San Antonio Injury Lawyer Blog

Pool season has begun in San Antonio. The pool season should be a time of care-free fun for children on summer break. However, there will be numerous pool tragedies involving drowning in Texas during this summer. The causes of the drowning will vary from, no fencing, no supervision, slippery surfaces, and incorrect pool design.

Negligent pool design resulted in the death of a six year old in Connecticut. The company's president that installed the pool was prosecuted in the death. The pool design did not incorporate a safety device to prevent entrapment. Entrapment is when the powerful suction from the pool drain lines trap a swimmer underwater. Federal law requires that all commercial pools have a safety device to prevent entrapment. The federal statute does not apply to residential pools. There have been numerous deaths caused by entrapment in both spas and pools. The suction can be so great that numerous adults working together cannot free someone caught against a pool drain.

In serious injury and death cases occurring in or around a pool or spa it is necessary to thoroughly investigate the cause and not necessarily attribute the injury to swimmer or diver error. Many diving accidents are often attributed to swimmer error while in reality it is a poor pool design or poor diving board placement that caused the accident. If a child drowns in a pool that is gated it is often thought the owner did all that they could to prevent the tragedy; however; was the gate maintained, was the lock maintained, also was the automatic closure device working properly.

Most if not all pool drowning tragedies can be prevented. It is the responsibility of the lawyer representing the injured party and his family to determine what could have been done to prevent the tragedy.

Robert L. Rush

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The law firm of Rush & Gransee, L.C. would like to congratulate Robert L. Rush for being named a "Texas Super Lawyer" as published in Texas Monthly magazine and Texas Super Lawyers magazine. The Texas Super Lawyers designation is awarded to only 5% of the lawyers in the state, and the selection process includes nominations by peers in the profession, a blue ribbon panel review of the candidate, as well as independent research on the candidate.

Mr. Rush has been recognized for the last 6 years in the Scene in SA publication recognizing the Best Lawyers in San Antonio (also a recognition conferred by his peers in the profession), and this year marks his initial recognition as a statewide, Texas Super Lawyer. Mr. Rush is also a life member of the Million Dollar Advocates Forum and the Multi-million Dollar Advocates Forum (2008-present), and was conferred membership in the American Board of Trial Advocates (2003-present). He has been Board Certified in Civil Trial Law by the National Board of Legal Specialty Certification since 1999.

For the past 20 years, Mr. Rush has maintained a statewide practice handling serious personal injury cases, including trucking accidents, medical malpractice cases, and cases involving defective products. Mr. Rush has also handled cases in the United States District Courts in California and Arizona, and is expanding his practice to help seriously injured victims and their families in other states as well.

A recall of more than 2 million baby cribs was initiated over fears of personal injury to infants. The majority of the cribs involved in the recall were "drop side" cribs - cribs that have a side rail that slides downward to allow a parent easier access to pick up or lay down a child. However, the sliding side rails can dislodge or detach, creating gaps large enough to allow a child to become entrapped and suffocate. There have been no deaths reported as of yet, however, at least one child was found unconscious and required hospitalization.

Defective products that have been linked to injuries and deaths need to be properly investigated and thoroughly examined in order to preserve a claim against a negligent manufacturer. For details on this current crib recall, vist the Consumer Products Safety Commission (CPSC) to determine whether you may have one of these recalled items.

Auto accidents in San Antonio may increase until Chrysler vehicles with defective brakes are repaired. A recall of certain Jeep Wranglers manufactured from 2006 through 2010 was instituted because wear in the brake tubes could cause a brake fluid leak. Enter recall ID# 10V2346000 under the search function for more details.

The risk of a serious auto accident is increased because of the potential leak. A brake fluid leak in the affected Jeep Wranglers could cause a failure in the braking system with serious consequences.

Any auto accident involving Jeep Wranglers wherein the driver of the jeep complains about brake failure should be investigated for a possible product defect.

The Food and Drug Administration ("FDA") has come under increasing criticism for its handling of drug and medical device approvals as well as its inability to make sure that products already being sold are safe. We have also been critical of the agency’s ability to protect the public.

In a May 19th article in the New England Journal of Medicine ("NEJM") the authors recognize the many shortcomings of the agency. However, the article points out that many new initiatives are making the FDA more transparent. This transparency, in theory, should make the FDA more responsive to dangerous drugs and other defective products. In an initial step, this past January the FDA released a web-site providing answers to fundamental questions about the FDA.

Without an honest, transparent assessment and evaluation of pharmaceuticals, medical devices and consumer products, the safety of the public is at risk. If the FDA does not effectively contribute to this process, more individuals will be injured, maimed, or killed as a result of products that otherwise should never have been approved for sale to the public.

San Antonio medical malpractice injury lawyers are taking more inquiries from individuals injured in surgical procedures performed with surgical robots. The surgical robots can make surgery less invasive. Surgeons can operate through small holes in the patient instead of through a large incision. The robot with up to four remote-controlled arms and a sophisticated camera allows the physician to perform a variety of surgical procedures without cutting open a patient’s abdomen.

However, the surgical robots have long learning curves and some surgeons have said that it takes at least 200 surgeries to become proficient and to reduce the risks of surgical complications. Others have suggested that it takes 250-700 cases to master the robot.

One area of concern for potential patients and an area to be investigated by Texas injury lawyers is whether the physician had sufficient training in the use of the surgical robot. Some physicians have been given as little as two days training which included operating on pig and human cadavers. Obviously, as a patient you should inquire as to your physician’s experience with the surgical robot. There are many advantages to using a surgical robot if it is controlled and operated by an experienced surgeon. However, because of the long learning curve, an invasive procedure with a surgical robot should only be done by a surgeon properly experienced in the procedure.

Many have expressed concern that the surgical robots are being installed at hospitals and surgery centers as part of a marketing strategy. One of the manufacturers of a surgical robot openly markets the device to surgical centers as a way for them to increase their revenues. The price of the machines can run from approximately 1 million dollars to over 2 million dollars. With the high upfront costs many surgeons will feel pressured to use the device to justify its cost – whether they are ready to do so or not.

If you, or a loved one, has suffered an injury because of another persons negligent conduct, or, if a business or manufacturer has caused permanent loss or caused the wrongful death of a family member, choosing the right San Antonio personal injury attorney can be a daunting task. There are many well-qualified and proven attorneys in San Antonio; unfortunately, there are also attorneys that are not. How can you help make the best decision for you or your family? Nothing is more important that research, and here are a few things that you should consider:

1) Is the attorney experienced in the field?

Years of experience are important, but more than longevity, ask about the number of years a lawyer has been handling your particular type of case. Also, ask about trial experience and accomplishments as an attorney in that particular field.

2) Is the attorney Board Certified?

Board certification requires that an attorney have a sufficient number of years of experience. But, in addition, to become board certified a lawyer must pass written examinations, provide references from other attorneys and judges, and be able to prove their track record and experience in the courtroom.

3) Does the attorney and firm have the resources to engage in long-term litigation?

Visit the attorney's office and ask questions about similar cases handled and the costs involved. Competent and qualified law firms will have the resources to spend money to investigate all avenues involved in a case; they will have the ability to hire the most qualified experts in the United States; they will have a track record of battling large companies and corporate law firms and not backing down or being overwhelmed. Will the law firm pay all of the expenses of litigation, and only receive reimbursement and attorney fees if they case is successfully concluded? This is known as contingency representation, and the law firm should have the financial and legal resources to handle a case without asking the personal injury victim to risk money.

4) Trust your instinct.

Above all else, you must feel confident and trust in the lawyer and law firm you choose. Most serious cases are not handled and done in a month or two - rather, most serious cases involve a long-term fight. Negligent doctors and product manufacturers usually deny and fight, rather than admit and accept responsibility. Most insurance companies, even if the at fault driver admits to causing a collision, doubt and delay claims rather than objectively evaluate and promptly pay due losses. You need to feel comfortable with your choice when you hire an attorney. Make sure your questions are answered, and make sure you feel trust in the responses. Good lawyers will not be offended by questions, nor should they make you feel like you must sign a retainer contract before thinking about your decision.

No doubt you will have many other areas of inquiry when seeking to hire a lawyer. In the end, you should be thorough in your search. Fast talk and sound bites are not the basis for a good choice. Using your instincts and treating the decision with the weight it deserves will allow you to feel good about your choice.

San Antonio drivers need to be vigilant when inspecting their cars for defects that can cause serious accidents. Any easy inspection is to visually inspect tires for cracking, separation and anything else out of the ordinary. If anything is suspected take the car to a car dealer or tire seller for an inspection. Do not drive the car if it appears to be a serious problem.

Another tire manufacturer (NOKIAN) has made a recall of tires sized 245/70R17 manufactured from November 12, 2009 to December 12, 2009. The safety recall began on March 8, 2010. Additional information about this recall can be found at the National Highway Safety Administration (NHTSA) using campaign id: 10T010000.

The defective tires have a tendency to separate causing tread chunks to fly off of the tires. This tread chunk separation can cause serious automobile accidents causing death or permanent injury.

San Antonio auto accidents are occasionally caused by tire defects. San Antonio personal injury lawyers need to be aware that a tire defect can cause serious injuries and often death.
Occasionally speed, road debris, or impact is to blame for a tire failure, when in fact the tire defect itself caused the vehicle to leave the roadway or caused the vehicle to over correct.

San Antonio automobile owners need to be aware that they are at an increased risk of a serious automobile accident if they have tires manufactured by DEL-NAT with a tire line of DELTA A/S size 245/70R17. The defective tires were manufactured between November 22, 2009 and December 5, 2009. The tires may develop tread chunking or cracking in the shoulder area. Further information is available at the National Highway Transportation Safety Administration (NHTSA) under Campaign Id: 10T008000.

If an automobile accident occurs and a tire appears damaged or deflated it is prudent to investigate the tire for recalls and warnings.

It is unknown how many auto accidents have been caused in Texas or specifically San Antonio because of the well publicized problem with Toyota vehicles. Over 2 million Toyotas are being recalled because of problems with gas pedals which can cause the vehicles to accelerate or fail to slow down when removing pressure to the gas pedal. Some serious injuries have been reported and even deaths have been caused by the faulty gas pedal assembly.

The Toyota recall has gained national attention because of its size and breadth involving many models and makes. However, there have been recalls involving sticking accelerator pedals from other manufacturers such as the 2009-2010 Pontiac Vibe. On February 1, 2010 NHTSA recalled model years 2009 and 2010 Pontiac Vibes for a defect in the accelerator pedal that could cause a vehicle crash.

The National Highway Traffic Safety Administration has come under scrutiny for its failure to act more quickly in the safety recall of the Toyota vehicles. It is very important to report any unexplained operational issues that could effect the safety of a motor vehicle to NHTSA so that they can begin an investigation and possible prevent a catastrophic injury.

Lawmakers are investigating why it took Toyota several years from the time safety complaints started to come in to the National Highway Traffic Safety Administration ("NHTSA") for the Japanese auto maker to initiate auto recalls. Every driver in San Antonio was placed at risk by this delay. San Antonio injury lawyers can make a difference by pursuing claims against manufacturers when they place defective products into the stream of commerce. This delay in dealing with a very serious safety issue placed at risk not only owners of the recalled vehicles but every automobile driver that shares the road with the faulty vehicles.

Toyota, in particular, is also being criticized because of their early efforts to minimize the seriousness of the defect. Reports are coming forward that Toyota may have known for years that the unanticipated acceleration issue was present in its vehicles; however, internal company memorandums indicate that the car manufacturer was more interested in the profits being made on those models. In short, it was more expensive and would cut into profitability to fix the problem with a recall.

There must be economic consequences for a company that puts dangerous products on our streets and particularly when they delay fixing the problems; manufacturers that are driven by bottom line profits need to be held accountable for the lives they impact. Only when citizens hold companies accountable through jury verdicts, will profits be placed below human value, rather than placed above human value.

Potential serious injuries and death may result from riding a defective All-Terrain Vehicle. San Antonio, Texas purchasers and those across the State of Texas and the United States should be made aware that if they purchased a Polaris ATV that was manufactured between January 2009 and August 2009, the vehicle may have a defective front suspension joint stem that can cause the rider to lose control of steering during operation. According to the Consumer Product Safety Commission (CPSC), the recall involves approximately 8,500 Polaris Sportsman 2009 and 2010 models. The specific model numbers are listed at the CPSC recall website.

Many people are injured every year riding ATVs. Some of these injuries are the result of careless driving. However, when the product is defective and steering control is lost, causing injury, paralysis or death, a thorough investigation into the cause of the accident should be conducted. What may have been thought to be momentary carelessness on the part of the driver may very well have actually been caused by a defect in the design or manufacturing process. Texas product liability laws provide for compensation to victims that have been injured as a result of a poor product design, a defective component, or inadequate warnings and instructions on the use of a product.

If you purchased a Polaris Sportsman ATV, stop using it immediately and visit the CPSC website or call your local Polaris dealer to determine whether your vehicle needs to be repaired.

Severe personal injury, including amputation of fingers, is the reason behind a recall of Graco strollers. About 1.5 million strollers, many of which have been sold in San Antonio and throughout Texas, are being recalled due to faulty latches that fail to lock the stroller in place when opened. This can result in the stroller collapsing, causing broken bones and severe lacerations requiring stitches. According to the Consumer Products Safety Commission (CPSC) Graco has received over 500 complaints of injury from users of the Duo Tandem Stroller and the Metrolite Stroller. At least one injury resulted in the child requiring 46 stitches to close the wound. The strollers were manufactured between 1994 and 2002, and were sold nationwide at various discount stores, department stores and children’s stores for prices ranging between $80-$200. By checking the recall notice at the CPSC website, purchasers of Graco products can review the involved model numbers/serial numbers.

Defective products, especially products designed for children, can cause serious, long-term injuries and victims should contact experienced lawyers to investigate. In addition to government recalls, there are databases that should be maintained by manufacturers, and all necessary information should be sought in order to best protect future product users, as well as compensate those that have already been harmed.

San Antonio and all Texas motorcycle riders should be aware of a recent recall issued from the Office of Defects Investigation (ODI) - a division of the National Highway Traffic Safety Administration (NHTSA). The product defect recall involves certain 2009 and 2010 BMW model K1300 and K1300 GT motorcycles.

According to published reports, motorcycles manufactured between September 11, 2008 and November 19, 2009 may be prone to a build up of small deposits within the throttle bodies - pronounced with poor fuel quality. The build up of deposits, especially during engine operation at low RPM's, can result in engine stall. Given that these effects occur typically during low RPM range driving, such as when coming to a stop, engine stall may lead to a vehicle crash and potential serious personal injury.

The safety recall is expected to be addressed by BMW in January, when repair of the problems will begin - free of charge to owners. Further information may be obtained from NHTSA, referencing Campaign ID No.:09V471000.

Serious injury can occur to the most prudent riders of motorcycles, as a result of neglect by other vehicle operators not paying attention to the two-wheeled users of the roadway.
Adding a product defect that could result on engine stall only increases the chances of a wreck occurring. If an engine stalls as a result of this build up - even if a car operator behind the motorcycle is paying attention, the sudden loss of momentum may result on the nmotorcyle being rear-ended, and the rider suffering serious injury.

A San Antonio motorist is reported to be in critical condition following a head-on collision late Wednesday, December 9, 2009. Apparently, a 25 year old driver lost control of his 2003 Nissan while traveling along a curve in the roadway. The vehicle spun around and then crossed into oncoming traffic, striking a van head-on. The driver of the Nissan was reported to have not been wearing his seatbelt, and was thrown about the car causing critical injuries. No report was given concerning whether speed was a factor. However, additional inquiry may reveal other factors and causes of any injury.

Although it was reported that the driver was not wearing his seatbelt, it is possible that he was, and the seatbelt failed. By investigating the seat belt mechanics, any issues with the locking system, and other components, a reasonable determination can be made concerning whether the restraint system failed - leaving the appearance that an occupant was not wearing the restraint when emergency responders arrive.

Experienced and resourceful investigation can many times correct other erroneous first impressions – such as whether an injury occurred in the first place. First responders (police, fire, EMS) are trained to aid those in need. Some have additional training to investigate accidents. But for the most part, they are concerned with safety and well being. If it appears that an individual was not wearing a seat belt, or that an accident didn't leave visible damage to a vehicle and therefore no injuries were sustained, no further thought is given by these first responders. However, serious injury can be inflicted on humans even though a car does not show evidence of damage. Cars are made with state of the art materials that are designed to displace the energy of a collision and leave no physical indication of damage; however, as the energy passes through these materials, it still imposes forces on the human musculoskeletal system and our bodies suffer injury as a result.

Drivers and auto accident victims in San Antonio and throughout Texas should be aware that there is currently a recall on Jeep Grand Cherokee 2010 models concerning a potential failure to deploy passenger side airbags. Obviously, such an event could seriously impact and increase the injuries one may sustain if riding in one of these vehicles and being invloved in a collision that should ordinarily deploy the airbag to protect the passenger. Without passenger side airbag deployment, if a person strikes their head on any part of the door frame, damage and personal injury ranging from contusions to serious brain injury can occur.

Information regarding this automobile product defect recall can be found at the National Highway Traffic Safety Administration (NHTSA). Vehicles affected include the 2010 model Grand Cherokee, with manufacturing dates from October 22 through November 12, 2009. The cause appears to be an electrical system/instrument panel error, and dealers are expected to begin replacement of the top cover of the instrument panel in December.

In any car wreck, in addition to determining the fault of the driver that may have negligently caused injury, it is always important to ascertain whether a manufacturing defect may have been the source of injury or potentially aggravated the injury beyond what should have occurred in an otherwise, seemingly typical car accident.

According to the National Highway Traffic Safety Administration (NHTSA) San Antonio auto accident victims need to be aware that the 2009 model year Nissan Sentra automobile may have a defective master cylinder. This defect may result in the vehicle having a much longer stopping distance than originally designed. Unsuspecting owners may apply their brakes in a fashion that would be considered reasonable or normal under the circumstances, only to find that the vehicle is not stopping.

Therefore, if you are struck by a 2009 Nissan Sentra it is possible that the automobile manufacturer is liable because of its defective product. Also, if the owner of the Sentra had the vehicle recently serviced it may be possible to hold the dealer responsible for not replacing the defective part. If you own a Nissan Sentra and have been injured in a vehicle crash that may have been caused by brake failure, you may have the right to seek compensation against the manufacturer.

San Antonio homeowners may have placed their young children at risk of serious injury or death if they have purchased Roman shades or roller blinds at IKEA or Bed Bath & Beyond. The above blinds have been recalled by the Consumer Product Safety Commission (CPSC) because they pose a serious strangulation risk to small children. Repair kits are available to make the blinds safe.

If you have installed blinds purchased at the above retailers then go to the retailer to inquire about the recall or call a San Antonio personal injury lawyer for assistance in determining whether the blinds you have had installed are included in the recall.

On October 14, 2009 the National Highway Traffic and Safety Administration ("NHTSA") recalled Thomas Built School Buses manufactured between March 2008 and February 2009 because the lights on the Stop Arms may stop functioning.

This is particularly urgent because if the LED lights stop functioning, the visibility of the stopped bus is decreased thereby endangering a child or other pedestrian.

Also being recalled are two BMW model motorcycles and three models of Ducati motorcycles. The BMW cycles being recalled were 2009 models and the Ducati cycles were 2009 and 2010 models. Both recalls related to stalling which according to NHTSA could increase the risk of a crash.

Whenever it is suspected that an accident may be related to a vehicle defect or mechanical failure it is necessary to investigate recalls related to the suspect vehicle. As an example, you may be able to hold the bus manufacturer liable if a child was struck by a car after disembarking the bus when the car's driver stated he did not see the swing-out stop sign coupled with the product defect detailed above.

Another example would be if an owner of one of the recalled motorcycles was struck from behind by an automobile because his motorcycle stalled in traffic. The driver of the vehicle that struck the motorcyclist would probably be responsible but the manufacturer may also be responsible because of the defect that caused the cycle to stall.

A safety recall notice was published by the National Highway Traffic Safety Administration (NHTSA) this past week regarding a problem with Daimler trucks that could lead to loss of control and crashes. The recal involves poetentially over 8000 trucks under the Freightliner name, including models Cascadia (model years 2006-2010), Century (model years 2005-2010), and Columbia (model years 2007-2010).

The danger arises inner tie rods that may loosen over time and which can result in a loss of vehicle control at highway speeds. Obviously, a loss of control of a Freightliner truck can cause disasterous injuries and destruction of personal property. Although the recall notice has been issued and repair efforts are expected to be in place by November, any wrecks involving these trucks should certainly be investigated for potential product defect in addition to driver conduct. More information about the particular recall is available at the NHTSA consumer site by entering Campaign ID 09V357000 in the search box.

Injuries caused by tractor-trailer accidents, large truck wrecks, or passenger vehicle collisions should always be investigated thoroughly. This would include an analysis of any potential defects in the vehicles, and any recalls that were not corrected by the owners and operators of vehicles.

San Antonio Buell motorcycle drivers are at risk of serious injury or death because of a manufacturing defect. Some Buell motorcycles, manufactured by Harley-Davidson Motor Company, are subject to a serious safety recall. Buell is recalling a total of 3,316 motorcycles manufactured in 2008 and 2009.

The brakelines on the subject motorcycles were improperly routed and could come into contact with the front tire. This potentially could cause the brake line to leak and result in brake failure. The National Highway Traffic Safety Administration (NHTSA) has stated that the condition could cause the driver and rider to crash, resulting in injury or death. Dealers will re-route the front brake line and replace any worn brake lines free of charge. For additional details, visit the NHTSA Recall site, and enter the following Campaign ID in the search function: 09V109000

San Antonio personal injury victims need to be aware of recalls for any vehicle involved in an accident, and attorneys should be able to properly advise prospective clients about the impact such a recall might have on any potential lawsuit or claim. Occasionally a vehicle defect is responsible for an accident and only after a thorough investigation will all responsible parties be held accountable.

The National Highway Traffic Safety Administration (NHTSA) has issued a recall on certain Honda Odyssey vehicles. The Office of Defects Investigation has issued a statement regarding potential failures in the hydraulic brake lines affecting certain 2009 Honda Odyssey vehicles.
It was determined that incorrect front brake hoses were installed and the hose can develop a leak of the brake fluid, increasing the risk of a crash. Information about the models affected can be found through the NHTSA website created for consumer information.

Automobile accidents can be the result of a driver's negligence, but in many instances, automobiles have defects that can lead to wrecks; often, product defects in cars don't cause the collision, but can increase the severity of injury to vehicle occupants.

If you have been involved in a motor vehicle accident, a thorough investigation involves analyzing the scene of the incident, as well as a proper analysis and investigation into the vehicles involved and the dynamics of the accident and causes of injury.

All San Antonio drivers should be aware of a recent recall reported by the National Highway Traffic Safety Administration (NHTSA) regarding certain rubber tire valve stems. The valve stems, manufactured by Dill Air Control Products, involve model numbers: Dill APC TR413, TR414, and TR418. These valve stems were sold between November 2006 and July 2007.

Due to a lack of protective additive the rubber may deteriorate from expose to ozone. As a result of this deterioration and cracking, the potential exists for leaks and loss of air pressure. Loss of tire pressure can cause more than a flat tire. Loss of tire pressure can result in a loss of vehicle control while driving, leading to an injury causing automobile accident or fatal automobile wreck.

Dill is offering to replace the valve stems free of charge. Consumers that have purchased these valve stems may contact the tire center where purchased, or at any participating Sears Automotive Center, Tire Kingdom, Big O Tires, Les Schwab Tire Center, NTB and Merchant's Tire Center)

For additional information, or to seek help determining whether you have one of the recalled stems, contact Dill directly at 1-888-364-2982, or go to www.tirevalverecall.net.

Defective automobiles or defective vehicle equipment can lead to serious injury and death - take action to keep yourself informed of any potential problems.

American Honda Motor Co. (Honda) is recalling almost 4000 Civic and Accord automobiles manufactured in 2001. The recall was announced by the National Highway Traffic Safety Administration (NHTSA).

The recall is based upon a defect in the drivers side airbag. If the affected bag is deployed in an accident the inflator may rupture. This rupture has the potential to cause metal fragments to be propelled like schrapnel into the passenger compartment of the vehicle and cause injury to the driver or passenger.

This airbag repair will be done free of charge by Honda Dealers. This repair should be done as soon as possible because of the potential injuries that could be caused by the defect.

"Off-label" uses for drugs and medical devices have been in the news lately. What is "off-label" use? Essentially, when the Food and Drug Administration (FDA) approves a drug or medical device, the specific conditions for which the drug or device is approved are listed. Some drugs and devices, however, can provide positive benefits to patients if used for conditions or symptoms that have not yet been investigated and approved by the FDA. Only licensed medical doctors are allowed to use and prescribe drugs and medical devices in ways and for conditions not approved by the FDA, if based on sound medical judgment, the "off-label" use of the drug or device can help a patient. Even so, a physician can be held liable if the "off-label" use is unreasonable and not based on good medical judgment. However, drug companies and medical device manufacturers (and particularly the sales reps that promote the use of the drugs and devices to physicians) are not allowed to advertise their products for uses not approved by the FDA.

Lawsuits against drug manufacturers alleging that the company promoted the off-label use of its drugs or medical devices often include the allegation that the doctors also received secret inducements to prescribe the drug in a manner not intended by the FDA. Clearly, if a physician is accepting payments or incentives to use a drug or device in an unapproved manner, the basis for such a decision is subject to scrutiny.

In an unusual case the Department of Justice is investigating Medtronic Inc. for the off-label use of its Infuse Bone Graft. The Infuse Bone Graft was approved by the FDA for use in the lumbar (low back) spine area. Infuse Bone Graft, if used properly in the lumbar region, would cause bone growth that fills in the gap between the vertebrae and replaces damaged discs. The FDA, however, only approved the use of this bone grafting material in a small area of the lower lumbar spine.

A number of patients have complained that they were injured when the Medtronic Infuse Bone Graft was used in an off-label manner. In July the FDA issued a safety alert about the off-label use of the Infuse Bone Graft in the neck or cervical region of the spine. Some of the complications that occurred when the Infuse Bone Graft was used in the cervical region included severe breathing problems and difficulty swallowing. Using the Infuse Bone Graft in the cervical region has caused some patients to lose the ability to breath or to swallow resulting in tracheotomies in order to breathe, while others had to have feeding tubes installed.

Medical malpractice lawyers in Texas need to investigate all potential causes of injuries, especially in light of the $250,000.00 cap on non-economic damages when suing medical providers. The cap on damages would not apply to suits against the medical device manufacturer if the manufacturer promoted its product for an off-label use and the off-label use caused injury. If off-label uses, and perhaps incentive payments to physicians, have caused serious or catastrophic injury, a manufacturing company can be held to fully compensate a patient.

Product Liability lawsuits often assist federal regulators in identifying dangerous products and making them safer for consumers to use or own. Federal Regulators are often caught off guard when emerging hazards develop. One of the goals of a product liability suit is to improve the safety of a product for the public at large. Most products can maintain their functionality while being made safer for very little additional cost.
When a new product is designed for sale it often enters the market place without regulatory guidelines and without any history or competent studies to judge its safety. It can often take years before there are a sufficient number of injuries or deaths to alert the attention of a federal agency to investigate a potentially dangerous product. It is often the case that personal injury lawyers have been at the forefront of informing the public and federal regulators about the hazards of many products.

The Consumer Product Safety Commission (CPSC) did not start to investigate three-wheeled all terrain vehicles (ATV) until lawsuits were filed complaining of the multitudes of deaths and tens of thousands of injuries caused by faulty engineering and design principles that were ignored or overlooked by the ATV manufacturers. Even so, after being informed of the dangers of these products via lawsuits filed in various states, it still took three years for the CPSC to ban the sale of the three-wheel ATV, which was a product that had been proven to be clearly dangerous. Two years after the ban of the three-wheel ATV, a trade group published voluntary safety standards for a four-wheel ATV; however, cheaper versions of the ATV were being imported from China, without adhering even to the voluntary standards proposed in the United States, and often lacked the most basic safety features. Approximately 8 years later the CPSC finally enacted formal safety standards on the four-wheel ATV.

Today there are numerous models and brands of off road vehicles called Utility Terrain Vehicles (UTV) that are currently unregulated. These vehicles have four wheels, a steering wheel and look like powerful golf carts. However, the high center of gravity on these newer UTV models, combined with the powerful engines and large tires often, often cause disastrous rollovers. Numerous people have been killed and thousands injured. Again it wasn't until attorneys pressed their claims against the manufacturers that the CPSC started an investigation into the safety of these new products.

A fatal bus crash near Victoria Texas earlier in 2008 resulted in an initial investigation by the Houston Chronicle. The Houston Chronicle uncovered some irregularities in the titling of the buses owned by Green River Buses. The initial investigation made it appear as though there may have been an attempt to wash the titles so that they could be licensed in Texas. The Houston Chronicle article has spurred the Federal Motor Carrier Safety Administration as well as Texas Department of Public Safety to investigate the licensing of the company's buses.

There is a concern because at least 17 buses registered to Green River Buses were made in Mexico which has made many question whether they were made or built to U.S. Safety Standards. Representatives of the Department of Transportation have indicated that there are a large number of illegal buses operating in the United States.

San Antonio with its close proximity to Mexico may very have a large number of illegal buses operating on its roads and highways. If a large commercial bus is traveling on San Antonio roads and it is not properly maintained or was never designed with the safety features common to the U.S. it places not just its passengers at risk but everyone on the highway.

It was recently reported in the Wall Street Journal (WSJ) that President Bush is attempting to use his last months in office to enact rules that will prevent consumers injured by dangerous products from seeking compensation. Issuing rules, rather than having Congress review and pass laws, the administration is attempting to protect corporations and is using federal agencies to affect these changes. The Food and Drug Administration (FDA), along with the Department of Transportation (DOT) and the Office of Management and Budget (OMB) among others, have sought to add rules that will preempt consumers from seeking compensation if a corporation follows federal guidelines when developing and marketing a product. While this sounds all well and good - the idea of having federal guidelines in place that must be followed and the prevention of requiring a company to try and follow up to 50 different states laws and regulations - the reality is quite different.

Federal agencies such as the FDA are under funded and understaffed. These agencies do not have the ability to evaluate the pitfalls and dangers in every product put before them, or every product placed in the market place. The result is that products that have not been properly tested, or that are inherently dangerous, can end up on store shelves. Each state has laws in place to protect it citizens and consumers. Supporters claim that preemption protects corporations from having to follow 50 different guidelines. However, the majority of states have similar laws that simply require a product manufacturer to exercise reasonable care in their efforts and these laws protect consumers when a company places a product that is inherently dangerous in the stream of commerce. Similarly, most states have laws that require a company to market, or advertise its products by providing reasonable warnings that need to be followed to use a product safely.

By utilizing rule making authority, the administration and the federal agencies are avoiding the oversight and review of congress, and further, are implementing rules that cannot be simply undone. Although avoiding the review process to enact these rules, a lengthy federal review is necessary to retract these rules, making the process seem backward. Some examples of recent rules that have been enacted include: October 8, a Department of Transportation issued rule that limits the number of seatbelts auto manufacturers can be required to install in vehicles
AND then prohibits suits for injuries and losses suffered if a passenger is hurt as a result of not having an available seatbelt; currently, the Office of Management and Budget, together with the Federal Railroad Administration is seeking to add federal preemption into a tank car rule; and the Food and Drug Administration has extensively tried to enact rules that would prevent patients and consumers from bringing claims when harmed by drugs that have been "approved" by the FDA. A rule was entered that requires manufacturers to make mattresses that burn more slowly, but also prohibits a person injured in a mattress fire from bringing a claim against the manufacturer. Similarly, rules require railroad car manufacturers to use stronger materials and construction efforts, but prevent a suit if a railcar catches fire.

All in all, consumers are being told, essentially, "trust the government, we will keep a watchful eye on the corporations that manufacture the products you buy." Unfortunately, time and time again, it has been proven that the federal bureaucracy is not capable (due to lack of funds and lack of personnel, if not due to allegiance to the corporations that fund political campaigns) of adequately protecting all consumers; however, if you are injured the federal agencies have decided that you are not entitled to investigate or seek a review of the manufacturing process that may well have caused your injury.

Source: Mundy, A., "Bush Rule Changes Could Block Product-Safety Suits" Wall Street Journal, October 15, 2008

The United States Government has issued a recall order, requiring Ford Motors to repair and/or replace defective wiring in certain vehicles. This is the second warning and it was issued because there are still nearly 5 million vehicles that have not been brought in by owners for the necessary repairs. The complaint centers primarily on the F-150 pick-up series as well as several SUV models, and the safety concerns focus on the potential for engine fires to ignite.

For your own safety, if you own a Ford, Lincoln or Mercury truck or SUV, see the full list of recalled vehicles to determine if the recall applies to you.

A NHTSA spokesperson was quoted in the Houston Chronicle describing the recall as involving "a very serious safety risk." It was noted that at least 60 vehicle owners had reported engine fires during the time frame that the initial recall notices were sent out. According to Ford, there have not been reports of injury or accidents related to the safety issue, but out of the estimated 12 million vehicles affected, there are still 5 million un-repaired vehicles on the road.

If you have an issue with a defective vehicle, and substantial damage to the vehicle, or worse, injury or death has occurred, contact an experienced attorney immediately.

Retailers in San Antonio and throughout Texas have been notified of two large recalls of potentially dangerous baby cribs and basinets. The recalls involve bassinets and cribs made under the Simplicity brand and to a lesser extent the Graco brand. The recall does not include all cribs and basinets made under those names. The recall involves approximately 900,000 convertible basinets and 600,000 cribs. Information about the recall can be found at the website for the Consumer Product Safety Commission (CPSC).

The recall is complicated because Simplicity has gone out of business. The Simplicity brand and assets were bought by SFCA Inc. SFCA Inc. did not manufacture the defective products and has maintained that it is not liable for the defective products or the cost of the recall.

This recall highlights a serious problem with Texas Product Defect Law. Under Texas Law a non-manufacturing seller of a Defective Product is normally not liable for harm caused by the defective product. There are limited circumstances when a seller can be held responsible for selling dangerous products to the public. A seller of a dangerous products can be held responsible only if the injured party can prove one of the exceptions to immunity as set out in the Texas Civil Practice and Remedies Code §82.03. In this case the manufacturer is out of business and the seller is probably not liable for any harm.