance companies. We simply want a level playing field," Bailey said, "and we want the court to honor every American's right to a trial by jury.

"In many opinions the Supreme Court has held against a Texas citizen by deciding that the 12 members of the jury, the trial judge and the three Court of Appeals judges were 'unreasonable' in their fact findings."

"This is tantamount to stealing our right to trial by jury ... a right that is guaranteed by the U.S. and Texas constitutions.”

Bailey for the Texas Supreme Court

Medical negligence

Blake Bailey — Mon, 10 Aug 2009 10:25:18 -0600

The rules in Texas are so onerous and recovery so limited, medical negligence litigation is all but prohibited.

According to a recent investigative report by Hurst Newspapers "Experts estimate that a staggering 98,000 people die from preventable medical errors each year. More Americans die each month of preventable medical injuries than died in the terrorist attacks of Sept. 11, 2001."

http://www.bailey-law.com/lawyer-attorney-1215844.html

Suffication of children

Blake Bailey — Mon, 13 Jul 2009 12:46:08 -0600

On July 2, the U.S. Consumer Product Safety Commission recalled of 400,000 Simplicity drop-side cribs because their risk of suffocation. Federal officials said that plastic hardware can lose its structural integrity and create a potentially deadly gap between the drop side and the crib mattress.

It’s the latest in a series of Simplicity recalls. Simplicity is now out of business.

Similar hazards have been found in cribs made by many other companies. Since 2007, more than 4.6 million cribs have been recalled. .

http://www.bailey-law.com/lawyer-attorney-1215486.html

Zicam

Blake Bailey — Thu, 18 Jun 2009 13:53:20 -0600

Zicam is a homeopathic cold remedy that you take through your nose. Consumers are at risk for losing their sense of smell and taste. The FDA is now involved and the maker has suspended shipments. This product should not have been marketed as an over the counter medicine. How did this come about? The litigation will answer many questions.

http://www.bailey-law.com/lawyer-attorney-1215852.html

Pharmacutical

Blake Bailey — Thu, 04 Jun 2009 12:37:13 -0600

The United States Supreme Court opened the door for legitimate litigation concerning unreasonably dangerous pharmacuticals when it rejected the preemption defense based on FDA approval. Several drugs are now involved in litigation. The following are a few:

1. Fentanyl Patch is used for chronic pain but can easily be overdosed, causing death. It is critical to rule out misuse since this medicine is used by patients in significant pain. Misuse can be eating, injecting and smoking the medication. If an attorney is considering such a case he needs to locate the patch.This can be hard since it may have been taken off by EMS or in ER. Check the written report and photos in autopsy.

This litigation is not yet in an MDL

2. Hydroxy cut is used for weight loss but can cause heart and liver damage. Since the drug is used by people who are over weight, it is important to rule out confounding variables before taking the case. Of course it isn't necessary to prove that this medicine is the sole cause of heart or liver damage.

3. Fosmax is used for osteoprosis. Unfortunately it can cause osteonecrosis of the jaw. This basically bad blood flow to the bone. The risk is literally losing the jaw. The unusual danger is that the drug has a half life of ten years. This means that those who have taken the drug are at risk for many years. There is a MDL in New York.

4. Kugal Mesh is a medical device used in hernia repair. The danger is two fold: The ring can spring loose causing internal damage. Also the adhesive side can become dislodged, adhering to organs.

5. Prempro is used by menapause. It is derived from horse urine. The medication causes breast cancer. This risk should have been emphasis in a "black box" warning on the package. Wythe did not follow up on studies after it was introduced into the market so the black warning was not on the packaging until about five years ago. There is a MDL in Littlerock.

6. Reglan is used for Acid Reflux. It cause a bazarre condition called Tardive Dyskinesia. It is important not to use the product for more than ninty days. Warnings have been totally inadequate. There is no MDL on this product.

7. Avandia is used for Diabetes. It can cause heart attacks. It is in a MDL.

Nuremberg

Blake Bailey — Thu, 28 May 2009 13:02:59 -0600

I recently watched a 1961 movie called Judgment At Nuremberg. The cast was a “who’s who” of great actors. Spencer Tracy played the part of the presiding judge in a trial of four Nazi judges who participated in the judicial evils of Hitler’s Germany. The following is an excerpt from his finding of the defendants guilty of crimes that has caused me to consider the issues we face as a people today.

Janning's record and his fate...

illuminate the most shattering truth
that has emerged from this trial.

If he and all of the other defendants
had been degraded perverts...

if all of the leaders of the Third Reich...

had been sadistic monsters and maniacs...

then these events
would have no more moral significance...

than an earthquake,
or any other natural catastrophe.

But this trial has shown...

that under a national crisis...

ordinary, even able and extraordinary men...

can delude themselves
into the commission of crimes...

so vast and heinous
that they beggar the imagination.

*****

How easily it can happen.

There are those in our own country, too...

who today speak
of the protection of country...

of survival.

A decision must be made
in the life of every nation...

at the very moment
when the grasp of the enemy is at its throat.

Then it seems that the only way to survive
is to use the means of the enemy...

to rest survival upon what is expedient,
to look the other way.

The answer to that is: Survival as what?

A country isn't a rock.
It's not an extension of one's self.

It's what it stands for.

It's what it stands for when standing
for something is the most difficult.

Before the people of the world...

let it now be noted...

that here in our decision,
this is what we stand for:

Justice...

truth...

and the value of a single human being.

Dangerous equipment to change a tire

Blake Bailey — Mon, 27 Apr 2009 17:22:24 -0600

Many of the new cars are equiped with flimsy equipment for changing a spare tire. Ironically, the more likely the care is to be one you would give your daughter the more likely the handle the lug wrench is to be short. A lever that short just isn't going to loosen a lug nut that some idiot has tightened as tight as his air wrench will go. Someone is going to get hurt jumping up and down on the Matel-toy-looking lever. Even worse, your daughter might be stranded in a dangerous place. One would think that such a simple safety concern would have been addressed by car manufacturers. By the way, Toyota, that included the Prius I'm driving.

http://www.bailey-law.com/lawyer-attorney-1215486.html

General Motors Recall due to fire danger

Blake Bailey — Wed, 15 Apr 2009 13:49:01 -0600

General Motors Corp is recalling 1.5 million cars because of fire danger. Oil leaks in the 1997 Pontiac grand Prix,1997-2003 Buick Regal, 1998-2003 Chevrolet Lumina, Monte Carlo and Impala. have caused a fire hazard. Additional information can be found with the National Highway Traffic Safety Administration.

Yamaha Rhino 450 and 660 models

Blake Bailey — Tue, 31 Mar 2009 19:05:30 -0600

Yamaha Motor Corp. USA is recalling at the insistence of the Consumer Product Safety Commission 120,000 recreational vehicles. Two models were involved in 46 deaths and countless serious injuries.

The Consumer Product Safety Commission targeted the Rhino 450 and 660 models vehicles as unreasonably dangerous without significant alterations to the defects that caused the serious injuries and 46 deaths inflicted on consumers since fall of 2003.

Most of the injuries and deaths were due to rollovers. The design changes will reduce the risk of rollovers, improve handling and keep riders' limbs inside the vehicles.

http://www.bailey-law.com/lawyer-attorney-1215486.html

Sanatized juries

Blake Bailey — Wed, 25 Mar 2009 16:34:28 -0600

The right to trial by jury exists in the sixth and seventh amendment of the United States Constitution. It empowers the people in a way that did not exist in the countries from which our founders escaped. Thomas Jefferson said that he felt the right to trial by jury was even more important than the right to vote. The jury must be a jury of our peers for the system to work. If a citizen commits a felony or a misdemeanor theft, they lose their right to serve on a jury for life—no matter how good of a citizen they may later become.

Fairly often two of our courts have what has become known as “dollar and a day”. Possibly 50-100 people who wrote a hot check are lined up. They are offered a dollar find and pretty steep court costs if they will plead guilty. Some of the offenders need punishment because they are just thieves. Others are single mothers who didn’t have enough money to cover the check for diapers they bought. For the rest of their lives they must admit to their conviction and can not serve on a jury. A sixty year old woman, who was herded through “dollar and a day” at age eighteen for a $25 check, still is disqualified from serving on a jury.

This system is designed merely for the poor and sanitizes the jury panel of peers for a poor citizen seeking a fair trial.

Death of Fed preemption for FDA

Blake Bailey — Wed, 04 Mar 2009 15:02:21 -0600

The United States Supreme Court just handed down a decision in Wyeth v. Levine throwing out the fiction created by the Bush Administration. The spurious argument that pharmaceutical companies can dupe the under manned FDA into approving a drug or its labeling and thereby avoid civil liabilities. In a sweeping 6-3 opinion it declared such nonsense unpersuasive, reviving the rights of states to make and enforce their own civil laws and the right of citizens to seek redress in the court system. This is a banner day.

For more information on pharmaceutical litigation in Texas see www.bailey-law.com

"In short," Justice Stevens wrote, "Wyeth has not persuaded us that failure-to-warn claims like Levine's obstruct the federal regulation of drug labeling."

Justice Stevens added that "Congress has repeatedly declined to preempt state law" and that recent Bush administration changes to FDA policy claiming "that state tort suits interfere with its statutory mandate is entitled to no weight" in the Wyeth case.

Federal preemption

Blake Bailey — Mon, 12 Jan 2009 10:01:02 -0600

I know I have been railing about federal preemption when it has no legitimate legal justification and amounts to a violation of the reserved rights of states set out in the Constitution. But things keep getting worse. A few years ago the Supreme Court affirmed a preemption for injuries at extrahazardous railroad crossings because the government fronted the cost for luminus paint for cross buck signs--with no thought that this would cause all intersections to be safe.

I keep arguing that big pharmacutical companies, which bully FDA to approve medicine not proved to be safe just to get it on the market at break-neck speed, are at the brink of blanket immunity on the frivilous theory of federal preemption. More evidence keeps piling up that the FDA simply is not equiped to make such decisions. To use the guize of FDA approval to preempt the right of hundreds of thousands of consumers who rely upon the expertise and good faith of the manufactures and subsequently suffer serious conditions and death, is unconstitutional and unethical.

The AP (1/12) reports, "An internal watchdog finds that financial conflicts involving outside researchers who test experimental drugs often remain hidden," and "missing information, loopholes, and weak oversight hamper efforts to uncover financial conflicts involving researchers who test experimental drugs before companies seek government approval." The Health and Human Services inspector general's office's report said, "We found a number of limitations in" the Food and Drug Administration's (FDA) "oversight, leaving FDA unable to determine whether [drug companies] submit financial information for all clinical investigators." According to the AP, "because scientists can be tempted by profits, the government requires disclosure of possible conflicts involving clinical researchers who review medications before drug companies seek FDA approval."

The FDA "does almost nothing to police the financial conflicts of doctors who conduct clinical trials of drugs and medical devices in human subjects, government investigators are reporting," the New York Times (1/12, A10, Harris) adds. Noted was that, "in percent of clinical trials, the agency did not receive forms disclosing doctors' financial conflicts and did nothing about the problem, according to the investigation, which was conducted by the inspector general of the Department of Health and Human Services and whose results were scheduled to be made public Monday." Another study "by the inspector general last year found that the National Institutes of Health did almost nothing to police the financial conflicts of university professors who received federal money."

Please let me know your feelings. B

good samaritan law

Blake Bailey — Tue, 06 Jan 2009 10:42:50 -0600

Read about the lawsuit against a rescuer in California. Both women were out drinking and had an accident. The passenger feared the car would catch on fire (the photos show it didn't).

Story of plaintiff: She was dazed and was having trouble getting the door open. The passenger came around and "jerked me out like a rag doll" and dropped her on a hard surface. She alleges that this caused her to be a paraplegic and suffer liver laceration.

Story of defendant: She thought she heard an explosion when they hit (no evidence of an explosion from the photos I saw).

Arguments of Defendant: She thought she was doing the right thing for her friend and "medical care providers" are immuned by statute from negligent medical care in an attempt to rescue in an emergency.

Arguments of Plaintiff: If the defendant was worried about a fire why didn't she carry her away from the car to protect her from a potential fire. But for being jerked from the car at an angle and dropped to the ground she would have survived the car wreck without suffering paraplegia. Defendant was not a trained health care provider rendering medical treatment so is not covered by the California statute referring to emergency medical care.

Ruling of the court: The statute relied upon by the Defendant does not provide immunity except for medical care and defendant was not a medical care provider providing medical care.

My thoughts: It is interesting that health care providers are immuned but not the everyday untrained person, (possibly the lobbyists were less concerned about the liability of those who were not paying their salaries). I personally am glad that people may hesitate jerking me from a car and dropping me to the concrete after an accident unless my car is actually on fire and they exercise as much caution as possible to keep from adding to my injuries.

The jury must find that the defendant acted differently than a prudent person would have acted under same or similar circumstances. If the jury felt that there was reasonable evidence that the plaintiff was in eminent danger of the car catching on fire and the defendant was reasonable in the manner she pulled her friend from the wreck--and that there is a foreseeable connecting link between the actions by defendant and the paraplegia--then the jury will rule for the defendant. Remember, the plaintiff has the burden of proof. I suspect presenting credible medical proof that the paraplegia is related to the rescue attempt rather than the crash will be problematic.

I personally came up on an accident in which the driver was still strapped in a car with the side ripped off of it. There was steam coming from the engine and what I thought was smoke. Rather than unbuckling her and risking further injury I stood ready to do so until the paramedics arrived. Threat of lawsuit or not, I hope that rescuers will act in the same manner if I were in that situation.

FDA

Blake Bailey — Mon, 22 Dec 2008 17:13:57 -0600

House Energy and Commerce Committee ranking Republican Rep. Joe L. Barton of Texas asked for clarification from the Food and Drug Administration (FDA) this week concerning deaths related to the blood thinner heparin. His letter called into question the adequacy of the agency's review of the deaths. He highlighted previous correspondence from the FDA he received in October that tied two cases of heparin-related deaths to drugs produced by American Pharmaceutical Partners (APP). The APP heparin was not tested for contaminants, according to a FDA letter. FDA spokeswoman Karen Riley gave no substantive response but said "the agency looks forward to clarifying the issue with Barton."

How can the United States Supreme Court or President Bush seriously think that it is a good idea to preempt private law suits against pharmaceutical companies based upon FDA approval. Surely this approach to rights reserved to states and individuals can't be removed in such a cavalier fashion.

http://www.bailey-law.com/lawyer-attorney-1215852.html

Responsibility

Blake Bailey — Mon, 15 Dec 2008 12:47:57 -0600

A draft of a federal report by the Office of the Special Inspector General for Iraq Reconstruction reveals a $100,000,000,000 failure to reconstruct Iraq. The causes include bureaucratic incompetence, turf wars and a fundamental ignorance of Iraq. Some companies became rich by being the beneficiaries of unsupervised payouts of taxpayer money. In a way this mess is similar to the unregulated financial market with close political ties, spinning us into an economic disaster. It is not the American worker who has put us in this position. It is the effect of a government that has usurped the authority of our courts, compromised the press and shrouded the Constitutional guarantee of transparency. We have fired many of the politicians responsible and now need to prosecute the companies that profited from their close connections to Washington.

Does anyone have any ideas about civil litigation against those involved?