San Antonio Injury Attorney Blog

A life-long printer worker. A paint factory worker. An aviation gas refueler. What do these occupations have in common ? These are occupations in which workers are exposed to carcinogenic chemicals on a daily basis. They often work for companies who do not value personal safety of their workers. Companies express their lack of concern by refusing to invest in safety programs and issuing Personal Protective Equipment (PPE) such as masks and gloves to their workers.

Many of the solvents that such workers use on a daily basis contain carcinogens. These chemicals such as benzene, toluene, xylene, and naptha cause cancers that do no manifest themselves until 20-30 years after exposure. These types of illnesses are known as "latency injuries". To illustrate, chronic myelogenous leukemia (CML) is associated with an exposure to benzene that can occur 25 years prior to the first manifestations of the symptoms.

Often times, a Material Safety Data Sheet (MSDS) accompanies these chemicals. However, industrial companies are lax in educating their workers about the risks of such chemicals from the information on the MSDS. The MSDSs contain explicit warnings on the carcinogenic effects as well as pulmonary and respiratory dangers. There are several international organizations which issue warnings on carcinogenic effects, including the National Toxicology Program (NTP), IARC (International Agency for Research on Cancer), OSHA (Occupational Safety Health Administration), and ACGIH (American Conference Of Governmental Industrial Hygienists) . The MSDS will often cite these organizations when discussing the classification of the particular components of a product.

During a Texas toxic tort suit , a product liability attorney will examine the type of illness, and look to establish causation between exposure to particular chemicals over time and the disease in question. Usually, workers compensation laws would usually bar a plaintiff from suing his employer for injuries on account of hazardous chemicals in the workplace, unless the employer's negligence was so gross and brazen as to overcome the presumption of no negligence. The injured worker can however go after the manufacturers of industrial chemicals on a falure to warn theory, especially if the MSDSs did not adequaely warn of particualr dangers associated with exposure.

Other inquiries by a San Antonio toxic injury lawyer will focus on the adequacy of personal protective equipment provided to the worker. The paint worker who suffers cancer many years after leaving the factory is often the worker who was provided a cheap paper mask rather than a true respirator with filters. The Texas toxic tort investigation will also focus on the core principles of Time, Duration, and Exposure amount. When was the worker exposed ? How long was he exposed to the material in question ? How much contact did he have with the chemical ? Chemical exposure has many avenues including the breathing of toxic vapors, skin contact, and rarely ingestion. Finally, was the chemical in question capable of causing the disease in question ?

If you suspect that industrial exposure has caused a terminal illness in you, a friend , or a family member, you must consult with a Texas toxic injury lawyer without delay as statutes of limitation are strictly upheld.

A Texas product liability lawyer must be very mindful of House Bill (HB) 4, which has preempted the rights of personal injury victims. The purpose of this blog entry is to review some of the major changes associated with HB4 in Texas product liability law.

HB 4 had several major changes. First, it created a presumption of no liability in particular areas. It created a 15 year statute of repose. A statute of repose is similar to a statute of limitations, but usually the deadlines are enforced more strictly . For example, the statute of limitations would be tolled or delayed based on the discovery rule, which states that the clock on bringing a claim does not run until the injury could reasonably have been discovered, A statute of repose would not normally be tolled by the discovery rule. HB4 also created immunity for passive sellers.

The Texas Civil Practice and Remedies Code (CPRC) codifies these changes, including a presumption of no design or marketing defects in certain areas; a presumption of no marketing defects in specific Texas medical device / pharmaceutical drug injury cases; the creation of the 15 year statute of repose; and the establishment of passive seller immunity.

CPRC 82.008 created a presumption of no liability for the formulation, labeling, or design of a product if the manufacturer or sellers follow mandatory federal regulations / safety standards. If the seller or manufacturer demonstrates that he complied with the mandatory standards or regulations, then the Texas product liability lawyer must overcome a presumption that the manufacturer / seller is not liable for any injury caused by some aspect of the formulation, labeling, or design of the product.

The seller /manufacturer must show that the presumption of no liability is applicable. Keep in mind that the presumption is limited to formulation, labeling, or design. If a Texas citizen claims serious personal injury based on a marketing defect other than the labeling, than the presumption of no liability is not applicable. In addition, the mandatory safety standard or regulation must have been in effect at the time of the manufacture and be applicable to the risk that created harm.

To illustrate, Federal Motor Vehicle Safety Standard 207 governs seat back strength. The purpose of this federal law was to protect a passenger from injuries from a seat back failure and certain Texas seat belt injury cases. However, the regulation is not applicable to protect passengers who sustained injuries from a front passenger seat back failure. It is absolutely essential for a Texas personal injury lawyer to engage in a careful analysis of the federal safety standards in order to combat any rebuttable presumptions that may be created by Texas product liability laws.

As an update to our last blog post, several important Texas medical malpractice cases
have emerged that can affect residents of San Antonio and greater Texas.

In Dallas, a patient suffered severe and permanent brain damage in Texas when Baylor medical center's emergency care center did not allegedly detect a cerebral hemorrhage in the patient. The patient's medical expert discussed the standards of emergency care specifically with respect to a physician assistant (PA) and his report met the statutory elements of causation.

In another case involving a birth injury, a mother sued on behalf of her son when he suffered severe impairment and disfigurement at birth. The personal injury lawsuit alleged that the doctor failed to perform a caesarian section. However, statutorily, the mother failed to serve the offending doctor within the 120 day period. This is a major lesson in San Antonio medical malpractice cases - you must serve your expert report of medical malpractice and negligence within the 120 day period.

In another medical negligence case arising in Corpus Christi, a woman's legs were burned and scarred when a nurse allegedly committed medical negligence with a laser. The patient also sued the doctor, claiming vicarious liability for the nurse's negligence. The court did not consider the suit a health care liability claim per se, although it did classify the laser as a regulated medical device, which can represent a form of San Antonio product liability negligence .

Finally, in another Dallas claim, the Court ruled that claims against a plastic surgeon and the plastic surgery company after a negligent face lift procedure was considered to be a health care liability claim and not a claim under the Texas Deceptive Trade Practices Act (DTPA)
. The plaintiff had to satisfy the expert report requirement for medical malpractice claims. Causation and damages were an essential part of the claims and the finding of negligence against the plastic surgery company was dependent on a medical malpractice finding as to the surgeon.

If you have been a victim of medical malpractice or suffered injury from a medical device or pharmaceutical drug, contact a San Antonio and greater Texas personal injury attorney immediately.

In 2009, there were several major San Antonio and greater Texas pharmaceutical drug injury cases.

In Houston, an injured woman brought suit against Wyeth Pharmaceuticals claiming several prescription drugs used for her hormone replacement therapy had caused her serious personal injury. Her causes of action included failure to warn and design defects in the drug. The Appellate Division indicated that federal laws did not preempt the failure to warn claim, even if the FDA had approved the label's warnings. However, the cause of action claim for a design defect was dismissed on account the plaintiff had not proven a safer alternative.

In a Texas personal injury auto accident case in Houston, the injured driver sued the manufacturer of a truck for negligence and product liability claims. In these types of cases, the burden is on the plaintiff to show evidence of a safer alternative design. It is also critical that the injured plaintiff's expert have the training, experience, and special knowledge to comment on design defect and the use of safer alternative designs.

In another Houston Texas pharmaceutical drug injury case, a woman sued her doctor and Wyeth Laboratories for injuries from the dietary drugs Pondimin and Reduc. She alleged personal injuries including heart damage. However, the case was dismissed. San Antonio and greater Texas products liability cases must be brought within 2 years after the person suffers the injury.

Texas Civil Practice and Remedies Code (CPRC) 82.008 creates a rebuttable presumption of no liability in certain Texas product liability personal injury cases. However, section 82.008(d) makes exceptions for certain manufacturing flaws o defects from the rebuttable presumption.

If the seller has properly demonstrated the presumption, then it is up to the Texas personal injury lawyer to demonstrate that the standard / regulation was not strong enough to safeguard the public from unreasonable risk of injury or damage. The other option is to prove that the manufacturer, either before or after he commenced marketing the product, kept information or misrepresented information to the federal government. Such withholding or misrepresentation of information would have altered the federal government's creation of a proper safety standard.

In almost every Texas products liability case, the defense attorney premises his defense on his client's compliance with government standards. Counsel will claim that ultimately the government gave the seller a de facto seal of approval. In response, the Texas personal injury lawyer will counter that the federal government’s standard has always been a minimum floor and is often outdated and incapable of creating safety.

Another tactic is to attack how the manufacturer communicated with the government about the adequacy of a safety regulation. Such a tactic will open up a tremendous amount of discovery about not only the product itself, but exactly what the manufacturer told the government about how to construct its standard. It is a somewhat confusing wording on the legislation, because it almost puts the manufacturer in a type of watchdog role on the government’s standards.

Under the bill, there is no exception to the presumption of no liability if the manufacturer misleads or omits key information about its products under the applicable regulations. This key provision allows plaintiff's counsel to obtain all communication between the manufacturer and government as to all information the manufacturer gave the government as well as any communication related to the government's regulation in general. You may recall that during the Vioxx litigation, there were allegations that Merck withheld key research data from the government that reflected an increased incident of serious cardiac injury.

CPRC 82.008(c) also creates a presumption of no liability if the formulation, labeling, and design of the products had to acquire a pre-market licensing or approval from the federal government. Provided the federal government gave pre-market licensing / approval of the product's design, risks, and benefits, then there would be a presumption of no liability.

A Texas serious personal injury attorney would attack this presumption by demonstrating that the standards of pre-market licensing could not have protected society from unreasonable risk of serious personal injury. Another option is to show the manufacturer withheld information from the government that was material to the product's performance and caused the plaintiff's injury. Withholding information must be relevant to the product's performance and causally related so that you may be successful in a Texas product liability lawsuit.

A growing number of vaccinations including the influenza vaccine and now the newly minted Gardasil vaccine against the cervical cancer Human Papilloma Virus are increasingly suspected of causing the Guillain-Barre Syndrome (GBS).

GBS is a disorder of the neurological system characterized by uncontrollable muscle twitching, fatigue, and symptoms reminiscent of a recent stroke. Recovery does occur but in some case people may continue to have strong debilitating effects over a lifetime. Pulmonary complications and debilitating fatigue are the most common residual after effects.

Gardasil specifically is creating a special set of side effects that mirror the symptoms of GBS, including numbness and tingling, hair loss, extreme fatigue and weakness, and encephalopathy (seizures). Over 16 million does of Gardasil have been distributed to combat cervical cancer, but there continue to be questions about the side effects.

A vaccine injury lawyer can obtain a damage reward to cover important areas including medical expenses, income loss, long and short term care, permanent disability, and the loss of occupation. In addition, in the event of a loss of a loved one, vaccine product liability lawsuit and / or medical malpractice suits may be in order.

One suggestion to develop a model of those individuals who are most likely to develop GBS following vaccination in order to take the necessary precautions against vaccinating such individuals and lower the incidence of vaccine injury. The fact that Gardasil has been expanded to cover males teens only underscores the need to practice better preventive medicine.

Because the Vaccine Adverse Event Reporting System (VAERS) is a voluntary system, there is a greater possibility that the incidence of GBS following vaccinations such as Gardasil is being grossly underreported and there may be a greater incidence of side effects and vaccine injury.

A Gardasil lawyer can work with you in filing a suit for vaccine compensation and if necessary a Gardasil lawsuit against the pharmaceutical companies such as Merck.

As a growing number of Texans buy guns from gun shops and flea markets, Texas and the nation as a whole are seeing a rise in gun accident injuries . Product liability design defects contribute to a large number of deaths and tragic injuries each year.

Many people are unaware that gun manufacturers often cut corners by failing to provide safeguards against design defects and / or failing to adhere to quality control procedures. For example, the trigger mechanisms on the gun are often placed on the tip of a part known as a sear. It only takes a slight tolerance change during manufacturing to create a gun that will discharge from a slight jar without any trigger movement. Often, Texans report the weapon continues to fire until all ammunition has been discharged from the gun.

Another defect is demonstrated when someone drops the gun on its hammer (the hammer is cocked before firing). The drop of the weapon on its hammer will cause an uncocked hammer to move forward and cause the firing pin to strike the bullet casing , again causing a discharge of the weapon without a trigger pull.

Gun manufacturers are well aware of safeguards such as manufacturing the weapons with close tolerances and using a hammer block to prevent a gun firing without a trigger pull.

A recent phenomenon has been the use of SKS rifles which are now sold in the states. The SKS rifles were made in China for the benefit of the Russian and Chinese armies. The Chinese government recovered such weapons, and in doing so, it often switched out parts that had worn down or were not functioning. These altered weapons made their way into the United States and were sold as new weapons. Unfortunately, because the parts of the SKS rifles were built to certain specifications and were not interchangeable in tolerances, such SKS rifles are extremely prone to fire when jarred with no trigger pull. When jarred, these SKS rifles will discharge like a machine gun until all the bullets have been exhausted.

If you have been the victim of a gun accident, there is a strong possibility the discharge was a result of a design defect and you should contact a San Antonio and greater Texas product liability lawyer immediately.

We all remember the tragic Firestone injuries and accidents that occurred throughout San Antonio and the state of Texas a few years ago, and the lengths to which tire manufacturers have gone to avoid liability.

The cornerstone behind tire blowouts and defects is a phenomenon known as ' detreading '. Detreading is the foundation of a great deal of auto injuries, and an injured victim needs a San Antonio and greater Texas personal injury attorney who knows how to work tire defect cases.

When a tire detreads, the tread of the tire literally separates from the rest of the tire. Alternatively, underneath the tire tread are steel belts which can also detach from the tire. The tire manufacturers utilize unacceptable bonding techniques that cause the separation.

If you ever visit a tire factory, you will witness the placement of the tire into a large press-like apparatus. The tire is exposed to a tremendous amount of pressurized heat, so that the rubber can meld together. The real manufacturing problems occur when dirt or foreign-like substances contaminate the tire. Sometimes, the rubber is simply not quality or the steel belts undergo oxidation. Consequently, when such factors occur, the tire is more likely to detread. To further complicate the situation, the press may have mechanical issues with insufficient pressurized heat, which will also affect bonding.

The key for a San Antonio Texas tire defect attorney is to locate indivduals with knowledge of the defects in the manufacturing process of the tire manufacturer. These individuals are known as whistle blowers. Tire manufacturers counter claims of manufacturing defects by claiming the tire was under or over inflated or possessed punctures that created excessive heat and de-treading.

Yet even in these situations where the user over or underinflated the tire, it is still incumbent on the manufacturer to incorporate a ' cap ply ' in the manufacturing process. A cap ply is a sheet of nylon placed above the steel belts under the tread. The nylon holds the steel belts in place even when the belts separate from the tread. The tread itself is more likely to hold in place with the cap ply.

Although the cap ply is a relatively inexpensive and easy design to incorporate, in their quest for profits, the tire manufacturers still do not use the cap ply.

Many victims of tire defects are entitled to punitive damages, and a strong attorney will seek out other victims who were injured similarly by the same type of tire defect from the same tire manufacturer. Other key personnel include any accident witnesses and investigators in the other similar incident. It is essential to establish that the tire did not undergo any changes from the time it left the assembly line at the factory to the time detreading occurred.

More often than not, a Texas personal injury attorney will need to employ an expert in a complex personal injury case, especially those involving complex auto accidents or product liability cases. The United States Supreme Court has decided several landmark decisions that define acceptable experts and their testimony. Those cases include Daubert v. Merrel Dow Pharmaceuticals and Kumho Tire Inc. v. Carmichael . However, the plaintiffs' bar is discovering that more experts are being disqualified at an alarming rate.

Many times, once the plaintiff's expert has been disqualified, the defendants will win on summary judgment, because the plaintiff can no longer prove causation. Texas has tightened standards in some cases. For example, some Texas courts have taken the position that a substance alleged to be cancerous, such as benzene, must have evidence indicating a 100% increase in the cancer rate over the general population. In other cases, judges have been known to exclude animal studies of product exposure as being unreliable despite the fact that animal studies are routinely used in Food and Drug Administration (FDA) and Occupational Safety and Health Administration (OSHA) risk assessments.

In the past, courts often looked favorably on the local certified engineer or registered professor to testify on behalf of the injured plaintiff. That is no longer the case. These days, especially in the area of products liability and testimony regarding a defective product, the only acceptable expert will be one who was involved in the design of a similar product.

In addition, a test of basic scientific principles by a local expert may not be acceptable to the court on account that the test is not recognized by the scientific community and has not been deemed a reliable test in a peer reviewed journal.

As you can see, it is very likely that experts and their scientific evidence which the courts once accepted, could now be excluded. Once a court excludes an expert, then defense lawyers take the exclusion order to other courts where that expert will testify and try to use the order to disqualify the expert again.

To properly navigate this growing system of expert exclusion, a San Antonio and Texas products liability attorney must have experts who were previously employed in a similar industry (for example, the pharmaceutical industry) and who were involved in the design of a similar product. Rigorous research is needed to make sure the peer publications are strong enough to back the expert opinion and that his method of research is accepted as a reliable. The more scientific evidence published by the expert in a journal of his / her peers, the more likely, the expert will be Daubert-proof.

In San Antonio and throughout the State of Texas, millions of children undergo potentially dangerous vaccinations and immunizations. While the majority of children and adults are not harmed by these drugs, some Texas residents can experience severe side effects, including seizures, retardation, encephalopathy, Guillain-Barre syndrome, and death.

In 1986, Congress established the National Childhood Vaccine Compensation Act to prevent infectious disease while providing compensation to those suffering vaccine-related injuries. Part of the motivation of Congress in establishing this act was to keep the price of vaccines low while giving families the opportunity to obtain compensation quickly without a potentially lengthy lawsuit. A person then has the option of declining any award under the program and pursuing a lawsuit in Texas state court.

If you suspect you or a loved one such as a child has suffered a vaccine-related injury, you must act quickly. Under the Vaccine Program, there are Limitations of Action provisions. If you do not file a timely petition with the Vaccine Court, you may be barred later for seeking compensation from a harmful reaction to a vaccine in a lawsuit in Texas state court.

The Vaccine Program has strict time limitations as follows.
1) A vaccine-related injury must be brought within three (3) years of the date of administration of the vaccine OR three (3) years of the first manifestation of injury from a vaccine, or in a death case two (2) years from the date of administration of the vaccine.

Seek the advice of a Texas products liability attorney if you have been the victim of a vaccine-related injury. If you do not meet the time deadlines above, you will have no way of obtaining compensation under the program and you will forfeit your right to pursue a lawsuit in state or federal court.

In Texas, tire failures can result in severe injury or death. Many drivers in San Antonio can avoid catastrophe by following the tire manufacturer's instructions and conducting proper maintenance. However, in some cases, manufacturing and design defects are behind a number of incidents of sudden loss of control resulting in vehicle rollover or crash. The tire and the rim can separate creating a deadly projectile, commonly known as "widow makers", seriously injuring or killing pedestrians and drivers.

In the late 1990s a series of crashes involving Firestone tires on Ford Explorers raised public awareness of tread separations and rollovers. The tire tread and belt separates from the remaining belts of the tire causing the vehicle to become unstable and difficult to control.

Manufacturers use chemicals to bond the steel belts to the rubber tread. The tread belt separates when there is a breakdown in the adhesion between the steel belts and the rubber tread. Improper chemicals and contamination during manufacturing can cause cracks to form between the belts and treads.

A Texas product liability attorney can explore design and manufacturing defects resulting in tread separation failures. Lawsuits on design defects can focus on claims that the tire failed to contain protective measures such as belt-edge strips. Manufacturing defects claims focus on deficiencies in the manufacturing process, improper construction, poor quality control, or contamination.

Tire manufacturers usually blame the consumer by claiming the vehicle was operating with chronically under-inflated and overloaded tires. Heat and aged tires are also blamed. The National Highway Transportation Safety Administration recently issued a Consumer Advisory, recommending people replace tires more than six (6) years old.

A Texas personal injury attorney will have the know how to spend the time and money to properly evaluate tire defect injuries. A former tire company employee with experience in tire failure analysis is usually used to determine the true cause of failure. Know your rights and do not hesitate to protect them.

With greater oversight from the Occupational Safety and Health Administration (OSHA) , you would expect benzene exposure injuries in Texas to be a thing of the past. But unfortunately, in 2007 alone, more than 200,000 Americans were exposed to some type of benzene in the workplace. A range of blood cancers, including anemia and leukemia, result often from exposure to benzene thirty (30) years prior.

Benzene is a colorless, sweet smelling and flammable chemical that was once used as a solvent, but today is primarily found in motor fuels, plastics, rubber, and gasoline. Typically, refinery workers, leather workers, aircraft and auto mechanics, petrochemical workers, and people in industries using solvents and printers are among the classes of workers exposed to the most benzene usually via inhalation or skin exposure.

Recently, the National Cancer Institute , has determined an increase in leukemia in those exposed to as little as 10 parts per million (ppm) of benzene. The National Toxicology Program (NTP) , has classified benzene as a "known carcinogen". The International Agency for Research on Cancer (IARC) , rates benzene as being the most carcinogenic.

If you have developed a blood cancer such as leukemia, you should evaluate your work history to determine benzene exposure as early as 35-40 years prior to your diagnosis. A Texas benzene exposure attorney , will look to determine if the benzene manufacturer and/or supplier can be identified. If there are multiple exposures to benzene from many different sources, an attorney will use experts including toxicologists, epidemiologists, and industrial hygienists. The litigation can be complex, time-consuming, and expensive, but a Texas product liability attorney , will guide you to helping you recover in cases of serious injury.