Texas Trial Law Advocate : Texas Business Litigation Lawyer & Attorney : Craig Cherry : Haley & Olson Law Firm : TX Personal Injury, Product Liability

Today, Toyota Motor Corp. announced that its accelerator pedal supplier began shipping newly designed pedals to dealers to fix the company's sticky gas pedals that have required 4.2 million vehicles to be recalled.  According to reports, federal regulators did not object to Toyota's repair plans.  A more detailed announcement by Toyota is expected to be made Monday.

In the meantime, contact the Toyota Customer Experience Center at 1-800-331-4331 if you have questions about your vehicle. The Toyota Customer Experience Center hours are: Mon.–Fri. 5:00 am-6:00 pm PST, Sat. 7:00 am-4:00 pm PST.

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Yesterday, Toyota Motor Corporation extended its recall from last fall and added an additional 2.3 million vehicles to the recall list over problems with accelerators in a number of its most popular vehicles.  Toyota also suspended sales and stopped production of a number of the models subject to the recall until a fix can be implemented. The accelerator problem has been linked to a number of motor vehicle accidents throughout the country involving serious injuries and deaths to occupants.

This has been a public relations nightmare for Toyota that is not getting any better as each day passes.  While Toyota has told federal investigators that it thinks a friction problem in its accelerator pedal mechanisms may make the pedal "harder to depress, slower to return, or, in the worst case, mechanically stuck in a partially depressed position", CTS Corp, the supplier that makes the devices for Toyota, said in a statement Wednesday that the friction problem accounts for fewer than a dozen cases  stuck accelerators and, "in no instance did the accelerator actually become stuck in a partially depressed condition".   

The Toyota vehicles subject to the recall include the following makes and models:

• 2009-2010 RAV4
• 2009-2010 Corolla
• 2009-2010 Matrix
• 2005-2010 Avalon
• 2007-2010 Camry (except hybrids)
• 2010 Highlander (except hybrids)
• 2007-2010 Tundra
• 2008-2010 Sequoia

According to Toyota, if you experience a sticking accelerator pedal while driving, you should take one of the following actions:

Customers who have any questions or have experienced any issues with their accelerator pedals should visit Toyota.com, contact the Toyota Customer Experience Center at 1-800-331-4331, or call their local Toyota dealer.

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On September 29, I wrote about a fatal crash that occurred this past August near San Diego, California that led Toyota to recall approximately 3.8 million vehicles.   According to investigators, the 2009 Lexus ES 350 being driven by a California Highway Patrol Officer  as a loaner vehicle from a Lexus dealership accelerated to as fast as 100 mph before striking another vehicle, launching off an embankment, rolling several times and bursting into flames.  Four people died in the crash.  Just before the crash occurred, a 911 call from one of the vehicle's passengers told police the vehicle had no brakes and that the accelerator was stuck.  Investigators believed the driver's side floor mat was the culprit. 

The National Highway Traffic Safety Administration's investigation into the California crash is  revealing  more potential factors in the cause of the crash than just the design of the driver's side floor mat., including the following:

• The driver's side floor mat was made for the Lexus RX400h SUV, not the Lexus ES350.

• The Lexus at issue had a keyless ignition, which uses a start/stop button to start and stop the engine. There is no traditional key to turn if you need to shut the engine off in an emergency. In the case of the ES350, the button needs to be held for three seconds before it will turn off the engine if the car is in gear. Toyota says it considered this a safety feature to prevent the engine from turning off if the button were pressed accidentally. However, the NHTSA report points out that the Lexus at issue was traveling 100 mph—that’s the equivalent of traveling one and a half football field in three seconds.  Also, NHTSA pointed out that there is no instruction near the dashboard that tells owners or operators about how to shut down the engine by holding it down for three seconds..

The initial report filed by the NHTSA can be reviewed by going here.

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According to the New York Times,  AstraZeneca  has agreed to settle two federal investigations and two whistle-blower lawsuits for a total of $520 million over the sale and marketing of its psychiatric drug Seroquel.  The names of the whistle-blowers and other details regarding the investigations remain under seal in federal court.

Due to aggressive marketing by AstraZeneca, Seroquel had been used for children and the elderly for uses not approved by the Food and Drug Administration. Seroquel had been the top selling antipsychotic drug in the United States, with sales exceeding $17 billion since 2004.

AstraZeneca has been served with approximately 14,444 product liability lawsuits over Seroquel.  Through discovery in some of those cases, Plaintiff's counsel Ed Blizzard says an internal email message from a company official  regarding Study 15 stated "a great 'smoke and mirrors' job"  had been done on a "buried" study in 1997, the year Seroquel was approved by the FDA.

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In what appears to be the first case in Texas to be filed against Toyota seeking to reopen previously settled product liability cases, Judge T. John Ward, who presides over the United States District Court, Eastern District of Texas, Marshall Division, signed and entered a temporary restraining order against Toyota Motor Corporation, Toyota Motor Sales, USA, Inc. and several in-house counsel for Toyota regarding document retention related to Toyota motor vehicles. 

The temporary restraining order arises out of a civil RICO complaint filed in Judge Ward's court by Raul Lopez, a plaintiff who previously settled a personal injury case with Toyota years ago.  Mr. Lopez filed a RICO complaint on September 25 seeking to reopen his case after Dimitrious Biller, a former in-house attorney for Toyota, filed a federal lawsuit in California alleging Toyota has illegally withheld and destroyed evidence in hundreds of rollover injury and death cases over  the past several years. 

The temporary restraining order issued by Judge Ward yesterday orders Toyota, and essentially anyone who works for or with Toyota, to:

1. Issue litigation holds on all documents in any form pertaining to any make, model or year platform vehicle;
2. Issue litigation holds on all documents in any form pertaining to any non-production vehicle evaluation pertaining to product liability or crashworthiness issues;
3. Issue litigation holds on all documents in any form pertaining to research projects that involve issues related to product liability or crashworthiness issues;
4. Issue litigation holds on all documents that are presently or will be subject to any type of document retention policy;
5. Issue litigation holds on all documentation and all communications sent to outside Counsel, outside experts, or outside contractors.

Judge Ward also set a show cause hearing  for October 7, 2009, at 1:30 pm, for Toyota to show why the temporary restraining order should not be converted to a preliminary injunction.

The style of the case is Raul Lopez, et. al. v. Toyota Motor Corporation, et. al., Cause No. 2:09-CV-292.

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Today, Toyota Motor Sales, USA announced it was recalling approximately 3.8 million vehicles to address problems with removable floor mats that could cause the accelerator to become stuck and lead to a crash.  This recall is the largest recall in Toyota's history.

According to the National Highway Traffic Safety Administration, the federal government has received notice of 102 incidents involving Toyota vehicles where the accelerator became stuck while being operated.  While it is not clear how many of the 102 reported incidents resulted in injuries or deaths to occupants, Toyota spokesperson Irv Miller stated "[a] stuck open accelerator pedal may result in very high vehicle speeds and make it difficult to stop a vehicle, which could cause a crash, serious injury or death."  Transportation Secretary Ray LaHood stated "this is an urgent matter" and warned owners of affected vehicles to remove the floor mats from the driver's side immediately.

This past August near San Diego, a 2009 Lexus ES 350 being driven by a California Highway Patrol Officer accelerated to 120 mph before striking another vehicle, launching off an embankment, rolling several times and bursting into flames.  Four people died in the crash.  Just before the crash occurred, a 911 call from one of the vehicle's passengers told police the vehicle had no brakes and that the accelerator was stuck. Investigators believe the floor mat may be to blame for the incident.

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Mitsubishi has recalled 531 Endeavor model vehicles from the 2010 model year as a result of certain vehicles having potentially defective airbags. Specifically, the recall results from the retainer bracket for seat-mounted airbags on both the driver and passenger side airbags being incorrectly welded. If the faulty welding condition exists in a vehicle, the side airbags may not deploy correctly in a side impact crash, possibly resulting in serious injury to an occupant.

The vehicles involved were manufactured by Mitsubishi between May 26 and July 28, 2009.  Mitsubishi began notifying owners within the last week and issued a "stop sale"  on all 2010 Endeavors until all potentially effected vehicles can be inspected.

Any of the recalled vehicles will be inspected by a Mitsubishi dealer and repaired at no charge to the customer.  Customers can contact the Mitsubishi Customer Relations Department at 1-888-648-7820.

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Dimitrios Biller, a former in-house attorney for Toyota Motor Sales USA, Inc. has accused the car maker in a lawsuit filed in federal court in California of illegally withholding evidence in hundreds of rollover injury and death cases in a "ruthless conspiracy" to keep evidence of its vehicles "structural shortcomings" from becoming known.  Biller alleges that his complaints to Toyota executives about the illegal conduct cost him his job.  Biller also complains that Toyota misled the National Highway Traffic Safety Administration when the government was considering tougher regulations for roof strength.  While Toyota has denied Mr. Biller's allegations, this has created a mess for Toyota which could lead to the reopening of hundreds of cases that were previously resolved through settlement or trial.

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In a letter to Senator Dick Durbin yesterday, Chrysler Group, LLC, announced it will accept product liability claims on vehicles manufactured by the former Chrysler, LLC (formerly known as "Old Carco, LLC") which were/are involved in accidents on or after June 10, 2009 (the date Old Carco filed for bankruptcy protection).  This is a major reversal in Chrysler Group, LLC's position on this issue.

As part of a bankruptcy court-approved sale transaction, the "new" Chrysler Group, LLC would not have been responsible for product liability claims related to vehicles sold before June 10, 2009 by Old Carco.  Most people buying vehicles on or after June 10, 2009, and manfactured by Old Carco, had no idea they would not be able to hold the manufacturer responsbile for any product defects because the claims would  have been extinguished by the bankruptcy process.  Naturally, this outraged consumer rights advocates.  By accepting these product liability claims, Chrysler Group, LLC's position is consistent with that of General Motors and is a major victory for consumers.

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Honda Motor Co. has recalled an additional 440,000 of its vehicles which contain defectivce airbags.  Affected models include the 2001-2002 Honda Accord, 2001 Honda Civic and 2002-2003 Acura TL.  Honda has said that airbag inflators in some of the sedans can rupture because of too much air pressure causing metal fragments to shoot through the airbag and strike occupants in the vehicles.  At least one fatality and several injureis have been caused by the defect.  The recall will require the driver's side steering-wheel-mounted airbag inflator to be replaced.

Honda is mailing a recall notice to registered owners of the vehicles in question to schedule a repair.  Honda owners can also log onto Honda's website at www.owners.honda.com/recalls and click on the "Owner Link" to get the status of their recall. 

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Medtronic, Inc. has recalled Paradigm "Quick-set" infusion sets that patients use with Medtronic's Minimed insulin pumps.  Both Medtronic and the U.S. Food & Drug Administration have notified health care professionals that the recalled Quick-set infusion sets at issue may not allow the insulin pumps to vent air properly, which could then lead to the device either delivering too much or too little insulin and may lead to serious injury or death.

The affected infusion sets contain reference numbers MMT-396, MMT-397, MMT-398, and MMT-399 with lot numbers starting with the number "8".  Medtronic has advised that patients should immediately discontinue using any "Lot 8" Quick-set infusion sets.  Medtronic has agreed to replace any of the recalled infusion sets at no additional charge.

Patients with questions about how to return the recalled infusion sets and arrange for replacement sets should contact Medtronic at 1-800-345-8139.

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Bridgestone Americas Tire Operations, LLC (BATO) has extended its 2008 tire recall to include an additional 127,000 tires that were manufactured in its Costa Rica plant in 2007 and 2008.  The model being recalled is the Firestone brand FR380 P235/75 R15.

According to BATO, these particular tires were manufactured without sufficient tread base gauge which could then lead to vibration and groove cracking.  Further extended use of these tires could then lead to tread distortion and tread separation and possible loss of control of the vehicle. 

Anyone one using these tires should have them replaced immediately.  BATO has said the tires will be replaced free of charge.  Anyone who has questions about this recall or has questions about where they can get their tires replaced can call 1-800-465-1904.

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According to the Wall Street Journal, a new court filing late Friday by General Motors Corporation ("GM") makes clear the auto manufacturer has agreed to assume legal responsibility for injuries caused by vehicle defects occurring after it emerges from bankruptcy protection.  This concession from GM means consumers who are injured in car wrecks after GM emerges from Chapter 11 bankruptcy protection, but in vehicles that were manufactured before GM filed for bankruptcy protection and during GM's bankruptcy proceeding, will still be able to bring product liability claims against the "new" GM.

Specifically, the filing on Friday by GM states that GM will:

"expressly assume all products liability claims arising from accidents or other discrete incidents arising from the operation of GM vehicles occurring subsequent to [the emergence of New GM], regardless of when the product was purchased."

This is, without question, seen as a major victory for consumers who are injured in car wrecks involving GM vehicles.  Previously, under the terms of GM 's original bankruptcy plan, GM would have been able to avoid such liabilities after selling its "good" assets to a "New GM" owned by the government.  According this new filing, consumers will now be able to seek compensation for their injuries if they were injured in a  vehicle manufactured by the "Old GM", whether the vehicle involved was manufactured before or after GM sought bankruptcy protection, as long as the wreck occurred after GM emerges from bankruptcy protection.

While this is seen as a major victory for consumers, there are hundreds (if not thousands) of claims that were pending against GM before it sought bankruptcy protection.  As of right now, it appears GM intends to leaves those liabilities behind in bankruptcy.  However, consumer advocates argue the "New GM" should accept those liabilities as well.  A hearing on Tuesday before the bankruptcy court should shed some light on whether or not the "New GM" will also agree accept liability for those pending claims.

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Hydroxycut, a group of dietary supplements sold by Iovate Health Sciences, Inc. in New York, has been voluntarily recalled from the market by Iovate after the U.S. Food and Drug Administration (FDA) issued a warning about potential serious health risks through the use of the supplements.

The Hydroxycut dietary supplements are marketed for weight loss, as fat burners, as energy-enhancers, as low-carb diet aids, and for water loss.  According to the FDA, there have been serious liver injuries reported through the use of these products including, elevated liver enzymes, jaundice and liver damage which required a liver transplant.  At least one death due to liver failure has been reported to the FDA.

According to the FDA, signs of liver damage include:

jaundice (yellowing of the skin or whites of the eyes) and brown urine, nausea, vomiting, light-colored stools, excessive fatigue, weakness, stomach or abdominal pain, itching, and loss of appetite.

The FDA has warned consumers to stop using the Hydroxycut products in order avoid any undue risk.  The Hydroxycut products which have been recalled include the following:

• Hydroxycut Regular Rapid Release Caplets
• Hydroxycut Caffeine-Free Rapid Release Caplets
• Hydroxycut Hardcore Liquid Caplets
• Hydroxycut Max Liquid Caplets
• Hydroxycut Regular Drink Packets
• Hydroxycut Caffeine-Free Drink Packets
• Hydroxycut Hardcore Drink Packets (Ignition Stix)
• Hydroxycut Max Drink Packets
• Hydroxycut Liquid Shots
• Hydroxycut Hardcore RTDs (Ready-to-Drink)
• Hydroxycut Max Aqua Shed
• Hydroxycut 24
• Hydroxycut Carb Control
• Hydroxycut Natural

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On June 10, the Eleventh Circuit Court of Appeals affirmed a district court's granting of summary judgment in favor of Hoffman-La Roche, Inc., the manufacturer of the drug Accutane.  The case involved the tragic death of the son of U.S. Rep. Bart Stupak (D-Mich), who was 17 years old when he took his own life.  Laurie Stupak sued Hoffman-La Roche, Inc. alleging the manufacturer was negligent in failing to warn that Accutane (an acne drug) could cause suicide without any premonitory (warning) symptoms.

The package of Accutane that B.J. Stupak was taking did not warn of a risk of suicide without any warning symptoms.  The court ruled, however, that because Hoffman-La Roche, Inc. did not know at the time that patients using Accutane could experience a desire to kill themselves without any warning signs, the drug manufacturer could not be held liable. 

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Late yesterday, in a two-page order, the U.S. Supreme Court decliend to hear a challenge by three Indiana state funds and consumer groups regarding the sale of Chrysler's assets to Italian automaker Fiat.  In the order, the Supreme Court did not address the merits of the challenge by the Indiana funds. Rather, the order simply said that the Indiana funds "have not carried the bruden" of proving that intervention by the Supreme Court was necessary.

In another win for Chrysler on Tuesday, bankruptcy judge Aurthur J. Gonzalez approved Chrysler's request to terminate 789 dealer franchises immediately over the objections by scores of dealers.

As a result of the decisions by the U.S Supreme Court and Judge Gonzalez on Tuesday, there is a clear path for the sale of Chrysler's assets to Fiat and Chrysler is expected to emerge from bankruptcy very soon, possibly as early as today.

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Today, Justice Ruth Bader Ginsberg temporarily delayed the sale of Chrysler's assets to Fiat after two groups petitioned the high court for review of orders approving the sale by the bankruptcy judge and the Second Circuit Court of Appeals.  The Court's order does not state how long the delay will last.  Chrysler has claimed its deal with Fiat is a critical part of its plan to emerge from Chapter 11 bankruptcy protection and that if a sale to Fiat does not close by June 15, Fiat has the option of pulling out of the agreement, leaving Chrysler with no other choice but to liquidate.

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On Saturday, the U.S. Supreme Court was asked to block the sale of Chrysler assets to Italian automaker, Fiat, by two groups.  One group, consisting of Indiana state pension and construction funds argues that the terms of the sale favor unsecured creditors at the expense of secured stockholders and that the use of TARP funds to finance the bankruptcy is unconstitutional. 

The second group protesting the sale is a group of individuals that claim the terms of the sale would limit their ability to recover in product liability actions filed against Chrysler.  Last Monday, in a ruling that outraged many consumer rights advocates, the bankruptcy judge overseeing the Chrysler bankruptcy ruled that Fiat could not be held liable for product defects in Chrysler vehicles.

Justice Ginsberg has the authority to isse or reject a stay herself or refer the application to the full U.S. Supreme Court.

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On Friday, the U.S. Court of Appeals for the Second Circuit approved the sale of most of the assets of Chrysler to Italian automaker Fiat.  However, the court of appeals said the deal could not be completed until June 8 or until the U.S. Supreme Court decides not to hear the case.  The deal is primarily opposed by a group of Indiana pension funds that acquired $42.5 million in secured Chrysler debt last year.  The pension funds argue the deal is unfairly biased towards secured creditors.

In addition to approving the sale of Chrysler's assets, the bankruptcy judge overseeing the Chrysler bankruptcy also ruled that Fiat will not be responsble for any future product liability claims filed by the owners of current Chrysler vehicles.  It is believed General Motors will likewise seek the same relief in its bankruptcy proceeding regarding future product liability claims involving vehicles it manufactures before coming out of bankruptcy. 

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