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PW Maytag Oven Class Action Lawsuit to Proceed

Fri, 02 Sep 2011 00:00:00 -0700

A class lawsuit claiming Maytag sold defective gas ovens filed by Parker Waichman LLP on behalf of New York man will go forward, after a federal judge partially denied a defense motion to dismiss the suit.

The lawsuit stems from a Maytag gas oven purchased by Gary Woods in 2005 from Plesser's M.S.H. Inc., a Babylon, New York, department store. According to the original complaint, which was filed on December 10, 2009, a malfunction occurred in February 2008 that caused the oven to explode. Woods alleged that the oven's igniter was defective and that Maytag knew of and intentionally concealed the oven's defect.

In an order dated November 2, 2010, Judge Arthur D. Spatt of the U.S. District Court, Eastern District of New York, granted a defense motion to dismiss the original complaint. He dismissed the plaintiff's claims of breach of implied warranty with prejudice, finding they were time barred. However, Judge Spratt dismissed the lawsuit's fraudulent inducement and fraudulent concealment claims with leave to amend.

On November 10, 2010, Woods did file an amended complaint, this time charging Maytag Co., Maytag Sales Co. and Plesser's with fraudulent concealment and fraudulent misrepresentation, as well as violation of Section 349 of the New York General Business Law (GBL), which declares that "deceptive acts or practices in the conduct of any business, trade, or commerce, or in the furnishing of any service" are unlawful in New York.

In December the defendants gain filed a motion with the Eastern District of New York to dismiss the amended claim in its entirety. In an order dated August 31, 2011, did dismiss, with prejudice, the lawsuit's fraudulent misrepresentation claims against the Maytag defendants, as well as the fraudulent concealment and GBL Section 349 claims against Plesser's.

Judge Spatt denied the defense motion to dismiss a claim of fraudulent concealment against Maytag Co. and Maytag Sales Co, writing that he disagreed with the defense contention that Woods "had not sufficiently alleged that (1) Maytag had knowledge of the alleged defects; and (2) any failure to disclose was done with the requisite intent to defraud." Judge Spatt also allowed the plaintiff to proceed with his GBL claim against the Maytag defendants, writing that Woods plausibly alleged that they "had knowledge of the purported defect and failed to disclose that information for the purposes of fraudulent concealment," thus satisfying the pleading requirement for a claim under Section 349 of the GBL.

Finally, he allowed the fraudulent misrepresentation claim against Plesser's to go forward, writing the amended complaint "sufficiently alleged facts that meet the heightened pleading requirements for fraudulent misrepresentation, made with the requisite scienter, which the Plaintiff reasonably relied upon to his detriment."

Parker Waichman LLP Files Actos Bladder Cancer Lawsuit on Behalf of New York Man

Fri, 02 Sep 2011 00:00:00 -0700

Parker Waichman LLP has filed suit against the makers of Actos on behalf of a man who was diagnosed with bladder cancer following long-term use of the type II diabetes medication. The Actos bladder cancer lawsuit was filed yesterday in U.S. District Court, Northern District of New York.

Plaintiff Clement Dabiere claims Takeda Pharmaceuticals America, Inc.; Takeda Pharmaceutical North America, Inc.; Takeda Pharmaceutical Company Limited; and Eli Lilly and Company concealed and continue to conceal that they were aware that Actos can cause bladder cancer. He further alleges the defendants have never appropriately informed consumers and the medical community about bladder cancer risks when taking Actos for over 12 months.

According to his complaint, Mr. Dabiere began taking Actos in 2006, and was diagnosed with bladder cancer in September 2010. His lawsuit points to a number of studies that demonstrated a possible bladder cancer risk associated with Actos, including five-year data from an ongoing, 10-yeara Kaiser Permanente study that demonstrated the risk of bladder cancer increases with increasing dose and duration of Actos use, reaching statistical significance after 24 months.

While that study prompted the U.S. Food & Drug Administration (FDA) to announce in September 2010 that it was launching a safety review of Actos, Mr. Dabiere's lawsuit alleges that Robert Spanheimer, Vice President of Medical and Scientific Affairs for Takeda, told Reuters that the Kaiser Permanente study has not shown a risk to patient's of bladder cancer or other cancers from Actos.

On June 15, 2011, the FDA issued another safety communication stating that use of Actos for more than one year may be associated with an increased risk of bladder cancer. This was followed just days later by announcements that regulators in France and Germany suspended sales of Actos after a French-commissioned study also demonstrated a higher risk of bladder cancer in Actos patients who took the drug at the highest cumulative doses and for the longest time.

Mr. Dabiere alleges that his years of Actos use caused him to suffer severe, permanent and life-threatening personal injuries, pain, suffering, emotional distress, and lifelong fear of premature death. He further alleges that because of his use of Actos, he will require continued lifelong monitoring, treatment and medications. The lawsuit charges Takeda and Eli Lilly with, among other things, negligence; three counts of strict products liability, including failure to warn; breach of express warranty; breach of implied warranties; and fraud and deceit.

Parker Waichman LLP, Press & Media

Fri, 02 Sep 2011 00:00:00 -0700