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May 2010 Archives

Johnson & Johnson

More than 700 complaints about health problems in infants and children given Johnson & Johnson medications, including 30 reports of deaths, have been lodged with the U.S. Food and Drug Administration but no direct link has yet been found.

SUMMERTIME!

With spring and summer coming on, children will be outside playing -- including on playground equipment. Most experts agree that this is a very healthy activity, as children should get a minimum of one hour of physical activity daily. And while most playgrounds appear to be safe, there are dangers that parents should be aware of. In fact, a 2009 US Consumer Product Safety Commission report shows there were 2691 incidents associated with playground equipment from 2001 to 2008. Worse yet, there were 40 fatalities associated with playground equipment, including 27 that occurred by hanging or other asphyxiation. Seven deaths involve head and neck trauma.

A NARROW TREND COULD LEAD TO OVERALL LOSS

A recent article in the Houston Chronicle brought perspective to the growing concern of the dissipating middle class. The article focused on the impact that Texas Hispanics have on the entire population and highlighted statistics that a bit troubling. Some people believe that the American Dream is the ability to come to this great land and earn a place within the robust middle class. However, this dream seems a bit fleeting for Texas Hispanics. In fact, if the current trends affecting Texas Hispanics do not end, this state is in danger of developing a "permanent underclass". Further, there have been several state and federal studies that indicate the Hispanic population of Texas is economically stagnant and may be falling behind Latinos in other parts of the U.S. In fact, this widespread poverty could not only affect those in the "permanent underclass", it could pull down the standard of living for all Texans. This is not a problem that only some parts of society have to face; it is an issue that all Texans must face for the benefit of this state, and also this country.

BP Disaster - U.S. Interior Department Sued Over BP Oil Spill

According to the suit, with regards to the BP Deepwater Horizon exploration plan, the Minerals Management Service had issued notices to the oil companies that they did not have to comply with the blowout and worst-case oil spill rules. Additionally, the agency failed to analyze the potential environmental impact of a blowout and spill, as is required by federal law (National Environmental Policy Act).

Supreme Court Upholds Verdict for Customer

Last month, in the case of Del Lago Partners, Inc., et al. v. Smith, ___ S.W.3d ___ (Tex. 2009)(4/2/10), the Texas Supreme Court upheld a verdict in favor of a customer of a bar. The patron was severely injured when a fight broke out between rival groups as the bar was closing and funneling all customers out through one exit. The groups had engaged in "threats, cursing, and shoving" for ninety minutes beforehand, yet the bar had not called security or closed down, and instead had continued to serve drinks. The Supreme Court affirmed a $1.48 million award - based upon a jury finding that the bar was 51% at fault and the injured customer was 49% at fault - agreeing with the court of appeals: "'A reasonable person who knew or should have known of the one-and-a-half hours of ongoing 'heated' verbal altercations and shoving matches between intoxicated bar patrons would reasonably foresee the potential for assaultive conduct to occur and take action to make the condition of the premises reasonably safe.'" Thus, while there is no universal duty to protect a patron, in this case the brawl was foreseeable.
A legal duty is a question of law. "In premises-liability cases, the scope of the duty turns on the plaintiff's status. Here, Smith was an invitee, and generally, a property owner owes invitees a duty to use ordinary care to reduce or eliminate an unreasonable risk of harm created by a premises condition about which the property owner knew or should have known." Bar owners do not "always or routinely" have a duty to protect patrons from each other. "Generally, a premises owner has no duty to protect invitees from criminal acts by third parties. We have recognized an exception when the owner knows or has reason to know of a risk of harm to invitees that is unreasonable and foreseeable." Here, proof of criminal acts or prior occasions was unnecessary. "[C]riminal misconduct is sometimes foreseeable because of immediately preceding conduct." In this case, Del Lago had a duty "because [it] had actual and direct knowledge" of an imminent violent brawl. Its duty "arose not because of prior similar criminal conduct but because it was aware of an unreasonable risk of harm at the bar that very night." The "unreasonableness" of a risk, which is not completely separated from foreseeability, "turns on the risk and likelihood of injury . . . as well as the magnitude and consequences of placing a duty on the defendant."
To determine duty, "'the court will consider several interrelated factors, including the risk, foreseeability, and likelihood of injury weighed against the social utility of the actor's conduct, the magnitude of the burden of guarding against the injury, and the consequences of placing the burden on the defendant.'" This case does not announce a "general rule" of a duty, but "on these facts" the defendant had a duty. That duty requires the premises owner to "'either adequately warn of the dangerous condition or make the condition reasonably safe.'" Here, there was evidence of the breach of the duty by not contacting security, continuing to serve drinks, and inadequate training. That the plaintiff was found to be contributory negligent did not eliminate the defendant's duty. "[W]e have expressly abolished a 'no-duty' doctrine previously applicable to open and obvious dangers known to the invitee," as does the comparative negligence statute. Moreover, in "some circumstances, no warning can suffice. . . ."
Accordingly, while the Supreme Court ordinarily will not affirm a judgment against a premises owner in favor of person injured by criminal misconduct on the property, "on this record this sequence of conduct on this night in this bar could foretell this brawl."

Safe-Driving Tips for Texans

Road safety is important all over the world, but every region is home to its own perils and dangers about which motorists should be informed. For those who are driving in Texas, for example, snowstorms and icy roads are not often an issue, but clogged freeways, roadway construction zones and errant bicyclists do come into play.

"2 Deaths Prompt Recall of Toy Dart Gun"

On Monday, federal regulators and retailer Family Dollar issued a recall of a Chinese made toy which lead to the death of two children. Both children suffocated after putting one of the darts in their mouth and the suction cup on the end of the dart blocked their airway. The first death occurred in November of 2006, when a 10 year old Milwaukee child put dart in his mouth at school and died. The recall has prompted safety advocates to rethink the idea that generally children over the age of 3 don't put toys in their mouths.

BP FACES LITIGATION FROM RIG EXPLOSION

As the companies involved in the construction, leasing and operation of the Deepwater Horizon oil rig try to pin blame on one another for the explosion and subsequent spill, the litigation resulting from the spill in the Gulf of Mexico also keeps getting messier.
BP, Transocean, Halliburton, Cameron and others already face dozens of potential class action lawsuits.
BP and Transocean face wrongful-death lawsuits brought by families of some of the 11 victims who died in the April 20 blast -- as well as ones brought by those injured and evacuated from the rig.
The companies also face other potential class action suits brought by fishermen, restaurants, charter boat companies and homeowners. Municipalities could sue for lost tax revenues. Shipping companies could also sue, if traffic along the Mississippi River gets disrupted.

TEEN DRIVERS

Reporters Terri Langford and Yang Wang recently did an excellent article in the Houston Chronicle concerning the likelihood of teen drivers to be involved in fatal accidents at night. The article noted that while the number of teen drivers involved in fatal car wrecks has dropped across the country over the last 10 years, the proportion of teen drivers ages 16 to 19 involved in nighttime fatal accidents has risen by 5%. These figures come from a recent study released by the Texas Transportation Institute.

FOREIGN NATIONALS KILLED IN LIBYAN PLANE CRASH

The Airbus aircraft was carrying passengers home to Europe from South Africa and most of those who were killed came from Holland.
Just one passenger, a 10-year-old Dutch boy, survived when the plane tried to land and broke up as it hit a field alongside the airport.

MASSIVE RECALL OF BAXTER'S COLLEAGUE INFUSION PUMPS

According to the United States Food & Drug Administration (FDA), on April 23, 2010, Baxter International's Colleague infusion pumps were linked to over 56,000 complaints of injuries, deaths, and malfunctions from 2005 to 2009. The Baxter Healthcare Corporation is Baxter International's primary U.S. subsidiary. The Colleague infusion pump is used to administer drugs and liquids to patients. Indeed, these infusion pumps are primarily used by hospitals to deliver nutrients to patients in comas, deliver blood-thinning drugs to hear patients, and chemotherapy to cancer patients. According to Baxter spokesperson, Erin Gardiner, while the Colleague infusion pump is being phased out and has not been sold to any new customers since 2005, there are just under 200,000 of these pumps still in use by patients.

Supreme Court Upholds Jurisdiction

The Texas Supreme Court recently upheld the jurisdiction of Texas courts over a German manufacturer which established a Texas distributor to market its products after a Texan was injured by a high-pressure hose which failed. The case is Spir Star AG v. Kimich, ___ (Tex. 2010)(3/12/10)

"Falls are Preventable"

According to the federal Centers for Disease Control and Prevention, falls are the leading cause of accidental death for adults over 65. In 2006, falls killed 16,650 seniors. A few small tips can help reduce the risk of falls and possibly save your or your loved one's life.
1. Remove throw rugs or use double-sided tape to secure them;
2. Clear a path. You should never have to walk around furniture or hop over extension cords;
3. Make sure there is light in your stairway and light switches that glow at the top and bottom of stairs;
4. Secure loose carpeting and fix loose or uneven stairs;
5. Consider putting handrails on both sides of stairs;
6. In the kitchen, put often used items on shelves you don't have to reach to get;
7. Invest in a good step stool, don't use a chair;
8. Use a rubber mat in the tub or shower; and
9. Use a night light if the path from the bedroom to bathroom would otherwise be dark.As you can see, these are very simple that effective changes that can reduce the risk of a fall and injury.

Supreme Court Reduces Punitive Damages Award


Last month, the Texas Supreme Court reduced a jury's determination of punitive damages, after previously eliminating the jury's award of damages for loss of inheritance. The case is named In re Columbia Medical Center of Las Colinas d/b/a Las Colinas Medical Center, ___ S.W.3d ___ (Tex. 2009)(3/12/10). It was a medical malpractice suit in which the Supreme Court upheld the jury's finding that the hospital's gross negligence caused the patient's death. However, the Court disagreed with the jury that the evidence showed damages for loss of inheritance. Having lowered the judgment for the total actual damages, the Court then lowered the punitive damages awarded by the jury to punish the hospital for its gross negligence.

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