South Carolina Personal Injury Law Blog

Toxic Torts

A toxic tort the legal term for the harm that results from wrongful exposure of a harmful chemical or biological substance through ingestion, inhalation, skin contact, or skin absorption. Examples of toxic tort litigation include but are not limited to cases concerning, lead paint (causes brain damage, especially in children), asbestos (causes lung cancer, restrictive lung disease), pesticides   (causes birth injuries), toxic molds (causes various symptoms), and electro-magnetic fields from utility wires or major appliances (suspected to cause cancer), and toxic landfill/spill waste (causes leukemia, and other syndromes).

Toxic substances are regulated under the Toxic Substances Control Act (TSCA). The TSCA was enacted in 1976 to give Environmental Protection Agency (EPA) the ability to track the 75,000 industrial chemicals currently produced or imported into the United States. The EPA repeatedly screens these chemicals and can require reporting or testing of those that may pose an environmental or human-health hazard. EPA can ban the manufacture and import of those chemicals that pose an unreasonable risk. Despite government efforts to protect your health, millions of people at home, at work, and during their leisure time are being exposed to and injured by toxic substances every day.

Due to the nature of toxic substance accidents and long latency periods, many cases are often not brought until many years after victims discover they were exposed to the toxins. Exposure to toxic substances is particularly harmful for industrial workers who may have been exposed to high levels of toxins over a long period of time. Exposure to toxic substances is also particularly harmful to children who are generally more sensitive to toxic agents and who have a greater likelihood of exposure as a result of play habits and behavior patterns.

It is rare for toxic exposure to affect just one person, especially in cases of environmental contamination. It is very common for groups of people who have all been exposed to the same toxin because of the same event (for instance, an accidental release of radiation from a nuclear power plant) or because of the same occupation (for instance, repeated exposure to dry cleaning fluid by people in the cleaning industry) to bring legal claims as a group in order to seek redress for wrongful toxic exposure. As a result, toxic tort cases are often brought as class actions.

There are many different legal theories, including negligence, premises liability, breach of warranty, misrepresentation, and strict products liability that are used to establish liability. Proving that a toxic substance has injured a person, however, requires hard work and experience.

At Stevens - MacPhail, P.A., we strive to obtain fair and just compensation for our clients' injuries.  Using our experience and the extensive resources available to us, we focus on achieving the best possible recovery for our clients.  In all matters involving personal injury it is essential that measures be taken promptly to preserve evidence, investigate the accident in question, and to file a lawsuit prior to the deadline imposed by the statute of limitations.

If you or a loved one has been injured, you can call Stevens - MacPhail, P.A. at (800) 897-8856 or (864) 598-9172 or e-mail us to schedule a meeting.  The initial consultation is free of charge, and if we agree to accept your case, we work on a contingent fee basis, which means we get paid for our services only if there is a monetary award or recovery of funds.  Don’t delay! You may have a valid claim and be entitled to compensation for your injuries, but a lawsuit must be filed before the statute of limitations expires.

Jury Awards Damages to Skier Paralyzed in Ski Jump Fall

A skier was awarded $14 million after a jury determined his 37-foot fall was caused by a badly designed "tabletop" jump. The jump remained open despite 15 other reports of skiers and snowboarders being injured earlier that season. The original award of $31 million was reduced after calculating "the comparative fault" of the skier and "the inherent risk of the sport." 

Source:  "Paralyzed Skier Awarded $14 Million for Fall at Snoqualmie" published in The Olympian.

Day Care Faces Lawsuit Over Child's Fatal Heat Stroke

A woman filed a $5 million lawsuit against a Texas daycare after her 4-year-old son died of heat stroke while under their care. According to the lawsuit, the center violated the child's rights by failing to provide a safe environment in the state-licensed daycare. Investigators charged the center with reckless injury to a child.

Source:  "Mother Sues State in Child's Day-Care Death" published in The Dallas Morning News.

Class Action Suit Accuses TJX of Negligent Credit Security

TJX, parent company of T.J. Maxx, Marshalls, and HomeGoods, faces a class-action lawsuit alleging it was negligent in failing to maintain adequate security of customers' credit and debit card data and failing to disclose the breach for a month. The suit claims that "[b]ecause of TJX's actions, hundreds of thousands or even millions of its customers have had their personal financial information compromised, have had their privacy rights violated, have been exposed to the risk of fraud and identity theft, and have otherwise suffered damages."  It seeks credit monitoring services and money  damages incurred by affected customers.

Source:  "TJX Faces Class Action Lawsuit in Data Breach" by Jenn Abelson, published in the Boston Globe.

The True Facts About the "McDonald's Hot Coffee Case"

One of the most distasteful "urban legends" is that about Stella Liebeck and the injuries she sustained in the "McDonald's Hot Coffee Case."  The "facts" of this case have been so distorted from the truth, that it is worth reading the following article by David Brannen of the Injury Law Blog to help separate fact from fiction:

As my friends will tell you, nothing gets my blood pressure rising more than when someone cites "that McDonald's Hot Coffee Case", as a reason for why personal injury lawyers in particular, and the court system in general, are out of control.

The actual case is Liebeck v. McDonalds, Dist. Ct. New Mexico (Aug. 18, 1994). The media characterized it as "Woman gets millions after burning herself with McDonald's hot coffee". The story got international attention. It was even mocked by Sienfeld, which was the most watched TV comedy of the time. Remember the Episode? Kramer tried to sue Starbucks after spilling coffee on himself. He suffered a red mark on his leg. Jackie Chiles took on his case. In the end, Kramer's lawsuit fell apart when his burn fully healed after he put balm on his leg.  Most people think the actual case was similar to this - it was not.

The real case involved a 79 year-old grandmother who bought a coffee at a McDonald's drive thru in Albequreue New Mexico. She was a passenger in a car driven by her grandson. She placed the coffee between her legs while trying to remove the lid. The coffee spilled, causing her to suffer 3rd degree burns to her genitals, groin, inner thighs and legs. Ms. Liebeck was hospitalized for eight days and underwent multiple surgeries, including skin grafts, to treat her injuries. It took her 2 years to recover from her injuries.

The jury who heard the case awarded Ms. Liebeck $200,000 in compensatory damages, but reduced to $160,000 to account for the fact it found her 20% responsible for her injuries. The jury then awarded Ms. Liebeck $2.7 million in punitive damages to punish McDonald's for its reprehensible behavour.

Punitive damages are awarded to punish a company for bad behaviour. The purpose is to denounce the bad behavour and to discourage the company, or others, form engaging in similar conduct in the future. To be effective, punitive damages must be proportional to the wealth of the wrongdoer - otherwise, punitive damages will not serve as a deterrent. They will simply become a cost of doing business. McDonald's was a multi-billion dollar organization, therefore, the jury decided that punitive damages of $2.7 million were necessary to make McDonald's change its behaviour.

Several days later the judge lowered the punitive damages from $2.7 million to $480,000. Both sides appealed. However, they reached a confidential settlement before the appeal could be heard.

Why was the jury so angry at McDonalds? Following are some of testimony that came out during the trial:

• Ms. Liebeck initially offered to settle her case for $20,000 (cost of her medical bills) but McDonalds offered her only $800;
• McDonald's admitted to knowing about the risk of serious burns for about 10 years. From 1982-92 McDonalds had received more than 700 complaints of people, including children and infants, suffering serious burns from its coffee;
• McDonald required its francises to serve coffee at 80-88 degrees celcius, which its own expert said was a burn hazzard;
• McDonald's own quality assurance manager testified that a burn hazard exists with any food substance served at 140 degrees or above and that McDonald's coffee was not fit for consumption because it would burn the mouth and throat;
• The quality assurance manager further testified that the company actively enforces a requirement that coffee be held in the pot at 185 degrees, plus or minus five degrees. He also testified that while burns would occur, McDonald's had no intention of reducing the "holding temperature" of its coffee;
• Plaintiff's expert, a scholar in thermodynamics as applied to human skin burns, testified that liquids at 180 degrees will cause a full thickness burn to human skin in two to seven seconds;
• Other testimony showed that as the temperature decreases toward 155 degrees, the extent of the burn relative to that temperature decreases exponentially. Thus, if Liebeck's spill had involved coffee at 155 degrees, the liquid would have cooled and given her time to avoid a serious burn;
• McDonald's also argued that consumers know coffee is hot and that its customers want it that way. The company admitted its customers were unaware that they could suffer third-degree burns from the coffee and that a statement on the side of the cup was not a "warning" but a "reminder" since the location of the writing would not warn customers of the hazard.

It is difficult to get reliable information about the Liebeck Case. The above facts are cut and pasted from a fact sheet provided by the Association of Trial Lawyers of America (of which I am a member) - you can access ATLA's fact sheet by clicking here.  There is also a good summary of the case on the Online Encycolpedia Wikipedia, which you can access by clicking here.  I tried, without success, to speak with the actual lawyer who represented Ms. Liebeck. I believe that he signed a confidentiality agreement that prevents him from speaking about the case.

Source:  "The McDonald's Hot Coffee Case - Separating Fact from Fiction" by David Brannen, published at his Injury Law Blog.

Toxic Torts

A toxic tort the legal term for the harm that results from wrongful exposure of a harmful chemical or biological substance through ingestion, inhalation, skin contact, or skin absorption.  Examples of toxic tort litigation include, but are not limited to, cases concerning lead paint (causes brain damage, especially in children); asbestos (causes lung cancer and restrictive lung disease); pesticides (causes birth injuries); toxic molds (causes various symptoms); electro-magnetic fields from utility wires or major appliances (suspected to cause cancer); and toxic landfill/spill waste (causes leukemia and other syndromes).

Toxic substances are regulated under the Toxic Substances Control Act (TSCA). The TSCA was enacted in 1976 to give the Environmental Protection Agency the ability to track the 75,000 industrial chemicals currently produced or imported into the United States.  The EPA repeatedly screens these chemicals and can require reporting or testing of those that may pose an environmental or human-health hazard.  The EPA can ban the manufacture and import of those chemicals that pose an unreasonable risk.

Despite government efforts to protect your health, millions of people at home, at work, and during their leisure time are being exposed to and injured by toxic substances every day.  Due to the nature of toxic substance accidents and long latency periods, many cases are often not brought until many years after victims discover they were exposed to the toxins. Exposure to toxic substances is particularly harmful for industrial workers who may have been exposed to high levels of toxins over a long period of time. Exposure to toxic substances is also particularly harmful to children who are generally more sensitive to toxic agents and who have a greater likelihood of exposure as a result of play habits and behavior patterns.

It is rare for toxic exposure to affect just one person, especially in cases of environmental contamination. It is very common for groups of people who have all been exposed to the same toxin because of the same event (for instance, an accidental release of radiation from a nuclear power plant) or because of the same occupation (for instance, repeated exposure to dry cleaning fluid by people in the cleaning industry) to bring legal claims as a group in order to seek redress for wrongful toxic exposure. As a result, toxic tort cases are often brought as class actions.

There are many different legal theories, including negligence, premises liability, breach of warranty, misrepresentation, and strict products liability that are used to establish liability. Proving that a toxic substance has injured a person, however, requires hard work and experience.

At Stevens - MacPhail, P.A., we strive to obtain fair and just compensation for our clients' injuries.  Using our experience and the extensive resources available to us, we focus on achieving the best possible recovery for our clients.  In all matters involving personal injury it is essential that measures be taken promptly to preserve evidence, investigate the accident in question, and to file a lawsuit prior to the deadline imposed by the statute of limitations.

If you or a loved one has been injured, you can call Stevens - MacPhail, P.A. at (800) 897-8856 or (864) 598-9172 or e-mail us to schedule a meeting.  The initial consultation is free of charge, and if we agree to accept your case, we work on a contingent fee basis, which means we get paid for our services only if there is a monetary award or recovery of funds.  Don’t delay! You may have a valid claim and be entitled to compensation for your injuries, but a lawsuit must be filed before the statute of limitations expires.

Types of Negligence

When a lawsuit is brought for damages caused by an accident, the judge or jury must decide who caused the accident, since more than one person may have been negligent, including the person who is bringing the lawsuit. Once the amount or percentage of negligence has been determined for each person, damages are awarded as determined by what system of fault the state follows.

There are two main systems used throughout the United States:

• Contributory Negligence  ::  Contributory negligence bars any recovery by the person bringing the lawsuit if they were responsible for the accident in any way. Thus, if the judge or jury decides the person who is bringing the lawsuit is even one (1) percent at fault for causing his own injuries, the person bringing the lawsuit may not recover any damages.
• Comparative Negligence  ::  In a comparative negligence system, the judge or jury decides how much fault should be allocated to each person responsible for an accident, and then apportions the amount of damages accordingly. For example, if a person is found to be 40 percent at fault for causing his own injuries, then the other party or parties responsible will only have to pay 60 percent of the plaintiff's damages. This is based on the percentage of fault assigned to each of them.

At Stevens - MacPhail, P.A., we strive to obtain fair and just compensation for our clients' injuries.  Using our experience and the extensive resources available to us, we focus on achieving the best possible recovery for our clients.  In all matters involving personal injury it is essential that measures be taken promptly to preserve evidence, investigate the accident in question, and to file a lawsuit prior to the deadline imposed by the statute of limitations.

If you or a loved one has been injured, you can call Stevens - MacPhail, P.A. at (800) 897-8856 or (864) 598-9172 or e-mail us to schedule a meeting.  The initial consultation is free of charge, and if we agree to accept your case, we work on a contingent fee basis, which means we get paid for our services only if there is a monetary award or recovery of funds.  Don’t delay! You may have a valid claim and be entitled to compensation for your injuries, but a lawsuit must be filed before the statute of limitations expires.

Football Coach Sues Over Botched Gastric Bypass Surgery

Charlie Weis, former offensive coordinator for the New England Patriots and current head coach at Notre Dame, will go to trial next month in Boston in a lawsuit against two Massachusetts General Hospital physicians. The former coach underwent gastric bypass surgery that was followed by serious complications which left him so close to death that he received the Catholic sacrament of last rites.

His lawyer claims that as a result of this surgery and its complications, Weis continues to suffer significant pain, discomfort and debilitation in his lower extremities, including neurological impairment in his right foot, and he wears a brace on his right leg to support himself.  Weis has made efforts to prevent his ordeal from gaining publicity.  The Massachusetts Board of Registration in Medicine informed consumers in 2003 that gastric bypass surgery should be regarded as a major procedure performed on a high-risk population.

Source:  "Weis Can't Bypass Publicity" by Bob Hohler, published in the Boston Globe.

What Is Negligence?

The most common tort (and the one most difficult to define) is negligence. Negligence is defined as the failure to use reasonable due care to avoid a foreseeable harm to a person, place, or thing. If you are negligent and your negligence causes injury to another person to whom you have a "duty of care," you may be liable to pay any damages resulting from the injury caused by your carelessness.

A person may be considered "careless" or "negligent" if they do not use the kind of "due care" that is appropriate to the particular situation in question. For example, a higher level of care is called for if you are pouring boiling coffee into a friend’s glass over his lap than is called for if you are pouring cold lemonade over the kitchen sink.

Generally, the law requires that individuals exercise the same kind of "due care" that a reasonable person would exercise under the same circumstances. This is called the "reasonable man" or "reasonable person" standard.

Some common negligence claims involve:

• Slip and fall accidents (a person slips, falls and is injured on someone else's property)
• Alcoholic beverage liability (a provider of alcohol--either a social host or bartender--serves too many drinks to an underage or noticeably intoxicated individual who is then involved in an accident that causes injury to a third person)
• Motor vehicle accidents (accidents caused by reckless or careless driving)
• Medical malpractice (when a doctor doesn't maintain the level of skill and knowledge commonly exercised by other doctors)

At Stevens - MacPhail, P.A., we strive to obtain fair and just compensation for our clients' injuries.  Using our experience and the extensive resources available to us, we focus on achieving the best possible recovery for our clients.  In all matters involving personal injury it is essential that measures be taken promptly to preserve evidence, investigate the accident in question, and to file a lawsuit prior to the deadline imposed by the statute of limitations.

If you or a loved one has been injured, you can call Stevens - MacPhail, P.A. at (800) 897-8856 or (864) 598-9172 or e-mail us to schedule a meeting.  The initial consultation is free of charge, and if we agree to accept your case, we work on a contingent fee basis, which means we get paid for our services only if there is a monetary award or recovery of funds.  Don’t delay! You may have a valid claim and be entitled to compensation for your injuries, but a lawsuit must be filed before the statute of limitations expires.