Texas Trial Law Advocate

F.D.A. Internal Reports Recommend Avandia Be Withdrawn From Market

Craig Cherry — Sat, 20 Feb 2010 08:42:21 -0600

There is a fierce debate going on within the Food and Drug Administration regarding the drug Avandia. According to the New York Times, recent internal reports from the Food and Drug Administration recommend that Avandia (a drug used to treat Type 2 diabetes) be removed from the market. The reports indicate that people who use Avandia needlessly suffer heart attacks and heart failure each month and say that if every diabetic now taking Avandia were instead given a similar pill named Actos, about 500 heart attacks and 300 cases of heart failure would be averted every month. Avandia was linked to 304 deaths during the third quarter of 2009. It is expected that an advisory committee within the FDA will debate the drug further this spring and summer and will then make a final decision regarding the drug and whether or not it should be sold.

Avandia is manufactured by GlaxoSmithKline and was once one of the best-selling drugs in the world. In 2006 alone, sales were $3.2 billion.

Toyota Begins Shipping New Accelerator Pedals

Craig Cherry — Sat, 30 Jan 2010 15:35:58 -0600

Today, Toyota Motor Corp. announced that its accelerator pedal supplier began shipping newly designed pedals to dealers to fix the company's sticky gas pedals that have required 4.2 million vehicles to be recalled. According to reports, federal regulators did not object to Toyota's repair plans. A more detailed announcement by Toyota is expected to be made Monday.

In the meantime, contact the Toyota Customer Experience Center at 1-800-331-4331 if you have questions about your vehicle. The Toyota Customer Experience Center hours are: Mon.–Fri. 5:00 am-6:00 pm PST, Sat. 7:00 am-4:00 pm PST.

Toyota Extends Recall And Suspends Sales Over Accelerator Problem

Craig Cherry — Thu, 28 Jan 2010 20:53:22 -0600

Yesterday, Toyota Motor Corporation extended its recall from last fall and added an additional 2.3 million vehicles to the recall list over problems with accelerators in a number of its most popular vehicles. Toyota also suspended sales and stopped production of a number of the models subject to the recall until a fix can be implemented. The accelerator problem has been linked to a number of motor vehicle accidents throughout the country involving serious injuries and deaths to occupants.

This has been a public relations nightmare for Toyota that is not getting any better as each day passes. While Toyota has told federal investigators that it thinks a friction problem in its accelerator pedal mechanisms may make the pedal "harder to depress, slower to return, or, in the worst case, mechanically stuck in a partially depressed position", CTS Corp, the supplier that makes the devices for Toyota, said in a statement Wednesday that the friction problem accounts for fewer than a dozen cases stuck accelerators and, "in no instance did the accelerator actually become stuck in a partially depressed condition".

The Toyota vehicles subject to the recall include the following makes and models:

2009-2010 RAV4
2009-2010 Corolla
2009-2010 Matrix
2005-2010 Avalon
2007-2010 Camry (except hybrids)
2010 Highlander (except hybrids)
2007-2010 Tundra
2008-2010 Sequoia

No Lexus Division or Scion vehicles are affected by the new recall. Also not affected are Toyota Prius, Tacoma, Sienna, Venza, Solara, Yaris, 4Runner, FJ Cruiser, Land Cruiser, Highlander hybrids and Camry hybrids, which will remain for sale.

According to Toyota, if you experience a sticking accelerator pedal while driving, you should take one of the following actions:

• If you need to stop immediately, the vehicle can be controlled by stepping on the brake pedal with both feet using firm and steady pressure. Do not pump the brake pedal as it will deplete the vacuum utilized for the power brake assist.
• Shift the transmission gear selector to the Neutral (N) position and use the brakes to make a controlled stop at the side of the road and turn off the engine.
• If unable to put the vehicle in Neutral, turn the engine OFF. This will not cause loss of steering or braking control, but the power assist to these systems will be lost.

• If the vehicle is equipped with an Engine Start/Stop button, firmly and steadily push the button for at least three seconds to turn off the engine. Do NOT tap the Engine Start/Stop button.
• If the vehicle is equipped with a conventional key-ignition, turn the ignition key to the ACC position to turn off the engine. DO NOT remove the key from the ignition as this will lock the steering wheel.

Customers who have any questions or have experienced any issues with their accelerator pedals should visit Toyota.com, contact the Toyota Customer Experience Center at 1-800-331-4331, or call their local Toyota dealer.

Texas Supreme Court Now Requires E-Submission

Craig Cherry — Sun, 20 Dec 2009 14:08:12 -0600

The Texas Supreme Court has posted an order on its website which now requires parties to submit electronic copies of all petitions, responses and replies filed with the Court in all cases. The order will become effective February 15, 2010.

Previously, the Court had only asked for electronic courtesy copies of filings in cases for which it requested briefs. The new order requires parties to e-mail copies of documents to the Supreme Court clerk, scebriefs@courts.state.tx.us, on the same day they file the original paper documents. Because the parties will still have to file paper documents, submitting an electronic copy of the document does not constitute filing the document.

Click here to view the Court's order on its website.

Hertz Corp. v. Friend: Where Is A Nationwide Company's "Principal Place of Business" For Purposes of Diversity Jurisdiction?

Craig Cherry — Sun, 08 Nov 2009 07:31:34 -0600

This Tuesday, November 10, the U.S. Supreme Court will hear arguments in Hertz Corp. v. Friend (08-1107), a case that will address how you determine where a nationwide company's "principal place of business" is located for purposes of diversity jurisdiction under 1332(c).

The Court has not previously had an opportunity to address this issue because motions to remand granted by federal district courts are, generally, not subject to appellate review. However, the Hertz case involves a class action filed in California. Under the new 2005 Class Action Fairness Act (CAFA), remand orders are subject to appellate review and the Court will have an opportunity to address an issue that could have a sgnificant impact on where lawsuits can be filed and maintained in the future.

Hertz, a Delaware corporation with its corporate headquaters in New Jersey, argues its "principal place of business" is in New Jersery. The Plaintiffs argue a "multi-factor approach" should be considered by federal courts and, when doing so, points to California as being Hertz' "principal place of business" because California is far and away the state where Hertz conducts most of its business. The federal disctrict court and the Ninth Circuit agreed with the Plaintiffs. The U.S. Supreme Court granted Hertz' petition for certiorari on June 8, 2009.

Sina Kina of the Stanford Law School has done a great job summarizing the case further, which can be reviewed by going here.

NHTSA Investigation Reveals Other Potential Factors Leading to Fatal Lexus Crash

Craig Cherry — Sun, 01 Nov 2009 08:21:17 -0600

On September 29, I wrote about a fatal crash that occurred this past August near San Diego, California that led Toyota to recall approximately 3.8 million vehicles. According to investigators, the 2009 Lexus ES 350 being driven by a California Highway Patrol Officer as a loaner vehicle from a Lexus dealership accelerated to as fast as 100 mph before striking another vehicle, launching off an embankment, rolling several times and bursting into flames. Four people died in the crash. Just before the crash occurred, a 911 call from one of the vehicle's passengers told police the vehicle had no brakes and that the accelerator was stuck. Investigators believed the driver's side floor mat was the culprit.

The National Highway Traffic Safety Administration's investigation into the California crash is revealing more potential factors in the cause of the crash than just the design of the driver's side floor mat., including the following:

The driver's side floor mat was made for the Lexus RX400h SUV, not the Lexus ES350.

The Lexus at issue had a keyless ignition, which uses a start/stop button to start and stop the engine. There is no traditional key to turn if you need to shut the engine off in an emergency. In the case of the ES350, the button needs to be held for three seconds before it will turn off the engine if the car is in gear. Toyota says it considered this a safety feature to prevent the engine from turning off if the button were pressed accidentally. However, the NHTSA report points out that the Lexus at issue was traveling 100 mph—that’s the equivalent of traveling one and a half football field in three seconds. Also, NHTSA pointed out that there is no instruction near the dashboard that tells owners or operators about how to shut down the engine by holding it down for three seconds..

The initial report filed by the NHTSA can be reviewed by going here.

AstraZeneca Settles Seroquel Claims For $520 Million

Craig Cherry — Sat, 31 Oct 2009 07:43:29 -0600

According to the New York Times, AstraZeneca has agreed to settle two federal investigations and two whistle-blower lawsuits for a total of $520 million over the sale and marketing of its psychiatric drug Seroquel. The names of the whistle-blowers and other details regarding the investigations remain under seal in federal court.

Due to aggressive marketing by AstraZeneca, Seroquel had been used for children and the elderly for uses not approved by the Food and Drug Administration. Seroquel had been the top selling antipsychotic drug in the United States, with sales exceeding $17 billion since 2004.

AstraZeneca has been served with approximately 14,444 product liability lawsuits over Seroquel. Through discovery in some of those cases, Plaintiff's counsel Ed Blizzard says an internal email message from a company official regarding Study 15 stated "a great 'smoke and mirrors' job" had been done on a "buried" study in 1997, the year Seroquel was approved by the FDA.

Toyota Hit With Temporary Restraining Order

Craig Cherry — Thu, 01 Oct 2009 13:26:24 -0600

In what appears to be the first case in Texas to be filed against Toyota seeking to reopen previously settled product liability cases, Judge T. John Ward, who presides over the United States District Court, Eastern District of Texas, Marshall Division, signed and entered a temporary restraining order against Toyota Motor Corporation, Toyota Motor Sales, USA, Inc. and several in-house counsel for Toyota regarding document retention related to Toyota motor vehicles.

The temporary restraining order arises out of a civil RICO complaint filed in Judge Ward's court by Raul Lopez, a plaintiff who previously settled a personal injury case with Toyota years ago. Mr. Lopez filed a RICO complaint on September 25 seeking to reopen his case after Dimitrious Biller, a former in-house attorney for Toyota, filed a federal lawsuit in California alleging Toyota has illegally withheld and destroyed evidence in hundreds of rollover injury and death cases over the past several years.

The temporary restraining order issued by Judge Ward yesterday orders Toyota, and essentially anyone who works for or with Toyota, to:

Issue litigation holds on all documents in any form pertaining to any make, model or year platform vehicle;
Issue litigation holds on all documents in any form pertaining to any non-production vehicle evaluation pertaining to product liability or crashworthiness issues;
Issue litigation holds on all documents in any form pertaining to research projects that involve issues related to product liability or crashworthiness issues;
Issue litigation holds on all documents that are presently or will be subject to any type of document retention policy;
Issue litigation holds on all documentation and all communications sent to outside Counsel, outside experts, or outside contractors.

Judge Ward also set a show cause hearing for October 7, 2009, at 1:30 pm, for Toyota to show why the temporary restraining order should not be converted to a preliminary injunction.

The style of the case is Raul Lopez, et. al. v. Toyota Motor Corporation, et. al., Cause No. 2:09-CV-292.

Toyota Recalls 3.8 Million Vehicles

Craig Cherry — Tue, 29 Sep 2009 20:27:48 -0600

Today, Toyota Motor Sales, USA announced it was recalling approximately 3.8 million vehicles to address problems with removable floor mats that could cause the accelerator to become stuck and lead to a crash. This recall is the largest recall in Toyota's history.

According to the National Highway Traffic Safety Administration, the federal government has received notice of 102 incidents involving Toyota vehicles where the accelerator became stuck while being operated. While it is not clear how many of the 102 reported incidents resulted in injuries or deaths to occupants, Toyota spokesperson Irv Miller stated "[a] stuck open accelerator pedal may result in very high vehicle speeds and make it difficult to stop a vehicle, which could cause a crash, serious injury or death." Transportation Secretary Ray LaHood stated "this is an urgent matter" and warned owners of affected vehicles to remove the floor mats from the driver's side immediately.

This past August near San Diego, a 2009 Lexus ES 350 being driven by a California Highway Patrol Officer accelerated to 120 mph before striking another vehicle, launching off an embankment, rolling several times and bursting into flames. Four people died in the crash. Just before the crash occurred, a 911 call from one of the vehicle's passengers told police the vehicle had no brakes and that the accelerator was stuck. Investigators believe the floor mat may be to blame for the incident.

The following models are involved in the recall:

2007-2010 Toyota Camry
2004-2009 Toyota Prius
2005-2010 Toyota Tacoma
2007-2010 Toyota Tundra
2007-2010 Lexus ES350
2006-2010 Lexus IS250 and IS350

Owners of these vehicles will begin being notified by Toyota about how to remedy the problem within the week. In the meantime, owners should remove the floor mats from the driver's side of these vehicles. Owners can also contact Toyota at 1-800-331-4331 and Lexus at 1-800-255-3987 for more information.

Mitsubishi Recalls 2010 Endeavor For Defective Airbags

Craig Cherry — Tue, 29 Sep 2009 08:28:08 -0600

Mitsubishi has recalled 531 Endeavor model vehicles from the 2010 model year as a result of certain vehicles having potentially defective airbags. Specifically, the recall results from the retainer bracket for seat-mounted airbags on both the driver and passenger side airbags being incorrectly welded. If the faulty welding condition exists in a vehicle, the side airbags may not deploy correctly in a side impact crash, possibly resulting in serious injury to an occupant.

The vehicles involved were manufactured by Mitsubishi between May 26 and July 28, 2009. Mitsubishi began notifying owners within the last week and issued a "stop sale" on all 2010 Endeavors until all potentially effected vehicles can be inspected.

Any of the recalled vehicles will be inspected by a Mitsubishi dealer and repaired at no charge to the customer. Customers can contact the Mitsubishi Customer Relations Department at 1-888-648-7820.

Debate On Liability Damage Caps As Part of Health Care Reform Rages On

Craig Cherry — Mon, 28 Sep 2009 09:02:56 -0600

For the last several months, national health care reform has been debated on television (nearly 24 hours a day), at town hall meetings, and at dinner tables across this country. Whether you favor national health care reform or not, a part of the debate includes a discussion about whether or not liability damage caps for doctors and hospitals should be included in any legislation that is ultimately passed by Congress and signed by President Obama. Historically, the debate about liability damage caps has been left to the States to decide. Now, however, we may see federal liability damage caps for doctors and hospitals for the first time in our country's history.

Recently, in the Atlanta-Journal Constitution, Randolph W. Pate and C. Andrew Childers laid out the Pros and Cons of liability damage caps for doctors and hospitals. You can read their article by clicking here.

Toyota Attorney Accuses Company Of Hiding/Destroying Evidence

Craig Cherry — Tue, 01 Sep 2009 19:38:57 -0600

Dimitrios Biller, a former in-house attorney for Toyota Motor Sales USA, Inc. has accused the car maker in a lawsuit filed in federal court in California of illegally withholding evidence in hundreds of rollover injury and death cases in a "ruthless conspiracy" to keep evidence of its vehicles "structural shortcomings" from becoming known. Biller alleges that his complaints to Toyota executives about the illegal conduct cost him his job. Biller also complains that Toyota misled the National Highway Traffic Safety Administration when the government was considering tougher regulations for roof strength. While Toyota has denied Mr. Biller's allegations, this has created a mess for Toyota which could lead to the reopening of hundreds of cases that were previously resolved through settlement or trial.

Texas Supreme Court Limits Discovery of Computer Hard Drives

Craig Cherry — Sun, 30 Aug 2009 10:40:39 -0600

On August 28, 2009, in In re Weekley Homes, L.P., a unanimous Texas Supreme Court rejected a plaintiff's discovery request to perform a forensic examination on certain defendant's employee's computer servers and hard drives in an effort to discover emails the plaintiff believed had previously been deleted by the defendant's employees. Specifically, the plaintiff in the underlying case sought to "search for any emails stored on servers or back up tapes or other media, [and] any email folders in the email accounts of [the Employees]." The plaintiff sought to perform this forensic exam after it believed the defendant had not produced everything that still may have been on the employees' hard drives.

According to the Court, the plaintiff "relied primarily upon discrepancies and inconsistencies in Weekley's production" in support of its argument for the forensic exam. In sum, the plaintiff simply did not believe the defendant had produced everything that may be responsive to its discovery requests. The defendant, Weekley Homes, L.P., objected to the proposed forensic exam on a number of grounds, including the invasive nature of the procedure proposed by the plaintiff and the possibility of confidential, privileged and trade-secret information being disclosed.

While the Court did not say a forensic exam of a party's servers and hard drives is impermissble, the Court did (for the first time) set forth the standard trial court's should follow when deciding whether or not to order such a forensic exam. Specifically, a party must now essentially make a "good cause" showing before a trial court should order a forensic exam of a party's servers and hard drives. The Court said that "providing access to information by ordering examinatino of a party's electronic storage device is particularly intrusive and should be generally discouraged", absent a showing of good cause.

So, what is "good cause"? According to the Court, a party seeking to perform a forensic exam of a party's servers and hard drives would need to show (1) an expert proposed by the party seeking the forensic exam is qualified to perform the exam; (2) the expert is familiar with the particularities of the computer drives sought to be examined; and (3) the proposed methodology for searching the computer drives is "reasonably likely" to yield the information sought. Because the record did not support the foregonig requirements, the Court held the trial court abused its discretion in allowing the forensic exam.

There are several other interesting aspects to this case, including a discussion of the In re Honza opinion from the Waco Court of Appeals, which was the first case in Texas to discuss the procedures that may be used by trial court's in ordering forensic exams of computers. Given the amount of email and other electronic information that parties rely upon every day for the business and practice, the In re Weekley Homes, L.P. case is a must read for Texas litigation counsel.

See In re Weekley Homes, L.P., 2009 WL 2666774 (Tex. Aug. 28, 2009)

Chrysler Group, LLC To Accept Product Liability Claims

Craig Cherry — Fri, 28 Aug 2009 13:45:55 -0600

In a letter to Senator Dick Durbin yesterday, Chrysler Group, LLC, announced it will accept product liability claims on vehicles manufactured by the former Chrysler, LLC (formerly known as "Old Carco, LLC") which were/are involved in accidents on or after June 10, 2009 (the date Old Carco filed for bankruptcy protection). This is a major reversal in Chrysler Group, LLC's position on this issue.

As part of a bankruptcy court-approved sale transaction, the "new" Chrysler Group, LLC would not have been responsible for product liability claims related to vehicles sold before June 10, 2009 by Old Carco. Most people buying vehicles on or after June 10, 2009, and manfactured by Old Carco, had no idea they would not be able to hold the manufacturer responsbile for any product defects because the claims would have been extinguished by the bankruptcy process. Naturally, this outraged consumer rights advocates. By accepting these product liability claims, Chrysler Group, LLC's position is consistent with that of General Motors and is a major victory for consumers.

Fatal Medical Errors Continue To Be Hidden Nationwide

Craig Cherry — Mon, 10 Aug 2009 20:43:45 -0600

According to a recent series of articles written by Hearst Newspapers and reported in both the Houston Chronicle and San Francisco Chronicle, medical negligence is the leading cause of accidental death in the United States. The title of the series is called "Dead by Mistake" and reports that 98,000 people die each year from preventable medical errors. A report from the Centers for Disease Control also concluded that 99,000 patients each year die from hospital-acquired infections almost all of which, experts say, are entirely preventable.

In 1999, a report entitled "To Err Is Human" was released and it was believed to be the beginning of greater patient safety. Unfortunately, according to Dead by Mistake, efforts to establish a mandatory national reporting system of serious medical errors was blocked by the American Medical Association and American Hospital Association after both groups spent nearly $81 million in lobbying efforts to prevent such a reporting system.

Dead by Mistake is an intriguing and, unfortunately, frightening report of how many people die each year from unnecessary medical errors in the United States. The report is quick to point out that we have mandatory reporting nationwide for fatal car wrecks, but not for medical errors. It is believed that if there was mandatory reporting of serious medical errors, we would learn that the annual death rate among Americans from medical errors would exceed the annual number of deaths in car wrecks.

The report concludes by offering tips to patients on how to try and protect themselves from medical errors.

Joseph Raz Article on "Responsibility & the Negligence Standard"

Craig Cherry — Sun, 09 Aug 2009 09:05:46 -0600

Joseph Raz, from Oxford University and Columbia Law, has recently updated the SSRN site by posting a new article entitled Responsibility & the Negligence Standard.

The following is an abstract of the article:

The paper has dual aim: to analyse the structure of negligence, and to use it to offer an explanation of responsibility (for actions, omissions, consequences) in terms of the relations which must exist between the action (omission, etc.) and the agents powers of rational agency if the agent is responsible for the action. The discussion involves reflections on the relations between the law and the morality of negligence, the difference between negligence and strict liability, the role of excuses and the grounds of duties to pay damages.

You can download the article by clicking here.

Honda Recalls 440,000 Vehicles Containing Defective Airbags

Craig Cherry — Sat, 01 Aug 2009 12:26:00 -0600

Honda Motor Co. has recalled an additional 440,000 of its vehicles which contain defectivce airbags. Affected models include the 2001-2002 Honda Accord, 2001 Honda Civic and 2002-2003 Acura TL. Honda has said that airbag inflators in some of the sedans can rupture because of too much air pressure causing metal fragments to shoot through the airbag and strike occupants in the vehicles. At least one fatality and several injureis have been caused by the defect. The recall will require the driver's side steering-wheel-mounted airbag inflator to be replaced.

Honda is mailing a recall notice to registered owners of the vehicles in question to schedule a repair. Honda owners can also log onto Honda's website at www.owners.honda.com/recalls and click on the "Owner Link" to get the status of their recall.

Medtronic Recalls Insulin Pump Infusion Sets

Craig Cherry — Sun, 19 Jul 2009 08:24:35 -0600

Medtronic, Inc. has recalled Paradigm "Quick-set" infusion sets that patients use with Medtronic's Minimed insulin pumps. Both Medtronic and the U.S. Food & Drug Administration have notified health care professionals that the recalled Quick-set infusion sets at issue may not allow the insulin pumps to vent air properly, which could then lead to the device either delivering too much or too little insulin and may lead to serious injury or death.

The affected infusion sets contain reference numbers MMT-396, MMT-397, MMT-398, and MMT-399 with lot numbers starting with the number "8". Medtronic has advised that patients should immediately discontinue using any "Lot 8" Quick-set infusion sets. Medtronic has agreed to replace any of the recalled infusion sets at no additional charge.

Patients with questions about how to return the recalled infusion sets and arrange for replacement sets should contact Medtronic at 1-800-345-8139.

Bridgestone Extends Firestone Tire Recall

Craig Cherry — Sun, 05 Jul 2009 07:39:22 -0600

Bridgestone Americas Tire Operations, LLC (BATO) has extended its 2008 tire recall to include an additional 127,000 tires that were manufactured in its Costa Rica plant in 2007 and 2008. The model being recalled is the Firestone brand FR380 P235/75 R15.

According to BATO, these particular tires were manufactured without sufficient tread base gauge which could then lead to vibration and groove cracking. Further extended use of these tires could then lead to tread distortion and tread separation and possible loss of control of the vehicle.

Anyone one using these tires should have them replaced immediately. BATO has said the tires will be replaced free of charge. Anyone who has questions about this recall or has questions about where they can get their tires replaced can call 1-800-465-1904.

General Motors Agrees to Accept Future Product Liability Claims

Craig Cherry — Sun, 28 Jun 2009 12:01:56 -0600

According to the Wall Street Journal, a new court filing late Friday by General Motors Corporation ("GM") makes clear the auto manufacturer has agreed to assume legal responsibility for injuries caused by vehicle defects occurring after it emerges from bankruptcy protection. This concession from GM means consumers who are injured in car wrecks after GM emerges from Chapter 11 bankruptcy protection, but in vehicles that were manufactured before GM filed for bankruptcy protection and during GM's bankruptcy proceeding, will still be able to bring product liability claims against the "new" GM.

Specifically, the filing on Friday by GM states that GM will:

"expressly assume all products liability claims arising from accidents or other discrete incidents arising from the operation of GM vehicles occurring subsequent to [the emergence of New GM], regardless of when the product was purchased."

This is, without question, seen as a major victory for consumers who are injured in car wrecks involving GM vehicles. Previously, under the terms of GM 's original bankruptcy plan, GM would have been able to avoid such liabilities after selling its "good" assets to a "New GM" owned by the government. According this new filing, consumers will now be able to seek compensation for their injuries if they were injured in a vehicle manufactured by the "Old GM", whether the vehicle involved was manufactured before or after GM sought bankruptcy protection, as long as the wreck occurred after GM emerges from bankruptcy protection.

While this is seen as a major victory for consumers, there are hundreds (if not thousands) of claims that were pending against GM before it sought bankruptcy protection. As of right now, it appears GM intends to leaves those liabilities behind in bankruptcy. However, consumer advocates argue the "New GM" should accept those liabilities as well. A hearing on Tuesday before the bankruptcy court should shed some light on whether or not the "New GM" will also agree accept liability for those pending claims.