Tennessee Injury Lawyer Blog

A Sevierville, Tennessee woman is making national headlines after she went in front of an investigative panel of the House Energy and Commerce Committee on Tuesday to testify about the harrowing ordeal she underwent when her Lexus suddenly accelerated to speeds of over one hundred miles per hour. The woman tried everything she could think of (hitting the brakes, putting the car in neutral, reverse, etc.) to no avail before the vehicle miraculously slowed down, enabling her to avoid a car crash in Sevierville.

Incidents like this one have cause Toyota to millions of vehicles around the country. Toyota initially blamed the acceleration problems on sticking gas pedals and misplaced floor mats, but the House subcommittee is investigating whether or not the acceleration issues could be the result of an electronic malfunction that Toyota initially refused to acknowledge in instituting the recalls. Toyota does admit that the company may have grown too fast to enable them to maintain the proper focus on consumer safety but the company denies that there are any electronic problems of the sort alleged by the House subcommittee.

Continue reading "Tennessee Woman Tells Congress About Her Toyota Troubles" »

Authorities are still searching for the cause of an automobile accident that occurred in Las Vegas, Nevada earlier this week which involved a Pontiac Vibe crashing into the Edgewater Hotel & Casino, killing two people and injuring eight others. Witnesses reportedly saw the vehicle speed through a red light and down the casino’s driveway at speeds of over sixty miles per hour before running into the casino. The seventy year-old driver of the vehicle said that he fainted before the vehicle crashed into the casino, but investigators are not ruling out mechanical problems with the Vibe as being the cause of the accident. Although the Vibe is a joint venture between Toyota and GM, the potential problems with this vehicle are reportedly not linked to the recent Toyota recalls.

Although authorities have not been able to determine the cause of the accident, their eventual findings will be critical to the victims of the case. The party responsible for the accident will potentially be facing personal injury and product liability claims from ten different parties, which more than likely will consist of a couple of wrongful death suits and numerous claims for medical expenses and damages depending on the circumstances. If the automakers are found liable for a mechanical defect in the vehicle, the victims will have a greater chance of recovering the full amounts of the damages and medical expenses that would potentially be awarded since automakers generally have a greater capacity to compensate victims than does your average seventy year-old man.

Continue reading "Police Searching for Cause of Deadly Casino Crash" »

For the second time in the past year, Toyota is issuing a major recall due to problems with accelerator pedals. The first recall affected four million vehicles and was due to an issue that caused the accelerator pedals to become stuck under the floor mats, causing sudden acceleration of the vehicle. The latest recall affects over two million Toyota-made vehicles and is also due to an issue with the accelerator becoming stuck, even in models that do not have floor mats. Toyota believes the problem is related to the potential build-up of sliding surfaces in the accelerator system that help the driver push down or release the accelerator pedal. This recall affects eight particular Toyota models. Both of the aforementioned recalls by Toyota have been among the largest in United States’ history.

Accidents caused by the negligence of the automobile manufacturer typically fall into the realm of product liability suits. These suits basically seek to impose liability on the manufacturer of the vehicle for negligently designing or manufacturing a product or part of a product which was responsible for causing injury to one or more victims.

Continue reading "Toyota Issues Second Major Recall in a Year" »

It is an unfortunate fact in the world of commerce that many businesses can make more money by acting deceptively toward consumers than they can by being honest, at least as far as short term profits are concerned. For instance, car dealerships could make a lot more money on a vehicle if they were allowed to pass it off as a “new” car when it was actually a used vehicle. Tennessee has long recognized that such practices would inevitably take place in the absence of legislation designed to protect consumers. Thus, the Tennessee Consumer Protection Act of 1977 (TCPA) was adopted in order to protect consumers from unfair or deceptive practices.

Recently, the Tennessee Court of Appeals was confronted with the question of when a car could be considered “new” for purposes of application of the TCPA. A plaintiff had sued an automobile dealer, alleging fraudulent misrepresentation, negligence, and violations of the TCPA because the dealer had advertised the car sold to plaintiff as “new” although the car had 756 miles on the odometer at the time of sale and had suffered minor damage to the trunk while in transit to the dealer which had subsequently been retouched. The car had also been sold from one dealer to another dealer before eventually being sold to plaintiff.

Continue reading "Tennessee Consumer Protection Act: What is a "New" Car?" »

The family of an eighty year-old Connecticut woman who died after her chenille bathrobe caught on fire while she was making tea has sued the retailer on multiple grounds, including wrongful death. Chenille is perhaps most easily recognizable as the fabric used in the various patches and letters that are sewn onto letterman’s jackets. Apparently the woman was making tea in her home on February 12, 2005 when her bathrobe suddenly ignited, burning her severely. She died a couple of weeks later. A wrongful death suit is a “survival action,” meaning it can be brought by surviving dependents or relatives of the deceased since the deceased is not alive to bring suit. The lawsuit in this case is seeking thirty million dollars in damages (but keep in mind this is for all of the claims combined, not just wrongful death).

To prevail in a wrongful death lawsuit in Tennessee, a plaintiff must prove four things:

1. That the defendant’s conduct caused the death of the decedent;


2. That the defendant’s conduct was negligent;


3. That there are surviving dependents of the victim; and


4. That the dependents suffered some sort of loss (pecuniary or emotional) as a result of the death.

In the case referenced above, the family is also bringing a product liability claim against the manufacturer, so they are basically alleging that the bathrobe was defective, which caused it to ignite suddenly and kill the decedent. If the family is successful in proving wrongful death, they will have the right to recover three different types of damages.

Continue reading "Flammable Bathrobe Sparks Wrongful Death Lawsuit" »

From October 2007 to July of 2009, QVC sold cast iron cookware endorsed by gregarious celebrity chef Paula Deen, but now they want it back. A recall has been issued for Paula Deen Hammered Cast Iron Cookware, specifically the 11-inch cast iron griddles and grill pans (QVC items K14984, K11970 and K135024) with the Paula Deen logo engraved on the bottom. QVC is encouraging its customers to return the cookware, originally sold for between thirty-five to fifty-five dollars, and receive a full refund after the United States Consumer Product Safety Commission said that the cookware can crack or shatter when heated and poses a risk of burns and cuts to consumers. Meyer Trading Inc., the manufacturer of the cookware, and QVC informed the government that they had received reports of seventy-nine incidents involving the cookware. It is likely that most such incidents go unreported by the consumer, so the actual number of injurious incidents involving the cookware may be much higher. QVC indicated that it has contacted known purchasers of the cookware to inform them of the recall.

Clearly a cast iron pan that can crack or shatter when heated poses a danger to consumers. Primarily, consumers of the product bear the risk that the cookware will explode or crack, causing searing hot cast iron fragments to come into contact with or cut the skin. Consumers who have recently purchased this cookware should return it immediately to avoid the risk of being injured in such a fashion.

Continue reading "Consumer Products Safety Commission Recalls Cookware" »

The Food and Drug Administration regulates almost every aspect of prescription drugs in the United States, including manufacturing, labeling, and marketing. To obtain FDA approval for a drug, the manufacturer must demonstrate to the FDA that the drug is safe and effective for its intended use. If the company can demonstrate that the drug is safe for a particular use, the FDA will approve the drug to be advertised and promoted for that intended use. However, once a drug hits the market, it will often be discovered that the drug can be used in ways not contemplated by the manufacturer or submitted to the FDA for approval. Such use is called “off-label” use and accounts for approximately twenty percent of all drug prescriptions in the United States. Off-label use of drugs is not illegal in the U.S., but drug makers are not supposed to advertise off-label uses or attempt to persuade physicians to prescribe their drugs for such uses, as it can be a crime.

Allergen, Inc., the maker of Botox and its sister drug Botox Cosmetic, recently filed a lawsuit against the United States seeking to enjoin the government from preventing drug companies from providing information on off-label uses to the medical community. Allergen contends that it is protected by the First Amendment of the United States Constitution from being prevented from disseminating truthful information to the medical community about effective uses of its drugs, even if they are considered off-label uses. Botox is FDA approved to treat certain types of spasms involving the eye but has other medically accepted, but non-approved, uses such as relieving certain types of spasticity in adults and children. Botox contends that since such “off-label” uses are legal, they should be able to work with the medical community in evaluating the risks and benefits of off-label uses.

Continue reading "Off-Label Advertising Ban Sparks Lawsuit" »

On this blog, I often provide you with information on specific products that have been found to be defective and dangerous. However, I often neglect to lay out some of the basic elements on how a person injured by a defective product can succeed in a products liability claim in Tennessee. The basic law is laid out in Title 29, Chapter 28, Part 1 of the Tennessee code.
As in any products liability case, a plaintiff must show that the product was actually defective at the time of accident. In this article, I focus on proving defectiveness by showing that the product was unreasonably dangerous.

To succeed in a products liability case in Tennessee against either or both the manufacturer or seller of a product, the plaintiff must prove that the product was in a “defective condition” or “unreasonably dangerous” at the time that it left the control of the manufacturer or seller.

The latter part referring to the time the product “left the control of the manufacturer or seller” simply means that a defendant may not be liable if substantial alterations, modifications or repairs were made to the product subsequent to purchase. The other requirement—that the product must be in a defective condition or unreasonably dangerous—is the real “meat and potatoes” of the act and poses two alternative theories for proving that a product was defective at or near the time of purchase or when the product left the manufacturer’s control. I focus here on the “unreasonably dangerous” element of a product liability claim in Tennessee.

A manufacturer can be liable if the product is found to be “unreasonably dangerous.” Unreasonably dangerous means under the Code that a “product is dangerous to an extent beyond that which would be contemplated by the ordinary consumer who purchases it, with the ordinary knowledge common to the community as to its characteristics, or that the product because of its dangerous condition would not be put on the market by a reasonably prudent manufacturer or seller, assuming that the manufacturer or seller knew of its dangerous condition.”

The unreasonably dangerous requirement thus contains two tests for determining whether a product is unreasonably dangerous, referred to in the law as the “consumer expectation test” and the “prudent manufacturer test.” The consumer expectation test often applies to simple products where something unexpectedly happens that causes an injury to the user of the product. Under this test, for example, when you sit on a chair, you expect that the chair will sustain your weight. But, if the chair collapses when you sit down, then your expectation of it supporting your weight is not upset. Consumer expectations are thus not satisfied and the manufacturer may likely be liable if injury were incurred.

Continue reading "Overview of Tennessee Products Liability Law: Products Unreasonably Dangerous" »

On Tuesday, September 29, Toyota along with the NHTSA issued a safety advisory applicable to approximately 3.8 million Toyota and Lexis vehicles. The advisory warns car owners of a potential unexpected acceleration of the vehicle caused by certain defects in the floor mat, which can result in a car crash, serious injury or death.

To date, NHTSA has received reports of 102 incidents in which the accelerator may have become stuck, causing the vehicle to accelerate. 13 crashes, 17 injuries and 5 fatalities have been reported. (These reports likely include accidents involving Toyota accessory “all-weather” floor mats that were subject to a recall from 2007 to 2008.)

The most notorious incident—and the one prompting the safety warning—involved a family that leased a vehicle from Toyota—a 2009 Lexus ES 350—near San Diego, California. Apparently, while operating the vehicle, the floor mat covered the accelerator pedal and caused it to accelerate out of control, strike an SUV, launch off an embankment and burst into flames. Four people were killed. The precise cause of the accident, however, is still under investigation.

On the NHTSA website, individuals can review incident reports/complaints by Toyota vehicle owners. One customer had this to say:

“I was first in line at a red light. The light turned green. I accelerated aggressively in order to change lanes as I pulled way. When I was across the intersection, I lifted my foot off the gas pedal and it continued to accelerate. Shocked, I depressed the brake, but had no effect on the acceleration. There was nothing in front of me so I pulled to the right side of the road and hit the power button and the car stopped.” She further reported that she took it to her Toyota dealer and they could find nothing wrong. No injuries or deaths were reported, but she says she hasn’t driven the car since.

Continue reading "Toyota and Lexus Warn Tennessee Car Owners of Floor Mat Hazard" »

The recently passed Consumer Product Safety Improvement Act of 2008 (CPSIA) requires the Consumer Product Safety Commission (CPSC) to implement a publicly accessible, searchable database of consumer product incident reports. The new database will provide a central location where Tennessee consumers can evaluate product safety by seeing what others have said about a particular product.

The new site is provisionally called SaferProducts.gov and is scheduled to come online sometime in 2011. A recent report by the CPSC details its current progress and can be viewed at, www.cpsc.gov/cpscpub/pubs/reports/cpsia212.pdf.

According to the report, SaferProducts.gov will provide the public with “powerful new tools to report, analyze and respond to consumer products that pose potential hazards.” Currently, consumers can report hazardous products and file incident reports and can search for recalls of consumer products; however, consumers don’t have the ability to actually view the incident reports filed by other consumers. Finding product recall information can also be a bit difficult. The new site, when launched, will (allegedly) allow consumers easy access to current recall information in addition to being able to view the details of incident reports previously filed—and all in one location!

Continue reading "Upcoming Consumer Product Database to Aid Consumers in Reporting and Responding to Potentially Dangerous Products in Tennessee" »

The Consumer Product Safety Commission recently issued a press release instructing parents to inspect and secure televisions, furniture and appliances to prevent tip-over deaths and injuries. According to the CPSC, there are an estimated 16 thousand children under 5 years of age who were treated in emergency rooms because of injuries associated with tip-overs in the home in 2006. From 2000 to 2006, there were 134 tip-over related deaths reported to the CPSC, and, in 2007, the CPSC staff recollected 30 media reports of tip-over deaths since 2007.

Tip over accidents are often caused when a child plays in or around a TV stand, shelving, bookcases, and furniture. In some instances, televisions placed on top of furniture can tip over and cause severe traumatic bodily injuries to a child. Sometimes, furniture can tip over onto a child, and, by its weight, suffocate the child.

Truly, this is a hazard not immediately foreseeable by many parents across the state of Tennessee. But, you can be sure manufacturers are aware of the risk and can potentially be held liable for failing to warn consumers of the risk of tip-over. The CPSC suggests some things you can do to prevent tip-over injuries:

• Furniture should be stable on its own.


• For added security, anchor chests or dressers, TV stands, bookcases and entertainment units to the floor or attach them to a wall.


• Place TVs on a sturdy, low-rise base. Avoid flimsy shelves.


• Push the TV as far back as possible.

Continue reading "Furniture, Television and Appliance Tip-Over Accident Attorneys" »

Earlier this year, the pharmaceutical industry suffered a crushing defeat at the hands of the Federal Supreme Court. In a 6-3 decision, the Supreme Court upheld a Vermont court’s decision awarding 6.7 million in damages to Ms. Levine for the defendant pharmaceutical company’s (Wyeth’s) failure to provide sufficient warnings for its promethazine hydrochloride injections. The narrow issue for the court to decide was whether federal drug labeling laws “preempt” or prevent an injured plaintiff from suing a drug firm in state court. The court held that it does not.

In Wyeth v. Levine, a Vermont court found the pharmaceutical giant, Wyeth, responsible for the loss of Ms. Levine’s arm caused by an intravenous injection of Phenergan using the IV-drip method. Phenergan is the brand name for promethazine hydrochloride, which is an antihistamine often used to treat nausea. It can be administered either intramuscularly or intravenously using either the IV-push or IV-drip method.

Apparently, the IV-drip method presents a danger of gangrene because Phenergan is corrosive to arterial walls, and the IV-drip method presents greater risk of accidental arterial injection. This is what happened to Ms. Levine.

Counsel for Ms. Levine argued that Phenergen’s labeling lacked sufficient warnings and, due to the lack of sufficient warning, the clinician administering the drug wasn’t aware of the risks of using the IV-push. In fact, nothing in the labeling contained any specific warning connecting the IV-push method with the increased risk of gangrene to extremities. As such, Wyeth should have contraindicated intravenous use even though the FDA had not required the drug maker to indicate as such.

Continue reading "Promethazine Hydrochloride Injection" »

A voluntary recall for Oval Roll-up Blinds without release clips and all Woolrich Roman Shades, imported by Lewis Hyman, Inc. of Carson, California, has been announced by the CPSC due to the potential risk of strangulation to young children. About 4.2 million of the blinds and 600,000 of the Roman Shades have been sold nationwide. To see pictures of the blinds and shades, visit the CPSC website. (Specific web address posted below.)

The roll-up blinds were sold from January 1999 through December 2003 from between 6 and 20 dollars. They were sold at several retail stores nationwide. The Roman Shades were sold exclusively at Target stores from March 2006 to December 2009 at a cost between 25 and 43 dollars.

The oval roll-up blinds specifically create a risk of strangulation because the lifting loops can slide easily off the side of the blind, exposing a loose loop. The Roman Shade poses a similar risk in which strangulation can occur when a child places his/her neck between the exposed inner cord and the fabric on the backside of the blind. A child can also get entangled by pulling the cord out and wrapping it around his/her neck.

Continue reading "Blinds and Shades with Pull Cords, Exposed Inner Cords and Exposed Lifting Loops Risk Strangulation for Children in Tennessee" »

The Consumer Product Safety Commission (“CPSC”) announced on Tuesday that several firms agreed to pay substantial penalties in exchange for not having to acknowledge that they knowingly violated the law regarding reporting product defects to the CPSC.

According to federal law, manufacturers, distributors, and retailers must report to the CPSC any product that contains a defect creating an unreasonable risk of serious injury or death or fails to comply with any consumer product safety guideline or rule. In fact, the CPSC issued drawstring guidelines in 1996 to help prevent children from strangling or getting entangled.

In 1997, the clothing industry adopted a voluntary standard for drawstrings, incorporating these guidelines, and, in May 2006, the CPSC announced that children’s sweaters and jackets (“upper outerwear”) with drawstrings at the hood or neck will be regarded as defective and as presenting a substantial risk of injury to young children.

Continue reading "Drawstring Settlements" »

The numerous media reports of exploding iPods and iPhones, overheating X-Boxes, Dell laptop batteries catching fire, and now, a CPSC recall on ignitable Durabrand DVD players are enough to destroy whatever expectation we Tennesseans had about the safety of electronic devices that we use every day. The good news is that the chances of you getting harmed or your property damaged is very miniscule.

Take for instance a recent investigation into exploding iPods by a Seattle news station. The news station found after receiving information produced as a result of a Freedom of Information Act request that there have been 15 incidents in the United States of iPods overheating, sparking and bursting into flames. Although the number of incidents was reported as an "alarming number", one Business Week analyst put the risk of danger in perspective, providing the following reasoning:

“Apple has sold 218 million iPods worldwide. Let's say there were 1,500 documented cases of these incidents—100 times the number cited in the news report. That would still amount to only 0.000007% of the devices sold. Fifteen cases amounts to a minute fraction of 1% of the devices in circulation. And it's certainly not enough of a problem to warrant a recall by the CPSC.”

Even so, the level of risk does not relieve manufacturers from liability for manufacturing defects. Under TCA 29-28-105, a manufacturer or seller of a product is strictly liable for a defective product in Tennessee found to be “unreasonably dangerous” at the time that it left the manufacturer’s or seller’s control. “Unreasonably dangerous”, according to the code, means that the product is “dangerous to an extent beyond that which would be contemplated by the ordinary consumer who purchases it…” Certainly, an exploding MP3 player is not something your ordinary Tennessee consumer would expect to happen!

Continue reading "Defective Electronic Devices in Tennessee" »

A widely distributed defective gaming product has fallen into the hands of several children and adults across the state of Tennessee and throughout the nation. The Griffin International Wii Battery Recharge Station presents a risk of burn and fire hazard due to a defect in the battery pack that can cause it to overheat.

Over 220,000 units have been sold nationwide under the Psyclone Essential and React brands. They were sold at Target, Toys R Us and Amazon.com, but are likely still available for sale on internet auction websites and in used merchandise outlets.

So far, six incidents of overheating and two incidents of minor burns to the hand have been reported to the company and brings up valid concern regarding product liability.

The CPSC urges consumers of the product to stop using it immediately. The Wii 4-Dock Recharge Station includes a white docking station with four recharge stations and a four rechargeable battery pack.

Continue reading "Griffin International Recalls Wii Battery Recharge Stations" »

Following up on the CPSC’s release of its top ten list of defective child products, this blog entry provides details on the remaining five.

• Polly Pocket Dolls with Magnets: Small magnets inside the dolls and accessories can come loose. These magnets present a choking hazard. Each small magnet can also attract to other swallowed magnets, causing intestinal perforation or blockage. There have been 3 serious injuries reported.


• Simplicity Drop Side Cribs: The sides of this crib can detach, creating space between the drop side and the crib mattress. Infants and toddlers can get into this space and become entrapped, leading to strangulation and other severe injuries. The CPSC has received 10 reports of infant wrongful death associated with this crib.


• Simplicity Bassinets: These Simplicity 3-in-1 and 4-in-1 convertible bassinets contain metal bars that are covered by an adjustable fabric flap, which is attached by velcro. If the velcro is not properly secured when the flap is adjusted, an infant can slip through the opening and become entrapped between the metal bars and suffocate. There have been at least 3 deaths associated with these bassinets.

Continue reading "CPSC Releases Top Ten List of Defective Children’s Products: Part II" »

The U.S. Consumer Product Safety Commission (CPSC) announced this week its top ten list of recalled children’s products that have either caused significant injuries to children and/or child death. If a loved one has been injured by any one of these products, you and/or your loved one may have a personal injury or wrongful death claim against the manufacturer or vendor of the product—but only if you act immediately.

The list of the first five recalled child products is provided below. See tomorrow’s blog entry for information on the next five.

• Playskool Travel Lite Play Yards: Side rails of the portable crib fold during use, creating a risk of entrapment and suffocation. Three deaths have been reported.


• Evenflo Happy Camper Play Yards: The play yard can collapse and trap the child in the “V” formed by the collapsed top rails. Additionally, the rotating plastic hinges can crack and break, presenting a sharp edge or allowing the child to escape. Three wrongful deaths have been reported.


• Baby Trend Home and Roam and Baby Express Portable Cribs and Play Yards: This defective product has been recalled because it too can collapse and entrap infants and toddlers. On January 2001, for example, a 9-month old baby died of asphyxiation when her neck was caught in the “V” created by the collapsed top sides. Three other strangulation/entrapment deaths have been reported in addition to three reports of babies who were found not breathing but later revived.

Continue reading "CPSC Releases Top Ten List of Defective Children’s Products: Part I" »

When a parent or spouse dies, it is a relatively simple matter to determine the financial loss to the family. The court typically examines the lost loved one’s current wages, support and services contributed, and earning potential. Survivors are then compensated accordingly.

However, when a child is fatally injured as a result of another’s negligent conduct, damages are more difficult to calculate. Essentially, what the jury must decide is what the child would have contributed to the parents’ support had he or she lived. Quite obviously, the amount determined is mere speculation. Nevertheless, it is the jury’s task to determine the amount of such award for a wrongful death in Tennessee based upon such factors as the age of the child, expected life span, health and habits, earning potential and work expectancy.

In addition to loss of support, parents of a deceased child are also entitled to the child’s medical and funeral expenses, any mental and physical suffering of the child, loss of the child’s time, and all other necessary expenses resulting from the negligent conduct.

Continue reading "Parental Compensation for Wrongful Death of a Child in Tennessee" »

From time to time, we report on defective products in Tennessee that were recalled some time ago. We do this for a number of reasons, three of which are discussed here. First, after-market vendors in Tennessee and throughout the United States continue to sell products that are known to be dangerous to consumers. Awareness of product safety is your first-line defense against dangerous products.

Second, as the number of online purchases increase, so too does the potential for people to purchase recalled, dangerous goods.

Third, on August 14, 2008, the President signed the Consumer Product Safety Improvement Act of 2008 (CPSIA) into law, which prohibits sellers of used products from selling products subject to recall. Thus, under the new law, resale vendors who knowingly sell a recalled product are civilly liable under federal law to plaintiffs who have been injured as a result of a dangerous and defective product.

The key to the federal claim is proof that the vendor had knowledge that the product was recalled. With the increased efforts of the CPSC to inform resale vendors of recalled products, it should be harder for defendants to claim they didn’t know.

Continue reading "Resale Vendors Civilly Liable under Federal Law for Injuries Resulting from Recalled Products" »