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Kevin Ryan wrote the following ode in response to a Dec. 30, 2009, story from the www.avvo.com, website: 

Falling Moose Head Leads to Concussion, Lawsuit

Wednesday, December 30, 2009 at 02:23 PM

A restaurant patron is suing an establishment on New York City's Lower East Side where she claims she was clobbered by a fallen stuffed moose head.  In a lawsuit filed in Manhattan Supreme Court, internet design consultant Raina Kumra alleges that while she was dining and drinking at the White Slab Palace late one night in October, a giant moose head become dislodged from the wall and struck her on the head, the Associated Press reports.

 

Lawsuit for a Fallen Moose Head

by Kevin Ryan

A woman who went partying comes now to file a suit,

Alleging she was injured when clobbered by a moose.

She wasn't o'er in Sweden, or even in Alaska,

She wasn't up in Maine, Minnesota or Mount Shasta.

 

Was on the Lower East Side, down on Delancey Street,

She didn't see it coming 'til the beast was at her feet.

Looking down with hurting head, she thought she saw a moose,

The floored head looking up at her, had somehow gotten loose.

 

Doctor visits followed and a lawyer visit too,

And so this claim against the moose head's owner has ensued.

The suit proclaims a duty to be free from falling mooses,

and other falling objects however they come looses.

 

The conk came in a back room as the clock struck 1 a.m.

A party there was going on, the moose head tame 'til then.

NYU grads packed the room, crowding through the door

at the White Slab Palace with its trophy room decor.

 

A witness said balloons were tied to the moose's antlers,

Then a partygoer pulled and the moose head answered.

The moose head mounted on the wall crashed down upon the floor,

The woman held her head and rubbed, complaining it was sore.

 

A witness took some photos to show what had befallen,

but did he snap the tugged balloon that loosed the moose's noggin?

So far it seems that mum's the word, among the party goers,

and so the lawsuit points its finger at the moose head's owner.

 

Will the judge identify who fixed balloons to moose?

Will he find, it's no Bullwinkle, but clearly caribou?

Will he say that one who ties balloons should know the score?

And know that college party-ers will tug on such decor?

 

Will he say that moose heads and balloons and drink don't mix?

That one who sets a stage like this must pay for drunken tricks?

Will he find it tortious to grace antlers with balloons,

and hold this alone would turn grad students into baboons?

 

The lawsuit of the falling moose complains of a concussion,

Another party incident for comical discussion.

Surely a case like this is no more than a joke?

A frivolous concoction after one too many tokes?

 

But when the laughter's over a fact is still a fact,

a loaded gun left about may be a tortious act.

Sword or mace, wall dangling, would have been a danger,

to family and friends, and to invited strangers.

 

Head of moose or caribou with antlers meant for bear,

Would be no laughing matter if not hung with care.

And she who sets a stage with loose props and alcohol,

may have to answer when a loose head topples off the wall.

 

 

 

As the complexity and sophistication of robotic products increases, so too will increase the cost of proving liability. This cost will effectively close the courthouse doors to many who are injured. Manufacturers, through talking heads on TV, economic experts, pundits and so on are likely to lobby the public, the congress and state legislatures (a) on the need for immunities from suit to "protect jobs" (that probably have been exported to foreign countries) or to protect the "industry" so we don't fall behind other countries in robot production; or (b) they will seek the creation of additional procedural hurdles in the court systems and legal process to make it impossible for an injured person to hold a corporate manufacturer responsible before a jury.

New remedies or procedures will be needed to level the playing field so that economics alone do not dictate who can bring a lawsuit. The time may have come for the cost of proving liability to be included in the damages that are recoverable by an injured party who wins at trial after having made a settlement offer which was less than the jury verdict.

Without some mechanism to offset the cost barrier to holding such manufacturers responsible for the injuries they cause and to encourage them to have adequate levels of insurance coverage, their licenses to manufacture complex and sophisticated robotic devices will become, thanks to the high cost of litigation, licenses to maim and kill. That would be a world like the Empire Luke Skywalker fought against. It will be a world where the court system serves the powerful at the expense of the individual. In the rush to a future where R2Ds and C3POs move among us, let us not forget that it is the individual who is paramount, because when the individual is protected, each and every one of us is protected; but when it is the wealthy and powerful who are protected, then the rest of us live in danger.

In the movie Ghostbusters, the ghostbusters' advertising slogan asked - who you gonna call? As we move forward into a world with increasingly complex products, we need to remember this question and be sure that the justice system keeps the court house doors open to individuals injured by sophisticated and complex products of all kinds.

 

 

 

 

In Star Wars when R2D2 and C3PO are sold to Luke Skywalker's uncle, he was looking for droids (thinking robots) to operate his farm equipment. Nobody asked - who made these things and who is at fault if they malfunction and burn down my workshop, destroy my equipment or injure anybody? The Star Wars script did not call for product malfunction and mayhem to create a personal injury law saga. However, Murphy's law is written into the script of real life. If accidents can happen, they will.

We have cars that parallel park themselves. We have Roomba vacuum cleaners that roll around the house on their own, moving from room to room, avoiding stairs, even plugging themselves into their docking station when their battery gets low. We have industrial robots in factories and robots used by the military in Iraq to detect and inspect bombs. The day is coming when robots will be moving around among us, operating not by direct human control but on artificial intelligence and other programs. Like the various products that have come before them, these robot devices will malfunction and injure people. It may be a car that drives itself through a cross-walk filled with pedestrians, or a janitorial robot bumping someone and knocking her down a flight of stairs, or a robot child caretaker that restrains a child and breaks his arm. Product failures and malfunctions are a fact of life that is not going to change.

Today when a machine or appliance causes a fire that burns down a house or kills people sleeping in their home, traditional product liability law determines responsibility for the loss of property or life. In these lawsuits, lawyers hire engineers to identify the malfunction that caused the fire and to determine whether that malfunction was caused by negligent design or negligent manufacture, alteration of the product during repairs or maintenance, abuse of the product, or a failure to warn about the fire hazard and what to do to prevent fires. In a typical defective product case, the cost for experts ranges from $75,000 to several hundreds of thousands of dollars. This litigation price tag alone prevents many legitimate cases from being brought - a form of tort control in and of itself.

Now along comes R2D2, adding artificial intelligence to the list of potential causes of product malfunction. The cost of litigation will be even greater as an additional class of experts will be needed to determine what part the computer software played in the malfunction. They will have to determine if the defect was in the original programming, or was it due to hacking or radio/ELF/microwave or other electrical interference, or to downloading a defective software patch, or downloading an updated version of the original program, or did the addition of a new program cause a conflict with the software in the robot in which the interaction of two non-defective programs caused a glitch that resulted in the injury? Determining the guilt or innocence of these ghosts within the machine will be difficult and expensive.

General Motors, pursuant to its Chapter 11 reorganization, was allowed to sell most of its properties to the new GM, leaving behind unwanted properties that contain environmental liabilities estimated at $530 million. GM has a $1.2 billion bankruptcy wind down budget to cover the clean up of these sites, but many fear that this is not enough, as that money will also be used to pay administrative fees, other claims, liabilities and bankruptcy attorney fees. If there is not enough money left over, the clean up fees will likely fall upon taxpayers.

Chrysler Group LLC had a similar bankruptcy and left behind environmental problems, but these are said to be no where near the scale of GMs contaminated sites. As you may imagine, other manufacturers have gone bankrupt before and left behind contaminated sites, but nothing of this magnitude.

As seen from my earlier blog article, GM was also able to wipe out current and pending product liability claims, and Chrysler was able to wipe out current and pending product liability claims, and any future claims for products manufactured prior to June 10, 2009. Those poor victims will likely fall on government plans such as Medicaid and Medicare, again leaving the taxpayer to foot the bill.

See below for a clip of WSLS coverage of my Roanoke soccer goal safety public interest piece.

http://www2.wsls.com/sls/news/local/article/roanoke_attorney_winchester_family_fight_for_soccer_goal_safety/44015/

Did you know that more Americans die each month from preventable medical deaths than were killed in the terrorist attacks of September 11th? Most people don't, and this fact has been known for over 10 years. Despite this knowledge, and the goal of the medical report that concluded this, evidence seems to indicate that preventable medical deaths are on the rise, not the decline.

That decade old report by the National Institute of Medicine indicated that over 98,000 people die each year from preventable medical mistakes. A federal Centers for Disease Control and Prevention study concluded that an additional 99,000 patients a year die from hospital-acquired infections. Experts conclude that nearly all of these deaths are preventable as well. Over ten years ago the Institute of Medicine report recommended a nationwide reporting system for medical errors. This was vigorously opposed by the American Medical Association and the American Hospital Association. To date, no national reporting system exists, and the Obama administration has not recommended one in its proposed healthcare reform project.

Why do we have reporting for automobile accident, fall, poisoning and firearm deaths and yet no national reporting for medical deaths and errors? According to this article, poisoning, firearms and fall deaths combined only account for 90,000 deaths and automobile accidents alone account for 43,600. One way for the public to determine if it is getting quality healthcare would be a national reporting system. That way, a person could look up his medical facility and take a look at the figures. You deserve this information, demand it. The only way it is going to happen is if the public demands it. Until that happens, special interest money will suppress it.

A recent news article I read indicated that from 1997 to 2007 physical education injuries were up 150%!! The study speculates that the increase may be due to a lack of supervision and fewer school nurses.

Six sports accounted for 70% of injuries: running, basketball, football, volleyball, soccer, and gymnastics. The researcher stated that instructors must get comprehensive training in injury prevention, and kids need to get safety education as well, McKenzie said. Schools must also insure that teachers and students use all appropriate safety equipment, she added, for example laying down mats for gymnastics.

I agree 100% with this statement. As seen from one of my earlier blogs, I just concluded representation of a family of a child that was killed by a portable soccer goal while playing for a northern Virginia travel soccer team. The child's coach was also a local high school coach and claimed to be unaware of the need to anchor or secure portable soccer goals. I found this to be simply amazing as the National Federation of High Schools' rules require that as does FIFA, the world governing body of soccer. This case just goes to exemplify that rules are of no value unless the instructors and coaches are being educated about them. My personal opinion is that this is not a priority in Virginia schools since the victim cannot sue the school for his or her injuries. In Virginia, the victim must sue the actual person whose acts or omissions caused the injury, and must prove that the person's conduct or omission was grossly negligent. This is a very high standard in Virginia, which results in very few lawsuits. Take some time to talk with your children and find out about their instructors and coaches. Is safety emphasized? Is protective gear utilized? Does the coach take time to educate the children about the sport and about being safe? If not, follow up with the principal of the school or the athletic director.

A widely used and painful treatment for spinal fractures caused by osteoporosis has been found to be ineffective in a new study. The procedure called vertebroplasty, injects a cement into the vertebrae. The procedure can cause serious injury or death if the cement seeps into blood vessels. One of the physicians who helped develop the procedure said he was shocked with the results. The study found the procedure to be no better than a placebo.

The studies were begun several years ago in the United States, Britain and Australia. It is too soon to tell whether this study will be affecting coverage of the procedures by insurance companies or medicare. I am always of the opinion that one needs to wait for the medical literature and studies to develop before you jump on the band wagon for a new procedure. Obviously, for some people, the choice may be death or the procedure. However, when it is not, studies such as this offer a good reason to wait.

I recently read an article that confirmed what I already knew, many doctors are making tons of money off of self referred work. An evaluation of a Urological Group revealed that the medical group had increased the number of CT Scans by over 700% for it patients after it bought its own CT Scanner. The article said that there were numerous other studies that showed that physicians that own scanners order more tests for their patients than those who do not.

With the debate over healthcare reform, studies like these are surfacing to show the increasing healthcare costs of unnecessary tests and procedures. The funny thing is that all I seem to have heard over the news are medical self interest groups blaming the attorneys for these increased costs, tests they deem necessary to cover their backsides. Doctors are not allowed to write prescriptions and then sell medications. Many say that they should not profit from imaging. I am inclined to agree. While the physician that owns his own scanner may be able to get that study done faster for you than referring you to a private group or hospital, one has to question the motivation. After all, the physician or practice group has to pay for the device and pay the operator of the machine. No one is in business to break even, and as this article indicates, this aspect of a physicians practice alone can make up a significant part of his income.

Not a week goes by where I don't get at least one phone call from a caller asking if he or she can sue their employer for their workplace injury. In Virginia, the answer is still no. If you are hurt on the job, even if your employer failed to give you safe equipment or failed to provide a safe workplace, your exclusive remedy is filing for workers' compensation benefits, which from my experience, are woefully inadequate.

There are several scenarios that allow you to file a workers' compensation claim and maintain a separate lawsuit, but not against your employer. For instance, if you are on the job, and involved in an automobile crash that is not your fault, you can file a lawsuit or claim (also called a third party claim) against the at fault party and file a claim for workers' compensation benefits. The bad news is that your workers' compensation insurance carrier maintains a lien against any recovery you may get, and you have to get approval of any settlement of your third party claim from the workers' compensation carrier. The comp carrier is required to pay you for its pro rata share of your attorneys costs and expenses, effectively discounting or reducing its lien. Another example would be if doctors committed malpractice in treating you for your injuries. In that instance, you could file your workers' compensation claim and maintain a malpractice claim against those physicians and/or the hospital. Again comp still has a lien, and still must approve any settlement. Frequently, the injuries to the worker are caused by a defective or dangerous piece of equipment. In that scenario, the worker or his family can file for workers' compensation benefits and file a lawsuit against the product manufacturer and/or seller. Again, comp still has a lien, and still must approve the settlement.

Lastly, in some instances, the worker may have been injured by another worker on the job site, who was not working for the injured workers' employer. In my opinion, this is one of the most complicated and convoluted areas of Virginia law. If the negligent worker is deemed an "other party" then he can be sued by the plaintiff. However, there are several "tests" used by the Virginia Supreme Court to determine if an employee is an other party and/or to see if the negligent worker's conduct was not part of the trade, business or occupation of the injured worker. There are frequent battles over which test applies to the workplace scenario at hand. Many times it seems as if each side can find a prior legal case in support of their theory, leaving it as a coin toss for the judge to decide. It is very important to make sure that you have a lawyer experienced in this area of the law. All too often I have had a person call my office advising me that their attorney had told them to settle their workers' compensation claim, because they had a such a good third party claim, when the victim had only to learn later that their third party claim was not very good and was in fact dismissed by the trial Court as barred. The end result was that the worker settled his workers' compensation claim too cheaply, banking on a third party claim that was anything but a sure thing.

If you are contemplating buying a used Chrysler product you may want to look at other models, and if you currently own a Chrysler product, you may want to consider selling it. Pursuant to Chrysler's bankruptcy, the company will not be held accountable for defective products it manufactured prior to the bankruptcy. As can be seen from a random Google search, product defects can surface years after the vehicle is manufactured and can manifest in a crash ranging from severe burn injuries from a defective part to paralyzing or life ending spinal injuries resulting from a defectively designed roof. Courtesy of Chrysler's bankruptcy, victims will not be able to file suit against the manufacturer for products manufactured prior to the bankruptcy exit date of June 10, 2009.

General Motors sought the same protection in its bankruptcy but was essentially shamed into agreeing to accept liability for any future claims against vehicles built under its old ownership, as long as the incident occurred after July 10, 2009. However, current and pending product liability claims were wiped out by the bankruptcy.

Earlier this year I posted a blog concerning new federal legislation, the Virginia Graeme Baker Pool and Spa Safety Act 15 U.S.C. 8001 et seq. that required pools to have a new drain cover. I have been checking the indoor and outdoor pools that my daughter swims in and so far all pools have complied. However, here in Roanoke, that only consists of the indoor and outdoor pools at the Roanoke Athletic Club and my sister's kids' private outdoor swim club pool owned by our church.

Apparently, some pools across the country still have not gotten the message, even those in metropolitan areas. A recent news article from Arizona found that at least 12 municipal pools did not have the new pool drain covers.

If your child is swimming at a public or private pool, or you have a pool at your home, make sure that you have replaced your old flat pool drain cover to comply with the new federal legislation. This could prevent serious injury or death to your child or a friend's. Be sure to ask the facility or facility owner if the covers have been replaced, and if possible check it yourself!

On June 4, 2009, the Virginia Supreme Court issued a decision that is sure to have tremendous impact on injury victims and their insurers in the state of Virginia. The decision means that injured victims could potentially have a greater amount of uninsured motorist coverage available if the injured victim/insured owns more than one car on any auto policy that covers that victim/insured.

The case of Virginia Farm Bureau Mutual Insurance Company v. Williams, re-opens Virginia law to intra-policy stacking of uninsured motorist coverage. An example of intra policy stacking would be having 2 vehicles on one insurance policy, each with $100,000 in uninsured motorist coverage. Prior to this decision, you likely only had $100,000 in coverage. You now may have $200,000 in coverage, if your policy language meets the criteria in Williams. Virginia law has long allowed auto policy insurers to prohibit intra-policy stacking as long as their policies clearly and unambiguously stated that the stacking was not allowed. In Williams, the Court looked past the language stated in the policy itself and examined the language in the declarations page of the policy. That language differed from an earlier Virginia Supreme Court case. In short, the court found it to be ambiguous and allowed an additional $550,000 in coverage!!

I am sure that the insurance companies will be rushing to correct the language in their policies and declarations pages, to avoid this coverage issue. If you have been involved in a serious or catastrophic injury, and thought or have been told that there may not be enough insurance coverage, you should immediately request a certified copy of your insurance policy and declarations page so that an attorney can examine that for you and assist you in obtaining additional coverage, if necessary.

If you have a kettle or canister style pool filter, it could be deadly. In California, a woman whose husband was killed by one of these units is leading a crusade to warn the public. You can visit her website to get more information on these units. Since 1982, there have been at least 22 other similar incidents reported to the CPSC. However, the CPSC does not know of every incident the reporting requirement are pretty lax, in my opinion.

Apparently these filters consist of a two piece design, held together by a fastener. At least four different manufacturers use this same design. Allegations are that the clamping system can become loose and not properly hold the two pieces together. Most of these filters have air relief valves that can fail to release all of the built up air. These two problems can add up to filter top turning into a missile and killing or seriously injuring the person who is inspecting or servicing the unit. A safer alternative involves a series of bolts that hold the two parts together. If you own a pool, I would recommend contracting the service and inspection of the pool out to a professional.

Ducati is recalling 732 of its 2009 1198 S, 1098 R and F1098 S Streetfighter models. The manufacturer announced that the right fork could develop a crack, which "may lead to a loss of steering control, possibly resulting in a crash." Obviously, this crash could result in the death or serious injury of the driver!

Harley-Davidson is recalling about 11,000 of its 2008 and 2009 FLSTSB, its 2008 FXSTSSE2 and 2009 FXSTSSE3 models because the acorn stud at the brake reaction link may fall out. "If this occurs the front brake and fender assembly would no longer be adequately retained. This condition could lead to a crash and potential injury or death to the rider," Harley said.

If you have one of these motorcycles, then stop riding it and take it in immediately for servicing. If you are buying any motorcycle or vehicle second hand, I always recommend checking the recalls on the vehicle and then confirming that the service repairing the defect was performed.

Recently I was attending a legal seminar , when another lawyer and I were discussing our current product liability cases. I was shocked to hear a defective product that many of you probably have in your home now, a gas can. It seems that most consumer gas cans, the ones you have around your garage that you use for your lawn mower or weed eater, do not contain a flame arrester. This flame arrester is a small piece of wire mesh that fits in the spout/tube of the gas can, that prevents flammable gas vapors from escaping. This device costs only pennies.

I was able to find a special piece done by Dan Rather, former CBS news anchor, now working for HDNET, about a victim of such a defective product. His story revolved around an 8 year old boy who knocked over a gas can in his basement. No gas leaked out of the container , however vapors did. The vapors were ignited by the pilot light of their gas water heater and an explosion occurred. The child was burned over 47% of his body. I have also heard of at least 5 injuries resulting from people pouring gasoline onto an open fire. The trash or leaves were being burned in a 55 gallon drum. All of these involved gas cans without the flame arrestor. I have also witnessed a video of two different cans, one with an arrester and one without. Gas was poured onto an open flame with the can that did not have an arrester and an explosion occurred. Gas was poured onto an open flame with a can that contained an arrester, and no explosion occurred---so they do work!!

According to the Dan Rather piece referenced above, this hazard has been known to the industry at least as early as 1973, when it was discussed in a Consumer reports magazine. The Consumer Product Safety Commission held a meeting  to discuss these in May of 2007. At least one major manufacturer, Blitz, held the position that these arresters were potentially dangerous. The document indicates another meeting was to take place but I cannot locate that the meeting ever took place. Blitz has been subjected to several lawsuits over their cans and they have not offered the arrester with their cans. One has to wonder how legitimate their objections to adding these arresters is. Blitz cans are sold at Wal-Marts across the country.

The Office of the Inspector General has released a report outlining the use and reprocessing endoscopes at VA medical centers. This report was released following the March 2009 discovery that VA medical centers in Tennessee, Georgia and Florida possibly exposed more than 10,000 people to Hepatitis B, Hepatitis C and/or HIV through the use of endoscopic equipment that was not properly sterilized. As of April 2009, less than a third of the patients possibly affected were notified. Recently the Washington Post reported that fewer than half of randomly selected VA medical centers had properly sterilized medical equipment, used to perform colonoscopies. Additionally, these facilities failed to obey ordered to comply with guidelines. However this is not a problem found only in VA medical centers. Private hospitals have also reportedly notified thousands of patients in recent years after similar concerns arose. So, how can you protect yourself from being a victim of poor infection control?

Medical professionals advise that you can take steps to protect yourself from medical negligence of this sort.  If you are going to undergo a surgical procedure or treatment of any kind, you have the right to:

1. Require that all health care providers wash their hands in front of you, before they render any physical care to you;
2. Require that any needles used are from new packages, opened in front of you;
3. If you are going to receive an injection, require that the medication administered come from a new container;
4. Require that all health care providers wear new gloves when administering care to your and/or drawing blood;and
5. If you are not comfortable with your treatment or the environment, ask to speak with the infection control personnel at your health care facility.

If you are the unfortunate recipient of poor health care and/or infection control, seek additional medical treatment immediately. You may also wish to speak to an attorney so you can be sure of your rights.

I was recently involved in a case involving a tractor trailer and an elderly driver. The elderly driver was rear ended by the tractor trailer and suffered injuries which left her unable to recall the facts of the crash. Interestingly, in an attempt to limit liability, the trucking company hired a lawyer to offer opinions regarding our client's speed at impact. This issue had never been raised prior to trial, so we had not had our client's vehicle's black box data downloaded. The case settled and we ended up not having to hire an expert to provide the information for us. Fortunately, we still had the vehicle, so this would not have been a problem.

However, in some cases the data contained in a vehicle's "black box" can be crucial to the case- it can indicate things such as braking, seatbelt use, speed at the time of crash, warning lights on vehicles etc. Unfortunately, in many cases, the vehicle is unknowingly sold or released to the insurance company, or an inexperienced attorney ends up hiring the wrong expert to download the data, ruining its potential admissibility at trial. Furthermore, there are few commercially available systems that can be used to download the data. It appears help is on the way, but is more than three years away. As of September 2012, NHTSA regulations (49 C.F.R. 562) will require vehicle manufacturers to provide commercially available systems which can be used to retrieve event data recorder (black box) information. Moreover, the information will have to be available in a standardized format. At present, the Bosch Vetronix retrieval system is the only commercially available system. However, the Bosch system cannot be used on all vehicles.

Soccer is one of the biggest sports in the United States now. Most parents think of soccer as a safe alternative to football or lacrosse. Did you know that from 1979 to May 2009, there have been 35 deaths and 53 reported injuries from portable soccer goals? This number consists of known and reported incidents only! How many more are out there? I am currently handling a case involving the death of a child resulting from a portable soccer goal tip over, and I can tell you there is not a sadder case than a family that has lost a child from a preventable incident.

Many portable soccer goals can weigh hundreds of pounds and are poorly designed. The goals are not properly counter weighted or rely solely upon anchors, which can become lost or separated from the goals. The reported deaths involve goals that accidentally tipped over from the wind, from children playing or climbing on them, and from people moving the goals to another location or to put nets on them. The Consumer Product Safety Commission published a guide book in 1995 and the family of a child killed by a falling portable soccer goal has developed a website that lists the victims I mentioned above, along with ways to prevent goals from tipping over.

It is clear that goal manufacturers are not properly designing their goals and/or not properly warning the public. If you, your children or your relatives play soccer warn them about the dangers of portable soccer goals and refer them to the two websites I have linked to above. 

Each year, it seems that the automobile manufacturers issue hundreds of recall notices. Some affect the current model year, others affect vehicles manufactured years ago. If you bought your vehicle used, or have moved, you may never get notice of the recall. Any easy way to determine if your current vehicle has been the subject of any recalls is to visit the National Highway Traffic Safety Administration website to check. You can also sign up on this site for receive recall alerts via email. I have used this site before, and in fact my wife has shown up at the Volkswagon dealership, before they dealership has even received word of the recall. Always make sure that you have the work done! Usually it is free or at a reduced rate, and in some cases, if you have already paid for the work, you can get reimbursed.

Each year over 10,000 people are killed from rollover crashes or accidents. Many of these deaths are attributable to the weak roof of the vehicle caving in and crushing the occupants. The current NHTSA roof crush standard requires that a vehicle withstand 1.5 times the weight of the vehicle, applied to one side of the roof, for "light vehicles" up to 6,000 pounds in weight. Anyone who has seen this test can tell you how useless it is. Literally, a large metal plate is placed against the roof and slowly pressed against the roof up to the required testing limit. This is what is called a static test. This test fails, in my opinion, and many others, to adequately duplicate a real world rollover event where a vehicle can be traveling at anywhere from 15 to 60+ miles per hour when it suddenly flips and lands on its roof--a dynamic event, requiring a dynamic test. This roof standard has been in force since 1971 and has been heavily criticized in recent years.

The NHTSA (National Highway Traffic Safety Administration) has passed a new rule specifying that both the driver and passenger sides of the roof must be capable of withstanding a force equal to 3 times the weight of the vehicle. Heavier vehicles (6,000 to 10,000) must now have both sides of the roof capable of withstanding a force equal to 1.5 times the weight of the vehicle. The phase in schedule begins in September 2012. While the increased weight limits are much needed, as was the testing to both sides of the roof, this still remains a static test and does not duplicate the forces applied to a roof as it is crashing to the ground in a real world rollover event. A step in the right direction but still woefully inadequate to protect the consumer.

Earlier this week I wrote about insurance coverage and how important it is. I recently received an inquiry about umbrella policies. Umbrella policies are large liability policies ($1million dollars or more) written to cover individuals or businesses. In most cases, these policies are less expensive than a comparable liability limit on your automobile or homeowner policy. In most cases, the insurer will also require that you carry a certain amount of liability coverage on your automobile and homeowner or renter's policy.

Umbrella policies are a good thing and I highly recommend them. However, most umbrella policies DO NOT cover underinsured or uninsured motorist claims. Therefore, it is still necessary to carry a large underinsured or uninsured motorist coverage liability limit. Ask your agent if you existing umbrella policy or the one your are contemplating, covers uninsured motorist or underinsured motorist claims. If the agent says they are covered, make him/her show you the policy itself to back up their opinion.

From the title of this piece, you may have assumed it was an article or ad written by an insurance company. I assure you it is not. A client was in my office a couple of weeks ago, and was involved in a very serious automobile accident. He was shocked to find out that the person who was at fault only had insurance limits of $25,000. The client had over $25,000 in medical bills alone. I told him that all was not lost, we could make what is called an underinsured motorist's claim against his insurance company. He happily went home to get me his insurance information and eagerly awaited my review. Unfortunately for him, he too had $25,000 in liability and underinsured motorist coverage as well; meaning that his total recovery was limited to $25,000! He was in stunned disbelief as he had been assured that he was "fully insured". Technically speaking, he did have the full insurance requirements of Virginia, currently $25,000 per person bodily injury limits, with a maximum of $50,000 total; and $20,000 in property damage coverage. I quickly advised him that while he had full coverage, he was not adequately insured for his own good.

While this client was "fully insured" or had "full coverage" as I have heard insurance agents and adjusters say, to the extent that he caused an accident and bodily injury to a pedestrian or the other driver or his own passengers, his insurance would only pay up to $25,000 per person injured, with a limit of $50,000! Obviously, if he accidentally struck a pedestrian or fell asleep at the wheel and rolled his vehicle down an embankment, medical bills alone for the victims could surpass $25,000. Welcome to bankruptcy!

The bigger problem for him was the fact that his underinsured motorist coverage (limits of which cannot be written or obtained greater than your liability coverage limits in Virginia at least) were $25,0000/$50,000, so he had no available underinsured motorist coverage. Underinsured motorist coverage is a coverage that can cover you if you are involved in an accident with a person that does not have sufficient liability coverage to cover your injuries. In this case for example, if the client had $500,000/$1million underinsured motorist coverage, he would have had an additional $475,000 in coverage available to cover his own injuries, medical bills and pain and suffering. Worst of all, increasing your liability, uninsured and uninsured motorist coverages is not that expensive. In my opinion, I would not operate a car today without having at least $1million in liability, uninsured and underinsured motorist coverages. Given the price of today's automobiles, I would carry at least $100,000 in property damage coverage. If you were to cause an accident that totaled a tractor trailer, many tractors cost in excess of $100,000, this does not take into account the trailer or its cargo.

Do yourself a favor and call your insurance agent today!!!

It seems like each year car seats are recalled. Register your car seat here. The site also contains the ability for the owner to research if their car seat has been recalled for any reason from the manufacturer.

I recommend not purchasing car seats used. For one, the technology gets better each year. For another reason, you have no way of determining if the car seat has ever been involved in an accident. If the seat has been involved in a car accident the padding, foam or other safety mechanisms of the seat could be damaged, which could harm the protective abilities of the seat itself.

An international group of academic, industry and government scientists have called into question the reliability two studies relied upon by the FDA to support its announcement that BPA is safe. BPA is found in food containers, household products and baby bottles.

According to the scientists at that meeting, the author of the studies, Rochelle Tyl, has conceded that there were errors in the 2008 study, relied upon by the FDA. Interestingly, both of TYl's studies were paid for by the American Chemistry Council, a trade association for BPA makers.

See my earlier blog on this site for the article on Sunoco dropping BPA. In my opinion, this is never done out of the goodness of one's heart, it is all about marketing and increasing the profits or avoiding liability, and usually the latter. As evidenced by this article, one has to wonder if the manufacturers got a heads up about the lack of reliability of these studies????? Bottom line---- avoid products containing BPA and consider this further support for my previously expressed opinion about the FDA's inability to do its job!

Each year numerous people are injured or killed on rides at theme parks, carnivals and fairs. While many of these injuries or deaths are related to poor maintenance, an alarming number are alleged to have occurred due the design of the ride itself. In another words, the ride performed exactly as it was designed to do and the rider still became seriously injured or killed. I was alarmed when I recently read an article concerning Florida theme parks, the surprising number of injuries and lawsuits and the failure of the parks to report these injuries and deaths. I recommend reading it and thinking twice about some of those rides.

Virginia does have regulations regarding amusement rides, entitled Virginia Amusement Device Regulations. While the regulations do require the reporting of any accident involving serious injury or death to the local building department, it allows the device to be put back in operation after inspected by a private inspector or inspector of the local building department, except where the owner or operator determines the cause was not related to malfunctions or improper operation of the device. Serious injury is not defined, and the lack of a central office for reporting of these injuries, could result in poor record keeping.

The CPSC has announced a recall of these dog leashes. They were sold at Family Dollar Stores from September 2007 to August 2008. The metal clasp on the leash that attaches to the animal's collar can bend or break and detach from the collar. The reports of injuries at this point in time appear to be mild.  That said, if you have one of these leashes get rid of it or send it back for a refund.

I had a case involving a defective retractable dog leash several years ago, and the hook portion of the clasp straightened out and it came flying back into my client's eye!  She became legally blind in the eye and it was obviously a horrific experience for her. The leash had been purchased at a local dollar store, and was brand new when used. I had the hook analyzed by a metallurgist who determined that it was made of a very cheap pot metal, and for just a few cents more, the manufacturer could have made the hook extremely strong and durable. That leash was made in China.

At the time of that case, in my opinion, the best leashes were made by Flexi Leash out of Germany. Their hooks and other materials used in their leashes were of good quality, and their leashes had weight limits listed as well. I currently do not have a dog, so I have been out of the dog leash market. There now may be other leashes of equal or better quality. Check the internet and do some research before you purchase.

On March 27, 2009 a group of safety advocates and victims issued a report shedding light on the alarming problems with Utility Terrain Vehicles (UTV), and highlighting in particular the Yamaha Rhino. If anyone has seen these vehicles, they are not traditional ATVs, and to me at least, resemble golf carts on steroids. The report sets out 38 deaths, many of which are believed to have occurred in Yamaha Rhinos. These Rhinos have also accounted for catastrophic injuries including the loss of limbs and other severe injuries.

The report calls for the installation of partial doors, roll cage cushions and netting on all UTV vehicles. This is due to the high numbers of prior injuries or deaths caused by limbs or bodies exiting through openings in the vehicle due to its lack of doors, roll cages etc.

The report also requests standards for a seatbelt system, alleging that many injuries are due to the alleged defective seatbelt system on the Rhino. The report also calls for regulations regarding handling and stability, and makes recommendations specific to the Rhino. While I have not handled one of these cases yet, I have reviewed documents concerning the design of the Yamaha Rhino and I would agree, that in my opinion, the vehicle is unreasonably dangerous and defective due to its defective design, consisting of its failure to include doors on the earlier models, and its high center of gravity on a narrow wheel base, which is a recipe for a rollover. Obviously, any time your roll a vehicle of any type over, you could be injured or killed. If you own one of these vehicles, sell it or be very careful.

Harvard professor Dr. Joseph Biederman is under fire as documents he was ordered to turn over in litigation call into question how unbiased his studies were, as he was receiving huge payments from drug maker Johnson and Johnson, and promising positive results for the company even before his clinical trials were begun. Clearly, the receipt of huge cash payments by these physicians that are providing allegedly "independent evidence" supporting the effectiveness or use of drugs made by the very manufacturer providing payments, causes one to wonder how independent these tests are, yet this has been going on for years and the Congress and public is just now becoming concerned about it!

The case that brought the above facts to light concerns states' attorney generals who have filed suit against drug manufacturers of antipsychotic drugs that defrauded Medicaid due to improper marketing.

Clearly new rules, regulation, and enforcement are needed to avoid such potential problems. However, that must come from the FDA which is already overworked, understaffed and underfunded, in my opinion. Where does that leave you? With yet another reason not to restrict lawsuits. With a clearly inadequate regulation system, little is left for the public but to rely upon plaintiffs' lawyers policing and enforcing the conduct of these manufacturers. Without the threat of a lawsuit and being hauled into court and held accountable before a jury, does one really think we can count on these manufacturers and physicians to police themselves?

Did you know that drowning is the second largest killer of children under age 14? In response to this, but in reality likely due to the death of former Secretary of State James Baker's granddaughter, the Virginia Graeme Baker Pool and Spa Safety Act 15 U.S.C. 8001 et seq. was passed on December 20, 2007. The requirements of the Act come into force December 19, 2008. Baker's granddaughter died in 2002 when she became trapped by a spa drain cover. Most old drain covers are flat and allow the swimmers body to become trapped against the drain cover. Younger children are unable to break free of the suction. One of the things the new Act requires is a special dome shaped cover, that helps prevent this.

Surprisingly, many municipalities and other organizations with pools are claiming that they were unaware of the Act and/or the effective date of its requirements and many claim that they will be unable to comply with its requirements. The requirements range from public pool drain covers, to special drain systems for public pools. Further, all swimming pool or spa drain covers manufactured or distributed in the United States must comply with American National Standard Institute (ANSI)/ American Society of Mechanical Engineers (ASME) standard A112.19.8 - 2007 titled Suction Fittings for Use in Swimming Pools, Wading Pools, Spas, and Hot Tubs. A nice summary of the act, including an account of the complaints by pool owners can be seen here.

As these pool owners have known about the Act for over 1 year now, I have no sympathy for them. The problem of children dying from drowning and receiving other horrific injuries from being trapped is well documented.

Given the backlog of orders for the drain covers, and that many pool owners are claiming ignorance of the act, it is very likely that you or your children may be swimming in a pool that is not in compliance with the Act this summer, or presently, if you swim in a facility with an indoor pool. This summer make sure that the club or municipal pool that your children are swimming at has complied with the Pool and Spa safety act. Always supervise your children and attempt to locate the drain area of the pool or spa and insure that your child stays away from that area.

Sunoco chemical company announced that it would restrict sales of bisphenol-A, or BPA to manufacturers who were using the chemical in food and water containers for children under three. This move makes Sunoco the first major manufacturer to acknowledge safety concerns about BPA or bisphenol-A.

This is the most recent action regarding moves against BPA. Last week, six of the nation's largest bottle manufacturers announced they would no longer be using BPA in baby bottles. Most major retailers, including Wal-mart and Toys-R-us, have now removed products containing BPA from their store shelves.

BPA is said to mimic the effects of the hormone estrogen and cause breast, prostrate and uterine tumors, in some studies. However, the FDA concluded that there was no harm from BPA, but that opinion is considered flawed by many as the FDA relied upon many of the industries' own internal studies.

My wife and I have a 5-month-old at home and it took us some looking to find bottles and plastics that did not contain BPA. I don't think manufacturers are currently required to warn or label their products as containing BPA, so look for labels that verify that the products do not contain BPA. While studies may be at odds, I always advise better safe than sorry, and would advise against using BPA containing products for children under three years of age.

I was doing some research last night to help a lawyer up in West Virginia on a carbon monoxide (CO) poisoning case he had and was surprised to learn of the extreme danger of engine driven generators. From 1999 to 2007 the Consumer Product Safety Commission was aware of 404 fatalities involving generators and CO poisoning. We know that the CPSC cannot be aware of every incident out there, so in all likelihood the number of deaths is even greater! As most of you know, the coldest months of the year are typically November through February. Nearly half of the fatalities occurred in these months. One third of the deaths were associated with power outages, which is not surprising to me as I would figure that is typically when the generator would be in use. The report can be found here .

Unfortunately, the report is just an analysis of deaths associated with Carbon Monoxide poisoning from engine driven generators and tools, and does not advise what one must do to avoid a similar fate. I did some additional research and many of the deaths were because the generator was run while the basement or crawl space. The most common reason for this was fear that the expensive piece of equipment would be stolen or that running the electrical cord outside would prevent a door from closing. Further research indicated a general lack of warnings or sufficient warnings on these generators along with a general lack of awareness of carbon monoxide poisoning. Other deaths included operators attempting to ventilate the area but the ventilation was insufficient. This can be caused from variations in CO output from the different machines. Further one of the big problems with carbon monoxide exposure (other than death) is that the affected victim is unable to help him or herself due to their impaired cognitive functioning or in layman's terms, ability to think and act. The onset of these symptoms can be extremely rapid. Always operate engine driven generators outside of the home. Do not operate the generator in a crawl space, basement or garage or near open windows, doors or anything else that would allow the carbon monoxide to potentially enter your home or trailer. If theft is a concern, chain the generator and lock it up if possible. I know these generators are expensive but they certainly not worth more than your life or your child's.
 

To my knowledge there are no voluntary standards for portable generators, although the CPSC is supposed to be currently working with Underwriter's Laboratory to develop one.

The United States Supreme Court rejected arguments that federal regulation preempted state lawsuits against drug makers. In the case of Wyeth v. Levine, the injured plaintiff Diane Levine, had her arm amputated after she was injected with Phenergan, made by Wyeth. Wyeth argued that federal approval of the Phenergan and its warning label protected the company from lawsuits. The case is seen as a surprise given that the Bush administration had argued that once a drug's warning label is approved by the FDA, consumers cannot pursue state law claims if they are injured by the drug. Justice Stevens, who wrote the majority opinion, said that Wyeth could "unilaterally strengthen its warning", especially after if learned of at least 20 other incidents prior to Mrs. Levine's injury. The FDA is charged with monitoring 11,000 drugs!!!

This outcome was shocking to many given the fact that the Supreme Court had earlier held that suits against medical device makers were preempted, in the case of Riegel v. Medtronic, Inc., 128 S. Ct. 999 (2008). In Riegel, the Supreme Court held that makers of medical devices were immune from liability for personal injuries as long as the Food and Drug Administration approved the device before it was marketed and it met the agency's specifications.

I agree with the Wyeth decision. The FDA is overworked and underfunded. As recognized, in the opinion, state court lawsuits provide a valuable service of uncovering problems with drugs and a "complementary form of drug regulation". With over 11,000 drugs, the FDA simply cannot be expected to catch and/or solve all problems. Without the ability to file suit, the consumer is left unprotected.

Recently, the Virginia Supreme Court decided a case that will surely have an impact (no pun intended) on those with automobile accident cases, in the future. In the case of Hancock-Underwood, the Virginia Supreme Court was asked to consider whether the trial court erred in refusing to instruct the jury on "unavoidable accident" and "sudden emergency". In the past these jury instructions, in my opinion, were used by defense lawyers to unjustly escape liability for their clients. In this case the plaintiff/ injured party was traveling on Route 130 in Virginia, with his family, when he saw an oncoming van cross the center line and head straight towards him. The plaintiff who was driving a truck, with a trailer in tow, moved over to the should as far as he could but he was still struck. The van operator was killed in the crash and the plaintiff was severely injured.


The Estate of the defendant van operator alleged that he suffered an acute medical crisis when he was driving his van. The Estate sought jury instructions on both the "unavoidable accident" and "sudden emergency doctrines". The trial court refused to give these instructions. The majority of courts in the United States do not approve of the "unavoidable accident instruction" .The Virginia Supreme Court joined the majority of courts across the nation in holding that the "unavoidable accident instruction" should no longer be given. The Court stated among other things, that the instruction overemphasizes the defendant's case and is apt to confuse and mislead the jury. I could not agree more this opinion.
 

With respect to the "sudden emergency" instruction, the Court held that the trial court correctly denied this instruction as well. A "sudden emergency" instruction allows the jury to consider whether the person confronted with the sudden emergency "acted as an ordinarily prudent person would have done under the same or similar circumstances". The Court restated its prior position that the instruction should rarely be given, but it also did not outright refuse to uphold this instruction in future cases. The Court decided that the jury instruction, as drafted by the defendant, was no appropriate and was not supported by the evidence. The Court cited with approval the trial court's reasoning that the defendant driver did not take immediate action under the defendant's theory of the case, as he was unconscious. This case does a good job of illustrating how crucial it is to hire a good attorney. Many attorneys would have probably allowed these two jury instructions to be read to the jury. As noted by the Virginia Supreme Court, these instructions should rarely be given and can confuse a jury. Had theses instructions been allowed, the defendant driver, likely would have escaped liability.

A recent case of interest is Centra Health v. Mullins. This is a landmark decision by the Virginia Supreme Court, on a key area of the law that usually comes up in the context of nursing home cases. In this case, the 84 year old plaintiff was admitted to the hospital for a broken hip he sustained in a fall. Due to negligent insertion and maintenance of a catheter, the man developed a urinary tract infection. After surgery for the broken hip, hospital staff failed to treat and recognize the infection and discharged the man back to the nursing home. The man returned to the hospital for treatment of the infection, and stayed at the hospital until his ultimate death.

The man's Estate asserted a wrongful death claim, basing the claim on their assertion that his death was caused by sepsis which resulted from the defendant's failure to treat the urinary tract infection, and as an alternative claim, they filed a survivorship action, for injuries sustained by the plaintiff prior to his death, the infection and its accompanying complications.

As a side note, in Virginia, the injured party's Estate must typically choose whether they are presenting a claim for the party's death, or for the pain and suffering for the injury while the person was alive. The recovery available under each theory is dramatically different.

To make a long story short, the defendants wanted the Estate to elect which theory-wrongful death or survivorship- they were proceeding on before trial. The Estate asserted that it did not have to make that decision before trial, if the evidence would support both theories. The Virginia Supreme Court upheld the trial court's decision that held that decision by the plaintiff is not required before the jury decides the issue of whether the negligence of the hospital caused the death or the injury. The Court held that "the election is required only at a time when the record sufficiently establishes that the personal injuries and the death arose from the same cause." In this case the evidence was in dispute, and the defendant's theory of the case was that it was not negligent on either theory. Therefore, the trial court correctly submitted both theories for the jury to decide the issue. Again an important decision for those involved in cases of medical malpractice or nursing home and/or assisting living negligence cases.

CBB recalled the following toys Fishing Games, Rattles, Pull-A-Long Cars, Mini Pull Back Cars, and Cartoon Bubble Guns due to the toys containing small parts which can separate from the toy and become choking hazards for small children. The mini pull back cars and bubble guns have surface paints which contain excessive levels of lead, violating the federal lead paint standard.

These toys were sold at dollar stores and toy stores. A detailed chart and photographs of the toys and their product numbers can be found here.

As always, I recommend visiting the CPSC website as several toys were recalled in February for choking hazards, including toys sold by Old Navy and Disney.

I always recommend examining any small toy before giving it to a child. This is true whether the toy is purchased from a dollar store, EBay, Wal-Mart, or an expensive specialty toy store. You should be looking for small objects that could separate and be swallowed by a child, sharp objects or points, and toys that have long strings or lanyards that could become a strangulation hazard. Currently toys for children under 3 years of age are subject to small parts regulation under federal law. See 16 C.F.R. Part 1501 and 1500.50-53. A small part is any object that fits completely into a specially designed test cylinder 2.25 inches long by 1.25 inches wide that approximates the size of the fully expanded throat of a child under three years old. (See figure). See 16 C.F.R. 1501. Other toys or items for use by children under 3 are subject to additional federal regulation: Pacifiers - 16 C.F.R. 1511; Rattles - 16 C.F.R. 1510; Cribs - 16 C.F.R. 1508, 1509; Infant Pillows, Cushions - 16 C.F.R. 1500.18(a)(16); Baby Walkers, Bouncers, Jumpers - 16 C.F.R. 1500.18(a)(6); Electrically Operated Toys - 16 C.F.R. 1505; Dolls, Stuffed Toys and Other Products that may cause lacerations or punctures. 16 C.F.R. 1500.18(a)(1), (2),(3) and Small Balls 16 C.F.R. 1500.18(a)(17).

I read recently where the Consumer Product Safety Commission (CPSC) just recalled 200,000 children's play yards. These "Rainforest" model play yards were made by Simplicity Inc., which is now out of business, for Fisher Price. There is a danger of the side rails collapsing and potential injury or death to the children or infants. Apparently CPSC officials knew last year that these side rails were collapsing, but felt that it did not "rise to the level of a recall". 

This article just reinforces my thoughts that you cannot depend on the CPSC to timely act and protect your children. It is my opinion that this agency is underfunded and overworked and hope that the new administration will provide additional funding and manpower, so that the agency can see that dangerous and defective products are taken off the shelves. Consumers need to know that just because a product is in the marketplace, does not mean that it has been tested or evaluated by the manufacturer or a government agency. If consumers experience safety problems with a product, they need to contact the CPSC. Apparently, it was the over 1300 complaints to the CPSC that finally motivated this recall!

 

To the credit of the CPSC, they only have 420 employees to police over 15,000 kinds of consumer products. In my opinion, the agency is woefully understaffed. The CPSC does not test or certify products before they are sold. The sellers or importers of products are charged with insuring that their products comply with government standards or regulations. Unfortunately, that means that we consumers pay the price through serious injury or death when a negligent product manufacturer or importer sells a product that has not been adequately designed, tested or inspected. My experience with the CPSC over the last 11+ years has been that they typically do not become involved in the investigation of a product until they have received several consumer complaints, and there is the potential for serious injury or death. They just have too few staff to go out and start randomly testing or inspecting items to see if they comply with government regulations. Luckily, with the internet, consumers can research products before they purchase them. I always recommend "googling" an item on the internet before purchasing it, and checking the CPSC website to see if the item or its manufacturer have any recent recalls.

In what is becoming an all too common occurrence, the Consumer Product Safety Commission has announced another recall involving infant cribs. The manufacturer of the cribs is Jardine Cribs, and the first recall was in June of 2008, affecting 320,000 cribs. The CPSC has now added another 56,450 cribs. The cribs were sold at KidsWorld, Geoffrey Stores, Toys "R" Us, and Babies "R" Us stores nationwide, and at Babies "R" Us.com, from March 2004 through January 2009 for between $220 and $330. The problem with the cribs is that the side rails can break, creating a gap for the infant to potentially fall through or be strangled in. Consumers have reported that their infant or toddler has broken the slat while in the crib! These cribs were made in China.
 

Many of you will recall last year's crib recall involving over 600,000 Simplicity cribs. These cribs had a problem with the side rail coming off track, creating a gap that the infant or toddler could become trapped in. These cribs were made in China as well.

I was involved in suing one of the largest child product manufacturers in the United States several years ago, involving a crib. Problems with the crib developed as a result of efforts by the manufacturer to decrease costs in the manufacture of the crib, without analyzing the potential safety risks. The company ended up paying a large fine to the CPSC as a result of reporting violations with the CPSC. The case settled for a confidential amount. I have not handled cases involving these latest manufacturers but it would be interesting to find out what, if any, product testing and evaluation was done by the manufacturers or importers. An obvious motivation for having products made in China is their relative cost compared to products manufactured here the United States. Many have suggested that quality and durability are sacrificed with these low cost imports. From many of the Chinese made products I have seen, I have to agree.

What can you do to determine if a product is safe? The first thing I would recommend would be to get on the internet to see if the product has been reviewed by any type of consumer group. The second thing I would do is to visit the Consumer Product Safety Commission's website to research the product and the manufacturer, to see if there are any warnings or recalls out. Many people have complained that the CPSC has been slow to act or to expand recalls, so you may find the item you are checking on is nearly identical to an item currently being recalled. Be very careful when purchasing children's items from yard sales, Ebay or used children's items stores. I have personally seen many recalled items still for sale on these venues, and in fact bought two of the recalled cribs that I needed as exemplars for my crib case off of EBay, and after the highly publicized recall!!!! Lastly, if the item looks and feels cheap, it probably is. In years of doing this work, just because a manufacturer or retailer is selling the item, does not mean that anyone has done any type of testing or safety evaluation of the product!! Many people are surprised to learn that the CPSC does not evaluate all toys or children's product for sale in the United States. Currently, no organization in the United States does that. Essentially, manufacturers are charged with policing themselves. Only when the CPSC receives complaints about a product, do they become involved.