Toyota Plaintiffs Target Vehicle Electronics

The sudden-acceleration litigation against Toyota shifts to Oklahoma on Monday, as plaintiffs attorneys for the first time blame vehicle electronics for a crash that injured the driver and killed a front-seat passenger.

The first major trial over sudden acceleration focused on Toyota's failure to install a brake override safety system, not the electronics. A Los Angeles jury began deliberations on October 2 following two months of testimony.

The plaintiff in the Oklahoma case is Jean Bookout, who suffered internal bleeding and a broken ankle when her 2005 Camry crashed six years ago. Her friend, Barbara Schwarz, who was in the front seat, was killed.

Toyota has so far managed to settle litigation over sudden-acceleration defects. A $1.6 billion settlement, approved in July, resolved claims by consumers that their vehicles lost value. Another $25.5 million settlement resolved claims that shareholders lost money from the recalls. But trials now under way could influence the outcome of hundreds of remaining lawsuits, all of which target Toyota for injuries and deaths associated with accidents. Bookout filed her lawsuit in 2008, one year before Toyota began recalling nearly 10 million vehicles for defective floor mats and accelerator pedals linked to sudden acceleration. The case is a an outlier: It's not part of a coordinated proceeding, and lawyers have not selected it as a bellwether trial, defined as one whose outcome could guide the resolution of other cases pending against Toyota across the nation.

"Ms. Bookout doesn't have much memory…but she remembers the onset of the incident and remembers pumping her brakes, and the car kept going when she was slowing to get off the exit ramp," said Bookout's lawyer, Graham Esdale, a shareholder at Beasley, Allen, Crow, Methvin, Portis & Miles in Montgomery, Ala.

But Toyota has brought in a significant legal team including Bowman and Brooke, its lead national counsel in the sudden-acceleration cases. The team also includes J. Randolph Bibb Jr. of Lewis, King, Krieg & Waldrop in Nashville, Tenn., and James Jennings and Derrick Teague, senior shareholders of Jennings Cook & Teague in Oklahoma City.

Toyota spokeswoman Carly Schaffner issued a formal statement: "Multiple independent evaluations have confirmed the safety of Toyota's electronic throttle control systems, which are equipped with numerous, robust failsafe systems."

Toyota faces a formidable foe. In addition to Esdale, Beasley Allen's trial team includes senior member Jere Beasley and products liability shareholders Ben­jamin Baker and J. Cole Portis. The firm also is working with Larry Tawwater and Darren Tawwater of The Tawwater Law Firm in Oklahoma City.

The trial is expected to last less than three weeks. "It'll be fairly extensive," Esdale said. "Right now, our trial team is bigger than anyone we've sent to a court."

Bookout and Schwarz's estate intend to claim that Toyota was negligent and that the design of its 2005 Camry was defective, Esdale said. They also plan to ask jurors for punitive damages.

Some 20 experts are on tap, many of whom appeared during the first bellwether case over sudden acceleration to testify about braking systems. Others plan to testify about alleged defects in the vehicle's electronics software. Toyota has moved to exclude a report by one such plaintiffs expert, Michael Barr, whom plaintiffs lawyers indicated has identified a potential software glitch that could cause sudden acceleration. "Mr. Barr testified in his deposition that the Toyota software is defective, which results in unintended acceleration," Larry Tawwater wrote.

FIGHT OVER EXPERT

Toyota's motion and Barr's report were filed under seal, but Toyota has made a similar request to exclude Barr's findings in a case scheduled to go to trial on November 5 in the multidistrict litigation over sudden-acceleration defects against Toyota pending before U.S. District Judge James Selna in Santa Ana, Calif.

Beasley Allen has asked that additional members of its team have access to Toyota's proprietary software, which is housed in a secured facility in Maryland. Only two lawyers at the firm — Esdale and Baker — now have access to the source-code database.

"We filed a motion to allow lawyers trying the case access to it," Esdale said. "Clearly, they'll see and hear about it during the trial." Toyota's attorneys have opposed that request; access to its source code is governed by a stipulated protective order in the multidistrict litigation.

Oklahoma County District Court Judge Patricia Parrish issued a letter order on September 24 denying Toyota's motion as to Barr, but hasn't ruled on the source-code request. On October 1, she denied the plaintiffs' request to put James Lentz, head of Toyota's North American region and Toyota's highest ranking U.S. executive, on the stand. Lentz was forced to testify in person before jurors during the first trial.

Parrish also rejected a motion by Toyota to prevent plaintiffs lawyers from disclosing to the news media all "extrajudicial statements," especially highly sensitive proprietary information, that could prejudice a prospective jury pool.

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Source: Law Journal (Brondstad, 10/07)

Heavy use of herbicide Roundup linked to health dangers: study

Heavy use of the world's most popular herbicide, Roundup, could be linked to a range of health problems and diseases, including Parkinson's, infertility and cancers, according to a new study.

The peer-reviewed report, published last week in the scientific journal Entropy, said evidence indicates that residues of "glyphosate," the chief ingredient in Roundup weed killer, which is sprayed over millions of acres of crops, has been found in food.

Those residues enhance the damaging effects of other food-borne chemical residues and toxins in the environment to disrupt normal body functions and induce disease, according to the report, authored by Stephanie Seneff, a research scientist at the Massachusetts Institute of Technology, and Anthony Samsel, a retired science consultant from Arthur D. Little, Inc. Samsel is a former private environmental government contractor as well as a member of the Union of Concerned Scientists.

"Negative impact on the body is insidious and manifests slowly over time as inflammation damages cellular systems throughout the body," the study says. We "have hit upon something very important that needs to be taken seriously and further investigated," Seneff said.

Environmentalists, consumer groups and plant scientists from several countries have warned that heavy use of glyphosate is causing problems for plants, people and animals.

The EPA is conducting a standard registration review of glyphosate and has set a deadline of 2015 for determining if glyphosate use should be limited. The study is among many comments submitted to the agency.

Monsanto is the developer of both Roundup herbicide and a suite of crops that are genetically altered to withstand being sprayed with the Roundup weed killer.

These biotech crops, including corn, soybeans, canola and sugarbeets, are planted on millions of acres in the United States annually. Farmers like them because they can spray Roundup weed killer directly on the crops to kill weeds in the fields without harming the crops.

Roundup is also popularly used on lawns, gardens and golf courses.

Monsanto and other leading industry experts have said for years that glyphosate is proven safe, and has a less damaging impact on the environment than other commonly used chemicals.

Jerry Steiner, Monsanto's executive vice president of sustainability, reiterated that in a recent interview when questioned about the study.

"We are very confident in the long track record that glyphosate has. It has been very, very extensively studied," he said.

Of the more than two dozen top herbicides on the market, glyphosate is the most popular. In 2007, as much as 185 million pounds of glyphosate was used by U.S. farmers, double the amount used six years ago, according to Environmental Protection Agency (EPA) data.

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Source: YahooNews (AP, 4/25)

Mass. pharmacy recalling some compounded products

BOSTON— A Massachusetts pharmacy issued a voluntary recall Monday of some of its sterile compounding products after "foreign matter" was found in drug vials during an unannounced inspection by state and federal officials.

Pallimed Solutions Inc., of Woburn, was also ordered by the state board of pharmacy to stop all sterile compounding activities until further notice.

Most of the recalled items were used to prepare erectile dysfunction treatments for patients who have difficulty taking drugs orally. The company said fewer than 800 patients were involved.

The company described the recall as a precautionary measure and said it had received no reports of any illnesses or injuries. It also said it would continue with nonsterile compounding.

The Massachusetts Department of Public Health said it requested the recall after a joint inspection on Friday by the state pharmacy board and the U.S. Food and Drug Administration.

"The cease and desist was issued after foreign matter was observed in vials of injectable drugs," the Department of Public Health said in a statement.

Pallimed also was ordered to place all its compounded sterile products into quarantine while the investigation continued.

The company said there was no indication the products were tainted or unsafe. The state also said there were no reports of any patient harm. A message was left with the FDA.

Massachusetts stepped up unannounced inspections of compounding pharmacies after a deadly fungal meningitis outbreak last year was linked to an injectable steroid produced at another Massachusetts company, New England Compounding Center.

That outbreak was responsible for 720 illnesses in 20 states, including 48 deaths, according to the most recent update from the Centers for Disease Control and Prevention.

Framingham-based NECC ceased operations in October and surrendered its license to the Massachusetts board.

Pallimed Solutions is a 7-year-old company that does business as Pallimed Pharmacy and has about 15 employees, according to its website. It said it regretted any impact on customers and that patient safety was its top priority.

"By undertaking this recall action, Pallimed will move forward to ensure that our products always meet the highest standards of safety and customer expectations," the company said in its statement.

On Nov. 27, the state ordered Pallimed to temporarily stop production of sildenafil citrate — the active ingredient in Viagra — for human use after inspectors found it had been prepared with improper components. The company said those issues were administrative in nature and had been resolved, and Monday's announcement was unrelated.

The state said the earlier order was still in place, pending the board's acceptance of a corrective plan.

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Source: WFAA (AP, 3/25)

General Motors Recalls Large Vans for Potential Roll-Away Problem

General Motors Co. is recalling certain Chevrolet Express and GMC Savana full-size vans from the 2013 model year because of problems with their ignition lock systems that could lead to the vehicles rolling away while unattended.

In a document filed with the National Highway Traffic Safety Administration, the car maker said the possible flaw affects 980 vans. The recall includes Express vans built from Nov. 1 through Dec. 21, 2012; and GMC Savana vehicles built from Nov. 14 through November 20, 2012.

In these vehicles it may be possible to remove the ignition key from its slot while the engine is running or when the transmission is not in the “park” position. The interlocking mechanism between the ignition and transmission, which is a standard safety feature throughout the U.S. auto industry, is supposed to keep the key from being removed unless the vehicle is in park and the engine is off.

Under the recall GM will notify owners about the recall and dealers will replace the ignition lock cylinder and keys, free of charge. The recall is expected to begin on Jan. 23, 2013. For more information, GMC owners may call 866-996-9463 and Chevrolet owners may call 800-630-2438.

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Source: The Wall Street Journal (AP, 1/18)

Burned tot’s parents file lawsuit over toy tractor

An Athens County couple has sued the manufacturer of a battery-operated toy riding tractor that they say burst into flames, severely injuring their toddler son.

Wyatt Buckley, now 3, who lives outside Albany, was burned over more than 50 percent of his body when the toy tractor he was riding in his yard ignited on June 3, according to the lawsuit filed in U.S. District Court in Columbus.

The lawsuit against the toy’s manufacturer, Peg Perego USA Inc. — an Italian company with U.S. offices in Fort Wayne, Ind. — seeks unspecified damages for his parents, Marlon and Heather Buckley.

It says the fire was caused either by a defective product or a defective manufacturing process. The tractor was powered by a 12-volt battery.

“A toy given to a 2-year-old just can’t catch on fire; and if it does catch on fire, it should be designed and manufactured so it wouldn’t continue to burn so it would not cause catastrophic harm to the child,” said Andrew List, the attorney for the Buckley family.

Wyatt potentially faces a lifetime of surgeries and medical treatment, List said.

Mrs. Buckley said her son is improving every day, “but he still has a long way to go.”

Peg Perego could not be reached for comment. However, the company said in a statement at the time of the incident that “the materials of our toys cannot suddenly burst into flames. We are confident that other extraordinary external factors were involved to cause such a sudden fire.”

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Source: The Columbus Dispatch (Woods, 1/25)

Consumers warned to check Fisher-Price infant sleepers after mold reported, 16 infants treated

WASHINGTON — The government is warning consumers to inspect Fisher-Price Newborn Rock ‘N Play Sleepers due to risk of exposure to mold for infants who use them.

The Consumer Product Safety Commission said Tuesday that its warning applies to 800,000 infant recliner seats, called sleepers, that were sold at stores nationwide and online since September 2009, with prices ranging between $50 and $85. The seats, designed for babies up to 25 pounds, feature a soft plastic seat held in a tubular metal rocking frame. The product has a removable fabric cover.

Mold can develop between the removable seat cushion and the hard plastic frame if the sleeper remains wet or is infrequently cleaned, the agency said. Mold is associated with respiratory illnesses and other infections, the warning said. Fisher-Price has received 600 reports of mold and 16 infants have been treated for respiratory issues, coughs and hives after they were in the Fisher-Price sleepers.

The agency said consumers should check for dark brown, gray or black spots that can indicate the presence of mold under the removable seat cushion. If mold is found, they are advised to immediately stop using the product and to contact Fisher-Price for cleaning instructions or further assistance.

Units currently in retail stores are not affected by the warning, but mold growth can occur after use of the infant sleepers.

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Source: Washington Post (AP, 1/8)