Columbus, Ohio Attorney Blog - Robert W. Kerpsack Co., L.P.A.

This past Tuesday, June 24, about 320,000 cribs were recalled because they have wooden slats and spindles which can break. The baby would then be potentially trapped and in danger of strangulation. So far that has not happened, although 42 incidents have been reported. Four children have been trapped and two sustained abrasions and bruising.

These cribs are marketed by Jardine Enterprises, which is based in Taiwan. They were manufactured in China and Vietnam, and in the U.S. they were sold between January, 2002 and May, 2008 at major retailers. Toys 'R' Us carried them, as did Babies 'R' Us and the cost was between $150 and $450.

Jardine baby furniture is popular and known for being good quality for the price you pay. You can see photos of a dozen or so of their cribs on the Babies ‘R Us website.

The models affected were Berkley, Hilton, Positano, Spindle and Windsor. If you have any of these cribs, you are asked to stop using them immediately and contact Jardine. They will issue a voucher so that you can buy a new crib.

Bisphenol A (BPA) is an organic compound used in the manufacture of a group of plastics known as polycarbonates. These plastics are easily molded into desired shapes and widely used in the chemical industry. They are resistant to temperature and sudden impacts.

One of the uses of polycarbonates is in the manufacture of baby bottles. In 1997, researchers reported that low-dose exposure to BPA in laboratory animals seemed to disrupt their hormones. Since then, over 100 studies have been done on BPA’s effects and they have found possible (but not definitive) links with developmental defects, neurotoxicity, cancer, and obesity.

BPA is also used in CDs, DVDs, plastic lining in canned food cans, and dental sealants. To date, no human studies have been completed, but based on results of animal studies, the Environmental Protection Agency (EPA) has set a maximum intake for human safety. The European Union and Japan have both assessed various studies and concluded that the current human exposure to BPA is safe. Some toxicologists are pointing out the animal studies done so far have all injected the BPA into the animals, whereas humans ingest it, and the differing effects are as yet unknown.

An endocrine disrupter

One of the effects of BPA observed in animal studies is that it mimics estrogen, the main female sex hormone. In other words, it can act in the body like estrogen, and possibly cause other hormonal responses. That makes it an endocrine disrupter. Endocrine glands are small organs which release hormones, and they form an endocrine system of seven glands. Examples are the pancreas which produces insulin; the two adrenal glands (one on top of each kidney) which produce adrenalin; and the ovaries which produce several hormones, one of which is estrogen.

Many private lawsuits

California has a class action pending against the manufacturers of Nalgene reusable sports bottles, which claims that the company downplayed the risks of BPA in the bottles. Missouri has a class action pending against five baby bottle companies, claiming that they failed to reveal information about the health effects of the BPA in their bottles and training cups.

Kansas and Los Angeles also have pending class action suits, and these claims are against the retailers of the bottles as well as the manufacturers. The FDA has not determined that BPA is unsafe, but in April this year it formed a task force to look into the matter.

This space will watch the BPA issue and report back later. Meanwhile, if you are wondering whether your baby has been affected by BPA, or if you or a loved one are wondering about the effects of water bottles, please contact our office for a free case evaluation.

A U.S. District Court Judge in Florida refused on April 8 this year to dismiss a lawsuit against pet food companies over the the way pet foods are advertised. Many pet food commercials show glowing images of prime beef cuts, vegetables and fruits, and label their products with terms like “gourmet”, “premium” and “wholesome”.

The plaintiffs in this lawsuit are claiming that most pet foods actually contain such items as restaurant grease, cow brains, moldy grains, and discarded supermarket meat along with its styrofoam packaging.

The complaint names seven pet food manufacturers and several large retailers such as Wal-Mart, PetSmart and PetCo.

Earlier Class Action Suit Settled

In an earlier lawsuit against pet food companies over tainted food, class action lawsuits are being settled for $24 million in New Jersey. One company among the defendants in that case is Menu Foods, a Canadian-based manufacturer, which had recalled 180 brands of food and treats because they contained tainted wheat gluten imported from China. Several thousand cats and dogs had died of kidney failure after eating those products.

The Florida suit is more about false advertising than tainted ingredients. Those plaintiffs are seeking class action status, and the judge’s refusal to dismiss the suit gives them a step in that direction.

False advertising is a type of consumer fraud. Although such claims can be hard to establish, we have successfully prosecuted class action lawsuits, defective product claims, and other related types of suits. If you have been injured by a defective product, insurance company bad faith, or stockbroker misconduct, please contact us for a free consultation.

This month the EEOC (Equal Employment Opportunity Commission) is settling a case with Wal-Mart where Wal-Mart was charged with first failing to accommodate a disabled employee, and then firing her. Glenda Allen began working for Wal-Mart as a pharmacy technician in 1993.

For a period she worked for a different employer in 1994, during which time she was shot during a robbery. She sustained several injuries, one of which was spinal cord injury, so that she must now use a cane when walking.

Back at Wal-Mart, there were no problems with her doing her pharmacy job until she was given a new manager who would not accommodate her injuries, and demoted her in 2003 to the position of door greeter. Allen refused this demotion, and Wal-Mart terminated her in April that year.

Legal Proceedings

Allen filed a disability discrimination lawsuit in the District of Maryland, under the Americans with Disabilities Act (ADA). Wal-Mart filed a request for Summary Judgment. However the U.S. District Court in Baltimore refused that request and partially granted the EEOC’s cross-motion, finding that Wal-Mart did not have any “undue hardship” defense.

Wal-Mart will now pay Allen $150,000 in compensation, as well as $50,000 in back pay and another $50,000 in attorney fees. There is a cap for such cases as this, at $300,000. As part of this settlement, the EEOC will monitor Wal-Mart for three years in regard to their treatment of people with disabilities.

If you have been terminated by your employer over any disability, you may have a valid legal claim. Please contact us for a free case evaluation.

On June 7, Justice Paul Pfeifer of the Ohio Supreme Court issued a majority opinion statement in the case of one Stephen Gaydosh concerning his loss of vision. In 2004, Mr. Gaydosh somehow perforated his left eye with a screwdriver while installing a windshield wiper blade. He worked for AutoZone, Inc., and filed a workers’ compensation claim, which was granted.

His ophthalmologist, Dr. Francis Mah, examined him and concluded that his left eye vision was 20/200 (with correction), which made him legally blind. Dr. Mah found that he had lost his left eye’s lens, and estimated that he had lost “at least 75 to 80 percent of his vision”. Later that year Gaydosh filed a motion with the Ohio Industrial Commision for compensation for his “100% loss of vision” in the left eye.

At this point, his employer, AutoZone, asked that he see a second ophthalmologist. This second doctor also found his left eye vision to be 20/200 with correction.

Industrial Commission Denies Then Grants Compensation

The district hearing officer for the Industrial Commission denied compensation on the basis that Gaydosh still had some vision in his left eye – that he hadn’t lost “100%” as his motion claimed, but “only 75 to 80 percent”. Then on appeal, another hearing officer reversed this decision, based on a similar previous case where a worker had lost one eye’s lens in an industrial accident and had been compensated for total vision loss.

AutoZone Continues the Dispute

After this setback, AutoZone took the case to the Ohio Supreme Court, claiming that Gaydosh is entitled to only partial compensation, since he still had some vision in the left eye. Ohio’s law states that a worker who loses sight in one eye is entitled to 125 weeks of compensation. If less than 100% of sight is lost, that worker receives a corresponding percentage of 125 weeks’ compensation.

After studying the two medical reports and considering exactly what the relevant law states, the Ohio Supreme Court found that Gaydosh is legally blind and therefore should receive 125 weeks’ compensation. The vote was close – four to three in favor of upholding the Industrial Commission’s reversed decision.

Industrial accidents can cause permanent pain and disability. If you have been injured at your workplace and would like to know more about your legal rights and options, please contact us for a free consultation.

The term mesothelioma means malignant tumors on the mesothelium, which is a lining around many of the body’s organs. The lungs have one called the pleura, and the abdominal cavity has one called the peritoneum.

Mesothelioma is most often caused by previous exposure to asbestos, and it most often occurs in the lungs, because the asbestos fibers were breathed in. They are microscopic fibers, easily airborne, and when a person works where asbestos is being used, he or she will be breathing them in.

What is asbestos?

Asbestos is the name for a group of minerals which are atypical in that they’re fibrous. Asbestos is heat-resistant, resistant to chemical change, blocks sound, and does not conduct electricity. Because it’s fibrous, it also has tensile strength. In the late nineteenth century it became favored for its many valuable properties, and was widely used in wiring, plumbing, drywall, automobile brakes and many other areas of manufacturing or building.

So people were exposed to it for about a hundred years in many ways, including in the asbestos mines. Those who breathed it in every day of their working lives had no immediate symptoms. The tiny fibers became lodged in the lungs and over time worked their way deeper in.

The body’s defenses inadequate

Normally the body sends scavenger cells to dispose of foreign bodies like asbestos fibers. But asbestos is resistant to chemical change and instead of the cells engulfing the asbestos and carrying it away in the bloodstream to be excreted, the asbestos killed off the scavenger cells. They accumulated in those locations until eventually a tumor formed.

Mesothelioma symptoms

Symptoms will appear between about 20 and 50 years after the asbestos exposure.They are typically:

• Shortness of breath
• Chest wall pain
• Fatigue
• Wheezing and coughing
• Coughing up blood

Depending on where the asbestos fibers became stuck, there may be several tumors, and at some point, the lungs may collapse. As with many other cancers, mesothelioma may spread in the bloodstream to other parts of the body.

On May 29, 2008, a Texas appeals court reversed a $26 million verdict previously made against Merck & Co., the manufacturer of Vioxx. It found no evidence to support the idea that Robert Ernst’s death in 2001 had been caused by Vioxx. In 2005, his widow had won a $253 million verdict but the Texas punitive damage caps had cut it down to $26 million. Now his widow is apparently not entitled to any award.

Meanwhile, a $13.9 million award made in favor of John McDarby in 2006 was reduced by a New Jersey appeals court to $4.5 million. That court voided the $9 million punitive damages award because it found that the federal Food, Drug and Cosmetic Act overrides New Jersey’s Product Liability Act. McDarby had suffered a heart attack after taking Vioxx, but had survived it. He died in 2007 from his ongoing heart problems.

Merck has now won eleven victories and sustained three losses in Vioxx trials which reached verdicts. There are appeals pending in some cases.

What is Vioxx?

Vioxx is a painkiller with a side effect of causing heart troubles, and Merck withdrew it from the market in September, 2004 when its own study showed that Vioxx doubles the risk of stroke or heart attack.

Research and FDA Approval

Pharmaceutical companies are giant corporations with multi-billion dollar budgets. When they develop a new drug it takes many years of research and testing to get it properly formulated and then approved by the FDA and marketed. This is hugely expensive for them and when it works out well, everyone benefits – patients who now have an effective and safe drug for their health problem, the drug company which can now sell the drug and recoup the enormous expenses it paid to get it on the market, and doctors who can now prescribe confidently to reduce pain and improve health.

But when something goes wrong in this process, patients, doctors and drug companies are all hurt. As large as they are, drug companies can be driven into bankruptcy by too many multi-million dollar judgments against them. This happened to Dow Corning in 1995 over its silicone gel breast implants, despite the fact that no connection was found in the subsequent 14 years of research between silicone gel and any disease whatever. It took several years for that company to pay its debts and reorganize.

Have You Been Harmed by a Drug?

Individual people can so easily get lost in the tussles between big corporations, big government, and big law firms. However, here at Robert W. Kerpsack Co., we watch out for you, the patient – you, the victim. We will take your side if you have been harmed by someone else’s negligence. Please contact us if you are worried about your situation and wonder whether you might have a legal claim for negligence or medical malpractice. We will be glad to give you a free consultation.

The term cerebral palsy (CP) includes a range of neurological conditions which appear in early childhood, usually by three years of age. Abnormalities in the brain areas which control muscle movements cause lack of coordination. Movements are either stiff and jerky (known as spasticity), or floppy and random (called ataxia). The child might drag one leg when walking.

There is no cure for CP but there are treatments and management techniques, and depending on the severity of the condition, a child may grow up to have a near-normal adult life. There is also a lot of ongoing research investigating new ways to manage it.

What is Botox?

It’s a very weak version of the botulinum toxin and is very popular as a treatment for wrinkles. When it is injected into a specific muscle, it blocks nerve impulses from reaching that muscle. That prevents the muscle from contracting. Cosmetic surgeons especially use it to treat frown lines, as it prevents a person from frowning, which helps smooth out those habitual lines. Botox has been a treatment for CP for some years when the problem is stiffness and jerkiness of movement. It relaxes some of the muscle tissue to calm down unnecessary movements. This helps a child to walk.

Shriners Hospitals for Children Project

There are research projects in varying stages from planning to completion. One which is currently recruiting participants is being run by Shriners Hospitals for Children and the United Cerebral Palsy Foundation.

One of the disadvantages of using Botox for childhood CP is that Botox treatments are temporary and must be repeated about every six months. That can become expensive and could reduce long-term effectiveness. The Shriners study plans to examine more closely how Botox injections affect walking and what changes they make in the muscles, brain and spinal cord.

This study is focusing on children aged four to twelve who have only one leg affected by CP, and who would normally be having Botox injections in the lower leg. They will be asked to go to a Shriners hospital at intervals for testing and recording of muscle movements and reflexes, brain activity, and changes in the muscle, brain, and spinal cord. It is hoped that the study will increase understanding of how to use Botox for longer-lasting effect.

If you would like to know more about this study, the U.S. National Institutes of Health (NIH) website has contact information. Cerebral palsy can be caused during birth by medical negligence. If you have a child with CP and are wondering whether you might have a valid case for medical malpractice, please call or email our office for a free consultation.