DuBose Law Firm, PLLC

Main navigation

You are here: Home / Archives for Personal Injury Dallas

Personal Injury Dallas

Talc Safety Topic of Congressional Hearings

By

Talc safety has been a concern for years. More recently, the clear possibility of asbestos contamination in talc has led to heightened concern about critical diseases, such as mesothelioma and ovarian cancer being caused by use of talc based products.  

Why is asbestos connected to talc safety?

Both talc and asbestos are minerals found in underground mines. Geologists know that these two minerals are often found intertwined in veins, making cross-contamination a real risk.

Talc everyday uses

Aside from baby powder, talc is used in a wide range of cosmetics for its moisture absorption and silkiness. Recently asbestos was found in four cosmetic products from Claire’s and Justice – both catering to makeup for children. It was also used for feminine hygiene, crayons, children’s toys, chewing gum, and a plethora of common products. There is no safe level of asbestos as its microscopic fibers can infiltrate lungs and harbor the potential for developing into lung cancer, asbestosis, and the deadly mesothelioma for fifty years or more.

Congressional hearings on talc safety

Concerns recently grew when the FDA found asbestos in several products, including baby powder. An initial hearing was conducted in March of 2019 over cosmetic talcum powder’s safety. This hearing specifically focused on talc’s connection with ovarian cancer.

The second hearing was launched when the FDA found asbestos in a sample of Johnson & Johnson’s (J&J) baby powder in October 2019. Under consideration may be the use of warning labels or regulation of talc products.

Congress speaks

The hearing questioned the testing methods used.  William Longo, founder of Materials Analytical Service, stated, “Independent labs throughout the country and over the course of several decades have documented the presence of asbestos in consumer talc products, including Johnson & Johnson’s baby powder. The methods used in the past and today by the industry are not sensitive enough to detect trace levels of asbestos.”

While Longo once denied the presence of asbestos in talc, he stated there is now more sensitive testing. He also received access to thousands of internal J & J documents showing their knowledge of small amounts of asbestos in their talc for decades. There is no safe level, yet J&J kept this information from regulators and the public. Protecting the J&J brand and the public trust of their products was their focus. They now have paid out billions of dollars in thousands of lawsuits with thousands more in process.

The House of Representatives Subcommittee on Economic and Consumer Policy tried to convince the CEO of Johnson & Johnson, Alex Gorsky, to testify at the hearing. He turned down the invitation.

Charles M. Elson, director of the John L. Weinberg Center for Corporate Governance at the University of Delaware, said Gorsky’s refusal made sense as the “CEO and his advisers probably figured that the downside was greater to testifying than not.”

E-Cigarettes and Teen Risks

By

E-cigarettes and teen risks become more evident as teens, young adults, and even children are showing the danger signs of using these e-cigarettes in all their various forms. 

What are e-cigarettes?

An e-cigarette comes in many forms, but all have a battery that heats a liquid that turns into an aerosol containing nicotine, flavorings, and other chemicals. Like regular cigarettes, users inhale everything that is in the device and also affect others with the aerosol, much like second-hand smoke.

Not only do they contain nicotine, they can also be filled with marijuana or other drugs. The aerosol flavoring may contain diacetyl, linked to serious lung disease. In addition, the aerosol may contain cancer-causing chemicals, heavy metals – lead, nickel, tin – and ultrafine particles that can penetrate deeply into the lungs. E-cigarette aerosol is NOT harmless “water vapor.”

While packaging may claim there is no nicotine, that has proven wrong in many cases.

The many forms of e-cigarettes

While they began appearing somewhat larger than a traditional cigarette, they have morphed into a variety of shapes. JUUL is the top-selling e-cigarette and often appears as a USB flash drive. One JUUL pod has the equivalent of a 20-pack of cigarettes! Because of their easily hidden size, they are students’ favorite device. JUUL is not the only one with this USB design, however. Others include MarkTen Elite for nicotine, and PAX Era, which delivers marijuana.

Besides the USB form, e-cigarettes can look like pens, pipes, cigars, or even regular cigarettes. They have their own vocabulary as well, they may be called “e-cigs,” “e-hookahs,” “mods,” ‘vape pens,” “vapes,” “tank systems,” and electronic nicotine delivery systems (ENDS).” No matter the name or clever packaging, they are unsafe.

Why is vaping unsafe?

Vaping is now linked to lung diseases in as many as 50 people in at least six states. No deaths are reported – yet – but several have been close calls. One of the most recent is a teen in Texas who contracted a lung disease after vaping. A New York doctor saw two cases this summer, including an athletic 18-year-old who almost died. The Texas Department of State Health Services (DSHS) has encountered a number of severe lung problems in Texas young people recently.  These patients were e-cigarette users, so the agency is looking into possible causes within or in addition to the vaping. They issued an alert to health care providers and clinicians to watch for symptoms and gather information.

A partial list of reasons the vaping liquid, and the device itself, can be harmful:

  • Nicotine
    • Long-ranging studies have proven the harmful effects of nicotine. This is especially true for developing brains. These changes actually affect the way a brain functions in attention and impulse control. Like nicotine from regular cigarettes, e-cigarettes can increase addiction to nicotine and possibly lead to addiction to other, even more harmful, drugs.
  • Aerosol ingredients
    • Some flavorings may be safe to eat because they’re processed through digestion. Inhaling, however, is a different process and lungs are not geared for inhaling these chemical flavorings. Because of this, scientists believe lungs could be harmed.
  • Batteries
    • There have been a number of instances where defective batteries led to serious injuries through fires or explosions.
  • Health effects
    • Scientists still do not know the full effects of e-cigarettes over time, but studies to date indicate harmful effects are likely.

How to prevent or stop the use of e-cigarettes

In Texas, the legislature is considering raising the minimum age to purchase or consume tobacco products from 18 to 21. This would include all e-cigarettes and other vaping devices. The mission of this bill is to prevent future smokers since 95 percent of smokers start before the age of 21.

While vaping devices appeared to some people as an innocent way to avoid the dangers of cigarette smoking, it is now known that it may actually introduce young people to smoking and may have the same unhealthful effects – or even more – as scientists investigate the repercussions on these youthful users.

The CDC has a number of suggestions that parents can use for having a discussion with your teen, including this Tip Sheet. An ongoing conversation can make a difference. While it may not be well-received, stopping an e-cigarette user before they’re addicted is worth the persistence.

Uber Self-Driving Car Kills Pedestrian

By

The first case of a pedestrian killed by a self-driving car occurred in Tempe, Arizona. This technology is still in the experimental phase, however Uber self-driving cars are on the roads in Pittsburgh, San Francisco, and Toronto – as well as Tempe.

Are self-driving cars safer?

Increased safety was the initial premise for the existence of unmanned self-driving cars. One of the primary causes of automobile accidents is distracted driving. In a robotic car, that should not be a problem, but obviously there are issues to be addressed. Building systems to automatically react appropriately in unexpected situations is a difficult task.

What happened in Tempe?

In this case, the car did have a human in the car as a backup. It appears the car, a Volvo XC90, was going about 40 MPH on dry streets with clear weather at 10 p.m. on a Sunday. An investigation is ongoing since the safety driver did not appear impaired. The victim, a 49 year-old woman, was walking her bicycle in the street. Though this was the first accident involving a pedestrian, one of these autonomous vehicles collided with another car in March of 2017.

Safety measures in place

Because states are eager to encourage testing, there are few regulations in place – not only with Uber, but Waymo, Lyft and Cruise, owned by General Motors. Doug Ducey, governor of Arizona, said in 2017, “We needed our message to Uber, Lyft and other entrepreneurs in Silicon Valley to be that Arizona was open to new ideas.” Originally Arizona mandated a backup driver in the car, but recently that was changed to allow testing of unmanned self-driving cars. This leniency is to boost the economy by allowing a low regulatory environment.

California is on the cusp of allowing unmanned vehicles, but is still investigating the proposition. In its testing of manned self-driving cars, Waymo has produced statistics required by California. When a human has to take control, it’s called a disengagement. In just over a year, Waymo’s cars drove 350,000 miles with 63 disengagements. This averages approximately 5,600 miles between disengagement events, clearly demonstrating the need for more testing before widespread use of unmanned vehicles.

Michael Bennett, an associate research professor at Arizona State University, has been studying the reaction of the public to driverless cars and their artificial intelligence. His comment on the aftermath of the Tempe pedestrian incident reveal his conclusion, “We’ve imagined an event like this as a huge inflection point for the technology and the companies advocating for it. They’re going to have to do a lot to prove that the technology is safe.”

Who’s Fault is Injury from Self-Driving Car?

“Look for insurance companies to lobby for profound changes in state insurance requirements and state laws”, says Dallas lawyer, Ben DuBose. “However, in the Arizona Uber incident, there was a back-up driver in the car. So, there’s still a question of why the back-up driver didn’t disengage and potential liability for her. People will still need car auto insurance and will still have potential liability.”

At the same time, as we head into the self-driving car era, DuBose says to look for additional new legal theories to address the autonomous car features. Automobile manufacturers and software designers will face new product liability claims. As even Volvo Car Corp. Vice President, Anders Karrberg recently testified before Congress “[c]armakers should take liability for any system in the car. So we have declared that if there is a malfunction to the [autonomous driving] system when operating autonomously, we would take the product liability.”

Should Nursing Home Patients Have the Right to Sue?

By

Imagine being admitted as a nursing home patient for rehab from an accident. While there you contract a potentially fatal disease solely the fault of inadequate care.

Maybe you have an elderly parent in another state. You determine that a nursing home close to their friends is the only option for your parent to get the care needed. Then you hear from a visitor that your parent is being neglected, or maybe physically, mentally, or emotionally abused.

In these, and other serious personal injury cases like them, you would generally want to sue – not only for the patient, but to let others know there’s a problem.

The arbitration clause

During the Obama presidency, a ruling from the Centers for Medicare and Medicaid Services (CMS) banned facilities that accept Medicare and Medicaid funds from requiring residents to sign pre-dispute arbitration clauses. This ban gave them the option to sue – a positive step for patients already stressed.

This ruling never took place due to a preliminary injunction by the American Health Care Association, the nursing home industry trade group. Now it’s possible there will be no option to go to trial due to a new rule by the Trump administration. Nursing homes would be able to continue the requirement for new residents to sign an arbitration clause. Refusal could mean no admittance.

The proposed new rule would require the agreement to be written in plain language, not legalese, with verification that the person understands. Kelly Bagby, a senior counsel with the AARP Foundation, does not think this makes it fair. “The ‘plain language’ requirement ‘gives with one hand the idea that it’s transparent, and takes away with another by saying ‘you don’t have a choice but to sign this.’”

The pros and cons of arbitration

Signing an arbitration clause in a contract – a common procedure at admittance – takes away the patient’s right to a trial. All conflicts must go through a third-party arbitration, generally more secretive than through a civil court, and awards to the plaintiff are up to 35 percent lower. To a population already in a stressful situation, signing this is often misunderstood or perceived as just one more piece of paper to sign.

There are supporters of arbitration. As Matt Webb, senior vice president of the U.S. Chamber of Commerce’s Institute for Legal Reform says, “arbitration is a system that is simpler, fairer, and faster for all parties concerned.” He goes further to say that “Studies basically show that if the arbitration agreement’s not done prior to a dispute arising, very few if anyone ever really agrees to go into arbitration at that point.”

This statement says a lot about the fairness of arbitration. If it’s so fair and simple, why wouldn’t a person agree without coercion?

What you can do

This is not a ruling – yet. If this concerns you, contact your U.S. representatives and senators and give them your opinion. “We the people” still have a voice.