Randy Barnhart

Remembrance

Memorial Day

2012

Recall Round-up May 2012

FDA to Hold Meeting on Metal-on-Metal Hip Implant Safety

The FDA (U.S. Food and Drug Administration) will hold a two-day conference on June 27-28, 2012 to gather expert scientific and clinical advice on the risks and benefits of metal-on-metal (MoM) hip implant systems.

These MoM implant systems can in fall in one of two categories:

1. Total hip replacements consisting of a metal ball (femoral head), a metal femoral stem in the thighbone, and a metal cup in the hip bone (acetabular component).

2. Hip resurfacing systems consisting of a trimmed femoral head capped with a metal covering and a metal cup in the hip bone (acetabular component).

Last year, the FDA issued an order for hip implant manufacturers to collect more safety data on these systems after implantation, including data related to metallic ions in the blood. Now the FDA is considering whether to subject MoM hip implants to more rigorous premarket testing.

Attorney Malpractice - Conflict of Interest

Has something similar happened to you?

Carnegie Cos. v. Summit Properties Inc., Ohio Ct. App. 9th Dist., No. 25622, 3/28/12

Key Holding: A law firm acted in bad faith, and must pay opponent's attorneys' fees as a sanction, by trying to ignore or conceal a current-client conflict and pressing for a waiver rather than withdrawing.

Potential Value: Shows what not to do when faced with a conflict between current clients.

Read the full article here. Contact the firm if you have any questions or concerns about what you think might be a conflict of interest by your attorney.

Live Texting Info and Support During Business Hours

The firm is pleased to announce that during most business hours, visitors and potential clients surfing the firm's website  the will be able to engage a real staff person from my office by way of live texting. We hope this will be convenient and supportive to those in need of legal services, especially those harmed by attorney malpractice, bad faith insurance practices, and by defective products.

Event Data Recorders in All Cars by 2015 - Litigation Impact?

A bill requiring all new cars to be equipped with "black boxes" or "Event Data Recorders" recently passed the U.S. Senate. The bill is expected to clear the U.S. House too.

According to one news story: "The days of a car crash being one driver's word against another look to be history." Will the tort system see a battle of the black boxes? Will insurance companies hold up claims until the black box is analyzed by their own experts? Will the black boxes be able to record electronic control system defects and malfunctions? One thing is certain - the litigation landscape will change one way or another.

NHTSA Proposes Auto Brake-Throttle Override Rule

The U.S. Department of Transportation's National Highway Traffic Safety Administration (NHTSA) today proposed new rules on safety standards "to ensure drivers can better stop a vehicle in the event both the brake and accelerator pedals are depressed at the same time." Supposedly, NHTSA did some research which indicates a "Brake-Throttle Override" rule will reduce risks of sudden unintended acceleration by making application of the brakes "override" the threottle control system.

Said U.S. Transportation Secretary Ray LaHood:

America's drivers should feel confident that anytime they get behind the wheel they can easily maintain control of their vehicles — especially in the event of an emergency. By updating our safety standards, we're helping give drivers peace of mind that their brakes will work even if the gas pedal is stuck down while the driver is trying to brake.

Still blaming the driver, as you can see, not the electronic control system design or manufacturing defects.

NHTSA did state that that the proposed rule "aims to minimize the risk that drivers will lose control of their vehicles as a result of either accelerator control system disconnections or accelerator pedal sticking or floormat entrapment."  The problem is not a dosconnection, but a run-away connection.

The proposed rule would amend Federal Motor Vehicle Safety Standard (FMVSS) No. 124, Accelerator Control Systems, by updating the throttle control disconnection test procedures for all passenger cars, multipurpose passenger vehicles, trucks and buses, regardless of weight. For vehicles that have Electronic Throttle Control (ETC) and a gross vehicle weight rating (GVWR) 10,000 lbs. (4,536 kilograms) or less, the proposal would also require manufacturers include a Brake-Throttle Override (BTO) system to ensure the vehicle would stop if both the brake and the accelerator pedals are simultaneously applied. Many manufacturers are already including BTO systems in their vehicle fleets.

Stating the obvious, NHTSA Administrator David Strickland proclaims:

We learned as part of the comprehensive NASA and NHTSA studies of high-speed unintended acceleration that brake override systems could help drivers avoid crashes. While NHTSA's defect investigation program will continue to monitor and consider consumer complaints of any potential vehicle safety issues, this proposal is one way the agency is helping keep drivers safe and continuing to work to reduce the risk of injury from sticky pedals or pedal entrapment issues.

You can comment on the "Brake-Throttle Override" proposal, which is here.

Attorney Malpractice - A Typical Case as Reported by Westlaw

Continental Tree Farms v. Brown

Type of Case: Professional Malpractice, Fiduciary Duty

Specific Liability: Failure to complete legal services as promised; breach of fiduciary duty

Judgment: Plaintiff, $19,357.00

Judge:Timothy J. Simmons

Trial Type: Bench

Breakdown of Award: $19,357.00 to plaintiff for attorney fees and costs

Summary of Facts:

In 2002 a severe drought caused extensive crop damage to Continental Tree Farms Inc.'s Avondale, Colo., tree farm, the company said. After Continental's insurance claims were denied, the company said, it hired attorney Kirk Brown to pursue a legal action against the insurers.

According to the tree farmer, Brown told Continental the insured had viable claims. However, the attorney did not pursue the case with due diligence and in keeping with his recommendations, Continental said. Brown misrepresented the status of the action, the tree farmer said, and failed to keep it informed about the case.

Continental then filed a professional negligence action against Brown in the El Paso County District Court. The plaintiff also said the attorney breached his fiduciary duty, causing damages to his client.

Brown filed a pro se response, generally denying the tree farmer's allegations. He offered the affirmative defenses of failure to mitigate damages and statute of limitations.

The case went to trial before Judge Timothy Simmons in February 2009. Brown did not appear. The judge noted that other than filing the answer, the defendant failed to participate in the action.

Judge Simmons dismissed Continental's professional negligence claim, finding the plaintiff failed to provide supportive evidence.

 
The judge granted the second claim, breach of fiduciary duty, echoing Continental's assertions that Brown did not pursue the course of legal action he recommended to his client, he failed to keep Continental informed about the lawsuit's status and he misrepresented the status of the case.

While the plaintiff received more than $13,000 from the Colorado Attorneys' Fund for Client Protection as reimbursement of attorney fees paid to Brown, Judge Simmons said, Continental incurred an additional $19,357 in uncompensated attorney fees and costs as a result of the defendant's breach.

The judge awarded that amount to the plaintiff, adding Continental was entitled to prejudgment interest.

Court: District Court of Colorado, Fourth Judicial District, El Paso County.

_________________________________________________

The attorney was disbarred.

If you beleive your attorney has breached duties toward you, call now.

Randy Barnhart - Colorado Super Lawyer 2012

The firm is pleased to note that Randy has been selected as a Colorado Super Lawyer for 2012 - that makes seven years in a row! Below is a selection from the Superlawyers website:

PROFILE

Pursuing Legitimate Claims by Honest People Injured by Defective Products and Irresponsible Insurers

My law practice is concentrated on product liability litigation, claims of legal malpractice and insurance bad faith.  I have tried over 100 jury trials involving all three areas of law.  I have obtained million dollar+ verdicts and settlements in over 100 cases during my career. 

SELECTED TO

Colorado Super Lawyers 2012
Colorado Super Lawyers 2011
Colorado Super Lawyers 2010
Colorado Super Lawyers 2009
Colorado Super Lawyers 2008
Colorado Super Lawyers 2007
Colorado Super Lawyers 2006

There are super heroes practicing law - call the firm today if you believe you have been harmed by a defective product, a bad, less-than-super lawyer, or if your insurance company has wrongfully denied your claim.

Toyota Tacoma Airbags May Fail

Toyota is recalling certain Tacoma trucks for possible defect leading to the failure of the airbag to deploy in the event of an accident. Model years 2005 to early 2009 trucks are being recalled to replace the steering wheel spiral cable assembly. Approximately 495,000 Tacoma trucks are covered by this recall. According to Toyota: "Due to the combination of steering wheel spiral cable design and characteristics unique to the Tacoma chassis, friction between the spiral cable and the retainer in the steering wheel spiral cable assembly may occur in some vehicles. Friction over time may result in loss of connectivity to the driver’s air bag module. If connectivity is lost, the air bag warning lamp on the instrument panel will remain illuminated after starting the vehicle and the driver’s air bag may be deactivated, preventing deployment in the event of a crash."

Brain Injuries Are Not No-Brainers

March is brain injury awareness month!

Brain injuries can have consequences which cannot be predicted or even properly self-assessed because such an injury, due to an accident caused by a defective product for example, can affect who that person thinks he or she is, or the way that person thinks and feels. Get more information here.

If you have, or a loved one has, suffered an accident or trauma due to a design or manufacturing defect in a product and which accident you believe has or may have caused a brain injury, you can be certain that the firm knows that a brain-injured person is person first and foremost, that we know that no two brain injuries are identical, and that the effects of brain injury can be complex and vary from person to person.

Call the firm today if you have any questions.

Dumping Defective Hip Implants Overseas

The Trial Lawyer, A Magazine for Trial Lawyers & a Voice for Justice, re-reported an important article in the N.Y. Times about how non-FDA-approved hip implants were shipped off-shore instead. Here's an excerpt demonstrating the typical shift-the-blame stance taken by manufacturing conglomerates regarding the risks of their defective products:

Before the recall, DePuy long defended the articular surface replacement device, saying that any failures associated with it reflected failures by surgeons to properly implant the hip cup. The surgeons who performed the study of the resurfacing version of the device that was rejected by the F.D.A. were handpicked by DePuy and included the model’s designers.

Dr. Antoni Nargol, an orthopedic surgeon in England who worked on the study that DePuy submitted to the F.D.A. and later became a critic of the device, said in a telephone interview that the company had never informed him that its application for approval in the United States had been rejected.

Thousands of people now face pain and injury due to defective hip implants. Contact the firm if you have questions about the safety of your hip implant and your legal rights.