Gregg M. Goldfarb, LLP

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Are Products Killing or Hurting Us?

Just when you thought it was safe, several iconic brands and their manufacturers have become the focus of lawsuits for hazardous products.

You are probably aware of the recent multi-billion dollar jury verdict against Monsanto for Roundup®, their weed killing product. It is used by many people in their gardens and it has widespread use on farmland, in landscaping and for horticulture   Monsanto, the manufacturer and now part of the big German conglomerate Bayer continues to vigorously dispute that the product causes Non-Hodgins Lymphoma, untreatable cancer.

The U.S. giant healthcare and pharmaceutical company Johnson and Johnson also received big verdicts related to the asbestos in its talcum-powder products causing ovarian cancer. Who would have ever thought that something as seemingly innocuous as talcum powder could be so injurious?

Many of us probably associate 3M with Post-It® Notes. However, in late 2018, it came to the attention of many that 3M had settled a whistleblower case regarding defective earplugs that they had manufactured and sold to the U.S. Military. The result was that many military personnel, not just those in the battlefield, were exposed to sounds that are have potentially caused deafness, partial hearing loss and tinnitus. The U.S. Department of Veterans Affairs (VA) reports that 2.7 million veterans receive benefits for hearing loss, in addition to the suffering by those currently serving.

Mesothelioma, asbestos and hernia mesh are among the many other pending major lawsuits that you may be aware of from TV ads, billboards, social media and the press.

With our dynamic economy, more and more products are being launched in increasingly shorter timeframes. The informed consumer needs to be alert to the risks that these products can potentially expose users to. Whether it is a drug designed to manage a chronic medical condition, a device to improve the quality of life or preventative treatment, even with correct usage, defects and unintended consequences can emerge which users should be cognizant of.

Over the years, my law firm Gregg Goldfarb LLP has considerable experience and expertise in this area of product liability. We have handled a wide array of defective product cases such as the drugs Phen/Fen, Vioxx, and hip replacement devices.  However, it doesn’t stop at this as we continually monitor the health, wellness and medical fields to make sure that the products and services being offered are doing what the claim for the user and nothing detrimental.

New Modes of Transportation: The Liability Issues
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Today, certainly in urban and suburban areas, everyone seems to have a new set of electric-powered wheels!  Scooters and bicycles in a variety of shapes and sizes. While adults can power along at 20 mph, more children are turning to foot-powered scooters and all this on top of traditional bicycles which are proliferating via bike-share programs.  Add to this the prospect of semi-autonomous and eventually self-driving vehicles plus drones and the specter of flying cars, getting around is becoming crowded and potentially somewhat out of control.

Injuries as a result of electric bikes and scooters are increasing with use and this is confirmed by studies in the Netherlands and Israel where there has been longer use.  There have also been some notable fatalities with autonomous vehicles.

How safe are these “vehicles” for public use?  Currently, there is no clear answer. Regulators, insurance companies, and bike/scooter rental companies and automobile manufacturers continue to work on the issues.  For the short to medium term, we will clearly be in a major transition stage for personal transportation. As an attorney, I am curious as to how it all will evolve. I wonder how much freedom and control the individual will have versus the autonomous vehicle? What will be the outcome of AI and machine learning when vested with critical decisions – some of which could be life or death? Will people be forced to use autonomous vehicles? How much choice will we have?

Currently, there are no fully autonomous vehicles operating in the U.S. but, several now have features that include lane and speed/distance control, a level of avoidance monitoring and parking assist.  As we pioneer these new forms of transportation some accidents are inevitable.  What is fascinating is that perhaps for the first time, the driver may not necessarily be at the center of the litigation. The software could be implicated, not just in terms of executing a move but, its role in the decision process by which it was determined. Suddenly the law will enter the deep world of AI where the machine begins to learn and modifies and autonomously modifies the original parameters set by the programmers. It may well be that a plaintiff will need to hire a lawyer and a philosopher!

Next month, I will be delving further into these issues in my blog and other social media platforms.

Florida Accident Law and Pip Legislation Update

Florida is one of five states that has established a legislative scheme known as “No-fault” for handling automobile accidents that cause personal injuries.   No-fault requires every vehicle to have insurance coverage for Personal Injury Protection and Property Damage.  This minimal requirement essentially provides the insured driver or anyone in the insured driver’s vehicle with up to $2,500 worth of medical treatment and services for injuries as the result of an automobile accident.   If a medical doctor certifies that the injuries are severe enough to be considered an emergency medical condition, then up to $10,000 worth of medical treatment will be available.   These benefits apply even if the driver or passenger was “at fault” in terms of the accident. However, there are a few requirements that must be met before a person can qualify for the benefit which includes treatment by a qualified medical provider and receiving this within 14-days of the accident.

Up to this point, the Florida Legislature has chosen to modify the law instead of repealing I several times. However, there are many advocates of repealing it all together, contending that it spawns fraud and staged accidents or overtreatment.  This year, the Florida Legislature chose not do make any changes to the No fault laws we have come to know as Personal Injury Protection or PIP.

Gregg Goldfarb
If I No Longer Have the Equipment or Device, Do I Still Have a Case?

You might have a case and it depends upon what the type of defect it is in the product. If it’s systemic, in other words, if it’s a defect in every single version of that product, let’s just say for example, in a car, and it’s brake system was defective in every single car that had that brake system was defective, the fact that you don’t have that car anymore might not interfere with your ability to make a recovery. But if your particular product was defective and only your particular product, it’s going to make it much more difficult to prove your case or to convince the manufacturer to settle with you if you do not have that product.

Does an Insurance Company Have to Pay for A Rental Car when Repairs Are Being Made to My Vehicle?

This is one of the most common questions I get presented with. It’s a question, the next time you go and get your auto insurance, that you should ask your insurance agent. This type of coverage is not automatic, and is not mandatory. Unless you obtain this type of coverage, you will not get rental car reimbursement when your car is being repaired.

Does a Property Owner Have a Duty to Provide Security Guards?

Not necessarily. Much of that question depends upon the type of business that is being run and the location and what the history of the location is. Even if the business is a very simple business that does not deal with guns or does not deal with alcohol, they might be required to provide security just because the neighborhood is dangerous.

GeneralGregg Goldfarb