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Tobacco Companies Abusing Florida Courts

Florida courts must protect the individual rights of all defendants in each individual case.

Suppose, however, that a powerful and wealthy defendant has been found guilty of, and eventually admitted to, a massive multi-billion dollar fraud against many hundreds of thousands of Floridians.  Suppose further that this defendant employs a litigation strategy specifically intended to make it too expensive for the victims to litigate these cases, with the hope of delaying the cases until all the victims have died.  The defendant never settles any claim, vigorously contests even the most insignificant issues, argues every possible position no matter how frivolous, and appeals every adverse verdict.

Eventually the vast majority of the victims give up trying to enforce their rights, or die before they can get to trial.  Of the very few cases that do go to trial, the defendant’s exceptional attorneys are able to win some of them and obtain mistrials in many others.  In the tiny fraction of cases in which the victims are able to get to trial and obtain a verdict, the courts often remit or reverse those verdicts because the evidence shows conduct so despicable that the verdicts are often very high.  The defendant’s strategy is working, and the vast majority of victims of the admitted fraud have already died.  Should the courts consider that context when deciding an individual case?

In 1994, a class action lawsuit was filed on behalf of approximately 700,000 tobacco addicts living in Florida, some of whom were given free cigarettes by tobacco companies when they were just school children, bought penny cigarettes at candy stores when they were eight or nine years old, and fought in World War II and Korea where they were given free cigarettes as rations.  Soon after the jury in that lawsuit found that tobacco was indeed addictive and did cause disease, the tobacco companies admitted these things for the very first time.  But even though their case was filed almost twenty years ago, few of the victims have ever or will ever see their individual day in court.  Why?

The tobacco defendants have successfully employed a litigation strategy that takes advantage of a fundamental tenet of the American judicial system.  We accept without question that the courts must protect the rights of all defendants in each individual case; and so a defendant that is wealthy and powerful enough can choose to litigate every issue, no matter how insignificant, in order to successfully increase the time and expense necessary for each individual case, until the years drag on and the rest of the victims die.  Of the approximately 700,000 initial class members, less than 8,000 were still around in 2008 and able and willing to continue their fight.  Each year, more and more of them die, while only a small handful get to trial; of those that win, the appellate litigation can then last many years more.

Perhaps most disheartening to the victims is that once the fortunate few get to present the actual evidence to a jury, the high verdicts that are often returned are sometimes viewed by the courts as improperly infected with passion.  But what human being would be unmoved by evidence showing that the tobacco companies intentionally addicted children to a product they knew to be deadly, and then successfully deceived their customers for decades knowing that it meant people would die?  If the vast majority of victims never get to trial, and in the very few trials, the horrific evidence often results in high verdicts that routinely get reduced or even reversed for being excessive, then the strategy of delay will be so incredibly successful that it will save the defendants many billions of dollars compared to the lowest possible fair settlement value.

And this tobacco litigation strategy affects far more than the victims. When tobacco companies at first hide evidence of their massive fraud by utilizing their attorneys in carrying out their deception, and still today spend over half a billion dollars in legal fees every year, until many of the best and brightest of our Bar build their practices around defending this fraud, how could that not change what it means to practice law?  If generations of young lawyers get trained in an environment that condones delay at any cost while the lawyers profit from the greatest fraud ever perpetrated on the American people, how could that not affect our Bar and our judicial system?

This litigation strategy also changes how other corporations do business.  When tobacco companies successfully delay litigation so that the vast majority of victims die without ever seeing a day in court, and then the courts protect the tobacco defendants from large verdicts in the tiny fraction of cases that do get to trial, why wouldn’t other corporations follow that successful example?  Delay means victory for tobacco, winning at trial means victory for tobacco, and ironically even big verdicts in favor of victims mean victory for tobacco.  The unbelievably despicable nature of the tobacco defendants’ conduct, which is the basis for the large verdicts, actually allows their eventual victory in court.

It was a Florida court that first held that tobacco companies could not continue to hide the evidence of their massive fraud by utilizing “their attorneys in carrying out their misrepresentations and concealment to keep secret research and other conduct related to the true health dangers of smoking.”  American Tobacco Company v. The State of Florida, 97 So. 2d 1249 (Fla. 4th DCA 1997).  Florida courts and Florida lawyers played a critical role in preventing tobacco corporations from hiding their crimes by copying their lawyers on all documents evidencing their fraud; but does that even matter if the evidence of fraud cannot be used against powerful corporations in any practical way?

Tobacco lawyers have told me that any case in which the smoker has died before trial is “dead”.  But that’s just the first step.  Cases in which the smoker and the spouse have died before trial, or which are otherwise impractical or impossible to pursue, are considered by tobacco companies to be “dead-dead.”  Almost every one of the original approximately 700,000 claims filed in 1994 are already “dead-dead.”  Those families never got their day in court, and never will.  Of the few thousand that are left, more become “dead-dead” every single day.  While our courts assure the rule of law in every individual ruling they make, the end result is that they will never get to rule on virtually every one of the original claims.  Almost every claim (for an admitted fraud!) is defeated by delay and death.  Is that justice?  And if not, are our courts and our Bar powerless to do anything about it?

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Lead found in hundreds of popular lipsticks

Lead has been detected in over 400 popular lipsticks, according to a new FDA study.  However, the agency disagrees with consumer activists on the danger posed by the findings.

The highest level found was 7.19 parts per million in Maybelline Color Sensation lipstick.  Federal regulations cap children’s products with a 100 parts per million limit.  The comparison is relevant because lead levels in cosmetics are unregulated.  The FDA claims that the levels found in lipstick are safe, posing no health concerns.  But the Campaign for Safe Cosmetics, a consumer activist group, disagrees.  The group argues that no level of lead is safe and stated that lead can build up in the body over time, making even a small amount of regular exposure hazardous.

The group is imploring the FDA to set manufacturing standards limiting the amount of lead and chemicals in cosmetics.  Without such regulations, the Campaign argues, manufacturers may use any chemical in any amount.  Furthermore, the Center for Disease Control states that no amount of lead exposure is safe for children.  The agency has asked companies to remove lead from their products so that pregnant women and children are prevented from exposure.  However, without an official law or regulation, manufacturers are free to disregard the request.

Price level appeared to have no effect on led contamination.  The lipstick with the lowest lead levels, Wet & Wild Mega Mixers Lip Balm, was also the least expensive.

For more on the study’s results, visit ABC News.



Hyundai opposes recall of 2011-2012 Sonata Hybrid

Hyundai is petitioning the National Highway Traffic Safety Administration (NHTSA) to cancel the agency’s recall of 2011-2012 Sonata Hybrids.  The vehicles were recalled due to a seat belt design flaw; currently, the belts do not conform to federal motor vehicle safety standards.  Nearly 15,000 Sonatas are affected by the recall.

Hyundai has agreed to replace the seat belts in over 1600 cars currently for sale at nationwide dealerships.  However, the manufacturer opposes replacing belts in cars that have already been sold, claiming the issue is “inconsequential.”  As such, Hyundai is petitioning NHTSA to reconsider the recall.  If the petition is unsuccessful, Hyundai will have to begin notifying drivers about the recall and replacement options.

In the meantime, Sonata drivers can sign up to be notified of any updates.  Visit NHTSA’s recall notification website to fill in your vehicle and contact information.

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HP must pay $425,000 penalty for failure to report defect

HP has agreed to pay a $425,000 civil penalty to resolve allegations that it failed to report a product defect to the Consumer Product Safety Commission (CPSC).  The agency charged that, through October 2008, HP continued to sell laptops it knew contained defective lithium-ion battery packs. The packs overheated and, in some cases, caught fire.  At least one consumer was hospitalized with injuries.

Federal law requires that manufacturers immediately report known product defects to CPSC.  The agency alleged that, by September 2007, HP knew of 22 incidents with the battery pack, as well as the injuries to the hospitalized consumer.  Despite this knowledge, CPSC said, HP failed to report the defect.  The company continued to sell laptops containing the battery packs and also sold the packs individually.  According to CPSC, by the time HP reported the issue in July 2008,  the company was aware of at least 31 incidents involving the battery packs.  Finally, in October 2008, HP and CPSC announced a joint recall of 32,000 packs.

Although it has agreed to pay the penalty, HP denies that the packs pose an unreasonable risk of death or injury.  The company also denies violating the law.  For more on this case, visit the CPSC website.


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Johnson & Johnson recalls Infants’ Tylenol

Johnson & Johnson has issued a recall of 574,000 bottles of  Infants’ Tylenol, citing problems with the product’s dosing system.  The medication is supposed to be administered orally using a syringe.  The company has received complaints that a flow restrictor at the top of the bottle was being pushed into the bottle when inserting the syringe.” A problem with the flow restrictor makes it difficult for parents and caregivers to administer the proper dosage to infants.

No injuries from excessive doses have been reported from the design flaw; however, a number of complaints from parents prompted the company to issue the voluntary recall. Consumers may continue to use the the product if the flow restrictor remains in place at the top of the bottle.

For more information on the recall, visit

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Toys R Us encouraging consumers to trade in unsafe products

Toys R Us is currently holding a “Great Trade-In” event that encourages consumers to help remove unsafe products from the market.  From now until February 20, 2012, parents and caregivers can trade in old or dangerous products in exchange for 25% off new items from the same product categories.

According to a Toys R Us press release,

stores will accept any used cribs, car seats, bassinets, strollers, travel systems, play yards, high chairs, kids’ beds, swings, walkers, bouncers and entertainers in exchange for a 25% savings on the purchase of a new baby item, in any of these product categories, from select manufacturers.

The program was first introduced in August 2009.  Since then, over 600,000 potentially unsafe toys have been traded in for safer replacements.  The company noted that a Consumer Product Safety Commission (CPSC) analysis found that one in seven injuries from children’s products involved products that had been recalled.  Furthermore, most of the injuries occurred after the recalls.  The Great Trade In draws attention to products that have been recalled but remain in circulation, and gives consumers an incentive to remove these products from the marketplace for good.

For more information on the event, including a list of participating manufacturers, read the press release or visit

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Customs seizes dangerous toy shipment

 Click On Detroit is reporting that “U.S. Customs and Border Protection Officers (CBPO) from the Port of Detroit targeted and seized a container of rag dolls and transformable cars after a lab analysis found that the toys contained high levels of lead and small parts that presented a choking hazard.”  The seizure was a joint effort with investigators from the Consumer Product Safety Commission (CPSC).

The shipment of toys originated in China.  After it arrived in Newark, NJ, CPSC selected it for testing.  Customs and Border Protection held the toys in Detroit and sent samples to CPSC for chemical analysis.  The toys were found to be too dangerous for the American market.

Under the Consumer Product Safety Improvement Act of 2008, importers are required to test and certify that imports of children’s products comply with CPSC requirements.  CBPO must enforce the regulations as products come into the country.  Effective enforcement of the Act can prevent harmful products from entering the country, protect children from injury and death, and prevent the need for later recalls.

Area Port Director Roderick Blanchard praised the operation. “American children and the public at large deserve to have toys that are safe and free from harm,” he stated.  “This is an excellent example of cross agency cooperation that resulted in keeping dangerous products off the market.”


Common household chemicals may interfere with vaccine efficacy

A new study has found that certain chemical compounds may prevent childhood vaccinations from working properly.  The compounds  can lead to lower immune responses to vaccinations, putting children at risk of catching a disease they have already been vaccinated against.  In some cases, children lost the vaccines’ protections by age seven.

Perfluorinated compounds (PFCs) are commonly uses in products ranging from nonstick pan coatings to microwave popcorn bags. They break down slowly, persisting for years in the environment.  Scientists were already aware that high concentrations of PFCs were toxic for mice’s immune systems and bloodstreams.  But until recently, a parallel in humans had not been studied.

A team of Harvard researchers investigated whether PFC exposure would interfere with children’s antibody responses to tetanus and diphtheria vaccines.  They chose a group of children living in the Faroe Islands, because previous studies revealed that who frequently eat seafood may have increased exposure to PFCs.  The study concluded that, the higher the PFC levels in the children’s blood, the lower their response to vaccinations.  When PFC exposure doubled, blood antibody levels dropped by 49% at age seven.  Indeed, CBS reports that “a doubling of a child’s PFC levels corresponded with a child being two to four times more likely to have an immune response considered  too low to be clinically effective.”

The study’s author, Dr. Philippe Grandjean, stated that he and the other researchers “were kind of shocked when we saw those numbers . . . . This is the first study to say that by [exposing children to PFCs], we are screwing up a major aspect of disease prevention in our society. I’ve been in the field for quite a while, and this is a very strong signal.”  Dr. Grandjean added that he doesn’t “feel comfortable with the compounds for myself and my family and would rather eliminate them.”

Eliminating exposure may be easier said than done.  In addition to microwave popcorn bags and nonstick coatings, PFCs are also found in furniture, clothing, cars, and carpeting that have been treated with stain repellants, as well as lubricants used in skis and snowboards.

Further research is needed to understand how PFCs collect in our bodies and what effect they may have on other vaccines.  But one thing is clear: greater efforts should be made to keep harmful chemicals out of the natural environment.


Infant dies suddenly; is powdered formula to blame?

Wal-Mart has pulled Enfamil Newborn formula from its shelves after one Missouri newborn died and another became ill.  Each baby had consumed the formula, and both tested positive for an environmental bacteria named Cronobacter that can cause serious injury and death.  Currently, investigators are not sure if the formula caused the death and illness.  According to Business Week, regulators are testing the formula, the water used to prepare it, and the clothes the children wore.

No recall has been issued for the formula.  However, until tests are completed, officials are urging consumers to discard or return the formula.  Furthermore, Wal-Mart is allowing its customers to return or exchange the product.  If tests come back negative, the product will likely be returned to the shelves.

Illness from Cronobacter is rare, affecting just two or three infants per year.  Nevertheless, Wal-Mart should be applauded for exercising an abundance of caution and preventing other infants from ingesting what could be a contaminated product.

Regardless of the tests’ eventual results, public health officials are reminding parents to take a few crucial steps when feeding babies powdered formula:

  • Clean and sterilize all glassware and bottles with soap and hot water.
  • Always wash hands before preparing formula.
  • Boil and cool water before adding it to formula.
  • Prepare only enough formula for one feeding.  If there is extra, it should immediately be refrigerated and used within 24 hours.


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Auto manufacturers oppose stricter recall rules

The Senate is considering a bill that would raise fines for automobile manufacturers who delay recalls of defective or dangerous vehicles.  If the bill passes, maximum fines will increase from $17.35 million to $250 million.  Unsurprisingly, national auto groups are opposing the measure.

Democratic Senators Mark Pryor (Arkansas) and Jay Rockefeller (West Virginia) introduced the bill in late July.  According to The Detroit News,  “[p]roponents have been pushing for more than a year to strengthen auto safety measures in the wake of sudden acceleration concerns in Toyota Motor Corp. vehicles.”

In a joint letter, automobile corporations called the proposed fines “unfairly punitive.”  They are urging the Senate to decrease the amounts to “a more appropriate level.”  The companies are also opposing a measure that would require a senior official at each auto company to certify the accuracy of its recall reports and require fines of $5,000 a day for submitting false, misleading, or incomplete information.

The proposed Motor Vehicle Safety Act contains a number of other components that would increase driver and passenger safety.  For example, one Democrat-sponsored proposal would bar rental car companies from renting or selling vehicles that are under recall.  Another part of the Act would prevent manufacturers from installing televisions within eyesight of drivers.  The Act would also require the National Highway Traffic Safety Administration (NHTSA) to “set standards for the placement of pedals to ensure that they are located to prevent them from getting stuck.”  Auto groups oppose the the NHTSA requirement.

Automakers do support at least one provision: a proposed mandate requiring that all new vehicles include event data recorders.  They are requesting that manufacturers be given “sufficient lead time to develop and implement this technology in their fleets.”

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