personal injury

This is Broken

Take a look at this presentation by Seth Godin. I love the part where he talks about companies slapping a warning label on dangerous products instead of fixing the product itself.

Seth Godin at Gel 2006 from Gel Conference on Vimeo.

Legal Research

Automotive Products Liability Cases

I thought I had seen every perspective on the possible impact of a bankruptcy filing by Chrysler, GM or Ford. Apparently, I had not.

Products Liability and Injury Lawyer Blog: Auto Industry Bankruptcy: How Will It Affect Products Liability Litigation? Should one of the Big Three file for bankruptcy, products liability litigants may be forced to petition the bankruptcy court in order to obtain permission to initiate new actions against a bankrupt automaker, or to allow them to continue proceedings already in progress in another court.

Even though we know that economy runs cyclically and that some businesses do fail, I still find it a bit unreal to consider that one of the Big Three might go under. All of a sudden, that deep pocket turns out to not be that deep.

personal injury

On the First Day of Christmas…

WARNING: This product contains lead, a chemical known to the State of California to cause cancer and birth defects or other reproductive harm. Wash your hands after handling.

I spotted the above warning when shopping around for Christmas trees. Of all items that should be lead-free, I would imagine that Christmas trees should appear at the top of the list. I think Christmas trees are an attractive nuisance, especially those premium fake trees that practically appear real. No one wants a lump of coal for Christmas, or lead poisoning.

personal injury

Product Liability and Online Games

MSN Games: Photosensitive Seizure Warning. A very small percentage of people may experience a seizure when exposed to certain visual images, including flashing lights or patterns that may appear in video games. Even people who have no history of seizures or epilepsy may have an undiagnosed condition that can cause these “photosensitive epileptic seizures” while watching video games.

I was doing some legal research on the MSN website looking for an online poker game. Seriously. Lottotron, Inc. had recently filed a patent infringement suit against Microsoft over its online poker and casino games. However, I got distracted by the above disclaimer about online games causing seizures. You’ve been warned.

personal injury

Products Liability Watch: Butter-Flavored Microwave Popcorn

MedPage Today: Brochiolitis Obliterans Pops Up in Home Microwave. A microwave-popcorn addict who found the aroma of the freshly made snack to be irresistibly intoxicating has developed brochiolitis obliterans[.]

I had previously seen reports of workers in popcorn plants suffering respiratory illness from breathing in diacetyl, which popcorn manufacturers use to impart the flavor of butter to popcorn. However, this is the first time that I’ve read about it occurring in consumers. I wonder if we’ll be seeing “If you’ve been injured in a popcorn accident…” ads on late-night television. Lieff Cabraser Heimann & Bernstein, LLP does have a Butter Flavoring Lung Injury website.

consumer law personal injury

Poison Me Elmo

Forbes/Associated Press: Experts Urge Blood Tests in Toy Recall. Parents worried their children may have been exposed to excessive levels of lead in recalled Fisher-Price toys should visit the pediatrician for a blood test, experts said Thursday. 

So, explain this one to me. Toys that contain lead paint that you are not supposed to ingest gets recalled. However, chicken that contains melamine that is intended for human consumption…well, that’s safe. Huh?Anyways, Mattel will be taking a $30 million charge to reflect the cost of the recall, which may seem high. In reality, an American jury presented with a fact pattern showing that a major American toy company exported American manufacturing jobs overseas to cut costs and then imported lower quality Chinese manufactured children toys that contain toxic lead paint without screening for product safety…well, you tell me what the punitive damages award will be. Think the jury will want to “send a message” to corporate America? $30 million product recall looking cheap now?

personal injury

WSJ Laments the Lack of Product Liability Laws

Wall Street Journal: China Product Scare Hits Home, Too. China is still at the early stages of developing the type of product-liability and product-recall system that is common in many Western countries, a system that leaves little recourse against companies that flout regulations that are rarely enforced. Product-liability lawsuits, common in the U.S., are rare in China’s legal system.

And, if some politicians have their way, product liability lawsuits will be rare in the U.S. legal system as well. After all, President Bush said, “The cost of lawsuits, relative to countries that we compete against, are high.” [Actually, he should have said the costs—plural—are high, but who am I to pick on the President’s grammar.] Now, the Census tells us that our second largest trading partner is China. So, either we have to gravitate toward their model or they have to move to ours. Which will it be? Who wants diethylene glycol in fresh mint with tartar control?

personal injury

Atlanta Personal Injury Attorney Endorses Volvos

Ken Shigley: Ford – Volvo divorce in the works?. When Ford acquired Volvo a few years ago, I thought it was quite a mismatch of corporate cultures. Volvo had a reputation for building the world’s safest cars. Ford, on the other hand, sometimes seemed only slightly ahead of Yugo in that regard.

In his observations about the rumored impending split between Ford and Volvo, Atlanta Personal Injury Attorney Ken Shigley notes that both he and his first-born daughter drive Volvos. Who better to tell you which cars are safe than someone who is intimately familiar with the devastating impact that unsafe cars can cause. Now that’s an endorsement.

personal injury

Republicans Against Tort Reform

Last week, Senator Mark Pryor (D-AR) introduced legislation to prevent children from being trapped or eviscerated by swimming pool drains. The Senator named the legislation after Virginia Graeme Baker who drowned when suction from an outdoor spa drain cover pinned her underwater. Virginia Baker was seven at that time, and was the granddaughter of former Secretary of State James Baker.So, what happens when personal tragedy strikes a Republican family? Do they sue and look for deep pocketed defendants? You betcha. The Supreme Court of Virginia affirmed the trial court’s judgment to dismiss the case against defendants Poolservice Company and Hayward Pool Products, Inc. with prejudice. Their only connection to the tragedy was that they had performed routine cleaning and maintenance on the spa a few days before the drowning. The spa owners did not ask them to perform a safety inspection. Nevertheless, the Bakers sought to hold this business responsible for the death of their daughter. I wonder if the American Tort Reform Association will be holding a fundraiser for the pool cleaners?

Virginia Graeme Baker Pool and Spa Safety Act (Introduced in Senate)S 1771 IS

1st Session
S. 1771
To increase the safety of swimming pools and spas by requiring the use of proper anti-entrapment drain covers and pool and spa drainage systems, to educate the public about pool and spa safety, and for other purposes.

July 11, 2007

Mr. PRYOR (for himself, Mr. DODD, Mr. STEVENS, Mrs. HUTCHISON, Ms. KLOBUCHAR, Mr. WARNER, Mr. DURBIN, Mr. MCCAIN, and Mr. COLEMAN) introduced the following bill; which was read twice and referred to the Committee on Commerce, Science, and Transportation

To increase the safety of swimming pools and spas by requiring the use of proper anti-entrapment drain covers and pool and spa drainage systems, to educate the public about pool and spa safety, and for other purposes. 

    Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,


    This Act may be cited as the `Virginia Graeme Baker Pool and Spa Safety Act’.


    Congress finds the following:
    • (1) Of injury-related deaths, drowning is the second leading cause of death in children aged 1 to 14 in the United States.
    • (2) In 2004, 761 children aged 14 and under died as a result of unintentional drowning.
    • (3) Adult supervision at all aquatic venues is a critical safety factor in preventing children from drowning.
    • (4) Research studies show that the installation and proper use of barriers or fencing, as well as additional layers of protection, could substantially reduce the number of childhood residential swimming pool drownings and near drownings.


    In this Act:
    • (1) ASME/ANSI- The term `ASME/ANSI’ as applied to a safety standard means such a standard that is accredited by the American National Standards Institute and published by the American Society of Mechanical Engineers.
    • (2) BARRIER- The term `barrier’ includes a natural or constructed topographical feature that prevents unpermitted access by children to a swimming pool, and, with respect to a hot tub, a lockable cover.
    • (3) COMMISSION- The term `Commission’ means the Consumer Product Safety Commission.
    • (4) MAIN DRAIN- The term `main drain’ means a submerged suction outlet typically located at the bottom of a pool or spa to conduct water to a re-circulating pump.
    • (5) SAFETY VACUUM RELEASE SYSTEM- The term `safety vacuum release system’ means a vacuum release system capable of providing vacuum release at a suction outlet caused by a high vacuum occurrence due to a suction outlet flow blockage.
    • (6) SWIMMING POOL; SPA- The term `swimming pool’ or `spa’ means any outdoor or indoor structure intended for swimming or recreational bathing, including in-ground and above-ground structures, and includes hot tubs, spas, portable spas, and non-portable wading pools.
    • (7) UNBLOCKABLE DRAIN- The term `unblockable drain’ means a drain of any size and shape that a human body cannot sufficiently block to create a suction entrapment hazard.


    (a) Consumer Product Safety Rule- The requirements described in subsection (b) shall be treated as a consumer product safety rule issued by the Consumer Product Safety Commission under the Consumer Product Safety Act (15 U.S.C. 2051 et seq.).
    (b) Drain Cover Standard- Effective 1 year after the date of enactment of this Act, each swimming pool or spa drain cover manufactured, distributed, or entered into commerce in the United States shall conform to the entrapment protection standards of the ASME/ANSI A112.19.8 performance standard, or any successor standard regulating such swimming pool or drain cover.


    (a) In General- Subject to the availability of appropriations authorized by subsection (e), the Commission shall establish a grant program to provide assistance to eligible States.
    (b) Eligibility- To be eligible for a grant under the program, a State shall–
    • (1) demonstrate to the satisfaction of the Commission that it has a State statute, or that, after the date of enactment of this Act, it has enacted a statute, or amended an existing statute, and provides for the enforcement of, a law that–
      • (A) except as provided in section 6(a)(1)(A)(i), applies to all swimming pools in the State; and
      • (B) meets the minimum State law requirements of section 6; and
    • (2) submit an application to the Commission at such time, in such form, and containing such additional information as the Commission may require.
    (c) Amount of Grant- The Commission shall determine the amount of a grant awarded under this Act, and shall consider–
    • (1) the population and relative enforcement needs of each qualifying State; and
    • (2) allocation of grant funds in a manner designed to provide the maximum benefit from the program in terms of protecting children from drowning or entrapment, and, in making that allocation, shall give priority to States that have not received a grant under this Act in a preceding fiscal year.
    (d) Use of Grant Funds- A State receiving a grant under this section shall use–
    • (1) at least 50 percent of amounts made available to hire and train enforcement personnel for implementation and enforcement of standards under the State swimming pool and spa safety law; and
    • (2) the remainder–
      • (A) to educate pool construction and installation companies and pool service companies about the standards;
      • (B) to educate pool owners, pool operators, and other members of the public about the standards under the swimming pool and spa safety law and about the prevention of drowning or entrapment of children using swimming pools and spas; and

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      • (C) to defray administrative costs associated with such training and education programs.
    (e) Authorization of Appropriations- There are authorized to be appropriated to the Commission for each of fiscal years 2009 and 2010 $2,000,000 to carry out this section, such sums to remain available until expended.


    (a) In General-
    • (1) SAFETY STANDARDS- A State meets the minimum State law requirements of this section if–
      • (A) the State requires by statute–
        • (i) the enclosure of all residential pools and spas by barriers to entry that will effectively prevent small children from gaining unsupervised and unfettered access to the pool or spa;
        • (ii) that all pools and spas be equipped with devices and systems designed to prevent entrapment by pool or spa drains;
        • (iii) that pools and spas built more than 1 year after the date of the enactment of such statute have–
          • (I) more than 1 drain;
          • (II) 1 or more unblockable drains; or
          • (III) no main drain; and
        • (iv) every swimming pool and spa that has a main drain, other than an unblockable drain, be equipped with a drain cover that meets the consumer product safety standard established by section 4; and
      • (B) the State meets such additional State law requirements for pools and spas as the Commission may establish after public notice and a 30-day public comment period.
      • (A) shall use the minimum State law requirements under paragraph (1) solely for the purpose of determining the eligibility of a State for a grant under section 5 of this Act; and
      • (B) may not enforce any requirement under paragraph (1) except for the purpose of determining the eligibility of a State for a grant under section 5 of this Act.
    • (3) REQUIREMENTS TO REFLECT NATIONAL PERFORMANCE STANDARDS AND COMMISSION GUIDELINES- In establishing minimum State law requirements under paragraph (1), the Commission shall–
      • (A) consider current or revised national performance standards on pool and spa barrier protection and entrapment prevention; and
      • (B) ensure that any such requirements are consistent with the guidelines contained in the Commission’s publication 362, entitled `Safety Barrier Guidelines for Home Pools’, the Commission’s publication entitled `Guidelines for Entrapment Hazards: Making Pools and Spas Safer’, and any other pool safety guidelines established by the Commission.
    (b) Standards- Nothing in this section prevents the Commission from promulgating standards regulating pool and spa safety or from relying on an applicable national performance standard.
    (c) Basic Access-Related Safety Devices and Equipment Requirements To Be Considered- In establishing minimum State law requirements for swimming pools and spas under subsection (a)(1), the Commission shall consider the following requirements:
    • (1) COVERS- A safety pool cover.
    • (2) GATES- A gate with direct access to the swimming pool that is equipped with a self-closing, self-latching device.
    • (3) DOORS- Any door with direct access to the swimming pool that is equipped with an audible alert device or alarm which sounds when the door is opened.
    • (4) POOL ALARM- A device designed to provide rapid detection of an entry into the water of a swimming pool or spa.
    (d) Entrapment, Entanglement, and Evisceration Prevention Standards To Be Required-
    • (1) IN GENERAL- In establishing additional minimum State law requirements for swimming pools and spas under subsection (a)(1), the Commission shall require, at a minimum, 1 or more of the following (except for pools constructed without a single main drain):
      • (A) SAFETY VACUUM RELEASE SYSTEM- A safety vacuum release system which ceases operation of the pump, reverses the circulation flow, or otherwise provides a vacuum release at a suction outlet when a blockage is detected, that has been tested by an independent third party and found to conform to ASME/ANSI standard A112.19.17 or ASTM standard F2387.
      • (B) SUCTION-LIMITING VENT SYSTEM- A suction-limiting vent system with a tamper-resistant atmospheric opening.
      • (C) GRAVITY DRAINAGE SYSTEM- A gravity drainage system that utilizes a collector tank.
      • (D) AUTOMATIC PUMP SHUT-OFF SYSTEM- An automatic pump shut-off system.
      • (E) DRAIN DISABLEMENT- A device or system that disables the drain.
      • (F) OTHER SYSTEMS- Any other system determined by the Commission to be equally effective as, or better than, the systems described in subparagraphs (A) through (E) of this paragraph at preventing or eliminating the risk of injury or death associated with pool drainage systems.
    • (2) APPLICABLE STANDARDS- Any device or system described in subparagraphs (B) through (E) of paragraph (1) shall meet the requirements of any ASME/ANSI or ASTM performance standard if there is such a standard for such a device or system, or any applicable consumer product safety standard.


    (a) In General- The Commission shall establish and carry out an education program to inform the public of methods to prevent drowning and entrapment in swimming pools and spas. In carrying out the program, the Commission shall develop–
    • (1) educational materials designed for pool manufacturers, pool service companies, and pool supply retail outlets;
    • (2) educational materials designed for pool owners and operators; and
    • (3) a national media campaign to promote awareness of pool and spa safety.
    (b) Authorization of Appropriations- There are authorized to be appropriated to the Commission for each of the fiscal years 2008 through 2012 $5,000,000 to carry out the education program authorized by subsection (a).


    Not later than 1 year after the last day of each fiscal year for which grants are made under section 5, the Commission shall submit to Congress a report evaluating the effectiveness of the grant program authorized by that section.