According to Bloomberg, the suits are most often based on the floor mat and petal issues that have caused the sudden acceleration problems in the Toyotas as reflected in the recent recalls and the Jan. 26 decision to stop U.S. production and sales of eight models. Almost 8 million Toyota vehicles have been recalled worldwide.

However, some suits are unrelated to those problems for which the cars have been recalled. Bloomberg reports that a South Carolina suit was filed on behalf of purchasers of any Toyota vehicle containing the electronic throttle control system known as the Electronic Throttle Control System with Intelligence (ETCS-i).

In addition, at least one Texas suit is based upon damages alleged to have occurred by unexpected sudden acceleration due to the ETCS-i. As reported in FindLaw’s February 1 Courtside Blog post, named plaintiffs Albert Pena and Sylvia Pena are seeking class action status for their case based on accidents they allege were caused by their Toyota’s ETCS-i system. 

Plaintiffs are asking for restitution for expenditures and costs, disgorgement of profits by the company, as well as punitive damages. California plaintiffs’ attorney Michael Louis Kelly, who filed two proposed national cases in California, told a Bloomberg reporter, ”If there’s a problem other than the carpet or the pedal, you have to be talking billions of dollars.”  

Related Resources:

• Toyota Faces at Least 29 Class-Action Suits Over Acceleration (BusinessWeek)
• Toyota Lawsuit Filed Alleging ETCS-i Acceleration Defects (FindLaw’s Courtside)
• Ray LaHood Refines “Stop Driving It” Statement on Toyota Issues (FindLaw’s Common Law)
• Toyota Accused of Playing Down Toyota Defects in Safety (FindLaw’s Injured)
• Consumer Protection Laws and Agencies (FindLaw)
• Wrongful Death (provided by Tolmage, Peskin, Harris, Falick)
• Personal Injury from Defective Products (provided by Arye, Lustig & Sassower, P.C.)

According to Bloomberg, the suits are most often based on the floor mat and petal issues that have caused the sudden acceleration problems in the Toyotas as reflected in the recent recalls and the Jan. 26 decision to stop U.S. production and sales of eight models. Almost 8 million Toyota vehicles have been recalled worldwide.

However, some suits are unrelated to those problems for which the cars have been recalled. Bloomberg reports that a South Carolina suit was filed on behalf of purchasers of any Toyota vehicle containing the electronic throttle control system known as the Electronic Throttle Control System with Intelligence (ETCS-i).

In addition, at least one Texas suit is based upon damages alleged to have occurred by unexpected sudden acceleration due to the ETCS-i. As reported in FindLaw’s February 1 Courtside Blog post, named plaintiffs Albert Pena and Sylvia Pena are seeking class action status for their case based on accidents they allege were caused by their Toyota’s ETCS-i system. 

Plaintiffs are asking for restitution for expenditures and costs, disgorgement of profits by the company, as well as punitive damages. California plaintiffs’ attorney Michael Louis Kelly, who filed two proposed national cases in California, told a Bloomberg reporter, ”If there’s a problem other than the carpet or the pedal, you have to be talking billions of dollars.”  

Related Resources:

• Toyota Faces at Least 29 Class-Action Suits Over Acceleration (BusinessWeek)
• Toyota Lawsuit Filed Alleging ETCS-i Acceleration Defects (FindLaw’s Courtside)
• Ray LaHood Refines “Stop Driving It” Statement on Toyota Issues (FindLaw’s Common Law)
• Toyota Accused of Playing Down Toyota Defects in Safety (FindLaw’s Injured)
• Consumer Protection Laws and Agencies (FindLaw)
• Wrongful Death (provided by Tolmage, Peskin, Harris, Falick)
• Personal Injury from Defective Products (provided by Arye, Lustig & Sassower, P.C.)

Widely noted on the science blogs is the story of the libel suit by Barbara Loe Fisher of the National Vaccine Information Center against journalist Amy Wallace and Dr. Paul Offit. Fisher has sued Wallace, her source Dr. Offit and her publisher, Conde Nast, for $1 million dollars for libel for quotes about her used in an article Wallace wrote for Wired. Wallace’s article, An Epidemic of Fear: How Panicked Parents Skipping Shots Endangers Us All, reports on the front lines (literally, the death threats fly) of the vaccine wars as of this past October. Overall, Wallace’s piece was critical of Fisher’s organization and the anti-vaccine movement in general, for their stance on the link between autism and vaccines. On balance though, the article repeats many more harsh and even nasty comments about Dr. Ofitt than about the plaintiff Fisher.

As alleged in the Complaint (Arthur v. Ofitt), Fisher seeks to prove libel per se essentially based upon Wallace including in her piece a quote in which Offit reportedly told Wallace, in regards to Fisher, that ”she lies.” As noted in previous blogs, libel can be difficult to prove. The four elements of libel are: that the defendant conveyed a defamatory message; that the material was published, (conveyed to someone other than the plaintiff); that the plaintiff could be identified as the person referred to; and that the plaintiff suffered some injury to her reputation as a result of the communication. The defenses to libel are truth, consent, accident, and privilege.

Under the privilege defense lies an extensive body of law that, to protect first amendment rights and encourage vigorous public debate, makes it more difficult to prove libel against a public figure. The Supreme Court, in Gertz v. Welch, has defined public figures as those who thrust themselves into the public eye and invite close scrutiny. If Ms. Fisher were found to be a public figure, she could have more difficulty proving libel in this case. 

Several science blogs that have taken note of the Wallace case have noted its similarity to a suit that erupted last year in England, pitting the British Chiropractic Association against journalist Simon Singh, after he wrote an article critical of chiropractic claims regarding curing asthma. Strong points have been made in the scientific community about the necessity for clear, even loud public debate. As something that immediately effects our lives, and the lives of our kids, the more information the better. Should a libel suit be used to restrain the debate on an issue of such importance?

Related Resources:

• Vaccine Libel Suit Challenges Another Science Journalist (Stinky Journalism)
• Libel and Slander (FindLaw’s LawBrain)
• An Epidemic of Fear: How Panicked Parents Skipping Shots Endangers Us All (Wired)
• In Your Eye, Jenny McCarthy: A special court rejects autism-vaccine theories (Slate)

Widely noted on the science blogs is the story of the libel suit by Barbara Loe Fisher of the National Vaccine Information Center against journalist Amy Wallace and Dr. Paul Offit. Fisher has sued Wallace, her source Dr. Offit and her publisher, Conde Nast, for $1 million dollars for libel for quotes about her used in an article Wallace wrote for Wired. Wallace’s article, An Epidemic of Fear: How Panicked Parents Skipping Shots Endangers Us All, reports on the front lines (literally, the death threats fly) of the vaccine wars as of this past October. Overall, Wallace’s piece was critical of Fisher’s organization and the anti-vaccine movement in general, for their stance on the link between autism and vaccines. On balance though, the article repeats many more harsh and even nasty comments about Dr. Ofitt than about the plaintiff Fisher.

As alleged in the Complaint (Arthur v. Ofitt), Fisher seeks to prove libel per se essentially based upon Wallace including in her piece a quote in which Offit reportedly told Wallace, in regards to Fisher, that ”she lies.” As noted in previous blogs, libel can be difficult to prove. The four elements of libel are: that the defendant conveyed a defamatory message; that the material was published, (conveyed to someone other than the plaintiff); that the plaintiff could be identified as the person referred to; and that the plaintiff suffered some injury to her reputation as a result of the communication. The defenses to libel are truth, consent, accident, and privilege.

Under the privilege defense lies an extensive body of law that, to protect first amendment rights and encourage vigorous public debate, makes it more difficult to prove libel against a public figure. The Supreme Court, in Gertz v. Welch, has defined public figures as those who thrust themselves into the public eye and invite close scrutiny. If Ms. Fisher were found to be a public figure, she could have more difficulty proving libel in this case. 

Several science blogs that have taken note of the Wallace case have noted its similarity to a suit that erupted last year in England, pitting the British Chiropractic Association against journalist Simon Singh, after he wrote an article critical of chiropractic claims regarding curing asthma. Strong points have been made in the scientific community about the necessity for clear, even loud public debate. As something that immediately effects our lives, and the lives of our kids, the more information the better. Should a libel suit be used to restrain the debate on an issue of such importance?

Related Resources:

• Vaccine Libel Suit Challenges Another Science Journalist (Stinky Journalism)
• Libel and Slander (FindLaw’s LawBrain)
• An Epidemic of Fear: How Panicked Parents Skipping Shots Endangers Us All (Wired)
• In Your Eye, Jenny McCarthy: A special court rejects autism-vaccine theories (Slate)

The Federal Transportation Department has recently penalized three  airlines for leaving forty-seven passengers stranded overnight at a Rochester, Minnesota airport. The amount of the penalty was $175,000. Continental Airlines and its local affiliate, express jet, operating as Continental Express, had promised to let passengers off their jets within 3 hours if there was going to be an extended delay on the runway. Although the airlines felt this promise was not enforceable, the transportation department felt otherwise. The airlines are paying $50,000 each in civil penalties.

An airline by the name of Mesaba also agreed to pay $75,000 because one of its employees advised Continental Airlines that the passengers were not allowed in the terminal due to the fact the Transportation Security Administration wasn’t present.

The transportation department felt that Mesaba displayed “indifference to the passengers” and that was an unfair and deceptive practice. Mesaba has agreed to pay the fine.

The Continental Express passengers were kept on an airplane from 12:30 a.m. until 6:00 a.m. Ray LaHood, the Secretary of Transportation, stated “I hope this sends a signal to the rest of the airline industry that we expect their lines to respect the rights of air travelers. We will also use what we have learned from this investigation to strengthen protections for airline passengers subjected to long tarmac delays”.

The transportation department is requiring airlines to have contingency plans for long airport delays. If you are delayed on the tarmac in an airplane for more than three (3) hours, you may be able to collect damages for your being stranded on an airplane!

For any personal injury or any of your civil litigation needs, you can always contact the litigation attorneys at our office either by e-mail or at 800-344-6431.

Captain Chesley Sullenberger, III, the pilot of US Airways, Flight 1549, is known to most Americans by his nickname, “Sully”. Sully miraculously executed an emergency landing of a jet plane that took off from LaGuardia Airport on January 15, 2009. His heroic, expert flying technique and years of preparation allowed him to safely land his air bus A320 in the Hudson River. All 155 passengers on board were safely removed from the plane. This spectacular feat of pilotry did give him an enormous amount of publicity.

Sully is a charming true American hero. He talks about himself with genuine modesty. He credits his training and commitment to becoming the best pilot he can possibly be.

Sully has collaborated with Wall Street journal writer, Jeff Zaslow , to write his memoir entitled, Highest Duty: My Search for What Really Matters. This book recounts the details of the miraculous emergency landing. It also talks about Sully’s upbringing and various events in his life that shaped his character. These events enabled Sully to grow into a man capable of handling the challenge of safely landing a large air bus A320 airplane in the Hudson River with both engines knocked out by bird strikes.

Sully in his book states ” In so many areas of life you need to be a long term optimist, but a short term realist. Sully’s philosophy should act as an example to many of us when dealing with difficult situations. Sully is a true American hero and an excellent role model for many of us to follow.

The Law Office of Elliot S. Schlissel: The Key to Your Legal Needs in the Five Boroughs, Nassau, Suffolk, & Westchester Counties

Phone: (516)561-6645

www.schlissellawfirm.com

Two interesting legal footnotes to the recent withdrawal by The Lancet, may contribute to the view held by most that the Wakefield study was a deeply flawed. The revelations are that first, some of the money to bankroll the study was allegedly supplied by attorneys who were suing the makers of the vaccines and second, that Dr. Wakefield, had supposedly planned to patent a new MMR vaccine himself.

Since this fresh volley in the ongoing fight over the supposed link between vaccines and autism is sure to stir up new controversy, it might be useful to review the legal outcomes of the suits that inevitably followed the anti-vaccine movement in the U.S.

Under the purview of the National Childhood Vaccine Injury Act of 1986, the Office of Special Masters was established within the U.S. Court of Federal Claims to address claims brought for injury stemming from compulsory childhood vaccines. According to the Wall Street Journal, there were three vaccine/autism test cases, Cedillo v. HHS, Hazlehurst v. HHS, and Snyder v. HHS, which were all decided and reported on Feb. 12, 2009. The Special Masters in each of these cases wrote strong opinions declining to find a legal link between the vaccines and the children’s injuries.

The word strong is used advisedly. Here is one excerpt from Special Master Denise Vowell’s decision in the case of Colten Snyder v. HHS, as reported by Slate. ”To conclude that Colten’s condition was the result of his MMR vaccine, an objective observer would have to emulate Lewis Carroll’s White Queen and be able to believe six impossible (or at least highly improbable) things before breakfast.” The plaintiffs in the two other test cases, Cedillo and Hazelhurst, fared no better.

Legal decisions such as these have not shaken the community who support the belief in the links between vaccines and autism. According to Slate, even the 2009 defection of Alison Singer from her leadership position in the charity Autism Speaks because she tired of its demand for more vaccine studies did not change minds. “The question has been asked and answered and it’s time to move on,” she told Newsweek after the court’s decisions were announced in ‘09. “We need to be able to say, ‘Yes, we are now satisfied that the earth is round.’ “

All is at an end with the result of the vaccine court cases last year. A new legal front in the vaccine wars has emerged just this week. As reported on February 2nd, by Stinky Journalism.org (the Art Science Research Laboratory’s Media Ethics Project), writer Amy Wallace along with one of her sources and her publisher, are being sued for $1 million by Barbara Loe Fisher of the National Vaccine Information Center, an anti-vaccine advocacy group. Wallace allegedly printed a quote essentially calling Fisher a liar in a piece in Wired. Strong stuff, even for this war-like arena. This case will be further explored in a round two post this topic. Don’t touch that mouse.

Related Resources:

• The Lancet retracts paper linking MMR vaccines and autism (Arstechnica)
• In Your Eye, Jenny McCarthy (Slate)
• What Is an Unavoidably Unsafe Product? (FindLaw)

Two interesting legal footnotes to the recent withdrawal by The Lancet, may contribute to the view held by most that the Wakefield study was a deeply flawed. The revelations are that first, some of the money to bankroll the study was allegedly supplied by attorneys who were suing the makers of the vaccines and second, that Dr. Wakefield, had supposedly planned to patent a new MMR vaccine himself.

Since this fresh volley in the ongoing fight over the supposed link between vaccines and autism is sure to stir up new controversy, it might be useful to review the legal outcomes of the suits that inevitably followed the anti-vaccine movement in the U.S.

Under the purview of the National Childhood Vaccine Injury Act of 1986, the Office of Special Masters was established within the U.S. Court of Federal Claims to address claims brought for injury stemming from compulsory childhood vaccines. According to the Wall Street Journal, there were three vaccine/autism test cases, Cedillo v. HHS, Hazlehurst v. HHS, and Snyder v. HHS, which were all decided and reported on Feb. 12, 2009. The Special Masters in each of these cases wrote strong opinions declining to find a legal link between the vaccines and the children’s injuries.

The word strong is used advisedly. Here is one excerpt from Special Master Denise Vowell’s decision in the case of Colten Snyder v. HHS, as reported by Slate. ”To conclude that Colten’s condition was the result of his MMR vaccine, an objective observer would have to emulate Lewis Carroll’s White Queen and be able to believe six impossible (or at least highly improbable) things before breakfast.” The plaintiffs in the two other test cases, Cedillo and Hazelhurst, fared no better.

Legal decisions such as these have not shaken the community who support the belief in the links between vaccines and autism. According to Slate, even the 2009 defection of Alison Singer from her leadership position in the charity Autism Speaks because she tired of its demand for more vaccine studies did not change minds. “The question has been asked and answered and it’s time to move on,” she told Newsweek after the court’s decisions were announced in ‘09. “We need to be able to say, ‘Yes, we are now satisfied that the earth is round.’ “

All is at an end with the result of the vaccine court cases last year. A new legal front in the vaccine wars has emerged just this week. As reported on February 2nd, by Stinky Journalism.org (the Art Science Research Laboratory’s Media Ethics Project), writer Amy Wallace along with one of her sources and her publisher, are being sued for $1 million by Barbara Loe Fisher of the National Vaccine Information Center, an anti-vaccine advocacy group. Wallace allegedly printed a quote essentially calling Fisher a liar in a piece in Wired. Strong stuff, even for this war-like arena. This case will be further explored in a round two post this topic. Don’t touch that mouse.

Related Resources:

• The Lancet retracts paper linking MMR vaccines and autism (Arstechnica)
• In Your Eye, Jenny McCarthy (Slate)
• What Is an Unavoidably Unsafe Product? (FindLaw)

The Post reports that the flight under investigation was provided by a regional carrier Colgan, but the passengers bought their tickets for the flight from Continental Airlines. According to the Transportation Department, the past six fatal commercial aviation accidents in the United States involved regional carriers. This may be one reason the NTSB has decided to take further steps to look into the prevalent use of code sharing in the airline industry.

According to the GSA, code sharing is a commercial agreement between two airlines that allows an airline to put its two-letter identification code on the flights of another airline as they appear in computerized reservations systems. Under this system, when a passenger buys a ticket on a flight under the name of one airline, the plane and crew may actually belong to a other. As occured with Continental flight 3407, the passengers purchased tickets from national carrier Continental, but the pilot and plane were part of the Colgan company, a regional carrier. During the recent NTSB and congressional hearings, the Post reported that concerns were raised regarding problems associated with difficult working conditions and lax government oversight of regional carriers.

About 60 family members who lost loved ones in the crash were present at the hearings. They expressed hope that the NTSB’s final report would add momentum to congressional efforts to strengthen aviation laws.

Chairman Deborah Hersman said the NTSB would use the upcoming staff symposium to explore code sharing agreements in detail, given their broad use in the airline industry.

Related Resources:

• NTSB to hold symposium in response to Buffalo plane crash (Washington Post)
• Code Share Fact Sheet (U.S. GSA)
• Air Travel FAQ (FindLaw)
• Airplane Accident Overview (provided by Lane & Lane, LLC)
• Airplane Accidents: Common Causes (provided by Baum, Hedlund, Aristei & Goldman, P.C.)

The United States Department of Justice (DOJ) has released a public statement about the settlement that says that Westar will pay a $3 million dollar civil penalty fine. The press release also indicates that Westar will spend $6 million dollars on environmental mitigation projects as well.

Ignacia S. Moreno, Assistant Attorney General for the Justice Department’s Environment and Natural Resources Division, was quoted in the DOJ’s press release as saying, “This settlement will lower harmful sulfur dioxide and nitrogen oxide emissions by thousands of tons each year, and will benefit air quality in Kansas and downwind areas.” According to the United States Environmental Protection Agency (EPA), sulfur dioxide has an array of adverse respiratory effects including bronchoconstriction and increased asthma symptoms. It also can react with other compunds in the air which can form small particles. These small particles can penetrate into the lungs which can cause/worsen diseases such as emphysema and bronchitis. It can also worsen existing heart disease.

This settlement by Westar is one the strictest imposed to date. Cynthia Giles, Assistant Administrator for EPA’s Office of Enforcement and Compliance Assurance was quoted by the DOJ’s press release as saying,  ”Today’s settlement sets the most stringent limit for sulfur dioxide emissions ever imposed on a coal-fired power plant in a federal settlement. EPA is committed to protecting clean air for communities by making sure coal-fired power plants comply with the law.”

Westar indicated that they would prefer to spend the money in order to clean up the environment instead of spending the money on litigation. Reuters quoted Bill Moore, Westar president and chief executive as saying, “The settlement calls for environmental investments and mitigation we would have eventually done anyway, and puts our dollars to work for the environment rather than being spent on expensive litigation.”

Related Resources:

• Health Hazards of Greenhouse Gases: Pollutants and the Clean Air Act  (FindLaw’s Injured)
• The Plain English Guide to the Clean Air Act  (EPA)
• Coal-Fired Power Plant Enforcement Initiative (EPA)
• EPA: Greenhouse Gases Threaten Public Health (FindLaw’s Decided)