Houston Personal Injury Law Blog

On February 17^th, the U.S. Food and Drug Administration, (FDA), and McNeil Consumer Healthcare, a division of Johnson & Johnson, jointly announced a voluntary national recall of 574,000 bottles of grape-flavored, liquid infant Tylenol, due to pervasive complaints that newly designed bottles- released just three months ago, touted as a big improvement in dosage measurement- included a protective cover on the bottle tops that didn't work correctly, resulting in variable and faulty dosage measurements. When a plastic dose syringe was inserted into the top, the cover was pushed into the bottle, restricting medication flow. This problem, while significant enough to warrant the recall, is not life-threatening. But, it comes on the heels of an astonishing 25 J & J product recalls, since September, 2009, which have cost the company an estimated $1 billion in revenue. So, it is seen by analysts as a yet another symptom of a serious quality control problem endemic to the entire medication industry. As a result, the recall has raised eyebrows, nationwide.

The FDA is an agency of the U.S. Department of Health and Human Services, one of the cabinet-level executive departments of the federal government. It is charged with the protection and promotion of public health, through the regulation and supervision of food safety and a number of health related goods and services, including both prescription and non-prescription (over-the-counter) drugs. Headquartered in White Oak, Maryland, the FDA has 223 field offices and 13 laboratories, dispersed throughout all fifty states and American territories, including offices in several foreign countries. To regulate more than $1 trillion worth of consumer goods, about 25% of total annual consumer expenditures, nationally, it has over 9,300 employees and an annual budget of over $2.5 billion. However, given J & J's abysmal track record over the last 3-4 years, one wonders just how well all those assets are being administered, in the interests of such an important aspect of national health.

Johnson & Johnson began in 1886, as a small medical products company, in New Brunswick, New Jersey, which made sterile surgical supplies. It has since grown into an immense corporation which owns over 250 companies operating in 60 countries, making medications, medical devices, and a wide range of consumer health-related products, like sanitary goods, baby shampoo and dental floss. But, for all its success, it has had numerous recent set-backs. In April, 2011, the company pleaded guilty to bribing European doctors and agreed to pay a whopping $70 million fine. Additionally, it has been repeatedly hit with revenue and public-relations debacles, as product after product has been recalled. A review of these problems likely makes its executives reach for some as-yet unrecalled Tylenol.

In August, 2008, consultants for the company bought up large quantities of defective Motrin from stores. The FDA admonished the company for not notifying it of this "phantom recall". In November, 2009, McNeil pulled 6.3 million bottles of tainted Tylenol Arthritis Pain caplets made in Puerto Rico. In January, 2010, McNeil expanded the withdrawal to include Benadryl Allergy, Tylenol, Children's Tylenol Meltaway, and Rolaids. Just three months later, in April, 2010, J & J recalled 135 million bottles of meds made in Fort Washington, Pennsylvania, and closed the entire plant; which resulted in a threat a month later of criminal prosecution. In June, 2010, McNeil expanded its Puerto Rico recall to include five more lots of Benadryl and Tylenol. In July, 2010, facing numerous additional recalls, McNeil submitted a remediation plan to the FDA regarding production standards for all its plants. A month later, the company appointed a quality-control czar; but the same month, J & J pulled 100,000 boxes of 1-Day Acuvue TruEye contact lenses, and days later DePuy recalled defective ASR hips. In December, 2010, the company closed its dismal year by recalling 13 million packages of Rolaids softchews, after several customers reported finding wood chips and metal particles in them.

2011 got off to a ripping start, again as, in January, J & J withdrew 43 million bottles of Rolaids, Tylenol, Benadryl and Sinutab. That same month, J & J announced its 2010 losses, from product recalls and plant closures, at a staggering $900 million. In February, 2011, J & J units announced a recall of 70,000 potentially cracked syringes preloaded with the antipsychotic medication Invega. The next month, it withdrew 585,000 surgical sutures due to concerns about compromised sterile packaging. The same month, the president of DePuy resigned as the furor over defective artificial hips escalated; while J & J's Animas unit announced a recall of 384,000 insulin-pump cartridges that leaked. Capping that disastrous month, the FDA and McNeil announced a Consent Decree giving the agency extended oversight of three production plants.

Despite this appalling record, J & J and its subsidiaries are not the only bad boy on the block. In January, 2012, Pfizer recalled one million packets of birth control tablets with incorrect dosages. And, just since 2006, literally thousands of recalls have occurred, including not only non-prescription products, but critical prescription medications, implants, surgical supplies and devices, and more. Consequently, there is growing concern that the FDA is just not up to the enormous tasks before it. A 2006 Institute of Medicine study found major deficiencies in the current FDA system for insuring drug safety. Following the Bush II years, nine FDA scientists even appealed directly to newly elected President Obama, to stop data manipulation and corrupt methodologies in pursuit of medical device approval. Conversely, many criticize the FDA as being biased in favor of pharmaceutical giants, squeezing out start-ups and small companies. And there are outright claims of incompetence. A recent, prestigious medical report found that most medical devices recalled over the last five years were fast-tracked by the FDA and approved despite serious health concerns.

It's unclear where all this leaves the average American citizen, who simply wants good care and quality for a fair price. Companies can't be completely trusted to deliver, as time and again, they disappoint. The government agency charged with our safety has a mediocre record at best; and Congress is utterly clueless about either the problem or any solution. So, guess what: the best defense, however belittled by big business, insurers and the radical right, is an offense, in the form of the trial bar. The best way to bring wayward companies to account is to sue them, when their greed, inattention, negligence and indifference disrupt your health, security and very life. If you are the victim of a defective medication, a botched medical procedure, a faulty medical device, or some other abuse, do not be afraid to hold those responsible fully accountable. It's the only medicine that really works.

Continue reading: http://articles.boston.com/2012-02-17/lifestyle/31072014_1_tylenol-plastic-syringe-mcneil-spokeswoman

http://www.foxbusiness.com/industries/2012/02/17/jj-recalls-574000-infant-tylenol-bottles-citing-dosage-issues/.

On Thursday, February 16^th, the National Highway Traffic Safety Administration, (NHTSA), issued proposed, voluntary guidelines to all American manufacturers of automobiles, SUVs, and trucks under 10,000 lbs., regarding a reduction of installed dashboard equipment that poses a significant risk of driver distraction. At issue are the proliferation of built-in gadgets for navigation, interpersonal communication, media and Internet access, entertainment, and all the other services multi-tasking American drivers want instant access to, even while driving. There is no question that driver distraction has become a serious concern, nationwide; and in likelihood it will take a national consensus to ultimately, effectively address it. But, commendable as proposed rules are, in focusing attention on the problem, voluntary compliance all but dooms their immediate effectiveness in actually bringing about a real world remedy. And, given NHTSA's questionable ability to resolve technical safety issues, (i.e. its complete befuddlement in addressing Toyota's unexplained acceleration problems of a couple of years ago), it may not be the best organ to orchestrate a solution.

The Problem: Something clearly must be done, to curb the alarming increase in driver distraction. But, any solution quickly hits three major obstacles: (1) any systemic effort to reduce driver distraction must have widespread public support, which thus far seems tepid, at best; (2) a technical change that requires a significant adjustment of public attitudes and behavior must usually have the force of law, including inducements or sanctions. At the national level, that requires Congress, which currently seems paralyzed with anything more difficult than meaningless gestures and political stunts, calculated to pander to various segments of our fractured electorate; and, (3) the ultimate solution must be actually effective in eliminating the problem. That means that the solution come from an entity qualified to undertake it; and, that it resolve the problem in a way that doesn't just create another one. A brief review of each will show why all three are formidable.

Attitude: In the 1950s, the American Medical Association issued a scathing report indicting the interiors of all American cars as moving death traps. That, coupled with enormous death and injury statistics, finally galvanized public opinion towards truly safer vehicles. Within a few years, seat belts and a great number of other safety devices were mandated by Congress. The problem of driver distraction lacks a similar impetus. First, driver deaths in 2010 were in the range of 30,000. This is significant; but, well down from almost 55,000 only ten years previously. Therefore, sheer numbers lack a shock value to motivate public demand for change. Conversely, drivers are distracted by toys and gizmos that have enormous public appeal. So, the problem is more akin to how alcohol was perceived during Prohibition. Good people, in large numbers, wanted to curb abuse. But, just as many people liked drinking and were adamantly opposed to its elimination. In the end, the prohibition effort collapsed in failure. Cell phones, handheld devices of all sorts, computers in ever more tiny forms, navigational devices, and more, have become so integral to American life that most people wince at the idea of being denied access to them even for a moment. Thus, localized efforts to address the problem of their use while driving have met intense resistance and purposeful evasion. Way more has to be done to turn this tide of opinion, before the problem has any realistic chance of resolution.

It must be noted that auto manufacturers, in offering ever more on-board toys, are actually way behind the wave of public use. At present, most of these devices are only offered on higher-end vehicles; and, even if they weren't, people have all the distractions they want easily in hand anyway. So, rules about vehicles are fine as far as they go. But, that really ignores the root problem. If the distraction is in one's hand or pocket, such prohibitions are meaningless gestures. More, even the proposed guidelines are ambivalent. Should navigation devices be exempted, even when they require complex information loading? Should entertainment devices be prohibited if they are only used by passengers? Studies show that any cell phone use is significantly distracting. But, can it be completely eliminated? What about the clever devices that recommend area restaurants, the nearest motel, and driver attractions or even necessities, like repair shops, police stations, hospitals or medical clinics?

Force of Law: 3,092 people died in wrecks caused by driver distractions, in 2010. But, aside from grieving families, law enforcement, auto clubs, and automobile insurers, Americans have perceived the problem of driver distraction with mostly a distracted, vacant stare. 35 states and the District of Columbia have some laws on the books proscribing handheld cell phones and texting, currently; but, the laws vary widely state-to-state. In Texas, such uses are prohibited only to drivers under 18, those in school zones, school bus drivers and drivers of hazardous cargo trucks. For everyone else, anything goes. And many states are similar. More, laws within a state can vary widely from county-to-county, and even by city. Bills have been introduced in Congress only to languish in committee; and, mandatory regulatory action, even were it forthcoming, would swiftly be tied up in protracted litigation by special interest groups and civil libertarians.

The instant effort of NHTSA to issue voluntary curbs is a perfect example of this dilemma. Mandatory requirements would take years to be effective. But, voluntary compliance will be quickly subverted by public apathy, if not outright resistance; and manufacturers will bow to the pressure of the marketplace. If people can't buy one type of car with all the desired features, they will find another that offers them. Safe cars will be left on the lot, while those loaded with gizmos become hot sellers. It doesn't require Einstein to figure out how that effort will pan out. Congress could solve the problem as swiftly as it did the seat belt problem of fifty years ago. But, of course that would require a Congress that actually functions, which is about as likely as a bulldog winning the Kentucky Derby.

Qualification for Solution: The National Traffic and Motor Vehicle Safety Act, of 1966, empowered the Department of Transportation's National Highway Traffic Safety Administration, (NHTSA), to issue vehicle safety standards and to require manufacturers to recall vehicles that have safety-related defects, or do not meet federally mandated safety standards. Under the brow of this authority, many manufacturers have engaged in voluntary recalls, (motivated by not only the threat of regulatory sanction, but massive law suits as well). But, this mechanism of vehicle safety policing only works as well as the people who administer it. In the case of NHTSA, there is much room for genuine concern.

In 2008 and 2009, under an avalanche of adverse publicity, Toyota recalled millions of cars due to a concern of unexplained acceleration. Toyota's highest executives stepped down in disgrace, the company's stock price tumbled, buyers abandoned the venerable brand in legions, and a stellar reputation for safety and value went into the crapper. Accompanied by banner headlines, NHTSA undertook a detailed study of the vexing problem, promising a definitive resolution of the controversy. And, there the matter seemed to drop from public view. What, in the interim, the news media said not one word about was that NHTSA quickly threw up its hands and conceded it had not a clue as to what the problem was. It called in no less than NASA and the National Academy of Science, to determine the problem's source. Then, finally in late 2011, accompanied by barely a whisper from the media, an NAS committee issued a scathing report confirming that; Toyota's problem had no electronic or other mechanical basis in fact; that the problem was due partly to nothing more complex than misplaced floor mats, and mostly due to driver error; and, that NHTSA's obvious lack of technical expertise was genuinely disturbing. So much for leadership from the entity designated by federal law to ferret out the nuances of policing vehicle safety.

Conclusion: Something eventually has to be done about escalating driver distraction. Cars are just too dangerous to operate with partial attention. It is negligence in Texas to cause an accident due to distraction; and in certain circumstances it is illegal. But, the problem is bigger than safety rules. People live more and more through the devices they hold in their hands, and use to work, play, communicate and function. As with any technical innovation that overwhelms a society, the people affected have to first perceive a need and then determine the best solution. Often, that is a painful exercise in trial and error. But, eventually accommodations must be reached for the society to effectively continue. We will figure this out. It's just sad that tens of thousands more of us will be maimed or die, until we figure out what the solution will be. So, I suppose voluntary guidelines are as good a place to start as any. And, who knows. Maybe common sense will win one for a change.

Continue Reading:  http://wot.motortrend.com/nhtsa-announces-proposed-guidelines-to-reduce-driver-distraction-170581.htm

http://money.cnn.com/2012/01/18/autos/unintended_acceleration_report/index.html

As regular readers of this blog are certainly aware, truck accidents involving semi tractor-trailers can lead to serious accidents with catastrophic injuries. The disparity between the size and weight of big rigs and passenger vehicles leaves regular cars and trucks at a distinct disadvantage when involved in a crash with a semi. In addition the size of a semi trailer can lead to other accidents because of the way in which they limit visibility for other drivers.

Beyond the danger for Houston residents from being directly involved in a collision with a semi truck, there is also an additional danger from semi cargo that can be spilled in a crash. Semi trucks often carry flammable or toxic substances that can contamination or even fiery explosions. Even when the cargo is not inherently dangerous simply by spilling onto the highway it can cause additional crashes. Just this week in Texas semi truck crash sent hundreds of pounds of cheese onto the highway.

Early Saturday morning, on February 11^th, Harris County Sherriff's deputies, responding to a call, found a 39-year old father of five, with another child expected, slumped over the wheel of his Toyota Corolla, dead from multiple gunshots. The man had tried to call his wife on his cell phone, just before midnight; but, the line suddenly went dead. He was a dependable person, according to relatives, employed by Schlumberger in the oil and gas industry, having just returned from a Louisiana job. Consequently, the bullet-riddled vehicle, stopped on the side of F.M. 1960, near Briarcreek Blvd., led officers to believe the man had been the victim of a road-rage incident. His wife was reported to be devastated by his death.

Road-rage has been a growing problem, for years, in major metropolitan areas all over the country. In a 2007 survey conducted by the AutoVantage Club, Houston ranked 11^th, out of the top 25 American cities, for road-rage incidents; and the HPD and Texas Department of Transportation confirm literally hundreds of reports of rage incidents in Houston, yearly. Indeed, as many a four-a-day occur throughout the city, with that number climbing in the hot summer months. According to a 2011 survey of Houston drivers, fully 81% claimed fear of road-rage as a major concern.

Interestingly, numerous studies show that men and women are equal in rage incidents; although, younger drivers and those with the longest daily commutes tend to be the most likely ragers. Experts suggest that the principal causes are: bad manners and a lack of concern for others; cell phone usage; trigger events, such as people driving too slowly in a fast lane, unsignaled turns or lane changes or use of bright lights; anger, stress or frustration; being late or general impatience; and, substance abuse that impacts judgment, perceptions and mood. Manifestations can take various forms. At the low end, they include yelling or making fists or obscene gestures. More sinister demonstrations include: tailgating; sudden, close lane changes; slamming on the brakes; or, running yellow lights. And major incidents include actual ramming and the firing of gunshots.

Certain areas seem to contribute to the problem, as well. HPD reports that freeways generally, the 610 Loop, Westheimer at Hillcroft, Kirby at the Southwest Freeway, Tidwell at the Eastex Freeway, and other areas with heavy traffic congestion, such as construction zones, are the most likely scenes of rage; although they caution that it can occur anyplace, at any time of day. Houston proliferates with traffic areas that tax patience, annoy drivers and create the right circumstances for people to boil over and act out.

Experts suggest that the best response to a rager is to back off immediately. Put distance between your vehicle and the rager's. And, most importantly, do not respond in kind. Unstable people or those who have lost control of behavior or common sense need very little justification to escalate quickly and dangerously. Just get out of the way as quickly as possible and call and report the incident to police promptly, giving as much information as you can. Life can be a dog-fight on Houston's streets every day. But, hopefully, you can save your life by keeping your emotional dog out of the fray.

Continue reading: http://www.khou.com/news/Family-father-of-5-shot-dead-driving-home-139246598.html

 http://www.khou.com/news/-Some-Houston-intersections-are-hot-spots-for-road-rage--121753919.html

There are few things more exciting for teenagers than receiving their driver's license. It caters to the common teen desires for freedom and independence, as well as an acknowledgement that they are on their way to becoming an adult. But while a license to drive is a symbol of adulthood for teenagers, unfortunately they do not always have the skill and judgment of more experienced older drivers.

According to the Texas Department of Transportation, teenaged drivers are involved in three times as many fatal car accidents as other drivers. There are a number of reasons for this. While teen drivers may actually have faster reaction times than more experienced drivers, this does not seem to make up for the lack of experience and judgment. Another factor, and one that is the focus of a safety campaign, is that seat belt use is far lower among teen drivers than among other age groups.

A well-liked 26-year old, male worker at the Texas City port facility of Dallas Group of America Inc. was killed late Saturday, February 11^th, in an industrial accident. Details of the incident were not immediately available; but, the Texas City Homeland Security Coordinator reported that the tragedy occurred at about 10:00 p.m., when the man was working on unspecified machinery used to package products the company sells, at its plant located at 301 Dock Road. The man was rushed to the Texas City Clear Lake Regional Medical Center; but was pronounced dead. The Galveston County Medical Examiner's office reported that an autopsy is scheduled, to determine the precise cause of death.

The killed worker was a 2003 graduate of Texas City High School, where he played varsity football for the Stingarees. Former teammates and school friends are visiting surviving family members. He was also a member of A Few Good Men, a Texas City social services organization active in area youth and charitable causes.

Dallas Group of America Inc. was organized in 1989. The company, whose headquarters are in Whitehouse, New Jersey, uses its Texas City facility to package, sell and ship primarily foodservice chemical products, worldwide. Company specialties include the filtration and purification of oils, spirits and polyol, to remove trace metals, colors and odors; as well as the leading North American manufacture of ammonium chloride, absorbent synthetic magnesium silicate and lignin, all of which being primarily used in the food industry, including industrial frying, edible oil manufacture, beer and spirits production, and biodiesel production. Such chemicals have wide-spread application for multi-site restaurants and food makers, to enhance efficiency, improve processing and product quality, and meet environmental controls.

Thus far, the company's response to the tragedy has been encouraging. Although neither its corporate nor local offices issued any official statement, the Texas City plant manager reported that the facility is currently closed to allow the company to conduct an internal investigation of the cause of the death. Also, he indicated the company's willingness to cooperate with a pending OSHA investigation, as well.

OSHA has recently been so concerned with the abysmal worker safety record at Texas City petroleum refiners, that in June, 2010, it initiated its National Emphasis Program, (NEP), with the goal of inspecting process safety management programs, in virtually all of the nation's refineries; declaring that standard inspections and safe-guards are inadequate to prevent common-place fires, explosions, and other catastrophic events. Use of inadequately trained contactor personnel, significant lack of compliance during inspections, and inadequate safety training and awareness were cited as major, and aggravatingly persistent, problems. While the Dallas Group plant is not among the initiative's target group, there is no question that the entire Texas City chemical industry remains a source of safety concern, as Saturday's tragedy underscores.

Of course, it remains to be determined exactly what caused this young man's death. But, even in the relatively benign food service industry, the machinery in operation is just as dangerous as that used in massive heavy industrial complexes. If a machine has a power source, rapidly moving parts and the requirement of human interaction to serve its function, the potential for injury or death is constantly present. Whether the machine makes cotton balls or cheese puffs, giant steel ingots or jet fuel, is beside the point. Any machine is, in the final analysis, tougher than the human hands, feet, eyes and ears that make it work. When the human and the machine contact in a non-design context, the human loses- always. That's why 3.1 million workers were injured, nationwide, in 2010, and 4,547 more lost their lives on the job. Worker safety and health should be the primary focus of every workplace in America, every moment of every work day of the year. Whenever that focus is lost sight of, a worker pays for it with an injury or a death.

Continue reading: http://www.khou.com/news/local/Worker-killed-in-industrial-accident-139218369.html

http://galvestondailynews.com/story/292694

Whether for the hot sun of summer, or the breezy solitude of cooler months, Texas beaches have always been a popular destination for Houstonians. But, an unacknowledged aspect of every trip to the beach is the danger that always lurks there. For an Anahuac family, that reality came home with tragic results, on February 9^th, when the family came for a day at the beach, on Galveston Island's west end. A grandfather and other family members were walking on the beach, not far from Monkhouse Road, near the sand dunes, at about 3:30 p.m.; when a giant log, estimated to be 39-feet long, three feet in diameter and weighing several hundred pounds, suddenly shifted and began rolling down the dune upon which it was perched. A 3-year old child was trapped beneath the log and the grandfather and a 15- year old sibling were injured trying to prevent the log from crushing the toddler. A spokesperson for the Galveston County Sheriff's Office reported that an ambulance was dispatched; and, emergency crews used four-wheel drive vehicles to push the massive log, in a frantic effort to reach the child in time. But, despite their combined efforts, the small child died. Galveston County's medical examiner reported that an autopsy revealed that the death resulted from asphyxia.

Authorities were unclear as to what caused the log to begin moving. The family was not playing on it, or walking on the dune supporting it. Apparently, the sand beneath it simply shifted, at a horrifically coincidental moment, just in time for the family to innocently walk into a freak catastrophe. A Galveston County Commissioner has called for an investigation as to whether the log washed up in the winter surf, or was placed on the dunes by beach clean-up crews, or even dumped there by an area contractor. However, with no witnesses, scant clues as to the log's origin, and no physical evidence to pin-point who or what put the log there, a solution to the mystery appears far-fetched.

Although being injured or killed in an incident this bizarre would appear to be minute, for the average beach-goer, there are plenty of more common risks that can create problems at the beach, with potentially disturbing, far-reaching consequences. In the water, especially during the winter months, strong tides and rip currents can make swimming particularly hazardous. Cooler water temperatures can produce numbing hypothermia, making swimming to safety difficult and quickly exhausting. But, even on the beach, storm tides can create danger. Debris, broken glass, barnacle-encrusted flotsam, jelly fish and other junk can present serious walking hazards. E-coli and antibiotic resistant bacteria are also common in Gulf waters, and can even be in the sand. So, cuts and abrasions which open the skin and introduce them into the bloodstream can be especially problematic.

Texas has roughly 350 miles of coast line, and nearby Chambers, Galveston and Brazoria counties offer scores of miles of remote beaches for fishing, walking, wading and swimming. But, during the winter months, virtually none of it offers lifeguards or other readily available safety facilities. Therefore, any beachgoer must provide for his or her own safety. Taking a cell phone, plenty of water, snacks, warm clothing, flashlights and a well-stocked first aid kit are therefore virtually mandatory. A day on a lonely beach can be soothing, reflective and remarkably refreshing. But, common sense precautions are also necessary to insure that the outing does not turn into one of complications and even tragedy. Nearby beaches are one of Houston's best assets. But, they are perfect examples that outside the city, Mother Nature reigns supreme; and she must always be approached with foresight and respect.

Continue reading: http://www.khou.com/news/local/Did-driftwood-log-that-killed-toddler-in-Galveston-arrive-on-dune-by-tide-139155014.html

According to a new study, one in every 25 people in the United States reports having driven while under the influence of a drug other than alcohol. For the vast majority of these people the drug in question was marijuana. We often see public education programs related to the dangers of getting behind the wheel after having drunk alcohol, it is much less frequent that the danger of driving on other intoxicants is addressed.

Despite the relative absence of public awareness of the risks, the new report indicates that a driver who has smoke marijuana within three hours before getting behind the wheel is about twice as likely as a sober driver to be involved in a serious accident that results in injury or death.