Mobile, Alabama Personal Injury Lawyer Blog | Long & Waite

In Kansas City last week, 14 residents in rural northwest Missouri filed a claim against a hog farmer in their area, claiming that the hog odors are intolerable and are preventing them from enjoying their properties.

The hog farm belongs to Premium Standard Farms (PSF). The same plaintiffs sued this company back in 1999 and received $100,000 each in settlement money for the same complaint. Their new lawsuit brings up the issue of whether a hog farm that complies with all the state environmental regulations should also meet some different standards for resident neighbors.

Other Similar Suits

One of the plaintiff attorneys, one Charlie Speer, appears to be making a specialty of hog odor lawsuits. He has stated that this case is just one of hundreds of pending cases he has in Missouri against large hog farms. In 2009, he won a $1.2 million settlement amount in a separate southwest Missouri case and considers that case to have "set the bar" for his future settlements.

Since 1999, Speer has won nearly $10 million from PSF and its affiliates. He expects this new trial to run for about three weeks and has tried to portray PSF and its parent company as vast suckers of money out of the state of Missouri. He claims they send the money to rich executives on the East Coast, apparently overlooking the fact that a large hog farm would be employing local people. This particular hog farm sends 200,000 animals to slaughter every year.

On the other side of this dispute, attorneys for PSF claim that Speer is just after money himself and his activities are causing a lot of damage to Missouri's agricultural economy.

A property owner is always expected to keep his or her property safe for visitors. That is basic premises liability and if you were to slip and fall on somebody’s property because maintenance had been neglected, you would probably have a valid legal claim.

In the case of a hog farm, odor is surely inevitable and apparently these hog farms comply with all regulations. Further, the plaintiffs have lived in the area for many decades and are in fact retired farmers themselves. Time will tell if this is a frivolous lawsuit or if hog farms must somehow reduce odor even further than government regulations require them to.

If you have been injured because of another person's negligence and would like to know more about your legal rights and choices, please contact our office today for a free case evaluation.

In all the press flurries about Toyota's recalls recently, there has been less notice taken of a cluster of GM recalls. In December 2009 and in January of this year, GM has recalled 22,000 Corvettes because the roof could detach and fly off the vehicle.

This recall includes models from 2005 through 2007 of both Corvette and Corvette Z06 models. The adhesive holding the roof to the frame has insufficient bonding strength and is especially likely to separate from the roof in hot and humid conditions. GM received eleven reports of such a separation and loss of the roof.

Starting in January this year, GM has been notifying Corvette owners of the problem and has been reimbursing any who already had paid to have the roof repaired or replaced.

Same Corvette Problem in 2006

Back in 2006, the same problem happened so this is the second time GM has tried to correct it. In 2006, GM recalled 30,793 Corvette models from the years 2005 and 2006. At that time, GM inserted adhesive foam to strengthen the bond and in some cases it replaced the roof.

In 2006 there were 108 warranty claims of roof separation after the foam was added to supposedly fix the problem.

January 2010 Recall Over Vehicle Software Failure

Also in January, GM issued another recall for 59,000 2010 models of the Chevrolet Equinox and GMC Terrain vehicles. The software in the instrument panel was shutting down the heating, air conditioning, defrost and radio controls, and panel lighting. There was risk of accidents as a result of having no defrosting for the windscreen, although no injuries were reported. GM has been replacing the computer module.

Fire Hazard Recall in April, 2009

In April last year, GM recalled about 1.5 million models from 1997 through 2003. This recall was in response to fire danger in:

• Buick Regal (1997-2003)
• Pontiac Grand Prix (1998-1999)
• Chevrolet Lumina and Oldsmobile Intrigue (1998-1999)
• Chevrolet Monte Carlo (1998-2003)
• Chevrolet Impala (200-2003)

The National Highway Traffic Safety Administration (NHTSA) had predicted vehicles fires and demanded the recall. When the manifold became hot and oil got below the heat shield, it could have caught fire and spread to the plastic spark plug wire channel, and perhaps beyond, which would have created fire in the whole engine compartment.

Dealers have been removing the spark plug wire retention channel and installing two new spark plug wire retainers at no charge to vehicle owners.

Like many other defective product recalls, vehicle recalls happen frequently. GM has issued other 2009 recalls also, over defective brakes, brake lights, fuel systems, transmission shift levers, and defective seat belts. Ford issued a 2009 recall for defective cruise controls in over 14 million vehicles that caused over 550 fires.

If you have been injured by a defective vehicle, the vehicle manufacturer can potentially be held responsible in a product liability suit. Please contact our Mobile, Alabama law office today to schedule a free case review.

Last week, the U.S. Transportation Secretary, Ray LaHood, announced a new regulation/law against texting. Effective immediately, bus and big rig drivers may not text while they drive, and any who do will be subject to a civil or criminal penalty of up to $2,750. The Department of Transportation (DOT) did not specify how this prohibition will be enforced.

The Owner-Operator Independent Drivers Association (OOID), one of the country's largest truck driver associations, has expressed concern, not over the goal of increased road safety, but over the suddenness of this regulation's effect.

"We support where they are going, but not how they got there," said Todd Spencer, the OOID's executive vice president. "We very much share in their goal, but their legal justification for taking immediate action raises many concerns."

By rushing to implement a new law/regulation, the DOT bypasses the usual rulemaking processes, possibly penalizing drivers inappropriately. Driver actions will not be filtered for unintended consequences and there could be enforcement problems.

Driver Distraction a Focus of This Government

The DOT recently announced the formation of a new group in relation to driver distraction, an advocacy group called FocusDriven. It is to be a nonprofit group supporting the families of distracted driving victims -- similar to Mothers Against Drunk Driving except that it is apparently a government group rather than one in the private sector.

The DOT also recently launched a new website called distraction.gov, designed to increase awareness of the risks of distracted driving. Last year, Obama signed an executive order that required federal employees to refrain from texting while driving government vehicles or using government equipment. Employees were ordered to comply with that order by year end.

Distracted Driving an Old Problem

According to the National Highway Traffic Safety Administration (NHTSA), almost 6,000 people were killed in 2008 by accidents involving distracted drivers; and more than 500,000 were hurt. There are many ways a driver can be distracted, such as fiddling with the car radio, arguing with a passenger, or simply daydreaming.

But cell phone use and texting have been increasing the frequency of auto accidents related to driver negligence. A Virginia Tech study reported recently by the National Safety Council found that drivers using any handheld device were four times more likely to injure themselves in a car crash.

If you or a loved one has been injured in a truck accident, whether it involved texting or not, please contact our law firm today for a free case review.

In West Virginia, a large DuPont chemical plant has shut down after one of its employees, one Carl Fish aged 58, was killed by a leak. There have been three leaks recently and the federal Occupational Safety and Health Administration (OSHA), along with the U.S. Chemical Safety Board (CSB), is investigating them. The CSB is an advisory board for industry, labor, and regulators such as OSHA.

Three Dangerous Leaks

This DuPont plant was first built after World War I to produce ammonia but now produces many other products used in industry. For reasons still unknown:

• About 1,900 pounds of the hazardous chemical methyl chloride leaked for five days before anybody noticed
• About 20 pounds of sulfuric acid leaked from the plant's spent acid recovery process
• Phosgene leaked last Saturday when a steel hose from a one-ton phosgene tank ruptured.

Carl Fish was a member of the plant's Site Emergency Response team and had worked for 32 years at this plant. Apparently he was working to stop the leak but became unable to breathe normally. He was taken to a Charleston hospital and died the following day.

What is Phosgene?

Phosgene is a chemical compound (COCl2) and is a colorless gas with a faint flowery odor. It became notorious during World War I when it was used as a chemical weapon. It kills by damaging the respiratory system. It was a more effective weapon than chlorine gas, which was first used, because it does not cause much immediate coughing and therefore more was inhaled. It had a delayed effect and affected soldiers appeared to be healthy, for a day or perhaps two, after inhaling it.

Currently, it is used in making plastics and pesticides, although it can also be generated naturally when chlorinated compounds break down or are burned.

• Chlorine is a very commonly used chemical element. For example, it is part of table salt, put in laundry detergents and bleaches, used in toothpastes and mouthwashes to whiten teeth, and used in swimming pools and hot tubs to sanitize them.

Plant Closed for Investigations

A plant spokesman, Roger Hess, stated that the plant is temporarily closed until investigations are complete and reviews are done of operating and safety procedures. There is no fixed date when the plant will re-open.

An OSHA spokeswoman has reported that her agency has six months to finish its investigation and release its findings. The CSB is expected to release some of their investigation findings today at a 2:00 pm EST news conference.

Dangerous Substances Surround Us

In this day and age, we live in a sea of substances that are potentially harmful. The process of discovering and proving their harmfulness takes many years, even decades, assuming that anyone suspects harm in the first place.

An example is the near-100-year use in industry of asbestos, a mineral with microscopic fibers that defy destruction. They become airborne, are breathed in, and become permanently lodged in the lungs, eventually causing cancer. We are currently seeing increasing numbers of mesothelioma cases in people who once worked around asbestos with no protection.

Chemicals and their myriad unknown interactions can cause many types of injury. More research is needed on thousands of products and their ingredients and additives. If you have been harmed by a defective product and would like to know more about how a lawsuit could help, please see our page on Starting a Product Liability Lawsuit.

Please contact our law office today if you would like a free consultation with one of our personal injury attorneys.

In this space we have been following the recent Toyota recalls and you can read previous posts from November 5, November 30, and January 22. There have been two recalls because of problems with the accelerator pedal in many models. This started after four people were killed in a car accident in California when a Toyota went out of control and off the road.

Toyota is now saying that it knew late last year that problems existed with the accelerator pedal assemblies. The company's most recent recall, announced last week, is now known to include Pontiac Vibes which were designed and built by Toyota for General Motors. The Pontiac brand is now discontinued but the recalled models were 2009 and 2010. They are similar to the Toyota Matrix which is part of the recall.

The Two Recalls Very Similar

It is unclear now whether the two recalls are distinct from each other. At first, Toyota identified the floor mat as the problem because it shifted and interfered with the gas pedal. Then it conceded that the gas pedal itself was faulty and Toyota dealers have been shortening them for people who bring their vehicles in. They have also been giving out new floor mats.

According to Toyota, about 1.7 million vehicles are involved in both recalls and the problem appears to be one of premature wear in some of the mechanical parts of the CTS throttle assemblies. The defective gas pedals were made in a CTS facility in Streetsville, Ontario but that company has made no statements.

The Vice president of industry trends for TrueCar.com, a site that tracks the auto industry and provides pricing information, states that it is "questionable" as to whether the two recalls are separate.

At this point, no Pontiac Vibe owners have reported any problems. However, if any do encounter problems with the gas pedal, they should go to a GM Buick dealer or a GMC dealer to have the situation corrected.

Toyota's U.S. safety spokesman, John Hanson, says that Toyota is working on a recall remedy and will have to get it approved by the National Highway Traffic Safety Administration (NHTSA). That means it will be a few more weeks before the remedy is available to Toyota drivers.

If You Have a New Toyota

Since Toyota has identified the problem as relating to wear in the throttle mechanism, it is continuing to sell new models on the assumption that they do not have any throttle malfunction.

However, if you have a new model, be attentive to the gas pedal. According to Hanson, this problem gives a sequence of indications that you can identify:

1. The gas pedal feels rough when you press it down, instead of smooth

2. The gas pedal fails to return to its position quickly after you take your foot off it

3. The gas pedal sticks in an open position after your foot is removed from it

If you notice the first symptom, do not wait for the other two to happen. Immediately take your car to a Toyota dealer for repairs.

For most people, buying a new car is a major outlay, second only to their house. We expect the vehicle to be safe and reliable. But car accidents are not always caused by driver negligence -- sometimes the vehicle is a defective product and we must turn to the car manufacturer for compensation. You can read more on our Product Liability page.

If you would like to schedule a free case evaluation with one of our experienced attorneys, please contact our office today.

In December 2009, near Dallas, a Toyota Avalon driver lost control of the car, sped off the road through a fence, then hit a tree and landed upside down in a pond. This car accident killed the driver and his three passengers. The Toyota was a 2008 model, one of those recalled recently because of the gas pedal becoming stuck under the driver's side floor mat.

The Previous Recall

This space discussed the previous Toyota recall on November 5 and November 30, 2009. At first Toyota officials thought the problem was with inappropriate floor mats. Then they announced that they would replace the gas pedals of 3.8 million recalled cars beginning in April 2010. Toyota dealers began shortening the gas pedals, removing some of the padding beneath the gas pedal, and installing brake-override systems.

Defective gas pedals

In the Dallas accident, police found the floor mats in the car's trunk. The National Highway Traffic Safety Administration (NHTSA) has been investigating this incident, and a similar one in New Jersey, and Toyota has conducted its own investigation.

The current recall involves another 2.3 million cars where Toyota has found a defect in the gas pedal mechanism. It is not related to floor mats.

"Our investigation indicates that there is a possibility that certain accelerator pedal mechanisms may, in rare instances, mechanically stick in a partially depressed position or return slowly to the idle position," stated Irv Miller, a vice president of Toyota Motors Sales U.S.A.

Toyota sent a letter to U.S. federal safety officials this past week, explaining that the problem seemed to be one of condensation potentially building up on sliding surfaces in the accelerator system. These surfaces help the driver push or release the gas pedal.

Models included in this new recall are:

• 2005-10 Avalon;
• 2007-10 Camry and Tundra;
• 2008-10 Sequoia;
• 2009-10 RAV4,
• Corolla and Matrix; and the
• 2010 Highlander.

If you drive any of these models and find the gas pedal becoming stuck, Toyota recommends that you do not pump the brakes, but press firmly on the brake pedal, park in a safe place, and contact the nearest Toyota dealer.

There are many causes of car accidents, mostly stemming from driver negligence one way or another. The public does not need any additional causes stemming from manufacturer negligence or error.

If you have been harmed by any type of defective product, you may have a valid legal claim and one of our defective product attorneys could help. Please contact our law office today for a free case review.

In early 2008, Johnson & Johnson's division, McNeil-PPC, that makes Tylenol received complaints about a musty odor in Tylenol bottles and some incidents of stomach pain and other digestive upsets. It did not seem to be a serious thing and nothing was done.

In September 2008, the company identified it as an issue but it was not until November 2009 that McNeil reported the issue to the FDA. At that time, McNeil recalled five lots of Tylenol Arthritis Pain 100 count with the EZ-open cap. In December 2009 they expanded the recall to include all lots of that medication as being defective drugs.

Investigations traced the smell to some wood shipping pallets that had been sprayed with a chemical called "2,4,6-tribromoanisole" (TBA) to prevent mold.

Now on January 15, McNeil has announced a wide recall of not just the Arthritis Pain medication but also Motrin, Benadryl and others for the same reason -- a moldy or mildew smell.

Warning Letter From the FDA

The FDA has given McNeil 15 days to report to the FDA on how they are addressing this problem so as to prevent any future problem. One Ira Loss, a senior health policy analyst with a company called Washington Analysis, explains that an FDA warning letter is a serious event.

"A warning letter indicates that this is the last time that the company will get a heads-up from the agency," said Loss. "If things don't get fixed, then there are other ways for the agency to make its point."

The letter says in part: "... failure to correct these violations may result in legal action, including seizure and injunction." The FDA says also that it may "withhold approval of requests for export certificates or approval of pending new drug applications" if those applications list any McNeil facility.

The pallets were traced to a Puerto Rico plant and the FDA is determining whether any other drug companies also used those pallets to ship their products.

FDA Becoming More Aggressive?

According to Loss, the FDA may be trying to make an example of McNeil as a signal to other companies. "The FDA's been criticized for not being aggressive enough in the past," he said. "The goal ultimately is to make the industry police itself so that we don't end up with situations like this."

For more information, please see our page on The Role of the FDA in Drug Recalls.

Products Included in the Recall

A McNeil spokeswoman says that about 500 lots are included in this recall expansion. Products recalled are:

• Motrin caplets
• Junior strength Motrin
• Children's Tylenol grape meltaway tablets
• Benadryl allergy ultratab tablets
• Extra strength Rolaids fresh mint tablets
• Extra strength Tylenol
• Extra strength Tylenol rapid release gelcaps
• Extra strength Tylenol PM geltabs
• St. Joseph Aspirin chewable orange tablets

If you have been using any of these products, you can call McNeil Consumer Healthcare at 1-888-222-6036 for a replacement or a refund. Alternatively, you can go to www.mcneilproductrecall.com. Lot numbers are printed on the sides of the bottles.

If you have suffered from any illness or injury because of a defective product, please contact our law office today. We will be happy to schedule a free consultation for you with one of our experienced attorneys.