Accident and Injury Lawyer Blog

Health Officials are reporting that the number of illnesses caused from individuals having consumed raw milk has risen to 35 people over four states. The confirmed cases of Campylobacter infection include 28 people in Pennsylvania, four in Maryland, two in West Virginia and one in New Jersey.

The tainted milk appears to have come from the Family Cow farm in Chambersburg, Pennsylvania, and health officials have said that consumers should discard raw milk bought from the Family Cow farm on or after Jan. 1. The farm has voluntarily suspended raw milk production.

The federal Food and Drug Administration warns that raw, or unpasteurized, milk can contain harmful bacteria, and Maryland law prohibits its sale. Still, dairy farmers have said that the demand is growing because of concerns about hormones in traditional dairy products.

The Pennsylvania Supreme Court last week reversed itself on its ruling to maintaining a Pennsylvania state court thimerosal claim in light of the Supreme Court's decision in Bruesewitz v. Wyeth. The court returned the case for further proceedings in light of Bruesewitz, which is the same as granting summary judgment for the defendant.

For reasons that escape me, the court held that section §22(b)(1) of the National Childhood Vaccine Injury Act of 1986 pre-empts all vaccine related design defect claims. I don't think - and neither do two other justices on the Supreme Court - that it's a fair reading of the Act. But it is the Supreme Court's call to make so it is no surprise the Pennsylvania court did what it did.

These are tragic cases but they were tough to prove even before the Supreme Court raised the bar even higher.

Merck was represented in the case by Stephen E. Marshall, who is real good lawyer with Venable in Baltimore.

You can read the court's terse opinion here.

• Family of 15 Year Old Drowning Victim Sues

  The family of a 15-year-old boy who drowned at a Michigan camp last summer has filed a wrongful-death lawsuit against the camp and several camp employees.

  According to the suit, the victim, along with other boys, was swimming after 10 p.m. in an area of the water that was not illuminated. A lifeguard lost sight of the boy, who had gone under. Unbelievably, he was underwater for almost 30 minutes before police and camp employees found him.

• New Claims in the Lawsuit Over Pregnant Inmate's Death

  Attorneys representing the estate of a pregnant woman, who died while in a Pennsylvania county jail, are asking for the judge to allow them to amend their complaint, adding new allegations to their lawsuit.
  
  The allegations here are sad. The 27 year old inmate died of pneumonia after being moved to a hospital from the jail. The amended complaint said that during December 2009, the woman’s cell block had "little or no heat" and inmates "could see their breath." It is alleged that the walls and ceiling were leaking water, and that there was a strong smell of sewage coming from her sink. It is further alleged that there was black mold growing on and around her toilet and wall. The conditions sound absolutely deplorable.

  On Friday, the Judge denied a motion by the county to dismiss the complaint, but has yet to rule on the request to amend.

Dogs are people too. Pretty much. For many of us.

So we report here on Proctor & Gamble Company has retrieved a single production lot of dry dog food as aflatoxin levels, above the acceptable limit, have been detected. This product has already been retrieved from store shelves.

Aflatoxin is a naturally occurring by-product from the growth of Aspergillus flavus and can be harmful to pets if consumed in significant quantities. Pets who have consumed this product and exhibit symptoms of illness including sluggishness or lethargy combined with a reluctance to eat, vomiting, yellowish tint to the eyes or gums, or diarrhea should be seen by a veterinarian.

The affected dog food is as follows:

• Product Name: Iams ProActive Health Smart Puppy dry dog food with Use By/Expiration Dates of February 5 or February 6, 2013
• Version: 7.0 lb bag; Code Date: 12784177I6; UPC Code: 1901402305
• Version: 8.0 lb bag; Code Date: 12794177D2 and 12794177D3; UPC Code: 1901410208
• Version: 17.5 lb bag; Code Date: 12794177K1 and 12794177K2; UPC Code: 1901401848

The affected product lot was distributed to a limited number of retailers located in the eastern United States: Alabama, Connecticut, Delaware, Florida, Georgia, Louisiana, Maryland, Maine, Mississippi, North Carolina, North Carolina, New Hampshire, New Jersey, New York, Pennsylvania, South Carolina, and Virginia. These retailers have already removed this product from store shelves.

While no health effects related to this product have been reported, P&G retrieved this product from the shelves as a precautionary measure. Consumers who purchased the affected dog food should stop using it, discard it, and contact Iams a replacement voucher.

No other dry dog food, dry cat food, dog or cat canned food, biscuits/treats or supplements are affected by this announcement.

Dogs matter. I'm glad Proctor is doing the right thing by making sure our animals are safe.

Mars Food has recalled two date codes of Uncles Ben's Whole Grain White Rice Garden Vegetable, due to an undeclared milk allergen. People who have an allergy or severe sensitivity to milk run the risk of serious or life-threatening allergic reaction if they consume these products.

The recall, affecting ONLY the Whole Grain White Rice Garden Vegetable, affects the 4.7 oz. (133 g) boxes with the following:

• UPC code of 54800 40778
• Best before: 08/12
• Code dates: 133BA4RP06 and 133BB4RP06

An ingredient supplier improperly included an undeclared milk ingredient in the seasoning mix used for this product. As such, consumers with milk allergies are advised not to eat the product, and consumers should return the product to the store where it was purchased for a full refund.

This product was distributed through retail stores in Alabama, Arkansas, Arizona, California, Colorado, Delaware, Florida, Georgia, Iowa, Illinois, Indiana, Kansas, Kentucky, Louisiana, Maine, Michigan, Minnesota, Missouri, Mississippi, North Carolina, New Hampshire, New York, Ohio, Oregon, Pennsylvania, Tennessee, Texas, Utah, Virginia, Vermont and Wisconsin.

Mars Food US has not received any reports of illness or other consumer complaints related to this matter. No other flavors of Uncle Ben's Whole Grain White Rice or any other Uncle Ben's products are affected.

Nygala will recall approximately 10,000 Halloween Projection Flashlights, as the flashlights can overhead, blister and melt, posing a fire and burn hazard to consumers. Better late than never. I guess.

These Chinese made flashlights are black and orange plastic, and the flashlight is 6 ½ inches long with pumpkins, bats, witches, haunted houses and cats on the handle. The flashlights came with six different plastic lenses that attach to the flashlight to project various images, including a pumpkin, bat, witch, haunted house and cat. The flashlights packaging is imprinted with “Flomo,” “HW189” and UPC 677916518266 on the packaging.

The recalled Halloween flashlights were sold at discount stores in California, Connecticut, Florida, Maryland, New Jersey, New York, Pennsylvania, Texas and Utah from August 2010 through October 2011 for about $1.

The firm has received one reported incident involving a flashlight that overheated, blistered and melted.

The J.M. Smucker Company has announced a limited recall on 16 oz. Smucker’s Natural Peanut Butter Chunky, as it has been determined that it may be contaminated with Salmonella. Salmonella is an organism that can cause serious and sometimes fatal infections in young children, frail or elderly people, and others with weakened immune systems.

The affected Peanut Butter is packaged in 16oz jars, and is marked as follows:

• UPC: 5150001701 (located on the side of the jar's label below the bar code)
• Production Codes: 1307004 and 1308004
• Best-If-Used-By dates: August 3, 2012 and August 4, 2012
• Chunky product only (not creamy)
• Impacted product would have been purchased between November 8 - 17, 2011

This product was distributed in: Arkansas, Colorado, Delaware, Illinois, Indiana, Iowa, Kansas, Kentucky, Maine, Maryland, Michigan, Minnesota, Missouri, Nebraska, New Jersey, New York, North Dakota, Ohio, Oklahoma, Pennsylvania, South Dakota, Texas, Virginia, Wisconsin, and the District of Columbia.

No other products of The J.M. Smucker Company are affected by this recall.

United Natural Foods (UNFI) is recalling selected types of FoodMatch, Inc. Divina Stuffed Olives, as they have the potential to be contaminated with Clostridium botulinum, a bacterium which can cause life-threatening illness or death. These items have been recalled due to a lack of temperature control during the distribution process. UNFI inadvertently subjected the recall items to temperature ranges above those directed by the manufacturer.

The following products have been recalled:

• DIVINA 4 OZ OLIVES,FETA CHEESE STUFFED (blue and yellow label) UPC 63172352780
• DIVINA 4 OZ OLIVES,BLUE CHEESE STUFFED (blue label) UPC 63172352790

Divina Olives Stuffed with Feta Cheese were distributed to the Safeway stores identified below:

• #0583 1606 N Ave, Spearfish, South Dakota
• #1577 6520 S Academy Road, Colorado Springs, Colorado
• # 1615 3325 28th Street, Boulder, Colorado
• # 1644 7655 Mclaughlin Rd, Falcon, Colorado
• # 2761 1165 Main St, Lander, Wyoming
• # 2792 27152 Main St, Conifer, Colorado
• # 2910 1632 Hover Road, Longmont, Colorado
• # 0853 7625 Old Georgetown Road, Bethesda, Maryland
• # 0942 12 West Washington St, Middleburg, Virginia
• # 1283 8646 Richmond Highway, Alexandria, Virginia
• # 1606 9596 Old Keene Mill Rd, Burke, Virginia
• # 1668 5510 Norbeck Road, Rockville, Maryland
• # 1956 14939 Shady Grove Road, Rockville, Maryland
• # 2650 43150 Broadlands Plaza, Ashburn, Virginia
• # 4002 5727 Burke Center, Burke, Virginia
• # 4205 415 14th Street SE, Washington, D.C.

Date codes Best Used By: 11 JAN 2012 and Best Used By: 1 FEB 2012 sold at other retail outlets have not been affected because the products were not exposed to a lack of refrigeration controls.

Divina Olives Stuffed with Blue Cheese were distributed to the following states: Alaska, Washington, Oregon, California, Arizona, Nevada, South Dakota, Colorado, Wyoming, Maryland, Pennsylvania, Virginia, and Washington DC through the following retail stores:

• Genuardis
• Carrs
• Safeway
• Pavilion
• Vons

Best Used By: 11 JAN 2012, Best Used By: 15 DEC 2011, Best Used By: 30 DEC 2011, Best Used By: 1 FEB 2012

These date codes sold at other retail outlets have not been affected because the products were not exposed to a lack of refrigeration controls.

No illnesses have been reported to date.

• Recall on Stuffed Bio Gaudiano Brand Organic Olives

Badia Spices is recalling approximately 3,800 lbs. of Pinenuts, as they may be contaminated with Salmonella Enteritidis, an organism which can cause serious and sometimes fatal infections in young children, frail or elderly people, and others with weakened immune systems.

The pine nuts were sold in retail stores in Florida, New York, Pennsylvania, Maryland, and New Jersey - between June 2011 and October 2011. No illnesses have been reported for any Badia brand pine nuts to date.

Badia Spices is recalling the following lots of Pinenuts:

• (UPC) 033844 00068 – 1 oz Pine nuts in small plastic bags Lot # 84666
• (UPC) 033844 00733 – 2 oz Pine nuts in pet bottles Lot # 83184, 85442

Badia Spices repacked bulk pine nuts which were imported from Turkey and subsequently recalled by Sunrise Commodities. The bulk pine nuts have been linked to an outbreak of Salmonella Enteritidis illness.

• Sunrise Commodities' Pine Nuts Recall
• Wegman's Pine Nuts Recall

The Food and Drug Administration (FDA) is warning consumers not to eat Turkish pine nuts, distributed by Sunrise Commodities, after tests have confirmed the presence of Salmonella.

The FDA is collaborating with the Centers for Disease Control and Prevention (CDC) to investigate a multistate outbreak of Salmonella Enteritidis infections. To date, there are reports of at least 42 illnesses associated with the outbreak in Maryland, New Jersey, New York, Pennsylvania and Virginia.

As part of FDA’s investigation, samples of Turkish pine nuts from a warehouse used by Sunrise Commodities were collected.

Sunrise Commodities has already recalled four lots of the product implicated in this matter, totaling more than 21,000 pounds of pine nuts.

The affected nuts were packed in 22-pound boxes and included the markings:

• Warehouse Lot 27963 with the identifying code “PO#: 50165”
• Warehouse Lot 29628 with the identifying code “PO#: 50558”
• Warehouse Lot 27713 with the identifying code “PO#: 49595”
• Warehouse Lot 27427 with the identifying code “PO#: 50032”

Sunrise Commodities distributed the Turkish pine nuts in bulk to various food vendors in Florida, New Jersey, New York and Canada. A recall notification was issued by Sunrise to its customers on November 3, 2011, alerting them of the test results and of the epidemiologic investigation.

Wegmans Food Markets, recalled the product from their stores on October 26, 2011. As the investigation continues, additional recalls may take place.

The U.S. Consumer Product Safety Commission (CPSC) and IKEA have announced a voluntary recall of their PAX AURLAND wardrobe mirror doors. The recall affects approximately 1,700 units in the United States and about 500 in Canada.

It has been discovered that the mirror doors, imported and sold by IKEA North America Service, can detach unexpectedly from the wardrobe door, and fall and shatter. Obviously, this poses a laceration hazard to consumers.

This recall involves a wardrobe door with full-length glass mirror with model number 101-604-51, supplier number 12650 and production weeks 1039 through 1048 (YYWW). The product name "PAX AURLAND" and "IKEA" and production week are printed on the rear of the mirror door on the lower edge. The mirror door is made of foil-coated particleboard and the mirror of glass. The mirror is secured with metal fastenings at top and bottom. The mirror door measures about 19 and 1/2 inches wide, 93 inches high and 7/8 inches thick.

IKEA has received reports of 14 incidents. Customers are urged to conact their local IKEA store for instructions on returning the mirror wardrobe door for a free replacement door.

This week may prove to be a busy one, with four recalls announced first thing this morning.

The holiday season usually brings tins of butter cookies, but not for Rite Aid. Rite Aid has initiated a voluntary chainwide recall of approximately 85,000 tins of butter cookies, distributed by Rite Aid under the Rich Fields brand name, due to the possibility that they may be contaminated with Bacillus cereus. This microorganism may cause diarrhea, nausea and/or vomiting; however, the possibility of serious adverse health consequences is minimal.

This recall affects only the 12 oz. tins that feature either a decorative castle or Christmas designs, and sold exclusively in Rite Aid stores. Affected butter cookies can be identified by the UPC codes 01249596519 and 88411804619. The recall was initiated after the company conducted quality testing on the affected product because of an uncharacteristic odor. No other Rich Fields or Rite Aid brand products are affected by this voluntary recall.

Second recall for the day is Eating Right's Soy Protein Burgers. The packages inadvertently contain Eating Right™ Veggie Burgers, which contain milk. The label does not list milk as an ingredient. People who have allergies to milk run the risk of serious or life-threatening allergic reactions and should not eat this product. There is no concern for those who are not allergic to milk.

The Soy Protein Burgers were sold nationwide at:

• Safeway
• Carrs
• Dominick’s
• Genuardi’s
• Pak ‘N’ Save
• Randalls
• Tom Thumb
• Vons
• Pavilions

The retail package is a 4-count, 10-ounce carton marked with a UPC Code of 79893 80071 and one of the following lot codes on the side panel of the package: NOV 17 12 WT A or NOV 12 WT B. This product is located in the freezer case. No other Eating Right products or date codes are involved in this recall. Safeway was notified of the situation by a consumer.

Rhythm Superfoods voluntary recall of KOOL RANCH KALE CHIPS is number three for the day. The recall was initiated after it was discovered that approximately 2,700 cases of the Kool Ranch Kale Chips containing cashews were distributed in packaging that did not reveal the presence of the cashews. Subsequent investigation indicated that the problem was caused by the use of new packaging that failed to declare the cashews.

Continue reading "Monday's Food Recalls...." »

Wells Enterprises is voluntarily recalling a limited number of packages of its Blue Bunny® Personals® ice cream, due to a mispackaging incident.

On a limited number of packages, the lid indicates the product as Blue Bunny Super Chunky Cookie Dough ice cream, while the carton itself indicates the product as Blue Bunny Peanut Butter Panic ice cream. The product contained in the is Super Chunky Cookie Dough. The ingredient statement on the carton does not declare wheat, which is an ingredient in the Super Chunky Cookie Dough product. People who have an allergy or severe sensitivity to wheat and/or have gluten sensitivities may be at risk from consuming these products.

The mispackaged Blue Bunny ice cream was distributed in 5.5 fl oz. The cartons affected are indicated by Lot Number 10009 “Best Used By” date 10/1/2012, - UPC 0 70640 00463. The lot number and UPC can be found printed on the side of the carton.

The affected product was shipped to the following states: Kansas, Minnesota, Mississippi, Missouri, Iowa, Oklahoma, Nebraska, North Dakota, Tennessee, Florida, Wisconsin, Oregon, Pennsylvania, Indiana, Massachusetts, and Texas.

Wells Enterprises became aware of the packaging error after receiving a report from a store that the lid and cup were for different products. The allergy alert and recall relates only to the above mentioned mispackaged Blue Bunny ice cream. No other Blue Bunny ice cream products are affected.

Wegmans Food Markets has announced a recall of bulk Turkish Pine Nuts due to possible Salmonella contamination. The recalled Turkish pine nuts were imported from Turkey by Sunrise Commodities.

Wegmans is recalling approximately 5,000 lbs. of Turkish Pine Nuts, sold in the Bulk Foods department of most Wegmans stores in New York, Pennsylvania, New Jersey, Virginia, and Maryland, due to possibility of being contaminated with Salmonella. The time frame for the sale of these nuts would have been between July 1 and October 18, 2011.

The bulk Turkish Pine Nuts have been linked to an outbreak of illness from Salmonella Enteritidis, an organism which can cause serious and sometimes fatal infections in young children, frail or elderly people, and others with weakened immune systems. Illness onset is typically 12 to 72 hours after consumption.

This recall only applies to Turkish Pine Nuts sold in bulk. Other pine nuts sold at Wegmans are not affected by this recall.

• Wegmans Recalls Chocolate Chip Bars
• Walnut Recall for Salmonella Concerns

Last week's River Ranch lettuce recall is growing. At that time, their the 8-ounce package of Shredded Iceberg Lettuce was recalled, in addition to several Giant Eagle deli sandwhich rings, as they were prepared with shredded iceburg lettuce, that was potentially contaminated with Listeria monocytogenes.

River Ranch Fresh Foods has now initiated a voluntary recall of 2,154 cases of various bagged salad products due to the potential of being contaminated with Listeria monocytogenes.

The bagged salad products subject to the recall include:

• Farmers Market 8 oz shredded Iceburg 30034-30195 Best By 14OCT2011 A106A and A106B
• Farmers Market 7 oz Parisian Blend 30034-30259 Best By 14OCT2011 A106A and A106B
• Farmers Market 9 oz Leafy Romaine 30034-30364 Best By 14OCT2011 A106A and A106B
• Farmers Market 12 oz Romaine Garden 30034-30220 Best By 14OCT2011 A106A and A106B
• Hy-Vee 8 oz Shredded Iceberg 75450-12053 Best By 14OCT2011 A106A and A106B
• Hy-Vee 12 oz American Blend 75450-12047 Best By 14OCT2011 A106A and A106B
• Hy-Vee 12 oz Garden Supreme 75450-12046 Best By 14OCT2011 A106A and A106B
• Hy-Vee 12 oz Romaine Garden 75450-12058 Best By 14OCT2011 A106A and A106B

These salad products were distributed in Iowa, Ohio, and Pennsylvania and sold in retail supermarkets. No other products or code dates are affected by this recall. As with the previously recalled Iceburg lettuce, there have been no reported illnesses attributed to the recalled items.

Max Kennerly writes about a lot of new bills being proposed in Pennsylvania. Any legislature can propose a bill and there is always someone in every legislature - on both sides of the aisle - who likes to put out radical bills so they can brag to their constituents about how crazy they are. Still, these proposed bills do not give you a warm fuzzy feeling about the political climate right now for injury victims.

Ultimately, I think the problem is that people want jobs or more stability in their jobs and that fear distracts them from thinking about the unlikely possibility that they will be seriously injured and want to be compensated for those injuries. Politicians love blaming personal injury lawyers because they are an easy target. Often, the people throwing the punches don't really feel like oppressing tort victims is going to solve anything but they can't resist grabbing the low hanging fruit of blaming lawyers. To make matters worse, we have a minority of personal injury lawyers who are more than willing to live up to the stereotype.

A former police officer in Philadelphia received a $1.3 million settlement after suffering injuries in what would generously be decribed as a minor car accident. What defines minor? No property damage. None.

The officer was at a stop light when he was rear ended in the kind of car accident that most people walk away from without even exchanging information. In fact, the police officer didn't think he was hurt either. But he claimed to have suffered a pinched nerve in his right arm that ended his career as a police officer. Those guys are well paid which means good economic damages.

The temptation is to blame runaway juries. This case was settled before a mediator.

Was this a worthy case? Ultimately, who knows? But it is a country with 311 million people. There are one in a million, one in ten million type injuries were people suffer very serious injuries in very minor accidents, some of which involve negligence.

You can read more about the case here.

I've written in the past about the question of what limits the collateral source rule has in determining what medical bills can go to a jury. In particular, I discussed the court's unfortunate ruling in Indiana that evidence that medical bills have been discounted can be introduced as evidence to the extent that discounted amounts can be introduced without referencing insurance.

Tort Talk says that a Pennsylvania judge addressed a related issue: whether future medical bills can be discounted because the victim has insurance. The court in this case said that the plaintiff may plead, prove and recover future medical expenses as those expenses were not shown to be "paid or payable." The rationale? There is no way to say the Defendant will have insurance in the future.

I think the fact that we are having this conversation in the first place is ridiculous. All of these efforts to introduce payments and reductions violate the collateral source rule, a rule that has withstood scrutiny for a very long time. But at least this opinion does not take the insanity any further.

There is a recall for two carob products made by Simple Foods of Tonawanda sold at health food stores in four states have been recalled because their labels don't mention they contain milk which cause cause life-threatening consequences if you are allergic to milk. The products are "Carob Brown Rice Crunch Squares" and "Carob Mint Miniatures"

These carob products were sold in New York, New Hampshire, New Jersey and Pennsylvania.

Carob is a substitute for chocolate.

New uninsured/uninsured opinion from the Superior Court of Pennsylvania. No obligation to offer new UM/UIM limits when you change your bodily injury coverage. UM carrier in this case in Nationwide.