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Archive for the category: Products liability
  • Target Data Breach Fuels Litigation

    Over the last year, retailers have experienced data breaches that compromised consumer’s private credit card and debit card information. The list includes CVS, Home Depot, Neiman Marcus, Shaws, Sears, Supervalu Inc., Target and Walgreens. When Target Corporation announced earlier this year that as many as 110 million customers’ credit and customer records had been hacked during the 2013 holiday season, retailers took immediate action to upgrade and protect their systems. Within days of the announcement, states filed would-be class action lawsuits on behalf of consumers, alleging that Target was negligent in protecting card information.   At the beginning of August the first consolidated class action was filed against the retail giant on behalf of thousands of financial institutions. The class action claims these institutions suffered losses of as much as $18 billion. The costs were incurred in reissuing cards, reimbursing customers and changing or canceling accounts. However, missing from the complaint were claims under the U.S. Racketeer Influenced and Corrupt Organizations Act. An attorney, representing three financial institutions, has argued in favor of bringing RICO claims and sought the court’s permission to file individual lawsuits on behalf of his clients rather than join the class action. It is unknown whether he has been granted that request.   In September, the class-actions from consumers and banks were consolidated into one and filed in Minnesota – Target’s home state. Target responded with a motion to dismiss the claims from financial institutions, arguing that they had failed to state a claim for their allegations relating to violation of the Minnesota Plastic Card Security Act, negligent misrepresentation by omission and negligence. Target argues that it has a relationship with the payment processors, not the banks themselves, and therefore, cannot be held responsible for damages to a third-party under state law.   It may be more difficult for financial institutions to secure a verdict against Target, given outcomes in other cases. A data breach lawsuit against Michaels Stores Inc. was dismissed after the presiding judge ruled the plaintiffs couldn’t show that they suffered direct “economic damage” from a breach that compromised as many as 2.6 million customer credit and debit card numbers. Plaintiffs in data-breach actions against Barnes & Noble Inc., LinkedIn Corp., Sam’s Club and Aetna Inc. have also faced similar rulings.   Though Target’s hack may have been the impetus for the uproar over consumer data protection, underlying the conversation, now taking place,[READ MORE…]

  • Boating Safety Issues

    Most people already knows that drinking alcohol and driving a car is a dangerous combination, however, there is less awareness of the same dangers while operating a boat. Mix water, a boat and throw in alcohol and the results can be deadly. That’s why Governor Pat Quinn signed new legislation in July to improve boating safety. “This is something that never should have happened, there should have been more enforcement out there,” Jim Borcia said. Their 10-year-old son Tony was killed two years ago on the Chain-of-Lakes while tubing with his family. A boater, operating his boat while under the influence of alcohol and cocaine, ran the boy over as his family watched in horror. Tony and his family frantically waved their hands to the boater to get his attention, but he never slowed down. Tony’s family used their tragedy to change laws. “We know there are other Tonys out there that are in danger every weekend, every day, said Jim Borcia. “Unless things change, the mindset of boats shouldn’t be associated with partying, it should be associated with responsibility.” Since the tragic accident, the family has created the Y-Not Project in Tony’s name, and raised enough money to buy a boat for the Illinois Department of Natural Resources to patrol the Chain-of-Lakes. In July, Gov. Quinn signed three new bills into law to increase boating safety. The first law will make punishment for boating under the influence more in line with driving other vehicles under the influence. The next bill will require boaters 16 and younger to pass a boating safety course and have a valid certificate, and the third law will require the operator of any boat to display a bright orange flag if they are towing a person. “From a little boy’s death has come the beginning of reform for boating safety in Illinois,” Morrison said. “Part of your pain has been turned into purpose,” she said to his parents, who have been pushing for changes in boating laws since his death. The bills, signed in July, increase the power of law enforcement officials and put new restrictions and requirements on boaters. Under one of them, a persons’ watercraft can be seized after multiple DUI offenses. In another, all people born after January 1998 will be required to take a boater safety course and hold a boater safety certificate before they can operate a boat with an[READ MORE…]

  • Apps Based Car Services-The Question is Insurance

    The drivers of app based car services are considered to be independent contractors, not employees and not on the clock unless there is a passenger in their car. If you examine the car service model, on paper these drivers aren’t employees of either the car service or the tech company. The million-dollar insurance policies that many of these services carry only kick in when the driver has a passenger. The biggest legal exposure is that of accident liability. What if a driver has an accident that injures the passenger?  Sadly, the only recourse for the injured passenger may be the driver’s personal automobile insurance. The liability could be directly with the service if the plaintiff claims that the company didn’t adequately screen drivers and/or properly train drivers. In one recent suit, Uber is being sued, along with a driver whose individual insurance policy has a $750,000 limit. On New Year’s Eve, an Uber driver killed a six-year-old girl in a San Francisco crosswalk as well as injuring several members of her family.  Because there was no passenger in the Uber car, the car service claims they are not liable. The company asks drivers to hang out on the streets during peak times such as New Year’s Eve so they can respond to new requests quickly. Drivers are rated in part by their response time. This is where it gets tricky; the drivers are out there for the economic benefit of both Uber and themselves. Therefore, if Uber shares in the profits, they should share equally in the responsibility, Uber and other services such as Side Car and Lift use social media to match drivers and passengers; they are match makers not taxi services. The question to be considered is this; when someone is injured or killed by someone they have met through a social media site that charges a fee for that service, will the courts take this type of case and use it to set a precedence with other social media business models? Tech companies consider themselves to be information content providers and therefore exempt from the same liability as a traditional car service. A close parallel can be found in suits involving independent contractors such as many traditional taxi and delivery services. When considering services such as Uber, the legal limits of liability may be tested. Among other factors, many cases look primarily at: The employer’s control over[READ MORE…]

  • What Does Product Liability Mean Anyway?

    Ralph Nader worked as a lawyer while he researched his 1965 book Unsafe at Any Speed. The book focused on the Chevrolet Corvair, but many of the problems he detailed, including the lack of standard seatbelts, metal dashboards and steering wheels, and car doors that popped open or off in an accident, applied to every auto involved in highway smash-ups. In response to the book, Congress passed the Traffic and Motor Vehicle Safety Act of 1966. Since that time seat belts, air bags, crash tests and manufacturers’ recalls can be traced to Congress and to Nader’s book. Nadar has continued to work for consumer protection, founding the U.S. Public Interest Group (PIRG) as well as Center for Auto Safety, the Disability Rights Center, the Pension Rights Center, the Project for Corporate Responsibility, and the Clean Water Action Project. His groups were instrumental in helping to pass the Safe Drinking Water Act, the Freedom of Information Act (FOIA) of 1974 and the Occupational Safety and Health Administration (OSHA), the Environment Protection Agency (EPA), and the Consumer Product Safety Administration. Today, the Consumer Product Safety Commission (CPSC) investigates product problems, and once it determines that a product is unsafe, CPSC issues a recall. Often, by the time a recall is issued, the dangerous products are already for sale in stores and on websites. Once a recall is issued, stores and retailers are required to remove the product from their shelves, disallow the product to be sold to customers and post a written notice that the item(s) have been recalled. If the product is sold through a website, the merchant or seller must disallow customers from purchasing the product, post a warning or recall notice on their home page and contact the customers via their email or shipping address. Even second hand and resale stores must comply with this law, posting notices of recalled products and not allowing them to be sold or purchased. In Illinois, the Illinois Attorney General enforces the Children’s Product Safety Act. The Act requires manufacturers and retail suppliers to keep recalled products off the market and also to inform consumers who have already purchased the product with notice that the product has been recalled. Illinois law defines a child product as any item designed for the use or care of a child under the age of 9 years old. Products include toys and nursery products including cribs and[READ MORE…]

  • Insurance For High School Sports

    “Rocky’s Law,” which was signed on August 4th, by Governor Quinn and takes effect January 1, 2014 is requiring all high schools in Illinois to offer catastrophic insurance coverage for student athletes. “Rocky’s Law” was inspired by and is named for Rasul “Rocky” Clark who was paralyzed during a football game in 2000. Rasul Clark played football for Eisenhower High School in the Blue Island suburb of Chicago  until he was paralyzed from the neck down when he was tackled during a game. His care was provided through a $5 million insurance policy held by the school district. When that policy hit its limit, he relied on Medicaid and donations. “These injuries are rare, but when they happen it’s devastating for young athletes and their families,” state Sen. Napoleon Harris, a Harvey Democrat and former NFL player who sponsored the bill, said in a statement. “These students’ lives are dramatically changed in cases of catastrophic injuries, and they deserve access to health care coverage.” Sen. Napoleon Harris, a former linebacker in the National Football League playing with the Oakland Raiders, the Minnesota Vikings and Kansas City Chiefs, was extremely touched by what happened to “Rocky” that he wanted to help the family so Rasul Clark’s story was not for naught. The law says that a school’s minimum policy will cover $3 million in aggregate benefits or five years of coverage – whatever comes first – for injuries that total medical expenses over $50,000. The law includes public and private schools and state officials estimate that the cost of the coverage will be no more than $5 a student. Currently, some schools carry insurance for athletes, but it hasn’t been mandatory. The mandate is unusual because typically high school districts are not required to cover student athletes who may suffer serious injuries. The financial burden has always been on the families. Before student athletes, cheerleaders, or even marching band members are allowed to take a step on the field, at the high school level they are required to sign a waiver showing they understand the risks involved and have to prove that they have their own accident insurance. If the student does not, schools typically offer a low-cost plan of their own. These plans can be used to cover additional costs for parents who carry insurance for their children, or they can cover primary costs, if the parents don’t have private[READ MORE…]

  • Mis-labeled or Deceptive Food Labeled Products

    Ankin Law Office LLC is currently looking into a potential case involving the following food products. If you use any of these please email us your name, phone number and the name of the product that you use. CAMPBELL SOUP CO. Campbell’s Healthy Request soups: Chicken with egg noodles (microwaveable tub, 100% Natural)Bean with bacon (condensed)Beef with country vegetables (Chunky) Cheddar cheese (condensed) Chicken with corn chowder (Chunky) Chicken noodle (condensed) Chicken rice (condensed) Chicken with whole grain pasta (100% Natural) Chicken noodle (microwaveable tub, Chunky) Classic chicken noodle (Chunky) Cream of celery (condensed) Cream of chicken (condensed) Cream of mushroom (condensed) Grilled chicken and sausage gumbo (microwaveable tub, Chunky) Grilled chicken and sausage gumbo (Chunky) Hearty Italian-style wedding (Chunky) Homestyle chicken noodle (condensed) Italian-style wedding (microwaveable tub, 100% Natural) Italian-style wedding (100% Natural) Mexican-style chicken tortilla (100% Natural) Mexican-style chicken tortilla (microwaveable tub, 100% Natural) Minestrone (condensed) New England clam chowder (Chunky) Old fashioned vegetable beef (Chunky) Pasta fagioli (100% Natural) Roasted chicken with country vegetables (Chunky) Savory chicken and brown rice (microwaveable bowl, 100% Natural) Sirloin burger with country vegetables (Chunky) Split pea and ham (Chunky) Tomato basil (100% Natural condensed) Tomato (condensed) Vegetable beef (condensed) Vegetable (Chunky) Vegetable (condensed) Pepperidge Farm breads:100% Whole Wheat Hearty Texture Whole Grain Bread100% Whole Wheat Whole Grain Bagels 100% Whole Wheat English Muffins Farmhouse 100% Whole Wheat Bread Farmhouse Whole Grain White Bread Light Style 7 Grain Bread Light Style Extra Fiber Bread Light Style Soft Wheat Bread Soft 7 Grain Sandwich Buns Prego sauces:Heart Smart Mushroom Italian SauceHeart Smart Ricotta Parmesan Italian Sauce Heart Smart Roasted Red Pepper & Garlic Italian Sauce Heart Smart Traditional Italian Sauce V8 juices:Original 100% Vegetable JuiceV.Fusion Acai Mixed Berry V.Fusion Concord Grape Raspberry V.Fusion Cranberry Blackberry V.Fusion Goji Raspberry V.Fusion Peach Mango V.Fusion Pomegranate Blueberry V.Fusion Smoothie Mango V.Fusion Smoothie Strawberry Banana V.Fusion Smoothie Wild Berry V.Fusion Strawberry Banana V.Fusion Tropical Orange   BOAR’S HEAD PROVISIONS CO., INC. Deli meats:All natural roasted turkey breast with lemon and herbAll natural uncured ham Blazing buffalo style oven roasted chicken breast Deluxe 42% lower sodium ham Cracked pepper mill smoked turkey breast EverRoast oven roasted chicken breast Maple glazed honey coat cured turkey breast Mesquite wood smoked skinless roasted breast of turkey Pastrami seasoned turkey breast Rotisserie seasoned oven roasted turkey breast Salsalito roasted turkey breast All American BBQ seasoned oven roasted chicken breast All natural roasted[READ MORE…]

  • Swimming Pool Safety

    Poet Robert Frost wrote that “fences make good neighbors” in the early 1900’s but his simple instruction still has applications to living in urban areas today. Suppose you decide to forego your summer vacation trip this year and instead buy an above-ground pool for your backyard. Your kids love to swim, having taken lessons at the local Park District as small children, and your wife has completed a Red Cross Water Safety Instruction course.  While the pool poses little issues for your family, you cannot be sure that the other children in the neighborhood will be as equally prepared for the potential risk or hazard that it provides. Cook County requires a permit for above ground pools 18 inches or deeper; other municipalities have similar laws or ordinances. Among the list of Cook County requirements is that the pool must be enclosed on all four sides by a 4 feet high non-climbable fence. The permit requirements, often considered somewhat onerous by home owners, were designed to meet one of the primary legal concerns a swimming pool poses: that of being an attractive nuisance. If anything on your property could both draw children into it while also potentially putting them in harm’s way, the law requires you to protect any children who may come onto your property, even if they are legally trespassing. The attractive nuisance doctrine says that children cannot be expected to understand the inherent dangers they face and, if a property owner believes that children might come onto their property, it is the property owner’s responsibility to prevent harm.  If an owner does not meet this responsibility, they can be held liable for the child’s injuries. Swimming pools cause 300 drowning deaths a year, according to the Consumer Product Safety Commission. You are not required to childproof your property, but use common sense. Take some basic precautions to prevent injuries and limit your liabilities. If you see that neighborhood children are interested in something on your property, consider installing an audible alarm which detects movement in or around the pool. While a pool cover may keep debris from the pool, it will not necessarily stop a determined child. Make sure you have rescue equipment on hand. Don’t leave swimming pool toys, floats or other pool equipment lying around. Learn basic CPR and instruct all visitors about methods for preventing accidental drowning. Never assume that guests can swim or[READ MORE…]

  • BPA Litigation Hits Roadblock

    Litigation pending over BPA in plastic bottles has hit a major roadblock.  Last month a Missouri federal court denied class certification for the plaintiffs’ claims over the use of bisphenol A in baby bottles and sippy chips.  The plaintiffs’ claims were part of multidistrict litigation pending in a federal court in Missouri.  Multidistrict litigation, or MDL, is a federal court procedure whereby civil actions with common issues of fact are combined for purposes of discovery procedures and pre-trial motions. Although the court initially refused to certify three proposed multistate classes in 2011 based on issues regarding choice of law, commonality, and damages, the court granted the plaintiffs an opportunity to show that a class of Missouri-only consumers is appropriate for class certification.  The plaintiffs then filed a motion for class certification of claims brought by Missouri-only plaintiffs against three manufacturers of baby bottles and children’s sippy cups – Handi-Craft Company, Gerber Products Company, and Evenflo Company, Inc. In denying the plaintiffs’ motion for class certification of Missouri-only plaintiffs, the court focused on the plaintiffs’ lack of standing.  A court may not certify a class if the proposed class includes members who lack standing to bring a lawsuit against the respective defendants.  The plaintiffs’ class in this case included individuals who had not suffered an injury, such as those individuals who knew about BPA’s existence and the potential dangers associated with BPA but purchased the products despite possessing this information. The court also denied class certification based on issues of reliance.  For instance, plaintiffs argued that knowledge includes only consumers’ reliance on defendants’ alleged nondisclosure of the dangers associated with BPA.  The court disagreed with plaintiffs’ assessment, however, and explained that the issue of reliance presupposes that the consumer did not know the relevant information.  Since many plaintiffs in this case did possess knowledge regarding the potential dangers of BPA prior to purchasing the products, reliance could not be asserted. Moreover, the court determined that the proposed class included individuals who may not have suffered an injury even if they were unaware of BPA when they purchased the products.  The plaintiffs argued that the class members were injured through the lack of material information prior to making their purchases, but the court held that the consumers were purchasing baby products and not information. In addition, the court found that there were concerns regarding commonality of claims with respect to the proposed[READ MORE…]

  • Johnson & Johnson Recalls 12 Million Bottles of Motrin

    Healthcare and pharmaceutical giant Johnson & Johnson (J&J) recently issued a recall of approximately 12 million bottles of its popular pain reliever, Motrin, due to concerns that the Motrin IB pills may not dissolve and begin working as quickly as intended, resulting in delayed pain relief, as the pills approach their three-year expiration date.  The recall only affects Motrin IB from retailers, and not those in the hands of consumers, since there is no safety risk. The recalled bottles of Motrin were sold in 24 or 30 count packages that were distributed in the United States, Puerto Rico, the Bahamas, Fiji, Belize, St. Lucia and Jamaica.  There are 59 affected lot numbers, all of which are listed on the product’s Web site at http://www.motrin.com.  The affected bottles of Motrin were manufactured between February 2009 and July 2011. J&J’s Prior Recalls J&J has been plagued by safety problems and efficacy concerns with respect to its products for the past several years.  Since September 2009, J&J has recalled a number of prescription and over-the-counter medications, including children’s and adult Tylenol and Motrin, Benadryl, Zyrtec, Rolaids, Simply Sleep pills, Prezista (an HIV medication), Levaquin (an antibiotic) and Topamax (an epilepsy medication).  The manufacturer has also recalled a number of its medical devices, including hip replacement systems, contact lenses and diabetes test strips. As we reported, earlier last year, J&J was ordered to pay $1.8 million to an 82-year-old man from Minnesota who claimed that he was injured by Levaquin, an antibiotic used to treat infections such as pneumonia and chronic bronchitis, as well as sinus, urinary tract, kidney, prostate and skin infections.  Levaquin has been known to cause complications including tendon damage, Achilles tendon rupture, inflammation, Achilles tendonitis, and injury to the rotator cuff, biceps, hand and thumb that may require extensive surgery and could leave the patient incapacitated and facing large medical bills. J&J’s recalls cost the company $900 million in 2010 alone as a result of lost revenue from products pulled from store shelves, factory renovation costs, and legal expenses.  J&J’s Consumer Healthcare factory in Fort Washington, Pa., has been closed since spring 2010 when serious health problems forced the company to undergo a comprehensive renovation and rebuilding of the facility. J&J’s safety and efficacy concerns have sparked the interest of the federal government as well.  The U.S. Food and Drug Administration (FDA) and Congress are both investigating how the company’s[READ MORE…]

  • The importance of strong expert testimony in a products liability case

    The United States Court of Appeals for the Seventh Circuit recently considered whether a plaintiff in a products liability case had met his burden on a summary judgment motion in Bielskis v. Louisville Ladder Inc., 2011 WL 5829771. In this case, the plaintiff, an acoustical ceiling carpenter, was injured while working at a construction site located in Libertyville, Illinois. He was working on a mini-scaffold when it collapsed, causing him to fall and sustain injuries. He claimed that a fracture in the caster stem of the device caused it to collapse and that the fracture occurred due to defective product design. In support of his claim, he offered the expert testimony of a mechanical engineer who based his opinion that the scaffold was defective on his visual inspection of the scaffold. At issue on appeal was whether Bielskis had offered sufficient expert evidence to sustain his burden in defense of a summary judgment motion. The Court of Appeals reviewed the plaintiff’s expert’s testimony and concluded that, more than anything, his “methodology sounded more like …'[t]alking off the cuff,’” especially when compared to the evidence offered by the defendant’s expert, who not only conducted a visual examination, but also conducted extensive testing and reconstructed the accident. After rejecting the evidence offered by the plaintiff’s expert, the court concluded that in the absence of expert proof, the plaintiff had simply failed to meet his burden of establishing that the scaffold was defective: (The plaintiff) had owned the scaffold for seven years at the time of the accident, and…advanced no particular evidence about its condition when it was received from the manufacturer. Thus, Bielskis has not marshaled sufficient evidence that the mini-scaffold was defective at the time it left Louisville Ladder’s control. Without evidence that the mini-scaffold was defective at the outset or that it was free in the 7–year interim period from any abnormal use, Bielskis needs more than the failure of the caster stem to prove his case… And with no expert testimony, he lacks evidence to support his product liability allegations of strict liability and negligence. The Court of Appeals thus affirmed the dismissal of the plaintiff’s personal injury case based on allegations of products liability, thus confirming the importance of having strong, reliable expert testimony that is based upon rigorous testing, rather than simply visual observation. A personal injury lawsuit can stand or fall based solely on the strength of an expert’s testimony, as occurred[READ MORE…]


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    ankin law office llc

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    Our firm handles workers' compensation and personal injury claims in Chicago, Berwyn, Joliet, Cicero, Waukegan, Chicago Heights, Elgin, Aurora, Oak Park, Oak Lawn, Schaumburg, Bolingbrook, Glendale Heights, Aurora, Niles, Schaumburg, Arlington Heights, Naperville, Plainfield and all of Cook, DuPage, Lake, Will, McHenry, LaSalle, Kankakee, McLean and Peoria Counties.