Category Archives: Products Liability

PRODUCTS LIABILITY CASE IDEAS

Here is a rough “flow of consciousness” outline of thoughts about a drug device product case. I find it helpful to outline ideas picked up from focus studies, reading and just thinking about the case which I then narrow down and refine to useable themes, cross examination ideas and trial approaches to trial. Maybe something here will trigger ideas in your case.

CONCEPTS

  • Any risk of serious injury or death is unacceptable if reasonable prevention methods would eliminate or minimize the danger.
  • People protection requires eliminating the hazard to safety. If that’s not possible guarding people from the danger. If that’s not possible, warning people about the danger.
  • Risk – benefit analysis: (1) How serious is the potential harm (2) What is the likelihood of harm (3) What is the cost of elimination, protection or warning (4) how long will it take (5) how effective would it be and (6) are means available to do so
  • The corporation had all the knowledge about the product defect
  • The corporation was in the best position to share the knowledge with doctors and hospitals
  • The issue is:

(1) What did the corporation know and when did they know it.

(2)        What did the corporation reveal and what did they conceal

(3)        What did the corporation do to protect patients

(4)        Did they do everything they could to prevent it

PHRASES

  • This machine had a bug, a flaw it in 
  • It was like a computer with a virus
  • This was preventable, avoidable and inexcusable 
  • This corporation cut corners 
  • This corporation had a duty to analyze, investigate and test it’s products
  • Doctors, hospitals and patients have a right to expect a corporation will act reasonably to protect patients from harm
  • They handled this like the best kept secret in America
  • THE SWEPT THE PROBLEM UNDER THE RUG   
  • COMPANY WAS AFRAID TO LET THE CAT OUT OF THE BAG THAT ITS TEST WAS DEFECTIVE 
  • THEY PARKED THE INFORMATION IN THEIR FILES  
  • LED THE DOCTORS & PATIENTS DOWN THE PRIMROSE PATH
  • IT WAS LIKE THE DOCTORS WERE DIALING 9-1-1 AND THE COMPANY  KEPT HANGING UP ON THEM
  • THIS COMPANY  KNEW WHAT PHYSICIANS DIDNT KNOW
  •  ONLY THIS LAWSUIT BROUGHT THIS  TO THE LIGHT OF DAY
  •  LACK OF KNOWLEDGE MEANS BAD MEDICAL CHOICES
  •  Failure of accountability and responsibility
  •  They want to play the blame game and blame others for their carelessness 
  • They are like a child with frosting all over its face claiming they didnt eat the cake
  • THIS CORPORATION SHOULD BE HELD ACCOUNTABLE FOR VIOLATING THE TRUST PLACED IN THEM BY DOCTORS & PATIENTS
  •  WHOS MINDING THE STORE
  •  SHADING THE TRUTH, HIDING THE BALL & OUTRIGHT LIES
  • THIS IS NOTHING BUT A SMOKE SCREEN FOR THEIR OWN ACTS
  •  COMPANY AFRAID TO LET THE CAT OUT OF THE BAG THAT THEIR PRODUCT WAS DEFECTIVE
  •  SHIFT THE BLAME FOR WHAT YOU ARE RESPONSIBLE & ACCOUNTABLE FOR TO ANYONE ELSE
  •  THEY COVERED UP
  • THEY PLAYED RUSSIAN ROULETTE WITH THE HEALTH OF PEOPLE
  • CORPORATION JUST SHRUGGED THEIR SHOULDERS & WENT BACK TO BUSINESS AS USUAL
  • WHEN IT CAME TO RESPONSIBLE, SAFE CONDUCT, THIS CORPORATION CUT CORNERS 

RHETORICAL QUESTIONS 

  • WHY NOT SEND A WARNING  TO THE TREATING DOCTORS? 
  • WAS THE REASON WAS TO PROTECT THE PATIENT OR THEIR PROFIT MARGIN?  
  • COULD THEY HAVE WARNED THE DOCTORS? IF  SO, THERE MUST BE A REASON WHY THEY DIDN’T.  
  • “WHAT IS THE POSSIBILITY THIS COMPANY CONCEALED THE FACTS IN ORDER TO MAKE MONEY?

 

 

World war ii bombs and product defects

The news reports that three men, who were experts at defusing bombs, were killed while trying to defuse World War II bomb discovered during a construction project. The explosion happened in Goettingen, Germany Wednesday. The explosion happened about 45 minutes before the men planned to take the final step. They had delayed doing it to allow a passenger train to go past and just moments before it did, the bomb went off. The team had been working on explosive removal for years and were highly experienced in defusing unexploded bombs from World War II. More then 2,000 tons of American and British bombs as well as German grenades and Russian artillery shells are unearthed in Germany each year. The great majority are defused safely. It seems to me there are some lessons to learn from this tragic news story in our trial work.

Doesn’t it seem to you that this is analogous to the situation involving a hidden defect in a product or a building or environment? I mean, you can have weeks, months and years go by without the defect causing harm or damage and then, suddenly, without warning it "goes off." Like a ticking time bomb, the defect is there, waiting for the victim. The question is not whether it will cause injury or harm, rather who the victim will be. That bomb was in the earth for over 65 years without causing damage, injury or death, but it was only a question of time until it did.

Then there is the perspective from the standpoint of those unfortunate men trying to defuse the bomb. In a tort case, the tort feasor would probably claim the three men were negligent themselves or had assumed the danger. As dangerous as their job was, they had successfully done it numerous times. There was a standard procedure they had to follow to defuse the bomb safely. One wonders is the interruption and unusual delay of their standard procedure in order to allow the train to go by was a contributing factor. A physician can perform a procedure that has a high degree of risk, but when they deviate from the step by step safe procedure disaster can occur.

I make it a practice to save news items like this one that I think I can use in my trial advocacy. I started out putting them in notebooks with dividers as to topics, but with computers, scanning and indexing makes it easier. Anyway, its worth thinking about.