2009's Most Dangerous Toys | Dallas, Texas Personal Injury Attorney Blog

Two consumer watchdog groups have released their lists of dangerous toys. The World Against Toys Causing Harm (W.A.T.C.H.), released is annual list of the 10 worst children’s toys, while the Center for Environmental Health released its list of toys they believe have dangerous levels of lead paint.

WATCH’s list of toys typically have a choking hazard for small children, a risk of head injury or a risk of eye injuries. “A lot of the same hazards we see, year after year, are still appearing on the shelves,” said James Swartz, an attorney and director of group that has produced the list each year since 1972. In previous years, the group has had some success in getting some toys pulled from the shelves. The need for safe toys is obvious when you consider that the Consumer Products Safety Commission reports that in 2008 at least 19 toy-related deaths occurred in the United States alone, and that there were also about 235,300 toy-related injuries treated in hospital emergency rooms.

WATCH’S 2009 List of Toys they considered dangerous included:

  5. X-MEN ORIGINS SLASHIN’ ACTION WOLVERINE. The group said the Wolverine has pointed plastic claws protruding some 1.5 inches from each fist. The right claw pops out and retracts upon impact, while the left stays rigid upon contact.
  6. LOTS TO LOVE BABIES – “mini nursery
  8. CAT rugged mini. A Play School “Caterpillar” dump truck has a wheel that with a hard tug can be pulled off, potentially leaving a child as young as 18 months – the suggested age group for the toy – holding a 3-inch metal spike.

Warnings on packaging for a pogo board said that an elastic cord, if pulled taut and then released, “could spring back and cause injury,” and that inexperienced users should wear safety gear

Although many of these products have warning labels. The WATCH group recognizes that children will often ignore those warnings, and those the children will be exposed to the specific hazard that the manufacturer is warning against. “When you see all kinds of warnings about where to use the product, when to use the product, how to use the product – it’s best to stay away from the product,” said Swartz.

Toys With High Lead Levels

The Center for Environmental Health tested 250 children’s products being sold this year and reports that it found Children’s toys carrying the Barbie and Disney logos have turned up with high levels of lead in them, according to a California-based advocacy group — a finding that may give consumers pause as they shop for the holiday season.

The Center for Environmental Health tested about 250 children’s products bought at major retailers and found lead levels that exceeded federal limits in seven of them. Lead is known to be dangerous because it can cause irreversible brain damage.

The toys making the list for high lead levels were:

  1. Barbie Bike Flair Accessory Kit
  2. Disney Tinkerbell Water Lily necklace.
  3. Dora the Explorer Activity Tote,
  4. two pairs of children’s shoes,
  5. a boy’s belt and
  6. a kids’ poncho.

California Attorney General Jerry Brown has sent letters to Target, Wal-Mart and the other retailers who sold the seven products, warning that children’s goods on their store shelves were found to contain illegal levels of lead and should be pulled immediately.

Following a number of revelations about lead-tainted toys in 2007, including the recall of over 2 million toys sold by Mattel, a product safety law was enacted that contained strict limits on the amounts of lead and chemicals allowed in products made for children 12 years and younger.

Manufacture’s Response to Allegations of High Lead Levels:

Mattel said it licensed the Barbie name to Bell Sports for the bike accessory kit found with high lead, but did not make or sell it. Bell said the kit was an older product that passed safety tests in 2007, but the company didn’t know it was still on store shelves.

Disney said the Tinkerbell necklace was tested by its licensee, Playmates Toys, before being distributed — and that it complied with all federal and state consumer safety regulations.

The Center for Environmental Health in Oakland, Calif., said the Barbie toy was bought at Tuesday Morning and the Tinkerbell jewelry was purchased at Walgreens. The other products the center said had high lead came from TJ Maxx, Sears, Wal-Mart and Target.

The Consumer Product Safety Commission, which regulates toys and thousands of other products, is looking into the matter.

Internal Emails From Insurance Company Describe Intentional Wrongful Denials of Claims | Dallas, Texas Personal Injury Attorney Blog

A lawsuit filed in Galveston accuses the Texas Windstorm Insurance Association (TWIA) of using prices below market rate to under-pay claims by under-estimate damages its insureds sustained as a result of Hurricane Ike. In addition, the lawsuit claims that the insurance company unfairly limited the costs allowed on roof damage claims, and discouraged re-opening closed claims. The lawsuit is based in part on internal e-mails and documents from the insurance company.

After Hurricane Ike, TWIA used different insurance agencies to help handle the number of claims that were being made. One of those insurance agencies was USAA. Internal documents show that when USAA used software prices from industry software, TWIA paid more on those claims than it did when other agencies were required to use prices set by TWIA. When this trend was noticed, documents show a TWIA manager worried that USAA was paying more on losses than other adjusters. This could create a problem at TWIA in the long run if it is discovered that USAA was allowed to do something different than the other” adjusting firms, Reggie Warren, vice president of claims for TWIA, wrote in an e-mail to USAA. In the same e-mail, TWIA allowed USAA permission to use the industry software, but suggested that TWIA should rethink its contract with USAA.

The lawsuit also alleges the insurer told adjusters to base claims estimates on an internally developed price guide – with prices lower than market – instead of pricing software commonly used by the industry. For example, one adjusting firm reported the market rate for roof repairs was $230 to $255 per 100 square feet, but TWIA’s price was $182, the lawsuit claims. In internal documents filed with the lawsuit, the association portrays its prices as just a guideline.

Another TWIA e-mail shows that TWIA may have knowingly wrongfully denied claims associated with Hurricane Ike. The claims of contractors for what is commonly referred to as”overhead and profit.” or OH&P were denied by TWIA. However, TWIA knew insurance regulators required insurers to pay “overhead and profit” when estimating claims for damage that would likely require the use of a general contractor – even if homeowners oversee the work themselves. An email from the Vice-President of claims for TWIA stated, “… (We) need to add OH & P to arrive at the appropriate repair/replacement cost, regardless if a contractor is involved,” Warren wrote in June 2008.” Despite this email acknowledging that TWIA was required to pay “overhead and profit”, the lawsuit alleges TWIA denied those payments on Ike claims involving roofs, fences, floors and some other trades..

Attorney Steve Mostyn, the attorney for the homeowner that filed the lawsuit claims that documents obtained through discovery show, “The game is rigged from the beginning. All the parts are designed for one purpose, which was to save [the insurance company] money and underpay these claims every way they can, not by accident nor incompetence but a systematic effort.”

Other e-mails suggest TWIA engaged in unfair discrimination. According to Birny Birnbaum of the Center for Economic Justice a consumer advocate group commented that TWIA’s practice “Sounds like if you’re a reasonable consumer, you get screwed,” he said. “If you’re abrasive you get something out of it. That’s the way insurance companies want to treat insureds, and then they complain about fraud.”

In addition to other problems homeowners faced in trying to get their claims paid in a timely and proper manner, the Vice-President of claims for TWIA wrote in an email that many of the adjusters that the insurance company used were inexperienced and were “not getting the job done.” If adjusters had done a better job the first time they visited a site, there would be fewer files to reopen, he noted. However, when homeowners tried to get their claims re-opened, the Vice-President of Claims for TWIA told adjusters in a memo that homeowners had to have credible evidence to force the reopening of a claim, and that an estimate from a public adjuster – independent adjusters hired by homeowners – was not enough.

The lawsuit also references that in late 2008 TWIA restructured how it paid adjusters for re-inspections, effectively discouraging them from looking for more damage. After December 1, adjusting firms earned $105 plus time and expenses if they denied a claim, according to the litigation. If they found more damage, they risked not getting paid at all if TWIA determined an adjuster erred during the first inspection, according to the lawsuit.

Sen. Rodney Ellis, (Democrat) from Houston indicated that the “The documents demonstrated a callous attitude toward insured families of the Texas coast. These documents demonstrate a pattern of deception resulting in wrongful underpayment and denial of Hurricane Ike claims by TWIA.” The scope of the problem may be enormous since Policyholders filed more than 90,000 claims after Ike. As a result, Senator Ellis has called for an investigation of the insurer and its oversight by the Texas Department of Insurance.

While not every denial of a claim by an insurance company is wrongful, the emails referenced in this lawsuit show that the insurance companies have a distinct advantage over their insureds, and the insurance companies are not afraid to take advantage of their customers. In some situations, insurance companies understand the power and leverage they have over their customers to settle claims for less than is owed, and that when the insurance company believes it can get away with under-paying a claim, it will do so. Insurance companies will issue orders to their adjusters on what to pay on a claim and how much is allowed to be paid on a certain type of claim. Even if the adjusters disagree with the insurance company’s policies, the adjusters are put in a position of losing their job if they try to treat the customer fairly. In some cases, the adjuster runs the risk of being disciplined or receiving a negative performance review if the adjuster refuses to follow illegal orders from the insurance company.

If you find yourself in a situation where you feel you are being treated unfairly by an insurance company, you should contact an attorney. Call Rachel Montes at Montes Law Group, P.C. (214) 522-9401 to discuss your case. We handle all different types of insurance claims from homeowners claims, commercial claims, to Uninsured/Underinsured Motorist claims. You deserve to be treated fairly. You pay for that right.

Medical Journal Accuses Pfizer of Skewing Test Data | Dallas, Texas Personal Injury Attorney Blog

A report in the New England Journal of Medicine is expected to show that the drug manufactuer Pzifer, skewed test data to make its test results on Neurontin look more favorable. Neurontin is primarily used to treat epilepsy, and is being marketed by Pfizer for treatment for uses that have not yet been approved. The Journal is reporting that comparisons of internal company documents with published data from 12 clinical trials found inconsistencies between data that made it into the medical journals and findings from the original trials. Discrepancies included reports of positive results from trials that were initially found to be negative, and primary study goals reported as secondary study goals. The internal company documents were obtained as a result of lawsuits filed against Pfizer and a subsidiary for promoting Neurontin, or gabapentin, for “off-label uses”,uses which are not approved by the U.S. Food & Drug Administration.

The New England Journal of Medicine reports that of 21 primary study objectives of off-label uses of Neurontin described in original documents:
•1. six weren’t included in published reports;

•2. four were reported as secondary goals, according to tomorrow’s study in the journal;

•3. For eight of the 12 published trials, the definition of the primary study goal differed between the original and published documents;

•4. Seven of the nine trials published as full-length research articles reported statistically significant results for the study’s main goal, and

•5. In more than half of those, the outcome differed between the published account and the original documents.

Pfizer has already paid $430 million in criminal fines and civil penalties in 2004 for urging doctors to prescribe Neurontin for off-label uses.

This report emphasizes how important it is for drug manufacturers to be held accountable for their actions and for the truth of their statements to the FDA and in their research results as doctors are forced to rely on the accuracy of the findings in published literature when deciding which drugs to prescribe for patients.

Utah Settles Zyprexa Claims Against Eli Lilly for $24 Million | Dallas, Texas Personal Injury Attorney Blog

The State of Utah has agreed to a $24 million dollar settlement agreement with Eli Lilly for marketing of Zyprexa for “off label” uses. The Food and Drug Administration had approved Zyprexa’s use for treating schizophrenia and bipolar disorders. But, Utah investigators say, Eli Lilly’s sales force had been encouraging, since 1999, doctors to prescribe the drug for dementia, Alzheimer’s, agitation, aggression, hostility, depression and generalized sleep disorders. Zyprexa’s side effects include significant weight gain and obesity — part of a metabolic syndrome, and can lead to diabetes, hypertension and stroke.

“The thing that was remarkable was how vigorously it was promoted and how much we spent in our Utah Medicaid program” — the state’s Zyprexa tab totaled $11 million since 2007, said David Sundwall, executive director of Utah’s Department of Health.

“This isn’t just about money,” Utah Attorney General Mark Shurtleff said Wednesday. “The victims were those who could least afford health care.” Shurtleff said, besides the settlement money, the state “wanted [Eli Lilly’s] bad conduct to stop.” According to Utah’s investigation, 1,769 Utah Medicaid patients over age 65 took Zyprexa without the proper diagnosis.

While Eli Lilly representatives claim, “We have always lived by the highest standards in promoting our drugs,” the company has battled Zyprexa litigation since 2003.
•· In 2008, Eli Lilly settled a lawsuit filed by 32 states for $62 million;

•· Utah was one of 13 states that chose to file separately;

•· Eli Lilly also settled with Alaska in 2008 for $15 million;

•· In January, 2009 Eli Lilly settled with the federal government for $1.42 billion in criminal and civil fines and Medicaid restitution in more than 30 states;

•· In 2009, Eli Lilly settled with Connecticut for $25.1 million;

•· In 2009, Eli Lilly settled with Idaho for $13 million;

•· In 2009, Eli Lilly settled with South Carolina for $45 million; and

•· In 2009, Eli Lilly settled with West Virginia for $22.5 million