Products Liability - Jeffrey P. Gale, P.A.

Jeffrey P. Gale, P.A. // Fundamentals Always Matter — Proximate Cause

Jeffrey P. Gale, P.A. — Fri, 02 Jun 2023 00:23:12 GMT

In every negligence action for injuries or wrongful death the plaintiff must establish (1) a duty owed by the defendant; (2) the defendant’s breach of the duty; and (3) and that said breach proximately caused the damages claimed.

In negligence actions Florida courts follow the more likely than not standard of causation and require proof that the negligence probably caused the plaintiff’s injury. See Tampa Electric Co. v. Jones, 138 Fla. 746, 190 So. 26 (1939); Greene v. Flewelling, 366 So.2d 777 (Fla. 2d DCA 1978), cert. denied, 374 So.2d 99 (Fla. 1979); Bryant v. Jax Liquors, 352 So.2d 542 (Fla. 1st DCA 1977), cert. denied, 365 So.2d 710 (Fla. 1978). Prosser explored this standard of proof as follows:

On the issue of the fact of causation, as on other issues essential to his cause of action for negligence, the plaintiff, in general, has the burden of proof. He must introduce evidence which affords a reasonable basis for the conclusion that it is more likely than not that the conduct of the defendant was a substantial factor in bringing about the result. A mere possibility of such causation is not enough; and when the matter remains one of pure speculation or conjecture, or the probabilities are at best evenly balanced, it becomes the duty of the court to direct a verdict for the defendant.

The north star of the law of causation is the landmark supreme court decision in Gooding v. University Hospital Building, Inc., 445 So. 2d 1015, 1020 (Fla. 1984). The Florida Supreme Court described the case as follows:

Emily Gooding, personal representative of Mr. Gooding’s estate, brought a wrongful death action against the hospital alleging negligence by the emergency room staff in not taking an adequate history, in failing to physically examine Mr. Gooding, and in not ordering the laboratory tests necessary to diagnose and treat Mr. Gooding’s abdominal aneurysm before he bled out and went into cardiac arrest. Mrs. Gooding’s expert witness, Dr. Charles Bailey, a cardiologist, testified that the inaction of the emergency room staff violated accepted medical standards [i.e., there was a breach]. Dr. Bailey, however, failed to testify that immediate diagnosis and surgery more likely than not would have enabled Mr. Gooding to survive.

The trial court denied the hospital’s motion for directed verdict on causation. The jury found the hospital liable and awarded damages. The hospital appealed. The First District Court of Appeal reversed on the grounds that the trial court should have directed a verdict in favor of the hospital because Mr. Gooding’s chances of survival under the best of conditions were no more than even. The plaintiff, therefore, could not meet the more likely than not test for causation. The Supreme Court affirmed the DCA on this holding.

What is a directed verdict? A directed verdict is “where no proper view of the evidence could sustain a verdict in favor of the nonmoving party.” Friedrich v. Fetterman & Assocs., P.A., 137 So.3d 362, 365 (Fla. 2013) (quoting Owens v. Publix Supermkts., Inc., 802 So.2d 315, 315 (Fla. 2001)); see also Cox v. St. Joseph’s Hosp., 71 So.3d 795, 801 (Fla. 2011) (explaining “a directed verdict is appropriate in cases where the plaintiff has failed to provide evidence that the negligent act more likely than not caused the injury”).

The Gooding Rule was applied nearly 40 years later in R.J. Reynolds v. Nelson, 47 Fla. L. Weekly D2436 (Fla. 1st DCA, Nov. 23, 2022), a tobacco case. Reynolds was sued for strict liability and ordinary negligence alleging a design defect of Reynolds’ cigarettes caused Mr. Roosevelt Gordon to develop COPD. (He passed away in 2021, shortly after the jury trial in this case. His daughter, Rosena Nelson, was appointed personal representative of his estate.) As in Gooding, the trial court was reversed on appeal for failing to grant a directed verdict. Citing “the lack of any evidence of Reynolds’ proximate cause of Mr. Gordon’s fatal disease,” the appellate court decided that a directed verdict on both the strict liability claim and the negligence claim should have been granted by the lower court.

Not all proximate cause cases go against the plaintiff. In Aragon v Issa, MD, 103 So.3d 887 (Fla. 4th DCA 2012), the trial judge was reversed for granting a motion for judgment in accordance with the motion for directed verdict against the plaintiff. The appellate court decided that since the plaintiff presented evidence that could support a jury finding that the defendant more likely than not caused the death of Aragon, it was improper for the trial judge, instead of the jury, to weigh conflicting evidence and assess the credibility of the witnesses.

In Claire’s Boutiques v Locastro, 85 So.3d 192 (Fla. 4th DCA 2012), the appeals court decided that the trial court was correct in denying defendant’s motion for directed verdict on proximate cause. The defendant urged that a directed verdict should have been granted since there was insufficient evidence that its actions “caused” the infection and resulting injuries. The court noted:

In negligence cases, like the present one, “Florida courts follow the more likely than not standard of causation and require proof that the negligence probably caused the plaintiff’s injury.” Gooding v. Univ. Hosp. Bldg., Inc., 445 So.2d 1015, 1018 (Fla.1984). If sufficient evidence is offered to meet this standard, the remaining questions of causation are to be resolved by the trier of fact. Wallace v. Dean, 3 So.3d 1035, 1047 n. 18 (Fla. 2009).

Proximate cause does not equal primary cause. In Ruiz v. Tenet Hialeah Healthsystem, Inc., 260 So.3d 977 (Fla. 2018), a medical malpractice wrongful death case, numerous medical providers were sued. Finding that one of the doctors did nothing more than place decedent in a position to be injured by the independent actions of third parties — namely, the surgeons — the trial judge granted a directed verdict in the doctor’s favor. Ruiz appealed, and the district court affirmed the trial court’s ruling, concluding that no competent, substantial evidence in the record would allow a reasonable factfinder to conclude Dr. Lorenzo was the “primary cause” of Espinosa’s death. Ruiz v. Tenet Hialeah Healthsys., 224 So.3d 828, 830 (Fla. 3d DCA 2017). The Supreme Court reversed.

Since the ruling below involved a directed verdict, the Supreme Court framed the issue as follows:

[W]hether there was competent, substantial evidence in the record which would permit a reasonable factfinder to conclude that Dr. Lorenzo, more likely than not, proximately caused Espinosa’s death.

With supporting citations, the Court explained that “the law does not require an act to be the exclusive or even the primary cause of an injury in order for that act to be considered the proximate cause of the injury: rather, it need only be a substantial cause of the injury.” As an example, it pointed to Sardell v. Malanio, 202 So.2d 746, 746-47 (Fla. 1967), a case in which the Court held that a young boy who threw a football to his friend could be held to have proximately caused the injuries sustained by a passerby with whom his friend collided as he tried to catch the ball. It rejected the district court’s reasoning in Sardell that the boy who threw the ball had no physical control over the pass catcher and had no reason to expect the collision with the plaintiff, so that boy’s act of throwing the football could not be the proximate cause of the plaintiff’s injuries. Id. at 747 (quoting Sardell v. Malanio, 189 So.2d 393, 394 (Fla. 3d DCA 1966)).

The Court concluded its opinion as follows:

Our precedent makes clear that Dr. Lorenzo cannot prevent Ruiz from establishing proximate cause merely by showing his actions or omissions were not the primary cause of Espinosa’s death. Instead, to foreclose liability on the grounds of causation, Dr. Lorenzo’s acts or omissions must not have substantially contributed to Espinosa’s death as part of a natural and continuous sequence of events which brought about that result. See McCain, 593 So.2d at 502-03; Gooding, 445 So.2d at 1018. To obtain a directed verdict on this basis, Dr. Lorenzo must show there is no competent, substantial evidence in the record which would permit a reasonable factfinder to reach such a conclusion at all. See Friedrich, 137 So.3d at 365; Cox, 71 So.3d at 801.

Interestingly, proximate cause is always applicable in workers’ compensation cases:

The established rule in workers’ compensation is that a causal relationship between an employee’s injury and the industrial accident must be shown by competent substantial evidence. § 440.02(1) & (17), Fla. Stat. (1991) (defining “accident” and “injury,” respectively); Gator Industries, Inc. v. Neus, 585 So.2d 1174 (Fla. 1st DCA 1991); Stephens Trucking Co. v. Bibbs, 569 So.2d 490 (Fla. 1st DCA 1990).

In Escambia County Board of County Commissioners v. Reeder, 648 So.2d 222 (1994), the claimant, who was hurt when he was thrown from a bulldozer that rolled over, used the rule to defeat the employer/carrier’s efforts at reducing his compensation by 25% pursuant to section 440.09(5), Florida Statutes, which reads as follows:

If injury is caused by the knowing refusal of the employee to use a safety appliance or observe a safety rule required by statute or lawfully adopted by the department, and brought prior to the accident to the employee’s knowledge, or if injury is caused by the knowing refusal of the employee to use a safety appliance provided by the employer, the compensation as provided in this chapter shall be reduced 25 percent.

The bulldozer was equipped with a safety belt but not a shoulder harness. Claimant, who had been advised to wear the safety belt, was not wearing the belt at the time of the accident. He asserted that, in order to reduce his compensation, E/C must prove a causal connection between his failure to wear the safety belt and his injuries. The judge of compensation claims (JCC) agreed and after taking evidence on the issue, ruled that although Claimant had been aware of and had knowingly disregarded Employer’s valid safety rule, the proof was insufficient to establish the requisite causal connection (between the injury and the failure to wear a safety device) that would justify Employer’s taking a statutory 25 percent reduction in Claimant’s indemnity benefits. The JCC’s ruling was affirmed on appeal.

Like a football receiver taking his eye off the ball in the heat of the moment or a tennis player forgetting the importance of sound footwork, in complex cases, especially, lawyers sometimes lose sight of the fundamentals. Fundamentals always matter. In personal injury cases, proximate cause is a fundamental.

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Contact us at 305-758-4900 or by email (jgale@jeffgalelaw.com and kgale@jeffgalelaw.com) to learn your legal rights.

Jeffrey P. Gale, P.A. is a South Florida based law firm committed to the judicial system and to representing and obtaining justice for individuals – the poor, the injured, the forgotten, the voiceless, the defenseless and the damned, and to protecting the rights of such people from corporate and government oppression. We do not represent government, corporations or large business interests.

While prompt resolution of your legal matter is our goal, our approach is fundamentally different. Our clients are “people” and not “cases” or “files.” We take the time to build a relationship with our clients, realizing that only through meaningful interaction can we best serve their needs. In this manner, we have been able to best help those requiring legal representation.

DISCLAIMER: This information provided by Jeffrey P. Gale, P.A. is for informational purposes only and is intended to be used as a non-legal guide prior to consultation with an attorney familiar with your specific legal situation. It should not be considered legal advice or counseling. No such legal advice or counseling is either expressly or impliedly intended. This information is not a substitute for the advice or counsel of an attorney. If you require legal advice, you should seek the services of an attorney.

Jeffrey P. Gale, P.A. // $2 Million Settlement Achieved by Avoiding Florida’s Workers’ Compensation Immunity Law

Jeffrey P. Gale, P.A. — Thu, 24 Mar 2022 17:41:57 GMT

What began as a product liability investigation, ended in a $2,000,000 personal injury settlement against the owner of an altered riding lawnmower (pictured).

Our client lost his right leg when run over by the lawnmower he was operating for his employer. Initially thinking that the mower was owned by the employer, which would give the employer workers’ compensation immunity, we set our sights on a product liability case as the only way to secure a civil remedy for our client.

We quickly discovered that any products liability case was barred by Florida’s Statute of Repose. We also learned that our accident was caused by a post-manufacture alteration to a safety feature.

On the shoulder of a Palm Beach County roadway, our client placed the riding mower in neutral and exited the machine to discard garbage in its path. It was a task his superiors previously instructed him to do to avoid damaging the machine. Unfortunately, the riding mower still moved forward and ran over his right leg, ultimately requiring amputation above his knee.

The machine had been designed with a kill switch to prevent it from operating without a driver on the seat. The owner of the mower had disabled the kill switch.

Section 440.11, Florida Statutes, grants employers immunity from civil damages (e.g., non-economic losses such as “pain and suffering”) for all conduct short of criminal resulting in injury. Not even removing the kill switch would qualify as conduct egregious enough to lose the immunity. The difference in damages recoverable through workers’ compensation and civil law can be in the millions.

After initially thinking that the machine was owned by the employer, our subsequent investigation disclosed that it was instead owned and maintained by a subsidiary company of the employer. This company tampered with the kill switch. Typically, subsidiary companies do not get workers’ compensation immunity. Our subsidiary was not entitled to the immunity.

Once we convinced the owner’s liability insurance carrier that its insured was not entitled to workers’ compensation immunity and had altered the kill switch, the carrier quickly tendered policy limits.

The moral of the story is to conduct a painstakingly thorough investigation on the issue of workers’ compensation immunity.

The workers’ compensation case settled for $300,000!

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Contact us at 305-758-4900 or by email to learn your legal rights.

Jeffrey P. Gale, P.A. // Don’t Be a JUUL Fool!

Jeffrey P. Gale, P.A. — Thu, 26 Dec 2019 19:37:07 GMT

First, harsh reality: Like traditional cigarettes, JUUL contains nicotine. Nicotine causes addiction by stimulating the release of neurotransmitter chemicals such as dopamine and serotonin which activate pleasure hormones in the brain. The addictive cycle results from the compulsion of users to chase the pleasure high. Combined with a smooth vapor, accomplished through an infusion of pH-softening benzoic acid, and a false understanding of the product’s toxicity, JUUL consumers frequently eclipse cigarette smokers in nicotine consumption. (One JUUL “pod,” the nicotine cartridge inserted into a smoking device and heated, delivers around 200 puffs, about as much nicotine as 35 cigarettes, more than a pack-and-a-half.) Vaping is linked to:

Disturbances of cognitive function and brain function
Lung issues such as pulmonary disease
Reduced activity in the prefrontal cortex of the brain
Increased likelihood of smoking cigarettes

It is also suspected of damaging DNA. Damaged DNA can lead to cancer — since 2009, the FDA has warned that e-cigarettes contain carcinogens and toxic chemicals.

Big Tobacco devised the addiction scheme more than a century ago. Its primary targets were children, who would become lifelong consumers through addiction. Not a bad strategy considering the adolescent brain is more sensitive to addiction. In 1998, Big Tobacco was banned from marketing youth.

JUUL, the product, is manufactured by JUUL Labs, Inc. In 2015, it entered the e-cigarette business. As e-cigarettes were not subject to many of the laws and restrictions constraining Big Tobacco, JUUL took aim at the youth market. It advertised on social media (e.g., Instagram, YouTube, Twitter, Facebook), paid young “influencers” to endorse its products, used colorful packaging, and promoted trendy flavors such as “mango” and “fruit medley.” The plan worked. Sales increased and JUUL came to dominate the market.

Unlike Big Tobacco, which had a decades long consequence-free run until finally being cornered by private trial lawyers and state attorney generals determined to exact justice, JUUL has begun to feel the heat after just a few short years. It has been forced to stop selling various flavored products at more than 90,000 retail stores, agreed to enhanced on-line age verification measures, deleted its Facebook and Instagram accounts, stopped promotional posts on Twitter, and uses only adult models.

Unfortunately, people young and old will continue to be harmed by JUUL. An entire generation of youth have been caught up in the addictive cycle, and the hopes of adults mislead into believing e-cigarettes were their salvation from deadly cigarettes, have been dashed. Civil litigation, both in the form of class actions and individual claims, aimed at bringing JUUL to heel is well underway.

If you or a loved one feel victimized by JUUL, call our office for answers and options. Free consultation.

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Contact us at 305-758-4900 or by email to learn your legal rights.

Florida’s Statute of Repose Sometimes Bars Products Liability Claim Where Statute of Limitation Does Not

Jeffrey P. Gale, P.A. — Tue, 09 Apr 2013 19:59:56 GMT

A statute of limitation is an enactment in a common law legal system which sets forth the maximum time after an event that legal proceedings based on that event may be initiated. Most people are familiar with the concept.

Less known, but equally potent as a time bar to bringing claims, is the statute of repose. It is sometimes called a non claim statute.

A products liability case is a legal action for injuries founded on the defective design, manufacture, distribution, or sale of personal property. Examples of the types of products sometimes found to be defective are tires, motor vehicles, drugs, and surgical hardware.

In Florida, defective products cases are subject to both a statute of limitation and a statute of repose.

A lawsuit for injuries caused by a defective product must be filed in Florida within four years of the event or within four years of when it is known or should have reasonably been known that the product is to blame. Florida Statute 95.11(3)(e). When death results from a defective product, Florida’s Wrongful Death Act imposes a two year time limit on bringing a claim.While the statute of limitation considers the date of the accident, the statute of repose relies on the date the defective product was manufactured.

Florida’s statute of repose provides that

“under no circumstances may a claimant commence an action for products liability, including a wrongful death action or any other claim arising from personal injury or property damage caused by a product, to recover for harm allegedly caused by a product with an expected useful life of 10 years or less, if the harm was caused by exposure to or use of the product more than 12 years after delivery of the product to its first purchaser or lessee who was not engaged in the business of selling or leasing the product or of using the product as a component in the manufacture of another product.”

See Florida Statute 95.031 .

The practical consequence of the statue of repose is that it can bar a products liability claim even if the claim is instituted within the statute of limitation period.

An actual case example will help illustrate this point:

Our law firm was hired by a gentleman severely injured by a defectively designed forklift. The design of the forklift put users at high risk of injury. Later models had corrected the dangerous condition. Through discovery conducted in his workers’ compensation case, we learned that the manufacturer originally sold the forklift in 1996, more than fourteen years before the accident. While we were prepared to institute legal proceedings well within the four year statute of limitation period, we were prevented from doing so by the statute of repose. Even though the statute of limitation gave our client until 2014 to sue, by the time the accident happened in 2010, it had been 14 years since the forklift had been sold by the manufacturer, putting us two years beyond the statute of repose.

Our severely injured client’s products liability claim was dead before the accident happened.

Contact us today toll-free at 866-785-GALE or by email to obtain a free, confidential consultation.

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Lawsuits Needed to Reduce Submerged Vehicle Drowning Deaths

Jeffrey P. Gale, P.A. — Mon, 26 Nov 2012 18:51:22 GMT

Effective civil trial lawyers punish individuals, corporations, and governments for irresponsible behavior. One of the biggest culprits has been the auto industry. Thanks to large jury verdicts, the industry has been forced to knuckle under to the public’s demand for safer vehicles. However, safety issues remain.

Safety belts could be more effective. Vehicles could be designed to rollover less easily. Roofs could be reinforced to avoid crush injuries during rollovers. Stale tires could be taken off the market. Air bags could be less crude, more effective.

These are well-known safety issues. To its credit, the auto industry has made some improvements in these areas. However, more can always be done. When the industry falls short, lawsuits will be brought to exact accountability. Safety should never take a back seat to luxury. Profits should never be more important than people.

One area where the industry continues to fall woefully short is in its attention to submerged vehicle deaths. While safety improvements have been made regarding safety belts, rollover accidents, tires, and air bags, little has been done to increase the likelihood of surviving a crash into water.

In fact, because of the near universal use of electric windows and the increased use of window glazing in side windows, similar to what is used in front windshields, the danger of drowning in a submerged vehicle has increased since the 1970s.

The safest way to exit a submerged vehicle is through a side window. Unfortunately, except for some off-road vehicles, like Jeeps and Hummers, that are equipped with built-in protections for water-fording, such as a sealed central venting system to protect drivetrain components from moisture, the electrical systems in today’s vehicles quickly malfunction when exposed to water, preventing the side windows from opening.The next best way to escape a submerged vehicle is by breaking a side window with a hammer or a similar metal punching device. These devices work well with tempered glass. They do not work so well with the advanced glazing used in some side windows to keep passengers from being evicted during a crash.

Hence, three solutions: Sealed central venting systems to protect drivetrain components from moisture, thus insuring the proper function of electric windows following submersion; a manual system for rolling down windows; and a built-in, easy to reach tool for window busting.

Very little litigation has been brought against auto manufacturers for failing to prevent this foreseeable danger. Until more action is taken, the industry is unlikely to address the problem in a serious way on its own. Safety costs money. It is only when ignoring the problem becomes more costly than fixing it that the industry will pay attention. Final verdicts can be more costly than safety.

NOTE: Shortly after posting this blog, we were contacted by two individuals who are working at the forefront of the effort to reduce submerged vehicle drownings. Gerald M. Dworkin is employed by Lifesaving Resources, LLC as a professional Aquatics Safety and Water Resource Consultant. He has written and spoken extensively on the subject of drowning and aquatic injury prevention and emergency management. (Here is a link to one of his articles: Escape and Rescue from Submerged Vehicles.) The other fine person who contacted us is Anna Stewart with the Drowning Prevention Coalition of Palm Beach County. The Coalition’s website is a wealth of knowledge regarding water safety beyond just the subject of this blog. Here is must-read article on its website: How to Escape a Sinking Vessel.

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Contact us toll free at 866-785-GALE or by email (jgale@jeffgalelaw.com) for a free, confidential consultation to learn your legal rights.

Jeffrey P. Gale, P.A. is a South Florida based law firm committed to the judicial system and to representing and obtaining justice for individuals – the poor, the injured, the forgotten, the voiceless, the defenseless and the damned, and to protecting the rights of such people from corporate and government oppression. We do not represent government, corporations or large business interests.

Defective Design – Motor Vehicle Airbags

Jeffrey P. Gale, P.A. — Sun, 22 May 2011 11:31:10 GMT

Inflating airbags can cause serious harm or death. The damage occurs when the passenger’s head is struck by the airbag, which can travel at speeds up to 200 mph, before it has fully inflated.

A vehicle’s “occupant protection system” (OPS) consists of airbags, belt/shoulder restraints, and seat tracks. If the system is designed properly, occupants should not be harmed by deploying airbags. Instead of the head being struck by the airbag during deployment, the head should be cushioned by the fully deployed airbag. Two entirely different dynamics… and often the difference between life and death.

When a vehicle strikes an object, the human body continues to move forward at the pre-crash speed of the vehicle until it is restrained by a seatbelt/shoulder harness or comes into contact with the airbag, windshield, or instrument panel. The one factor common to all persons severely injured or killed by an airbag is that they are very close to the airbag at the time of deployment. A properly designed system prevents this from happening.

Seat tracking determines how far forward seats are able to be situated. If located too close to the airbag, the inflating airbag will impact the head before it has fully deployed. The solution to this problem is for manufacturers to limit how far forward seats can move on the track. When designing this aspect of the OPS, manufacturers must assume that the occupants will have their seats fully forward.

The other consideration to prevent occupants from being too close to airbags during deployment, is the seatbelt/shoulder harness system. Shoulder harness pre-tensioning should limit the body from moving forward into the deployment zone.Manufacturer warnings about positioning the seat too far forward should also be given. At the very least, the warning should be given in the Owner’s Manual, but it should also be given verbally when the vehicle is started and through a dashboard display. The danger is too great to avoid instituting these relatively inexpensive measures.

The consequences of being too close to a deploying airbag are well known. Despite signficant kicking, biting, and screaming, for the most part manufacturers have been forced through lawsuits to take reasonable steps to prevent this dangerous condition. A manufacturer that fails to take this danger into consideration can and should be held accountable. Sadly, some auto makers continue to manufacture vehicles without regard to the danger.

If you or a loved one are harmed by a defectively designed motor vehicle or other type of product, contact our office at 866-785-GALE or by email to learn your rights. We handle defective design cases on a contingency basis, which means that we charge no fees or costs until we win your case.

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Florida Products Liability Cases – Interplay of Statute of Repose & Statute of Limitation

Jeffrey P. Gale, P.A. — Thu, 10 Feb 2011 11:23:59 GMT

A statute of limitation is an enactment in a common law legal system that sets forth the maximum time after an event that legal proceedings based on that event may be initiated. Most people are familiar with the concept.

Far less familiar to the general public, and even to some lawyers, is the legal concept known as statute of repose. Like a statute of limitation, a statute of repose (sometimes called a nonclaim statute) limits the time period in which a civil action may be instituted.

A products liability case is a legal action for injuries founded on the defective design, manufacture, distribution, or sale of personal property. Examples of products found to be defective are tires, motor vehicles, drugs, and surgical hardware. In Florida, defective products cases are subject to a statute of limitation and a statute of repose.

The statute of limitation in Florida with regard to injuries caused by defective products is four years. (Florida Statute 95.11(3)(e)). (Caveat: When death results from a defective product, Florida’s Wrongful Death Act imposes a two year statute of limitations.) This means that a lawsuit founded on a defective product must be filed within four years or two years of when it is known or should have reasonably known what caused the accident.

Sometimes, however, the statute of repose effectively limits the time allowed under the statute of limitation and, in some instances, bars altogether a claim from being brought.

An actual case example will help illustrate this point:

Our law firm was recently hired by a gentleman who was severely injured by a defective forklift. Through discovery conducted in his workers’ compensation case, we learned that the manufacturer originally sold the forklift in 1996, more than fourteen years before the accident.

Even though we were prepared to file a products liability complaint well within the two year statute of limitation period, we were prevented from doing so by the statute of repose.Florida’s statute of repose provides that

“under no circumstances may a claimant commence an action for products liability, including a wrongful death action or any other claim arising from personal injury or property damage caused by a product, to recover for harm allegedly caused by a product with an expected useful life of 10 years or less, if the harm was caused by exposure to or use of the product more than 12 years after delivery of the product to its first purchaser or lessee who was not engaged in the business of selling or leasing the product or of using the product as a component in the manufacture of another product.”

Accordingly, even though the statute of limitation gave our client until 2014 to sue, by the time the accident happened in 2010, 14 years from when the forklift had been sold by the manufacturer, the statute of repose deadline had run by two years. In other words, our injured client was barred from suing the manufacturer of a defective product even before he was harmed by it.

Contact us today toll-free at 866-785-GALE or by email to obtain a free, confidential consultation.

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Dangerous Products

Jeffrey P. Gale, P.A. — Tue, 14 Dec 2010 12:18:03 GMT

From time to time, I will list in this blog recent important information regarding manufactured products used by American consumers. Today’s entries:

Darvocet and Darvon: Popular prescription pain medications, go by the generic name propoxyphene. FDA studies show that the drug puts patients at risk of potentially serious or even fatal heart rhythm abnormalities. Propoxyphene is an opoid. Safety concerns were raised as early as 1978. Warnings were placed on boxes in 2009 of the dangers of overdoses. Now, the manufacturer, Xanodyne Pharmaceuticals, Inc., has agreed to withdraw the drug from the U.S. market.

DePuy Hip Replacement Parts: Some component parts in the DePuy Hip replacement system are feared to be the cause of a high rate of repeat surgies in those who have received the parts. Johnson & Johnson and DePuy Orthopaedics, its subsidiary, have announced that it is recalling the parts.

EBIce Cold Therapy: This is a cryo-therapy (“Cold Therapy”) device typically prescribed by orthopedists and podiatrists after a surgical procedure. Poor use instructions have resulted in serious nerve and skin damage similar to frost bite.

Fosomax: Manufactured by Mreck, this is a class of drugs called bisphosphonates. It is commonly used in tablet form to prevent and treat osteoporosis in post-menopausal woman. The Journal of Oral and Maxillofacial Surgeons recently reported a link between bisphosphonates and serious bonce disease called Osteonecrosis of the Jaw (ONJ), a disfiguring and disabling condition of the jaw bone that causes infection and rotting of the jaw bone.Gadolinium: A contrast agent used to enhance the quality of magnetic resonance imaging (MRI), it can place people at risk of developing Nephrogenic Systemic Fibrosis (NSF) or Nephrogenic Fibrosing Demopathy (NFD), potentially fatal diseases. Symptoms include thickening of the skin, dark patches on the skin that appear rough and hard, joint and bone pain, as well as swelling. The U.S. FDA has asked manufacturers of the agent to includea new boxed warning on the product label.

Gardasil: Manufactured and aggresively marketed by Merck Sharp & Dohme Co. as a vaccine that prevents cervical cancer. While it is has not been proven to prevent cervical cancer, the Vaccine Adverse Event Reporting System has over 16,000 reports of adverse events related to its administration including 50 deaths, blindness, multiple sclerosis, paralysis, blood clots and death. Parents should proceed with caution before allowing their children to be vaccinated.

Paxil: An anti-depressent manufactured by GlaxoSmithKline. Public Health Advisories have recently been issued for Paxil regarding, among other things, an increased risk of heart birth defects, peristent pulmonary hypertension (PPHN), and omphalocele (an abnormality in newborns.

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Contact us at 866-785-GALE or by email to learn your legal rights.

Vehicle Product Liability & Crashworthiness Cases Checklist – Florida

Jeffrey P. Gale, P.A. — Thu, 30 Sep 2010 11:38:15 GMT

In a previous blog, I wrote about the “enhanced injuries” doctrine in Florida. The doctrine stands for the proposition that a wrongdoer can be liable for damages extending beyond those resulting from the initial negligence. The example I used was of a simple car accident that triggered a defect in the victim’s vehicle, which caused a fire and catastrophic injuries well beyond the minor injuries resulting from the initial impact alone. Today’s blog is about the common characteristics associated with enhanced injury cases in the context of motor vehicle accidents and the various defects leading to those accidents.

Common characteristics include:

One or a few occupants are catastrophically or fatally injured while others have minor or no injuries;
Minor collisions resulting in catastrophic injury or death – see example in first paragraph;
Severe damage to or failure of a localized area of the vehicle (examples: roof crush or seat belt collapse);
Seat-belted occupants who are seriously injured or who are partially or fully ejected.

Typical Reasons for Enhanced Injuries: Post-Impact Fuel Fed Fire Defects Auto engineers agree that an occupant who survives the crash forces should not be injured or killed by a subsequent fire. Fire causing defects include:

Fuel Tank Location & Shielding. Fuel tanks placed in positions of risk to crushing or compromise, or not adequately protected against puncture damage.
Siphoning, Filler Tube & Fuel Line Failure: Excessive post-accident fuel leaks caused by failing to install inexpensive check-valve devices.

Restraint System Defects

Well-designed and operational seat belts and air bags make us safer. Those that are not make us vulnerable to enhanced injuries.
Rear Seat Lap Belt (RSLB): Three-point (lap/shoulder) belts are safer and more effective than lap belt systems. Lap belts can cause severe abdominal and spinal cord injuries in situations where the 3-point system would have prevented all injuries.
Passive/Automatic Seat Belt Systems: These are the seat belt systems that secure occupants automatically. Those that are poorly designed secure occupants improperly or fail altogether.
Comfort Features: To provide maximum protection, the belt must fit snugly. Too much slack will make the belt less effective.
Reclining Passenger Seats: Seat belts are designed to be most effective when occupants are sitting upright. Reclining will render the belt system ineffective.
Inertial Unlatch/False Latch/Inadverdent Unlatch: Collision forces can cause seat belts to become unlatched. The best systems are designed to prevent this dangerous occurrence.
Air Bag Defects: There are two primary types of air bag defects, non-deployment and overly aggressive deployment.

Rollover Defects As many as 20 percent of all auto accident fatalities result from rollover accidents. There are three primary theories of defect in rollover collisions.

Vehicle Instability: Vehicles should not roll over on flat pavement and must be designed to withstand sudden steering or turn maneuvers. Vehicle design can cause roll over due to instability.
Roof Crush: Occupants should not be crushed by a collapsing roof in a rollover. To save money, some manufacturers have changed this equation by reducing roof strength.
Occupant Ejection: Reinforced safety glass and adequate restraint systems will prevent rollover ejections.

Component Failures

Tires: Tires have a useful life of only six years. (See this blog.) This includes never used tires with perfect tread just off the showroom shelf. Old, aged, and used tires are a common cause of blow-outs and tire detreads.
Child Safety Seats: Poor installation of child safety seats is common and dangerous. These seats should be designed for easy installation and run through rigorous safety testing.
Seat Back Failure/Collapse: Seats sometimes collapse rearward during a collision. The dangers to anyone sitting behind these seats is obvious.

Whenever an enhanced injury is suspected, a lawyer should be consulted to determine if the injury was caused by a defect. It is critically important that the vehicle be preserved and quickly inspected by an expert, so do not allow the insurance company to take the car and sell it for salvage. Also, do not settle with any party without consulting wiht a lawyer first.

(Special thanks to Langdon & Emison for much of the content in this blog)

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