INSIGHTS On Massachusetts Personal Injury Law

Welcome to the SUGARMAN blog. We'll be sharing our perspectives on the state of the law and current legal issues in Massachusetts personal injury law. Issues relating to medical malpractice, construction site injuries, premises liability, product liability, motor vehicle accidents, insurance, and more will all be reviewed here by our team of lawyers who have prosecuted some of the most complex cases in Massachusetts personal injury law.

Articles Posted in Consumer Protection Laws

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As most people have heard by now, Volkswagen (“VW”) is currently embroiled in a scandal after the EPA discovered that VW had programmed supposed “clean” diesel vehicles to cheat emissions tests. These cars, which included certain Audi, Porsche and VW models, were emitting nearly 40 times the amount of the pollutant nitrogen oxide, well above maximum federal emission levels, when driven in real world conditions than what the cars had been designed to emit under laboratory testing conditions. VW has now admitted to some of the most brazen corporate malfeasance ever uncovered and has announced plans to issue a recall beginning in 2016 that will fix the emission of some 500,000 vehicles sold in the United States. The details of VW’s elaborate deception can be found here. Since the scandal broke, VW’s CEO has resigned and the company’s stock price and reputation have collapsed.

What if you bought one of these “clean” cars? Although the proper thing for VW to do would be to buy back these vehicles, it is not anticipated that the federal government will force VW to do so, even though the company sold the cars in a defective condition and actively concealed this defect from its customers. Once the recall program begins, customers can choose to participate in the recall, but it is likely that the “fix” in the recall will result in decreased fuel economy, performance and, perhaps, dependability. There will also likely be a drastic decrease in the value of your car even if you participate in the recall program. What if anything can be done about that?

Customers who purchased vehicles subject to the recall can bring claims against VW for the diminution in value of the car, i.e., what was the loss of resale value of the car that has been caused by this recall and corporate malfeasance. Consumers in Massachusetts may have an additional protection in that their claims against VW can be brought pursuant to M.G.L. ch. 93A, the consumer protection statute. The statute makes it unlawful for a company such as VW to engage in “unfair or deceptive acts or practices in the conduct of any trade or commerce” and exposes a company found to violate the statute to double or treble damages plus attorneys’ fees. Based on what has been discovered to date, VW’s actions can generously be described as “unfair or deceptive” and Massachusetts consumers may be able to recover more under 93A than what consumers in other states can depending on how the recall unfolds and what the damage to consumers turns out to be.

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Section 6(b) of the Consumer Product Safety Act regulates the release of information by the Consumer Product Safety Commission. Much of the data collected and many of the investigations and actions taken by the Commission cannot be released to the public without notice to the manufacturer and an opportunity to comment and object. This requirement, a part of the original Act passed over 40 year ago, significantly delays and impedes the public access to the Commission’s product safety information. 6(b) requires the Commission not only to notify the manufacturer and allow comment and objection, but also requires that the Commission assure the accuracy and fairness of the information to be released before it is made public.

Recently, the Commission published notice proposing to change rules it had established following 6(b) for the release of information. The changes are an attempt to eliminate some of the more cumbersome procedures while still complying with 6(b) and represent, at best, only minor tweaks. In commenting on these proposed changes, CPSC Commissioner Bob Adler took the opportunity to describe the problems posed by the 6(b) restrictions on the flow of information:

• Section 6(b)’s cumbersome procedures and unnecessary delays put consumers’ lives and limbs at risk by requiring the CPSC to restrict the flow of critical safety information to the public.

• The Commission, unlike any of our sister agencies, must spend hundreds of thousands of dollars a year following wasteful 6(b) procedures – procedures that were visited exclusively on the CPSC 40 years ago and have never been imposed on any other agency since then.

• Section 6(b) has been interpreted by the U.S. Supreme Court to apply to FOIA requests for information in agency files. This means that information that no one would ever think carried the agency’s blessing or imprimatur still must be run through section 6(b) procedures – adding time and expense to the process.

• One particularly bad example: A document that simply lists the names of the 50 firms in an industry must be processed through section 6(b) by sending 50 different notices – each with the other 49 names redacted (especially since the firms likely already know all of the names on the list).

• The Commission cannot post information on its website that has been previously disclosed simply and solely because we have given firms the right to be notified again before it’s released again – especially when most companies don’t even bother to file comments when they’re re-notified.

• The average time to process section 6(b) requests is roughly four times as long as the time to process non-6(b) requests.

• Read literally, section 6(b) prevents CPSC staff from saying even favorable or nice things about manufacturers unless we follow the cumbersome procedures of the Act.
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The tragic death of two young Franklin children who became trapped in a chest highlights the need for greater consumer protection and vigilance. On January 12, 2014, the two youngsters apparently were playing in the family’s “hope chest,” manufactured by Lane Furniture of Virginia, when the chest automatically locked, trapping the children and causing them to suffocate.

The automatic locking mechanism rendered the chest unreasonably dangerous. In 1996, Lane Furniture recalled 12 million chests (Lane and Virginia Maid brand cedar chests manufactured between 1912 and 1987), due to lids that automatically locked when closed. The recall followed reports of the deaths of six children.

In 2001, the U.S. Consumer Products Safety Commission (“CPSC”) fined Lane $900,000 for failing to report the entrapment problem in a timely manner, which manufacturers are required to do. The CPSC is the federal agency charged with protecting the public from unreasonable risks of serious injury or death from thousands of types of consumer products. While CPSC has jurisdiction over consumer products generally, historically it has been most active with regard to products hazardous to children. CPSC administers several federal laws directly relating to child safety such as the Child Safety Protection Act (toy safety), Flammable Fabrics Act (standards for children’s sleepwear and mattresses), Poison Prevention Packaging Act (child resistant packaging of hazardous household products and medications), Refrigerator Safety Act (to prevent accidental entrapment of children in discarded refrigerators), and more recently the Virginia Graeme Baker Pool & Spa Safety Act (includes safety requirement to prevent entrapment in drains). In addition, the CPSC has passed numerous regulations relating to the child-safety of various products. Examples include: baby bouncers and walkers, cigarette lighters, cribs and infant cushions, garage door openers, and swimming pool slides. The chest entrapments and recall follows a history of children being killed by entrapment in other consumer products, including refrigerators and car trunks.

Although it is currently unclear as to whether the chest in Franklin was of the model that was subject to the recall, the dangerous mechanism on the subject chest presented the same grave danger. Press reports available to date indicate that the Franklin family had purchased the chest in a used condition 12 years ago. Lane Furniture has reported that chests manufactured after 1987 have new “safety locks.” Although Lane launched several programs in concert with the CPSC, concentrating on lock replacement, there are still an estimated six million chests that need the locks replaced according to Lane’s website. To prevent another tragedy, CPSC urges consumers to check their “Lane” and “Virginia Maid” brand cedar chests. According to the CPSC website, the brand name “Lane” or “Virginia Maid” is located inside the cedar chest. If the lid latches shut without depressing a button on the outside of the chest, the lock needs to be replaced. Contact Lane toll-free at (800) 327-6944 Monday to Friday from 7:00 a.m. to 6:00 p.m. CT, or access their website to order the free replacement lock. Consumers should have the chest’s serial and style numbers, which are branded on the outside bottom or back of the chest, available when contacting Lane.
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With only eight shopping days until Christmas, many people will be scrambling to the stores to buy last-minute gifts. Before you purchase just any toy for that young child on your shopping list, take a look at the 28th annual “Trouble in Toyland” report, released last month by the U.S. Public Interest Research Group (PIRG). The report outlines safety issues in toys for small children, and provides safety guidelines for consumers. This year’s report focuses on potential choking hazards, “toxic” toys and noise hazards. PIRG investigated several different toys containing small parts for labeling compliance regarding choking hazards as well as appropriate age warnings. Potentially “toxic” toys were tested for the content of eight different metals and chemicals, among them, arsenic, lead and mercury. One example on the toxic toy list this year is the “Captain America Soft Shield,” sold by Toys R’ Us, which tested positive for lead content at 2900 parts per million, over twenty-nine times the allowable level in the U.S. for any toys manufactured after August 2011. Toys featured in the “noise hazard” section of the report are those that exceed eighty-five decibels, and are intended to be held close to the ear. Not surprisingly, this year’s featured “noise hazards” are variations of toy cell phones, which can potentially damage hearing in young children. No matter how strict the regulations, many “dangerous” toys make it to the marketplace every year. It is important to understand the dangers associated with toys for small children, and PIRG’s annual report provides education and guidance on these issues to consumers.

Once you have checked everyone off of your holiday list for 2013, take a look back at those gifts you purchased and received over the past year. On December 12, 2013, the Consumer Product Safety Commission (CPCS) announced the recall by eight retailers of the 32-inch Coby flat screen television. An electronic component within the television can catch fire, igniting items around it. CPSC also recently announced a recall of 2013 Trek Madone bicycles, which, because of a faulty front brake system, can cause a crash hazard to riders. The CPCS website is an excellent resource for product recall information and other consumer safety news.
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On September 13, 2013, the Massachusetts Supreme Judicial Court upheld a $20,640,000 verdict obtained in Essex Superior Court by SUGARMAN partners W. Thomas Smith and Benjamin Zimmermann. The case, Aleo v. SLB Toys USA, Inc., et. al., arose from the death of Robin Aleo, who was rendered quadriplegic and subsequently died when she slid head first down an inflatable Bonzai Falls In-Ground Pool Slide. That slide and approximately 4,000 others were imported to and sold in the United States by the defendant, Toys R Us. Among other things, the evidence at trial was that the slide was defective, that the slide failed to comply with the applicable federal regulations relating to pool slides and that Toys R Us failed to take steps to determine whether or not the slide complied with those regulations. Based in part on this evidence, the jury awarded Ms. Aleo’s husband and her young daughter $2,640,000 in compensatory damages and, finding that Toys R Us was grossly negligent under Massachusetts law, awarded punitive damages in the amount of $18,000,000. Toys R Us, who subsequently recalled all the Bonzai Falls In-Ground Pool Slides that it had sold, appealed the jury’s verdict on several grounds.

In unanimously upholding the verdict, the Supreme Judicial Court dismissed Toys R Us’ evidentiary arguments, ruling that the trial judge had not abused his discretion in prohibiting the introduction of certain evidence, such as unverified and unattributed statements in a police report and inaccurate tests conducted by Toys R Us’ expert that failed to properly replicate the subject accident. The Supreme Judicial Court also ruled that SUGARMAN’s personal injury attorneys presented sufficient evidence to permit the jury to find that not only was Toys R Us negligent, but that the company was grossly negligent. In its analysis, the Court cited to the failure of Toys R Us to ensure that the slide complied with the federal regulations, the fact that Toys R Us only had one employee to review 4,000 safety compliance certificates per month and an indemnity agreement that gave Toys R Us an incentive to be indifferent to the safety of the product because it believed it would not be financially liable for any defects that caused injury to a person using the slide.
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A toddler or young child opens and then leans on a range or stove door. In an instant, the results can be tragic. Either the stove tips and falls on the child or it tips spilling the contents of stove-top cooking on the child. Unfortunately, this scene is repeated all too often. The Consumer Product Safety Commission (“CPSC”) estimates that each year there are 1,700 appliance stability and tip-over injuries treated in emergency rooms, with deaths yearly from these incidents. Most involve children under the age of 10. In addition to toddlers and young children, the elderly are also at risk of injury by leaning or resting on an open oven door. Most of these injuries involve burns caused by items tipping over from the stove top.

Some stove manufacturers have provided increased stove stability by weighting the stove and changing the length of the oven door. However, the most effective safety fix is an anchor at the back of the stove attaching it to the floor or wall. Properly installed, an anchor can prevent both the burn and crushing injuries resulting from a stove tipping. In addition to anchors, the CPSC has proposed the use of a door lock mechanism to lock the oven door into the open position. This would prevent a tipping stove from crushing a child, but not the spilled cooking burn injuries. It would also require a release to close the door. Whatever the safety measure, injuries from tipping stoves and ranges are entirely preventable with simple inexpensive devices.

Whenever a serious injury of this type occurs, a personal injury lawyer should be consulted. A landlord or stove installer might be liable for failing to install anchors as provided or recommended by a manufacturer. A stove manufacturer might be found liable for failing to include one or all of these safety fixes. The injuries from a tipping stove can be devastating and, if the fault of a landlord, installer or manufacturer, should be the basis for a claim for fair injury compensation.

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In July 2010, Congress passed, and the President signed, the “Dodd-Frank Wall Street Reform and Consumer Protection Act” (“The Dodd-Frank Act”).  The Dodd-Frank Act was passed in response to the country’s near financial meltdown in 2008, in an effort to protect the consumers and the country from the perils of unlawful financial practices by individuals and financial institutions.  Among other protections, the Dodd-Frank Act contains a section entitled “Securities Whistleblower Incentives and Protection.”

This relatively new whistleblower law (a) requires the Securities and Exchange Commission (“SEC”) to pay substantial awards to eligible “whistleblowers” who voluntarily provide the SEC with information leading to successful enforcement of the securities laws; and (b) prohibits retaliation by employers of such whistleblowers.

A whistleblower’s right to recovery depends upon meeting certain requirements of the Dodd-Frank Act and related SEC rules.  The requirements for recovery by the whistleblower include:

–  the information reported by the whistleblower must be “original information”, which generally speaking means that the information must be based on the whistleblower’s independent knowledge or independent analysis, and the SEC must not have known about the information from any other source;

–  the enforcement by the SEC results in a sanction greater than $1,000,000; and
–  the individual reporting must meet the statutory definition of a “whistleblower,” and must not fall under any of the exclusions.
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With the warm weather of summer, many people are opening up their homes to friends and family for backyard cookouts, birthday parties, and weddings.  Home entertaining can be very rewarding, but as a homeowner you should always be aware of your legal responsibility to those you invite into your home.  Generally, property owners have an obligation to provide a safe environment for visitors and guests.  In this series of blogs, we will address some typical situations that arise while entertaining and the legal responsibilities for each.

Swimming Pools
For millions of Americans, swimming pools and spas are great places to spend time together.  But pools and spas come with some very important safety concerns.  About a third of all children aged one to four who die accidentally each year are victims of drowning, most in residential swimming pools.  On average, 390 children die each year in pool and spa drownings, and over 5,000 more are injured.  Swimming pool safety is a critical concern nationwide, and both the federal and individual state governments provide guidance and instruction.  During the week of July 22-29, the Consumer Product Safety Commission will hold its Pool Safety Campaign to promote water safety.  Additionally, each state enforces its own pool safety regulations.  In Massachusetts, swimming pool safety requirements are contained in the Code of Massachusetts Regulations, 105 CMR 435.00: MINIMUM STANDARDS FOR SWIMMING POOLS.  http://www.mass.gov/eohhs/docs/dph/regs/105cmr435.pdf If you have or are considering installing a swimming pool, you must comply with this regulation.  Here are some of the major safety requirements for swimming pools.
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Today, the Consumer Products Safety Commission (CPSC) announced the recall of a dangerous and deadly product, the Banzai Falls Inflatable Pool Slide. 

This recall came after lawyers at SUGARMAN proved to a jury that the Banzai Inflatable Pool Slide was a defective product and killed an innocent 29-year-old mother. Other pending product liability lawsuits involve a young man who was rendered quadriplegic on the same Banzai slide, and a woman who broke her neck on the same recalled slide.

When litigating and trying the product liability case against Toys R Us, which imported and sold the pool slide, we were always worried that there must be thousands of other slides like it (it was not entirely clear how many were brought to this country). There was no way as a private litigant to tell the public about its hidden dangers. The CPSC’s product recall does just that. It reaches out to upwards of 21,000 consumers who bought this defective product and who could have no idea how dangerous it is. The recall could potentially save lives.

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The majority of products sold in the United States have met minimum government safety standards, which are established by a variety of government agencies. Safety standards for most retail products are set by the Consumer Product Safety Commission (CPSC); vehicles, tires, and car seats are regulated by the National Highway Traffic Safety Administration (NHTSA); and food, drugs and personal care products are regulated by the Food and Drug Administration (FDA). The legal community looks at product regulatory requirements as a “minimum requirement,” and expects manufacturers to ensure products will be safe and reliable for intended uses. But how do you, as a consumer, find out if a product meets the minimum government safety requirements.

On March 26, 2012, USA Today discussed last year’s annual report from Kids in Danger, detailing children’s product recalls in 2011. The report cited a 24% drop in children’s product recalls, but criticized the way product recall information was communicated to the public. Because of the vast retail and on-line market for consumer products, it can be challenging for a manufacturer or seller to identify purchasers when a problem with a product is uncovered or a product is recalled. It can be equally difficult for a consumer to determine if the car seat, toy, hedge trimmer or medicine they bought has become the subject of a safety recall. During the 14-day period from March 26, 2012 to April 9, 2012, there were safety recalls issued for: 20 vehicle-related products; 10 tire models; 5 child car seats; 4 child products, and 3 general household items. Most people have likely heard about one or two of these at most. If you are a consumer looking for ways to learn about product recalls, here are some suggestions:
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