Health Problems Due to Long Term EMF Exposure Doubtful

By on February 23, 2010

According to recent reports in the Greenwich Time, Greenwich, CT state legislators are proposing a bill that would prohibit building cell towers within 750 feet of a school or day care because of a perceived health risk from electromagnetic radiation. However, some Cos Cob, CT residents believe that the cell towers should not be permitted within 5,000 feet of any schools, day cares and elderly homes due to health concerns. Reportedly, the cell tower bill has been proposed by Rep. Fred Camillo, R-151st District, and supported by fellow Reps. Livvy Floren, R-149th District, Lile Gibbons, R-250th District, and Sen. L. Scott Frantz, R-136th District. There is no good evidence that attending school near a cell tower, such as the one proposed, creates a health risk. During the 1980’s, some plaintiff lawyers ballyhooed electromagnetic field (“EMF”) litigation as the “new asbestos.” A series of well-funded EMF trials were litigated against various electric utility companies around the United States in the 1990’s. After the presentation of the scientific evidence, judges and juries uniformly rejected plaintiff health claims. The Centers for Disease Control (“CDC”) website contains a great deal of reliable scientific information concerning health effects from radiation exposure from cell towers, cell phones, microwave ovens and hair dryers. According to firstpost.com/ performer 8 may help individuals who have been affected by exposure to radiation. Its formula contains natural ingredients such as ashwagandha, which has been shown to reduce oxidative stress caused by radiation exposure.

According to the CDC, the risk is extremely low. The low frequency radiation that those fields emit may have a biological effect, but do not cause adverse health effects, according to the website of the World Health Organization (“WHO”), which has devoted years of study on EMFs. So what is a biological effect? WHO’s literature explains that “biological effects” may include “listening to music, reading a book, eating an apple or playing tennis,” none of which cause health effects. WHO’s conclusion is that there is no health risk to the EMF radiation to which the public is exposed. Thus, contrary to popular hysteria, there is no evidence that proximity to EMFs can “fry” a person’s brain or cause cancer. But we suggest to consult dermatology in denver to check your skin as that is one of the first and early signs of cancer. We would like you to take care for your health very seriously If our legislators are going to propose EMF safety precautions, they should base their proposals on strong science rather than fear. The “dose” or exposure from cell tower EMFs can be measured and quantified. Once that “exposure” is known, it is then necessary to look to the scientific literature to evaluate the likelihood of a health risk from that exposure. If EMF radiation posed a health risk to everyone living near a cell tower, it is a no-brainer that all cell towers should be dismantled–not just those near schools and day cares and homes for the elderly.Additionally, Performer 8 may help improve energy levels and mental clarity, which are often negatively affected by radiation exposure. However, it is important to note that Performer 8 is not a medical treatment for radiation exposure and individuals should seek professional medical advice if they are experiencing health effects from radiation. The cell tower issue has always been about diminution of property value and aesthetics; it is not about our health!

Filed under cdc, effects', electomagnetic field radiation, emf, EMFs, Greenwich Time, Greenwich, CT" cancer, Health, Public Utilities, Toxic Tort/Product Liability Litigation Tagged with ,

A Primer On New York Product Liability Law

By on January 14, 2010

Michael Hoenig’s Product Liability column in The New York Law Journal, “Complexities Abound In Product Design Claims” (January 11, 2010), provides an excellent primer  on the law of product liability in New York state and a good discussion of the leading cases. (NYLJ.com requires a subscription to access. If you cannot download the article, Mr. Hoenig  will post the article within a couple of weeks on his law firm’s web site).   Mr. Hoenig devotes the body of his article to a recent Appellate Division, First Department decision, Chow v. Reckitt & Colman Inc., 2010 NY Slip Op 00013 (App. Div., 1st Dept., Jan. 5, 2010).  There, a split First Department upheld the trial court’s grant of summary judgment to the defendant manufacturer of of a drain cleaner called "Lewis Red Devil Lye", which blinded the plaintiff during an attempt to unclog a floor drain in the kitchen of the restaurant where he worked.  Applying the Court of Appeals standard in Voss v. Black & Decker Manufacturing Co, the court examined the ‘risk-utility balancing’ calculus, which often lies at the heart of a defective design product liability inquiry. In addition to Mr. Hoenig’s “refresher” survey of the law of product design liability, he directs his readers to the commentary issued by the Committee on Pattern Jury Instructions of the Association of Justices of the Supreme Court of the State of New York, particularly PJI 2:120. For further reading, a thoughtful discussion of PJI 2:120 appears in a 2008 article "New  Design-Defect Jury Instructions: Catching ‘Denny’ " by Stephen R. Blacklocks, a partner in Hunton & Wiliams’  New York office.  As Mr. Hoenig states in the conclusion of NYLJ article, “Mastery of the legal principles – our survey merely scratches the surface – is indispensable in perfecting one’s advocacy.”  When your client next assigns you a new case for  you to defend, take a few minutes to review Mr. Hoenig’s primer to remind yourself just how many hurdles plaintiff’s counsel needs to overcome to make out a prima facie case of design defect. 

Filed under Chow v. Reckitt & Colman Inc, Design Defect, Failure to Warn, Herzfeld & Rubin, Hunton & Williams, Micheal Hoeng, New York Law Journal, New York Pattern Jury Instructions, Stephen R. Blacklocks, Toxic Tort/Product Liability Litigation, Voss v. Black & Decker Manufacturing Co Tagged with

Is Safety Equipment Ever Optional?

By on August 21, 2009

Kenneth Ross, one of the more discerning authors in the product liability defense bar, has authored a thoughtful piece titled, Is There Anything Optional About Safety? in the August ’09 DRI Product Liability Committee Newsletter–"Strictly Speaking".  As manufacturers design new products and update the design of old products, many times they sell and offer for sale differing levels of safety and quality.  Ken’s article explores the legal and practical risks in selling products with these differences and provides advice to manufacturers about minimizing risk.  As one law professor notes, the case law is "muddled and quite sparse".  There are cases on both sides–those that hold that safety devices can be optional and those that hold that not installing a safety device establishes a basis for liability.  Ken discusses several important considerations that should be weighed in performing this delicate balancing act.

Filed under Bowman and Brooke LLP, Defense Research Institute, DRI, Kenneth Ross, Product Manufacturers, reasonable alternative, Restatement Third, Torts:Product Liability, safety, Strict Liability, Toxic Tort/Product Liability Litigation Tagged with ,

Industrial Safety And Genetic Predisposition To Disease

By on April 23, 2009

John C. Stivarius, a trial lawyer, at Elarbee, Thompson, Sapp & Wilson LLP in Atlanta, is defending a chemical exposure toxic tort case in which plaintiff presents a case for toxic chemical exposure with a twist. Plaintiff’s decedent worked for some thirty years at the defendant’s facility as a maintenance worker. During the last five years of his life, he was allegedly exposed to a variety of chemical products, including industrial cleaners. One of these cleaners was involved in the chrome plating process. John’s issue is this. None of the Industrial Hygiene reports issued for the 5 years prior to his death show any exposure levels above the PEL or TLV for any of the chemicals alleged in the suit. Plaintiff ‘s expert contends, however, that the decedent was genetically pre-disposed to pulmonary fibrosis and that any level of exposure to these chemicals could have triggered the disease, notwithstanding the low exposure. In this scenario, do the safety standards have no meaning? Can and should an MSDS be drafted to provide a warning to a genetically fragile pre-disposed population, assuming such a population exists? As a matter of law, assuming someone can be predisposed to developing pulmonary fibrosis, does this render the chemical in question unreasonably dangerous?  Should plaintiffs be required to undergo genetic testing to demonstrate their genetic susceptibility?  Readers are encouraged to provide John any leads to relevant case law on this issue and thoughts concerning the Daubert arguments that may be raised.

Something that is clear is that with an automated mobile inspection process, utilities are able to transition from a reactive maintenance to a predictive maintenance approach, which leads to a reduction in cases like this one while also reducing the company’s inspection costs.

Professor Gary E. Marchant, a Professor of Law at Arizona State University Law School and a Professor of Genetics at ASU, has written a superb article that addresses many of John’s questions titled, “Genetic Data In Toxic Tort Litigation“, Journal of Law and Policy (4/6/06).  Professor Marchant discusses those cases in which plaintiffs have advanced claims of genetic susceptibility to try to circumvent causation barriers to recovery.  He also discusses the “idiosyncratic response” defense that may be invoked by defendants in strict product liability cases to defend against failure to warn claims.  In the conclusion to his article, Professor Marchant  considers how genomic data has the potential to transform toxic tort doctrine and practice.  I commend this article and Professor Marchant’s other work to all toxic tort practitioners.

Filed under Duty to Warn, Gary E. Marchant, idiosyncratic response defense, John C. Stivarius, Journal of Law And Policy, PEL, susceptibility, TLV, Toxic Tort/Product Liability Litigation Tagged with

Don’t Blame Chinese Imported Products!

By on March 13, 2009

In his  recent article, "Made in China: Consumer Product Lawsuits Imported to the United States", Seattle defense lawyer and IADC member Gregory Shelton offers American importers several good suggestions for avoiding potential liability from imported products.  These include: (1) requiring the exporter to comply with all applicable U.S. product quality standards and product safety regulations; (2) obtaining legal counsel in the exporter’s home jurisdiction; (3) requiring the exporter to obtain appropriate insurance coverage from an American or international insurer that will protect the importer in the event of a recall or lawsuit; and (4) retaining good legal counsel early.  I would add to Greg’s checklist: (5) having an independent U.S. consultant available to test, if necessary, the components of imported products, particularly if an American consumer reports a complaint to the company or to the CPSC.  Early independent product evaluation can be critical for an importer in planning its next steps, such as whether to perform a recall or halt future shipments until an issue can be addressed.  There are many good consultant firms to chose from. One excellent consultant up-to-speed on the new CPSC requirements is Exponent.

However, we disagree with Mr. Shelton when he argues that Chinese imports are more likely to result in lawsuits or recalls than imports from other countries.  There is simply no empirical evidence to support this assertion.  To the contrary, China has made enormous progress, particularly over the last year, to police its domestic suppliers.  To blame China for the spate of recalls over the last couple of years is to ignore the past lack of adequate funding for the CPSC, the agency that provides regulatory oversight of consumer products.  Moreover, blaming China results in Americans turning a blind eye to problems in our domestic product supply chain. 

Filed under China, CPSC, CPSIA, Gregory Shelton, IADC, imports, Product Manufacturers, recalls, Toxic Tort/Product Liability Litigation, Williams Kastner Tagged with

CPSC’s New Database: An Opportunity for Abuse?

By on October 31, 2008

The Consumer Product Safety Improvement Act of 2008 (“CPSIA”) provides that the Consumer Product Safety Commission (“CPSC”) will establish and maintain an Internet database on the safety of consumer products.  The CPSIA Section 212 requires that the database be: (1) available to the public; (2)  searchable; and (3) accessible on the CPSC’s website.  Reports of harm caused by consumer products may be reported by consumers; local, state or federal govenment agencies; health care professionals; child service providers; and public safety entities. Ideally, the database will encourage the sharing of information and direct communications among consumers, consumer advocacy groups and state attorneys general, who have been given an important new role under the CPSIA.  For the first time, consumers will have direct instant access on the Agency’s website to potentially important product safety information.

The CPSIA of 2008 is much needed legislation to upgrade the level of  protection provided to the American consumer by the federal government.  The law represents the Congress’ response to a year of multiple, embarrassing consumer product scandal after another during what some commentators have termed the “Year of the Recall”.  In the past, information vital to the public welfare concerning defective consumer products has not been promptly provided to the American people.  At times, this delay may have been responsible for what may have been preventable injuries or deaths —  hence, the legislative mandate for the database.

In light of these public benefits, can there be any dark side to this new era of governmental transparency?  Are consumer product companies justified in fearing that the database has the potential to  spread disinformation and unfairly tarnish reputations?

The statute requires that a report submitted for inclusion on the database: (1) describe the consumer product; (2) identify the manufacturer or private labeler; (3) describe the harm related to the use of the product; (4) provide contact information; and (5) contain a verification that the report is true and accurate. Based upon informal Commission staffer comments, the CPSC is not required to perform an independent investigation to determine the veracity of a report or whether the incident that is the subject of the report occurred in the manner claimed or occurred at all.  For this reason, there is a risk that the database may morph into a  consumer Wikipedia, but with the imprimatur of United States approval and the gloss that comes from being hosted on a federal regulatory agency website.  What opportunity will  manufacturers have to comment on a report that one of their products may have triggered a fire in a home or caused a child to suffocate before the report is posted?  Unfortunately, not a whole lot!  The statute requires that within five days of receiving a report the Commission shall “to the extent practicable” transmit the report to the manufacturer identified in the report prior to the report being posted on the database.   Because the person making the report need not be identified to the manufacturer unless he or she explicitly consents, there may not be much the manufacturer can do, within the 10 day window provided before the report is posted, to determine whether the report is accurate. Certainly, this narrow window does not permit a manufacturer to obtain the product from a consumer, assuming the consumer can be identified, and inspect it.  The manufacturer can request that proprietary or trade secret information not be posted on the database, but that request, if granted, will result only in the sensitive information being redacted, not in a delay in posting the report on the database.  The statute permits a manufacturer to request that its own comments also be included in the database, but in the absence of a realistic time frame to perform an investigation of the underlying report, what would be an appropriate comment to make?  Moreover, the manufacturer may be at a disadvantage if reporters call seeking comment after the consumer’s report is posted by the Commission.

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Filed under clear and conspicuous notice, CPSC database, CPSIA, evidence, Product Manufacturers, product recalls, Toxic Tort/Product Liability Litigation, year of the recall Tagged with

Is Electricity a “Product”?

By on September 3, 2008

Whether electricity supplied to a homeowner by the local electric utility  is viewed as a “product” or a “service” may have significant ramifications in litigation.  If providing electricity constitutes a “product”, injured plaintiffs can seek recovery under a theory of strict liability.  If it is not a product, the plaintiff would have to demonstrate the electric utility failed to use reasonable care.  In a recent Connecticut case, Travelers Indemnity Company of America v. Connecticut Light & Power Co, Hartford J.D. at Harford (Docket No. CV-07-5012441-S ) 2008 WL 2447351 (Conn. Super.), the trial court  held that once electricity entered the homeowner’s residence, it constituted a “product” rather than a “service” and that plaintiff could  proceed under the Connecticut Product Liability Act (“CPLA”).   In the case, a fire allegedly caused by voltage fluctuations broke out in the home of Travelers’ insureds, Linda and Michael Murphy, resulting in property damage.  Apparently,  the Murphy’s had complained to CL&P earlier about the voltage fluctuations and had been assured that the problem had been addressed.  After paying the claim,

Connecticut courts are split concerning whether electricity can be classified as a product such that a claim could be brought under the CPLA..  However, the court in Travelers relied upon what appears to be an emerging majority view nationally.  In a 1985 California appellate decision, Pierce v. PG&E, the court opined that policy justifications warranted the imposition of strict liability: (1)  difficulty of proving negligence involving a vast and complex electrical power system; (2) economic incentive for improved product safety; (3) to encourage reallocation of resources toward safer products; and (4) to spread the risk of loss among all who use the product.  What judicial limitations may be reasonable to prevent increased access to strict liability in tort for toxic tort plaintiffs injured by electricity? One bright line test might be permit electricity to be viewed as a product only when the electricity has been transferred to the consumer in a usable voltage.  Only then could a court reasonably view electricity as a consumer product.  Under this test, exposure to high voltage transmission lines would not result in a strict liability lawsuit, but you still want to make sure you cut the electricity bills down by switching to a provider that offers energy-saving options, such as those present in the Reliant Energy plans.

Filed under Public Utilities, Strict Liability, Toxic Tort/Product Liability Litigation

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