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April 8, 2014

Federal Court in Kentucky Permits Product Liability Lawsuit to Move Forward

In Manning v. Arch Wood Protection, Inc., a federal district court in Kentucky denied the defendant's motion to dismiss and allowed a product liability lawsuit to move forward.

electric-caos-1277648-m.jpgFred Manning had worked as a line mechanic on a line crew for Kentucky Power Company from 1990 until 2013. During that time, Manning claimed to have been exposed to toxic levels of arsenic that were contained in chromated copper arsenate, which is a substance that was used to preserve the wood in utility poles and cross-arms. This exposure allegedly took place while Manning handled, sawed, and drilled wood treated with chromated copper arsenate as part of his employment duties. Manning claimed that as a result, he had been poisoned and suffered resulting health problems.

Manning alleged that the defendant knew of the health hazards caused by exposure to chromated copper arsenate, but not only failed to warn of its danger, but also deceptively persuaded the Environmental Protection Agency to eliminate the proposed mandatory warning labels for wood treated by chromated copper arsenate. Moreover, despite knowing the hazards of exposure, the defendant allegedly claimed that treated wood could be handled in the same way as untreated wood. Manning claimed that the defendant knew, or should have known, that the wood's hazards would result in Manning's injury, as well as his wife's deprivation of the benefits of their relationship.

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March 27, 2014

United States Supreme Court Declines to Hear Consumer Class-Action Lawsuit Cases Upheld By the Sixth and Seventh Circuits

The United States Supreme Court recently passed on the opportunity to hear appeals on three decisions involving class-action lawsuits, two of which came from the Sixth and Seventh Circuit. The Supreme Court's choice could make it easier for consumers to file class-action product liability lawsuits in the future.

wasing-machine-110179-m.jpgIn each of the three cases -- Whirlpool v. Glazer, Sears, Roebuck and Company v. Butler, and BSH Appliances Corporation v. Cobb -- the issue involved washing machine defects. However, though lower courts in each case certified classes for a lawsuit, the defendants protested that not everyone in the class had suffered an injury because not every class member's washing machine had a defect. The defendants therefore appealed to the Sixth, Seventh, and Ninth Circuit Court of Appeals respectively, seeking to have the class certification overturned. The Circuit Courts upheld the lower courts' decision, prompting the defendants to petition the Supreme Court.

Now that the Supreme Court has denied the petitions for certiorari without offering an explanation, observers have speculated how this could impact future class-action lawsuits, product liability or otherwise. Many have looked to another Supreme Court decision, Comcast v. Behrend, which held for the first time that plaintiffs in a class-action lawsuit needed to show a connection between their theory of liability and their theory of damages at the class certification stage, as opposed to later in the litigation process. At the time, many defense attorneys believed that it would heighten the standard for class certification and make it more difficult. If so, that should have meant that at least two of the class certifications -- upheld by the Sixth and Seventh Circuit after the Comcast ruling came out -- would be invalid. However, the Supreme Court's choice to not review those decisions suggests that Comcast was not as earth shaking a decision as many believed. Comcast had involved an antitrust class-action lawsuit, not one involving consumer product defects. Therefore, while it would seem that the theory of liability and theory of damages connection would apply to every class-action case, it may be that in fact, it only applies to a narrow range.

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February 14, 2014

Sixth Circuit Finds That Manufacturer of Medical Patch Not Immune to Lawsuit in Miller v. Mylan, Inc.

A recent product liability case involving Michigan may have significance for the other states in the Sixth Circuit, including Kentucky. In Miller v. Mylan, Inc., the Sixth Circuit Court of Appeals found that a medical patch could be a "combination product" rather than a drug, making its manufacturer (and similar manufacturers) vulnerable to lawsuit.

pills-2-1160486-m.jpgThe case concerned a fentanyl patch, manufactured by Mylan, Inc., which is a generic version of Duragesic and intended to lessen pain. The patch had two parts: fentanyl, which was its active ingredient, and a "transdermal system," the patch that delivered the drug. The patch was placed on the patient's skin to provide doses of fentanyl to patients at regular intervals over a prolonged period. In the case of Beth Ann Kelly, however, the patch was blamed for giving her an excessive dose of fentanyl, causing her death.

Kelly's estate brought a lawsuit against Mylan in state court for negligence, negligent misrepresentation, product liability, warranty, fraud, and the Michigan Consumer Protection Act. Mylan had the case removed to federal district court and claimed that it was immune from lawsuit under a Michigan statute that gave immunity to the manufacturer of drugs. The court sided with Mylan in finding that the patch was a drug. Kelly's estate then appealed to the Sixth Circuit, arguing that the patch was not a drug as referenced in the statute.

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January 7, 2014

Sixth Circuit to Consider Whether Generic Drug Manufacturers Can Be Sued in Miller v. Eli Lilly Co.

The Sixth Circuit Court of Appeals has a notable case coming up regarding product liability and generic drugs. In Miller v. Eli Lilly & Co., the court will consider whether those harmed by generic drugs have the right to file lawsuits against their manufacturers.

pills-1213599-m.jpgRecently, the United States Supreme Court held in Mutual Pharmaceutical Co. v. Bartlett that manufacturers of generic drugs enjoyed tort protections due to the fact that generic drugs shared the same label as drugs originally approved for use by the federal Food and Drug Administration (FDA). Because the FDA approved the original drug and drug label, individuals injured by side effects of the generic drug could not sue generic drug manufacturers under state product liability laws.

However, this ruling included a footnote that stated it did not apply to design defects in the generic drug that paralleled the federal misbranding statute. As such, plaintiffs in Miller used the footnote as the basis of their request that the Sixth Circuit determine whether makers of the generic version of Darvocet and Darvon painkillers can be found liable for causing severe heart damage. Darvocet was originally taken off of the market in 2010 after concerns that it was addictive and had side effects like irregular heartbeat and kidney problems.

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September 16, 2013

Indiana Woman Dies After Speeding Car Crashes Through Metal Fence, Lands in Lake George

A woman died recently in Hobart, Indiana, after crashing her car through a metal gate and landing in Lake George.

lake-george-211920-m.jpgWitnesses who travelled behind the woman, 83 years old, noticed that she was speeding and driving erratically as she traveled down Route 130 and Route 51. She would weave in and out of traffic, and racing through red stoplights at up to 60 miles per hour.
At some point after the woman reached downtown Hobart, she "went airborne" at the top of a hill and her car smashed through a metal gate that separated the town from Lake George. Her car eventually landed in the lake, 50 feet from the edge, where the water was 10 feet high. Witnesses dove into the murky lake after her and spent 10 minutes working to pull the woman out, during which time they sustained injuries from broken glass. The Hobart Fire Department treated her at the scene and she was then transported to St. Mary Medical Center, where she later died. Lake County divers also spent more than one hour working to pull the car from the lake.

Despite her erratic driving, the woman managed to avoid causing injuries or fatalities. One witness speculated that her behavior might have been due to a medical condition, or possibly due to a broken accelerator. The age and condition of her vehicle prior to the crash is unknown.

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March 14, 2013

Court to Decide if Generic Drug Makers can be Held Liable for Dangerous Drug Injuries

Almost 80% of all prescriptions in the U.S. are filled with generic medications. These medications can be offered at a lower price than brand-name drugs because the companies that manufacture the generic versions have not invested millions of dollars in the creation and testing of them. Once a patent expires on a drug, other companies can begin to manufacture and sell a generic version of it without getting FDA approval, provided the formula and labeling are not altered in any way.

Such was the case with sulindac, a generic anti-inflammatory drug similar to ibuprofen. Mutual Pharmaceutical Company in Pennsylvania, a subsidiary of another company based in India, was manufacturing sulindac in 2004 when a New Hampshire woman went to her doctor with shoulder pain. He prescribed a clinoril, a mild anti-inflammatory, and she was given sulindac as a generic equivalent. A few weeks after she started taking the drug, her skin began to come off. She ended up losing two-thirds of her skin, requiring a lengthy stay in a hospital burn unit. She also suffered esophagus and lung damage and ended up legally blind. She is now only 53 years old.

As with many other victims of dangerous drugs, the woman filed a lawsuit against the drug manufacturer in the hopes of receiving some compensation for her injuries and suffering. A jury awarded her $21 million, an amount which was also upheld by the Court of Appeals. Now the Supreme Court will hear the case. Groups on both sides of the dangerous and defective drugs argument will be awaiting the higher court's decision.

This would seem to some to be an open-and-shut case. A woman was seriously and permanently injured by a drug manufactured by a pharmaceutical company, and she should be compensated for these injuries. However, the fact that the drug was generic plays a large part in the case. In past cases, generic drug manufacturers have been protected by the higher courts. Why would the higher courts side with the manufacturers? Because generic drug manufacturers are required to reproduce the drug and its corresponding warning labels exactly like the brand-name version. Therefore, according to the courts, they cannot be held accountable for any injuries that occur because they are not responsible for the makeup of the drug or its corresponding labels and warnings.

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February 16, 2013

Health Inspections Find Numerous Issues at Most Massachusetts Compounding Facilities

1285558_injection_needle_macro_2.jpgIn 2012, hundreds of people became ill and 46 people died as a result of tainted medication. The problem was traced back to a compounding facility in Massachusetts that has since closed. Steroid injections given to people with back pain had been contaminated and caused a meningitis outbreak that affected patients in 20 states. Shortly after the source of the outbreak was discovered, the Massachusetts Department of Health started doing surprise health inspections at the other compounding facilities across the state. Their findings, released in February 2013, were surprising and a little scary.

Inspectors visited 37 of these specialty pharmacies and discovered deficiencies at all but four of them. That means there were issues at 33 of the companies. Of this number, 11 had violations so serious that at least parts of their operations were temporarily shut down. One company voluntarily surrendered its license, and the other 21 had more minor violations and were allowed to stay open. Officials were quick to point out that this is not a one-state issue; Massachusetts just happens to be the one state that did these inspections. Some states don't even require their compounding facilities to comply with the guidelines checked by the inspectors in Massachusetts.

While none of the problems discovered were as bad as those found at the facility that caused the outbreak, it is still good that the issues were found and will be corrected. The state has dedicated funds to pay for more routine inspections of compounding pharmacies, and hopefully other states will follow in its footsteps.

Many victims of the meningitis outbreak have filed product liability lawsuits against the now-defunct compounding pharmacy, and the families of some of the victims who died have filed wrongful death claims. But because the company is no longer in business, it is unclear how much anyone would be awarded. Some of the victims may have also filed medical malpractice claims against the medical personnel that administered the tainted injections, but it remains to be seen if any of them will be held accountable.

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January 8, 2013

Infant Recliners Recalled by Retailers, Manufacturer Refuses to Recall Product

Trying to get a young infant to sleep can be difficult and frustrating. Sleep-deprived parents often go to great lengths to get their little ones to drift off, from driving miles in the car to singing songs and pacing the floor incessantly. So when a product comes out that claims to help get babies to sleep, it can be quite appealing. One such product is the Nap Nanny, which was introduced a few years ago. The Nap Nanny is kind of a recliner for infants, which allows their heads to be slightly elevated while sleeping. The product is designed to be used only on the floor and the infant is buckled in.

The Consumer Products Safety Commission (CPSC) is a group that monitors products and complaints to determine if products are unsafe for consumers. In July, 2010, the CPSC announced a voluntary product recall of the Nap Nanny after receiving numerous complaints about the product, including one regarding a child who died while sleeping in the product in crib. The four-month-old had managed to move herself to the edge of the recliner and suffocated between it and the crib bumper. The manufacturer recalled the product and released a new version of it with additional safety features and directions on safe usage of the product.

After the initial recall, the CPSC received reports of additional injuries and deaths to infants using the Nap Nanny. They notified the company about the issues, but the company's founder refused to recall the product. She stated that none of the subsequent injuries or deaths would have occurred if the consumers were using the product properly. Four of the five reported infant deaths occurred while the Nap Nanny was being used in a crib, which the labels on the product specifically say not to do. Several stores voluntarily recalled the infant sleepers and the CPSC has filed a complaint in an attempt to have a mandatory recall put in place. The manufacturer has also filed documents to have the complaint dismissed. In the meantime, Baby Matters, the company that makes and sells the Nap Nanny, has shut down its operations, but continues to stand by its product.

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December 14, 2012

Recall Scheduled to Occur in February 2013 on Certain Honda Models

It seems as if product recalls on cars are becoming more and more common. It is hard to say whether it is because cars are not being made as well as they used to be, or if the manufacturers are trying to protect themselves and their consumers by issuing the recalls more readily. The latest big recall hasn't even officially happened yet, but it has been announced through the media.

In February 2013, Honda is scheduled to announce to the recall of over 800,000 vehicles in the U.S. and about 70,000 in other countries. In October 2012, the National Highway Traffic Safety Administration (NHTSA) announced that it was going to begin investigating Honda Pilots and Odysseys that were manufactured in 2003 and 2004. The investigation was prompted by the NHTSA receiving over 40 complaints regarding the vehicles. Drivers stated that the vehicles rolled away after being parked and having the keys removed. Owners of 16 of them said the only reason they stopped rolling was because they hit a stationary object such as a tree, wall, or brick mailbox. At least three vehicle owners claimed to have been injured trying to stop the rolling vehicles. Two months after the investigation was opened, Honda announced that they were going to recall 2003-2004 Honda Pilots and Odysseys, and 2003-2006 Acura MDXs.

What is causing these vehicles to roll away by themselves? It is not a brake failure as one might expect. Ignitions are designed so that the driver cannot remove the key unless the vehicle is in park. However, on the recalled models, the ignition part that prohibits the key from being removed can wear down or be damaged, allowing the key to be removed without the car being put into park. If the emergency brake has not been applied, the vehicle is free to roll away.

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August 30, 2012

Salmonella in Cantaloupes Leads to Indiana Product Recall and Lawsuit

800031_cantaloupe.jpgFarm-grown fruits and vegetables are supposed to be the healthiest foods to eat, far surpassing the processed foods that frequently fill our pantries and freezers. But sometimes, even fresh food can cause illness. Cantaloupes grown in Indiana and sold in July 2012 are thought to be the cause of over 178 cases food poisoning. The illnesses span 21 states, and two people have died. At least 50 of the cases were in Kentucky.

One farm has been identified by the FDA as producing the tainted cantaloupes - Chamberlain Farms in Owensville, Indiana. Even though the farm voluntarily recalled all of their cantaloupes, the FDA issued a formal product recall of the fruit on August 22, 2012 to make people more aware of the situation.

At least one lawsuit has been filed in the outbreak. A mother from Michigan claims she bought three of the tainted cantaloupes from Walmart. Both of her daughters ate the melon and contracted salmonella, which causes fever, abdominal cramping, and diarrhea. People can become severely dehydrated and some even die. This woman's daughters both required a doctor's care and emergency room visits, and one daughter was hospitalized for four days. Her attorney has filed a lawsuit on the family's behalf against Chamberlain Farms in Indiana and the Walmart that sold the melons. It claims that the family has incurred over $25,000 in medical bills.

This outbreak is similar to the one that occurred in September 2011 with cantaloupes. In that case, the cantaloupes were from Colorado and were tainted with listeria, which causes illness similar to salmonella. The attorney handling the recent lawsuit also represents 42 families that were allegedly affected by the listeria outbreak. He states that he is surprised that another outbreak has occurred because he "would have expected farmers, distributors and retailers to have better food safety procedures in place this year to prevent another cantaloupe-related outbreak from happening."

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August 8, 2012

Victim Awarded $5.5 Million in Medical Malpractice Lawsuit over Mesh Implant

Advances in medical technology are amazing and can provide great benefits to patients. Unfortunately, sometimes the products created to help people can end up causing more harm than good. In this type of situation, victims can seek compensation not only from the doctors or hospitals involved in the procedure, but also the company that created and marketed the product.

One medical product that is under intense scrutiny right now is a mesh that is implanted in various parts of the abdominal area to treat bulging organs, called pelvic organ prolapse (POP), or incontinence due to weakened tissues around certain organs. In 2011, the FDA updated its report on the use of vaginal mesh implants. The update states that serious complications are more frequent than initially thought and that it is unclear whether surgery that includes the mesh implant is any more effective than the traditional method. Between 2008 and 2010, the FDA received 2,874 reports regarding medical issues associated with the vaginal mesh implants including "mesh erosion through the vagina (also called exposure, extrusion or protrusion), pain, infection, bleeding,...dyspareunia,...organ perforation, urinary problems... recurrent prolapse, neuro-muscular problems, vaginal scarring/shrinkage, and emotional problems." In January, 2012, the FDA told numerous manufacturers of this product to perform a three-year study to confirm it is safe and effective.

Hundreds of victims have filed medical malpractice lawsuits claiming these implants are causing additional medical issues. One case has already gone to trial and been decided by a jury. The victim had claimed that her vaginal mesh implant that had been manufactured by C.R. Bard Inc. caused chronic pain and incontinence and that she had endured nine surgeries to try to fix the problems caused by the implant. The lawsuit, which was filed against both the manufacturer and the doctor who performed the surgery, alleged that the company had not thoroughly tested the product before selling it, despite the fact that the FDA had approved it. The jury determined that the manufacturer was 60 percent responsible and the doctor was 40 percent responsible. The victim and her husband were awarded $5.5 million for pain and suffering, medical expenses, and loss of consortium.

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July 19, 2012

Incorrect Ford Escape Recall May Have Contributed to 17-Year-Old's Car Accident Death

Product recalls on cars are not uncommon. Considering the thousands of parts that go into each car or truck, it is understandable that an issue might arise after the cars have been sold and are being driven on a daily basis. Most issues are found before they cause any major damage or injuries, and recall notices are sent to everyone who owns the cars in question so the problem can be fixed.

A recent Ford recall encompasses thousands of cars built at the Louisville Assembly Plant in Kentucky. Over 8,000 Ford Escapes built at the Fern Valley, Kentucky plant between March and June 2012 have been recalled because of a carpet issue. Misplaced carpet padding could interfere with the driver's ability to switch from the accelerator to the brake. A Ford spokesperson said the problem was found internally and that no car accidents have been reported as a result of the issue.

While it appears that Ford is handling this current recall properly, that may not be the case in an earlier recall. In December 2004, Ford recalled around 590,000 Ford Escapes and Mazda Tributes because a liner around a cable could interfere with the accelerator and cause it to get stuck. The majority of owners of the cars in question had their cars repaired. Then in October 2005, Ford sent a new set of instructions regarding the previous recall to the dealers telling them to be careful not to damage the cruise control cable during the repair. This information was sent only to the dealers, not to the car owners, so anyone who had already had their cars repaired did not know there might be an additional issue.

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January 30, 2012

Kentucky Couple Files Product Liability Suit against Kraft Foods

716277_kd.jpgOn September 21, 2011, Leamon Perkins of Pine Knot, Kentucky in McCreary County ate a bowl of microwavable Velveeta Shells and Cheese. He became very ill and ended up in surgery on September 29, 2011. According to his doctors, Mr. Perkins' small bowel was perforated with a small piece of metal that showed up on a CT scan and he had contracted peritonitis. The surgeon removed the portion of his small bowel that had been damaged by the sliver of metal and the metal piece itself.

The next day, Kraft Foods, the manufacturer of the macaroni and cheese recalled 137,000 cases of the product "as a precaution due to the possible presence of small, thin wire bristle pieces," according to the FDA recall press release. The recall was voluntary, as opposed to FDA-mandated, and Kraft stated it had not received any complaints or heard of anyone being injured.

Mr. Perkins filed a product liability lawsuit this month against Kraft. Why he waited so long to file the lawsuit is unknown. It is possible that he was not aware of the product recall until recently, so he did not put the two together. Kentucky law allows individuals to file product liability claims up to one year after the injury occurred, so he was well within the filing period.

In the lawsuit, Mr. Perkins is seeking $6 million in damages. The amount includes both compensatory and punitive damages. His wife has requested $500,000 in damages for loss of consortium. Compensatory damages often include lost wages and medical bills, as well as other less tangible items, such as physical and emotional distress. Loss of consortium is most often claimed by a spouse for lost or interrupted marital relations related to the accident. It can also be claimed by a parent or child of a victim for a reduction or termination of affection because of the victim's injuries. Punitive damages are not related to a particular loss, but instead serve to punish the defendant for the incident that occurred. Many plaintiffs claim punitive damages in an attempt to deter the defendant from allowing a similar incident to occur in the future.

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January 18, 2012

Louisville, Kentucky Settles More Personal Injury Lawsuits from Zoo Train Derailment

1350732_train_tracks_1.jpgOn June 1, 2009, a small passenger train that has run for many years around the perimeter of the Louisville Zoo in Kentucky derailed, spilling all of its passengers out of the cars. While there were no fatalities, 22 people, including 17 children, were sent to hospitals with injuries. Multiple personal injury lawsuits have been filed as a result of this accident.

Shortly after the accident, lawsuits were filed by multiple plaintiffs against different defendants, including Chance Rides Manufacturing, Mary Coffey, and the Louisville Zoo. The first defendant, Chance Rides Manufacturing, is the company that manufactured and sold the train to the zoo. Claims against the company are likely product liability claims, which state that a company knowingly has manufactured and distributed a dangerous or faulty product that has caused property damage or personal injury. Mary Coffey was operating the train when it derailed. She has been charged with negligence in some of the cases based on reports that the train was going too fast and that she was not experienced enough to be running the train when the accident occurred. The lawsuits against the Louisville Zoo could contain a variety of charges including negligence for allowing Ms. Coffey to operate the train without proper training and not properly maintaining the train or the tracks. A couple of the lawsuits also included restraining orders in an attempt to prohibit the zoo from moving the train before it could be examined by experts hired by the plaintiffs.

Over $500,000 has been paid by the city of Louisville to settle 23 claims, including $150,000 this month. This amount does not include legal fees, which are upwards of $175,000 already. Some of the largest claims are still to come, including one filed by a family that had four individuals injured. The father suffered serious injuries to his legs and has already incurred over $350,000 in medical expenses. Damages in this type of case typically will not only include medical expenses, but also lost wages, loss of future earnings, and compensation for emotional distress for both the victim and his family. Considering the extent of injuries and number of people involved, the award in this case may end up being in the millions. This claim is one of six remaining claims that will most likely be mediated and settled without a trial.

The Kentucky Department of Agriculture investigated the accident. The department's final report noted excessive speed, an inexperienced driver, and the poor condition of the train as the most likely causes of the accident. The Louisville Zoo has purchased two new trains since the accident and hopes to have them running in the spring or summer of 2012.

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September 15, 2011

Crib Standards Raised to Keep Sleeping Babies Safe

Many parents feel, and rightfully so, that their babies are safest in their cribs. They are in their own homes, unable to get into unsafe situations. Unfortunately, this is not always the case. Between 1990 and 2008, over 7500 infant injuries involved cribs. As a result, new federal rules have been enacted to make cribs safer for babies.

One major culprit has been drop-side cribs, responsible for up to 32 infant deaths. The movable sides of drop-side cribs have been shown to drop unexpectedly, causing a baby to become trapped or suffocated by the crib side, or allowing an infant to fall. As of June 28, 2011 manufacturers are no longer allowed to make drop-side cribs. Although over 11 million of the cribs have been recalled, many are still in use by daycare centers and hotels, which have until December 28, 2012, to replace drop-side cribs with those with stationary sides. To see if a crib has been part of a recall, individuals can check www.cpsc.gov, www.keeping babiessafe.org, or www.recalls.gov. Parents who own a drop-side crib that was not recalled can contact the manufacturer to see if an immobilizer is available. The U.S. Consumer Product Safety Commission (CPSC) warns that these immobilizers are not subject to the more rigorous standards, so it would be better to replace the crib.

According to the CPSC, crib manufacturers must also "strengthen crib slats and mattress supports, improve the quality of hardware and require more rigorous testing." Faulty crib slats and mattress supports can come loose, creating an opening large enough that a child could get trapped. Hardware can come loose and create an entrapment situation or a hole large enough for a child to fall.

A combination of these factors caused the death of a Kentucky infant when the plastic hardware holding the drop side of the crib broke, allowing the side to slide down and the infant to become entrapped between the side and the mattress. The 7-month-old's death in 2009 was one of 11 attributed to cribs manufactured by Simplicity, which no longer is in business. The parents of a Florida 9-month-old who died in a Simplicity crib settled a wrongful death lawsuit for an undisclosed amount in 2010.

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