Wrongful Death

Published on: September 13, 2013

Recent Recalls Affecting Infants and Young Children in Texas and Elsewhere

Every year thousands of infants sustain injuries or are wrongfully killed by dangerous and defective products. In addition, deaths, injuries and property damage from consumer product incidents in general cost the nation more than $900 billion annually. Unfortunately, many of these injuries are caused by the negligence or recklessness of manufacturers and distributors, meaning that many of these injuries and deaths could be avoided.

Infants are particularly vulnerable to dangerous and defective products, including but not limited to toys, clothing, and even drugs. According to a 2011 report produced by the U.S. Consumer Product Safety Commission (CPSIA), among children younger than 5 years of age, there were an estimated 74,100 emergency department-treated injuries, associated with, though not necessarily caused by, nursery products in 2011. In addition, for the 3-year period from 2007 through 2009, the Consumer Product Safety Commission (CPSC) received reports of 341 deaths, associated with, but not necessarily caused by, nursery products among children younger than age 5. Several recalls relating to products used by infants have been reported in the past few months, including but not limited to the following:

HALO SleepSacks Recalled

On August 21, 2013, the CPSC issued a recall of approximately 27,000 HALO SleepSacks Wearable Blankets sold exclusively at Babies R Us and babiesrus.com from December 2011 through July 2013. Citing a risk of a choking hazard to infants, the CPSC advised consumers to stop using the product immediately. The recall was issued after the CPSC received six separate reports of a pink satin flower on the blankets becoming detached from the blankets. In one case, the report complained that an infant was discovered gagging on the detached petal.

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Published on: September 12, 2013

After Influx of Recent Cases of Brain-Eating Amoeba Reported, CDC Expands Access to Experimental New Drug

By Carabin Shaw

On September 7, 2013, a child (believed to be a 4-year old boy from Mississippi) died after contracting a rare, but deadly, brain-eating infection while visiting Louisiana. The boy may have come into contact with the waterborne brain-eating amoeba, known doctors as scientist as Naegleria fowleri, while playing on a plastic toy water slide at a home in St. Bernard’s Parish, Louisiana. According to the Louisiana Department of Health and Hospitals, water samples taken from the home the child was visiting tested positive for amoeba.

Unfortunately, this was not the only story of a child becoming infected with the brain-eating amoeba reported recently. On August 3, 2013, a 12-year old South Florida boy was knee-boarding in ditch water in Glades County, Florida when he contracted primary amebic meningoencephalitis (PAM), the infection caused by the Naegleria fowleri amoeba, through his nose. Although antibiotics successfully fought off the infection, the boy suffered extensive brain damage, which left him on life support. The boy passed away on August 27, 2013. Finally, in July 2013, a 12-year old became ill after contracting the brain-eating parasite at a waterpark in Arkansas. However, she is one of the few individuals who managed to survive the infection after being treating with the experimental drug miltefosine, and was released from the hospital on September 11, 2013.

Despite the recent occurrences of infections, officials from the Center for Disease Control and Prevention (CDC) report that only 128 people have been infected with PAM from 1962 to 2012. Of these 128 people, only two people in North America survived. In the future, this survival rate may increase as the CDC recently expanded doctors’ access to the experimental new drug, miltefosine, to treat deadly viruses, including PAM. Although used to treat another parasitic infection called leishmaniasis, and sometimes breast cancer, the drug was previously only used in emergency situations with permission from the FDA to treat PAM.

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Published on: August 18, 2013

The Summer of 2013 Has Not Been Kind to Airplane Safety

By Carabin Shaw

Although air travel is typically one of the safest ways to travel, when accidents happen they are often deadly. According to the Aviation Safety Network, 2012 was the safest for the airline industry, with only 23 deadly accidents and 475 fatalities worldwide. However, 2013 may not prove to be as safe. On August 14, 2013, the pilot and co-pilot of a large UPS cargo plane were killed when the plane crashed and burst into flames during its approach to the airport Birmingham, Alabama. Response teams with the U.S. National Transportation Safety Board (NTSB) were immediately called to the scene. According to the NTSB, a flight recorder revealed that the pilots received warnings about their rate of descent just seconds before impact.

At the time of the crash, the plane was being flown by the captain, who had 8,600 hours of flight experience, including 3,200 hours in an A300, the type of plane involved in the crash. Notably, the pilots were attempting a landing on Runway 18, which can be a tricky runway, even for the most experienced pilots. Due to the fact that there is a large hill and trees at one end of the runway, the runway lacks the electronics for a full instrument landing, which forces pilots to make judgments about altitude on a shorter runway. In addition, fatigue could have also played a role in the accident. Preliminary information indicates that the pilots began working at 9:30 p.m. in Rockford, Illinois the night before the crash. At the time of the crash shortly before 5:00 a.m. local time, the pilots were completing their third flight of the night.

This crash comes in the wake of several other plane crashes in the United States over the past several months. On July 6, 2013, three people were killed, and 180 injured when Asiana Airline Flight 214 clipped the seawall on the runway at San Francisco International Airport. Notably, one of three individuals killed survived the plane crash only to be run over by a rescue vehicle in the aftermath of the crash. On August 12, 2013, Asiana Airlines revealed that it is paying $10,000 to each of the passengers aboard Flight 214, exclusive of medical compensation. Even those individuals who were not injured can receive the money, and those passengers who collect money can still file lawsuits against the airline.

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Published on: June 25, 2013

Are You Complying With State and Federal Laws When it Comes to Water Safety and Keeping Kids Safe this Summer?

By Carabin Shaw

The start of summer means more time spent in and around swimming pools and lakes, which can mean more accidents and drowning deaths, especially for children.

According to the Texas Department of Family and Protective Services (DFPS), as of June 11, 2013 there were 27 reported child-drowning deaths in Texas in 2013. The latest reported incident occurred June 15, 2013, when a four-year old drowned in the pool at an apartment building in Lewisville, Texas. Unfortunately, this was the second such incident in less than a week — a three-year old drowned in North Texas on June 13th in a pool at a private residence. On a positive note, the number of drowning deaths in Texas may be down from last year. The DFPS reported a total 74 drowning deaths last year, with a combined 30 deaths in June and July. Notably, 37 of these fatalities occurred in swimming pools, and children ages 2 and younger accounted for over 50% of the total fatalities.

Some safety tips from DFPS to prevent fatalities similar to the ones described above include:

1. Never leave children alone around water — this includes swimming pools, wading pools, drainage ditches, creeks, ponds, and lakes.

2. Keep an eye on children who are swimming or playing in water. They need an adult or certified lifeguard watching them at all times.

3. Make sure access to swimming pools is secure. Use fences (self-closing and latching), and water surface alarms.

4. Store water toys away from the water when not in use so they don’t attract small children.

5. Don’t assume young children will use good judgment and caution around water.

In addition, if you are a business or property owner, it is important to determine whether or not your pool or spa is considered “public” or “semi-public” pursuant to the San Antonio City Code. All public and semi-public swimming pools and spas are regulated by the City of San Antonio. According to the City Code, a semi-public swimming pool is: (1) Any privately owned swimming pool or spa that is open to the general public for a fee, or (2) any swimming or wading pool, spa or sauna, serving a private club, motel, hotel, apartment building, school, child care facility, recreational or physical fitness facility, institution, home owner’s association, or other similar activity or structure, the use of which is limited to members, residents, students, or clients and their guests. All public and semi-public swimming pools or spas located within the City of San Antonio must have a pool license.

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Published on: June 24, 2013

Reviewing Texas State Laws Regarding the Safe Handling of Hazardous Materials Following the West Fertilizer Plant Fire

By Carabin Shaw

According to an article published by the San Antonio Express-News, there are 16 fertilizer production sites in Texas similar to the West Fertilizer Co. plant that received nationwide attention after it caught fire causing approximately 60,000 of ammonium nitrate to blow up, killing 15 people and injuring more than 200 in April 2013. In addition, Texas state officials also revealed that 129 facilities in Texas store at least 5 tons of ammonium nitrate and other potentially explosive materials. Even though some of the 16 plants are located in rural areas away from schools and residences, the incident at the West plant brought attention to the current federal and state law regarding the arguably insufficient regulation of potentially hazardous chemicals.

Notably, West Fertilizer was fined in 2011 for failing to safely transport potentially lethal tanks of anhydrous ammonia. In addition, the Environmental Protection Agency fined the company for failing to failing to maintain adequate risk management plans and venting ammonia into the air without obtaining permit. Finally, according to OSHA documents, the West Fertilizer was last inspected in 1985.

On June 17, 2013, the Texas House Homeland Security and Public Safety Committee held a second hearing since the West Fertilizer Co. plant fire, hoping to prevent another such disaster. During the hearing, lawmakers, including Rep. Joe Pickett who is the chairman of the House Homeland Security and Public Safety Committee, reviewed the existing rules in place for the safe handling of hazardous materials to determine whether Texas state laws need to be more strict and whether more oversight is needed.

Various agencies bear responsibility for oversight in the regulation and operation of facilities such as the West plant, including the Department of Public Safety, the Texas Division of Emergency Management, the Emergency Management Council, the Office of the Texas State Chemist, the Texas Commission on Environmental Quality, the Texas Department of Agriculture, the Department of State Health Services, and the Texas State Fire Marshall’s Office. Representatives from each of these agencies were invited to testify at the initial April 30th hearing and the June 17th hearing.

Unfortunately, an investigation following the West explosion revealed that no one of the state agencies list above had or exercised oversight of potentially dangerous facilities. This is the case despite the fact the federal law requires businesses to report their inventory of certain toxic and hazardous materials to state and local officials.

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Published on: April 25, 2013

As the Number of Emergency Visits Involving Energy Drinks Rises, Individuals and Groups Push the FDA for Increased Regulation

By Carabin Shaw

In March 2013, a group of doctors and researchers sent a letter to the Food and Drug Administration (“FDA”) urging it to take action to protect teens and children from the health risks associated with energy drink consumption. The letter specifically states that there is scientific evidence that the high level of caffeine in energy drinks–about 80 to more than 500 milligrams of caffeine, compared with amount 100 mg in a 5-ounce cup of coffee or 50 mg in a 12-ounce soda–have adverse health and safety consequences.

Indeed, in the eight years since energy drinks such as Monster, Red Bull, Rockstar, and 5-Hour Energy have been on the market, the FDA has reported six deaths and eighteen hospitalizations associated with the energy drink Monster alone. In addition, according to the FDA, 5-Hour Energy drinks have been cited in 13 deaths in the last four years. Moreover, federal data shows that the number of emergency department visits involving energy drinks doubled from 10,068 visits in 2007 to 20,783 visits in 2011.

According to the Drug Abuse Warning Network (DAWN), a public health surveillance system that monitors drug-related emergency department visits in the U.S., the majority of energy drink-related emergency department visits involved either adverse reactions or misuse or abuse of drugs. Although males make up two-thirds of the energy drink-related emergency room visits since 2007, emergency room visits doubled for both sexes from 2007 to 2011. Finally, of the 20,783 emergency room visits in 2011, 58% involved only energy drinks, while the remaining 42% involved other drugs as well.

Typical problems linked to excessive caffeine consumption can include anxiety, headaches, irregular heartbeats and heart attacks. Other possible side effects include:

Caffeine toxicity
High blood pressure
Withdrawal
Dehydration
Irritability
Insomnia
Death

Notably, effects of the energy drink are even more heightened in individuals that suffer from certain pre-existing or undiagnosed conditions, including heart problems, epilepsy, seizures, mood or behavioral disorders. Individuals who use certain medications or other supplements may also be at a higher risk of health complications.

Recent Lawsuits
These deaths and hospitalizations have led to an array of lawsuits against energy drink companies. Last year, the family of a 14-year old Maryland girl sued Monster Beverage, alleging that its energy drink was responsible for the girl’s death. The teenage girl went into cardiac arrest after drinking two, 24-ounce cans of Monster in a 24-hour period. Monster Beverage denies the allegations, stating that a team of physicians they hired to review the girl’s medical records found no evidence to show caffeine was a factor in the girl’s death, concluding that she likely died of natural causes.

In addition, a class action lawsuit was also filed against Monster Beverage by its shareholders, alleging that the company knowingly marketed, advertised, and sold the drink as a safe beverage despite its toxic mix of ingredients.

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Published on: April 23, 2013

National Highway Traffic and Safety Administration Investigations and Recalls May Not Accurately Represent Car Safety

By Carabin Shaw

In 2012, about 16.2 million car and truck owners received notification that their vehicles had safety problems and were being recalled. However, despite the high number of recalls, according to the Center for Auto Safety, changed auto recall accounting methods are raising questions about the productivity of defect investigations. Additionally, according to John Claybrook, former head of the National Highway Traffic Safety Administration (“NHTSA”), investigations by the agency are taking longer than they should, meaning many drivers could be driving unsafe vehicles without being aware of it.

The Department of Transportation’s NHTSA has the authority to issue vehicle safety standards and to require manufacturers to recall vehicles that have safety-related defects or do not meet Federal safety standards. Recalls are necessary when a vehicle or vehicle equipment (including tires) does not comply with a Federal Motor Vehicle Safety Standard or when there is a safety-related defect in the vehicle or equipment.

While manufacturers voluntarily initiate many recalls, auto companies are required to tell the NHTSA about claims they receive about serious injuries and deaths in their vehicles, so that NHTSA can then investigate the claims. Owners may also submit complaints to the NHTSA, prompting investigations.

Recall Accounting Methods Raises Safety Concerns

Due to budget issues, 28 NHTSA investigators handle every inquiry and complaint brought to the agency–meaning 28 individuals are responsible for investigating every automaker, truck maker or parts supplier.

In a recent New York Times article, David Strickland, current NHTSA administrator, argues that the limited number of investigators are sufficient due to new tools for data analysis, which allow the investigators to work more efficiently. Strickland added that NHTSA investigations resulted in 134 vehicle recalls in 2012, the second highest number since 1966.

According to the executive director of the Center for Auto Safety, Clarence Ditlow, however, the total number of recalls does not accurately measure the agency’s productivity since one inquiry can generate dozens of recalls. Specifically, federal auto safety regulators are counting what used to be considered multiple recalls as one recall. For example, 61 of the 131 recalls reported in 2011 resulted from one investigation involving aftermarket sunroofs–any car dealership or business that installed a sunroof was listed as a separate recall. As a result, the number of investigations actually being carried out is far fewer than expected based on the number of recalls.

Defect Investigations Taking Too Long and Kept Secret

In 2011, the U.S. Transportation Department reported that not all investigations were being completely in a timely fashion. At that time, the Transportation Department reported that 40% of those cases investigated missed the deadline by an average of six months. More recently, however, NHTSA’s investigations into possible defects and safety issues have been taking much longer than the agency’s own 12 months guideline. According to Claybrook, a safety investigation into 2002-2005 Ford Explorers and Mercury Mountaineers took 42 months–well over the agency guidelines of 12 months.

Perhaps even more concerning, is the fact that information about the investigations is only available to the public and news media through a Freedom of Information Act request. Even then, carmakers can still request the information they submit to the NHTSA be kept confidential. This means that car buyers may not learn the vehicles they own or are thinking about buying have raised safety concerns at NHTSA and among auto manufacturers.

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Published on: April 15, 2013

Anemia Drug Omontys Used to Treat Kidney Dialysis Patients Recalled Following Serious Allergic Reactions

By Carabin Shaw

Less than one year after the U.S. Food and Drug Administration (“FDA”) approved the Omontys (peginesatide) injection, pharmaceutical company Affymax, Inc. (“Affymax”) and its partner, Takeda Pharmaceutical Co. (“Takeda”), voluntarily recalled the anemia treatment for kidney dialysis patients after reports of fatal allergic reactions.

Since its approval by the FDA in March 2012, more than 25,000 kidney dialysis patients have used Omontys to treat anemia stemming from chronic kidney disease. Omontys was favored over other similar drugs because it only had to be infused once a month as opposed to other anemia drugs that often must be given more than a dozen times per month. Omontys also broke the previous monopoly that Amgen’s Epogen and Aranesp had on treating anemia in dialysis clinics. Notably, Epogen and Aranesp have also run into their own safety problems, including an increased risk of heart attacks and strokes associated with the overuse of the drugs.

Unfortunately, on February 23, 2013, the FDA revealed that it had received nineteen reports of anaphylaxis, three to five of which resulted in death. Other patients required prompt medical attention, including resuscitation, or hospitalization. Anaphylaxis is a severe allergic reaction. While the severity of the reaction varies from person to person, symptoms include flushing of the skin, hives, swelling of the tongue and throat, and difficult swallowing and breathing. Symptoms can be life-threatening or fatal.

According to the New York Times, approximately 0.02% of patients treated with Omontys have experience a fatal reaction following the first intravenous administration. Overall, approximately 2 out of every 1,000 patients had a hypersensitivity reaction. These reactions were surprising given that no cases of hypersensitivity were recorded in any of the clinical trials. As a result, the original Omontys warning label contained no warning of possible allergic reactions. By August 2012, however, the FDA was receiving reports about severe allergic reactions to the drug. Additionally, by Fall 2012, Affymax contacted the FDA about adding an updated warning label, cautioning of the risk of severe allergic reaction.

Notably, both the FDA and the drug companies reported that the serious allergic reactions occur within 30 minutes of the drug being administered for the first time. There have been no reports of such allergic reactions in subsequent doses or in patients that completed their dialysis sessions. In fact, according to the press release issued by the drug companies, the most common adverse reactions in clinical studies of patients treated with Omontys were dyspnea, diarrhea, nausea, cough, and arteriovenous fistula site complication.

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Published on: April 10, 2013

Cruise Ship Safety Reminders For Texas And Beyond

By Carabin Shaw

When the Carnival Triumph cruise ship broke loose from the Alabama Cruise Terminal with approximately 800 crewmembers and workers still onboard in early April, it was just the latest in a series of highly publicized maritime incidents taking place in the past several months. Earlier this year, an engine on the Carnival Triumph, which set sail from Galveston, Texas, caught fire and left the cruise ship without electricity and adrift in the Gulf of Mexico for four days. With no air conditioning, cold food, and toilets that would not flush, conditions on the ship became potentially toxic for the more than 4,200 passengers and crew aboard the ship. In fact, at least 16 Texans that were aboard the Triumph that sailed out of Galveston, Texas, are suing Carnival Cruise Lines for exposing them to unsafe, unsanitary and unreasonable living conditions for five days.

Unfortunately, fires, mechanical malfunctions, norovirus outbreaks, and even the sinking of ships have been occurring with increased frequency. In fact, the same week that the engine fire ignited on the Carnival Triumph in February 2013, three other Carnival ships became disabled following mechanical malfunctions. In addition, since November 2010 more than 10 cruise ship fires have been reported in the media. This number does not even account for the minor, and still potentially dangerous, fires that are not reported to the media.

While the United States has been attempting to address issues regarding cruise ship passenger safety through congressional hearings during the past decade, regulation can be difficult since many major cruise lines are incorporated in foreign countries and thus avoid U.S. labor laws and safety regulations. Moreover, though cruise ships are supposed to file guidelines set forth by the International Maritime Organization, the organization does not have the authority to enforce its own guidelines or impose fines. As a result, unlike the U.S. commercial aviation industry, which is under the tight supervision of the Federal Aviation Administration, cruise lines go largely unregulated.

Despite this overall lack of supervision, however, the Vessel Sanitation Program (VSP) at the Centers for Disease Control and Prevention (CDC) provides some oversight by carrying out unannounced inspections of cruise ships, monitoring and controlling the introduction, transmission, and spread of gastrointestinal illnesses on cruise ships, and providing health education to the cruise ship industry and general public. The VSP has jurisdiction over all cruise ships with over 13 passengers that have a foreign itinerary with U.S. ports.

In 2012, the CDC reported at least 16 norovirus outbreaks. In response to the reported norovirus outbreaks, which cause vomiting and diarrhea, the VSP advises cruise ships to:

• Increase cleaning and disinfection procedures according to their outbreak prevention and response plan;
• Make announcements to both notify onboard passengers of the outbreak and encourage case reporting;
• Collect stool specimens from ill passengers and crew for submission to the CDC lab;
• Make twice daily reports of gastrointestinal illness cases to the VSP; and
• Consult with CDC on plans for future passenger notification procedures and disembarkation plans for active cases, and infection control procedures.

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Published on: February 11, 2013

NHTSA Statistics Reveal Downward Trend in Traffic Fatalities

By Carabin Shaw

The most recent report from the U.S. Department of Transportation’s National Highway Traffic Safety Administration (NHTSA) revealed astounding statistics. The bad news is that there were 32,367 highway fatalities nationwide in 2011. The good news is that these figures are the lowest they have been for over six decades. The last time they were at that level was in 1949. These numbers continue to dictate a downward trend in the most recent years and a 26% decline in traffic deaths since 2005.

Unfortunately, these glowing statistics are of little comfort to Texas families who have lost loved ones in accidents. As our San Antonio wrongful death lawyers have known, the data confirms that our state accounts for almost 10% of all highway fatalities and 40% of those are alcohol related.

State and national agencies continue with their efforts to educate the public about ways to save lives. Some examples of successful campaigns have been “Buckle Up,” “Click It or Ticket,” “Move Over,” “Don’t Drink & Drive” and “Drive Sober or Get Pulled Over.”

Nationwide, alcohol impaired fatalities declined in 2011 by 2.5%, claiming 9,878 lives compared to 10,136 in 2010. These fatalities involved the operator of a vehicle or motorcycle who had a blood alcohol content (BAC) of .08 or higher. The 9,878 drunk-driving deaths reported in 2011 represented 31% of the overall total.

Texas, New York, South Carolina and Tennessee led the group of 27 states that experienced a decline of 30 or more alcohol-related highway deaths. Colorado, Florida and New Jersey all had increases of 30 or more alcohol-related traffic deaths. Connecticut, North Carolina, Tennessee, Ohio and Michigan led the group of 36 states that marked reductions in the number of overall fatalities.

Some other findings reported were:

• Fatalities declined by 4.6% for occupants of cars, pickups, SUVs and minivans.

• Fatalities increased for occupants of 18-wheelers (20%), cyclists (8.7%), pedestrians (3%) and motorcycle riders (2.1%).

Compared to all the other states, Texas clearly led the pack accounting for nearly 10% of all traffic fatalities reported nationwide. In 2010, Texas reported 3,023 total fatalities. There were 42% (1,270) related to alcohol. In 2011, Texas had a total of 3,016 fatalities, with 40% (1,213) being alcohol-related. Only Hawaii (44%) and North Dakota (44%) had more traffic fatalities related to alcohol than Texas.

These statistics are frightening for every mother and father who fears the worst when their teenagers are out at night and every husband or wife who sees their loved one leave on a road trip.

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