Current Events in March 2010

Are all terrain vehicles (ATVs) expensive toys, or dangerous motor vehicles requiring a license to drive? Increasingly health officials are choosing the latter.

"I practice in Idaho, ATV ridership is very common," said Dr. Kevin G. Shea, an orthopedic surgeon specializing in pediatrics. "These vehicles can produce significant injuries in young riders, and we care for many in our community. Nationwide, there is even a rise in amputations and death from the use of these powerful vehicles."

Over the years, ATVs and motocross motorcycles have gained popularity and marketed as toys to consumers. These high-velocity machines can weigh between 300 and 600 pounds, and run on average between 25 and 60 miles per hour, while some even reach maximum speeds of 75 miles per hour.

In 2008, nearly 28 percent of all ATV-related injuries were to children younger than 16, according to Shea. There were an estimated 135,000 injuries for riders of all ages for ATV use. A majority of ATV injuries result from tipping, overturning or multiple riders.

Campbell Clinic-LeBonheur Medical Center in Memphis looked at 4,483 children in the U.S. who were injured in an ATV-related accident over a period of several years. Of those children, 332 or 7.4 percent had a spine injury. This shows a 140 percent increase in children injured, and a 368 percent increase in the number of spinal injuries from 1997, according to Dr. Jeffrey R. Sawyer, chief of pediatric orthopedic trauma at the clinic.

According to Sawyer, 76 percent of patients were male, with a mean age of ATV riders of 12.9 years old.

Multi-rider equals greater risk

Rhinos, or multi-rider ATVs are associated with great risk of primary limb amputation and significantly higher incidence of open extremity fractures compared to single-rider vehicles.

Gregg Wendell Schellack, DO, a fifth-year orthopedic resident at Loma Linda University in California, compared the injury differences between multi-rider ATVs and single-rider ATVs. A total of 110 patients were evaluated over a two-year period.

Schellack found that 39 injuries were multi-rider related, while 71 were single-rider related. Sixty-four percent of multi-rider related-injuries resulted in open fractures, while 11 percent sustained open fractures on a single-rider ATV.

Amputations

Fifteen percent of multi-rider related injuries resulted in primary limb amputations while only one percent of single riders needed amputations. The relative risk of amputation for MR ATV riders was 10.9 times higher than that of standard ATV riders.

"Developing and enforcing a mandatory safety training session before these vehicles can be operated may be an important first step, Shea said. "Better education will be essential, as it is important to educate riders, parents and the public about the potential for serious injury."

While the U.S. government has announced steps to increase ATV regulation, things are moving at a slow, bureaucratic pace. The Consumer Product Safety Commission voted last October to write new rules to regulate four-wheeled all-terrain vehicles. But the rule making process will take months, if not years.

The ATV industry has proposed voluntary guidelines but safety advocates say the guidelines have been inadequate and they said today's action puts the industry on notice.

"Every year, more and more families are devastated by deaths and injuries caused by ATVs. This tragic problem continues to be in dire need of an aggressive and immediate solution," said Rachel Weintraub, Director of Product Safety for Consumer Federation of America, in a statement last year.

The threat of Salmonella appears to be spreading through the food chain, thanks to contamination of some highly-used seasonings that bear traces of the bacteria.

Windsor Foods, a company with meat packing and processing operations in Texas and Mississippi, is recalling approximately 1.7 million pounds of ready-to-eat beef taquito and chicken quesadilla products that may be contaminated with Salmonella.

The packages of beef taquito and chicken quesadilla products contain the previously recalled Hydrolyzed Vegetable Protein (HVP), according to USDA's Food Safety and Inspection Service.

The U.S. Food and Drug Administration announced a recall of the HVP product on March 4, 2010. A recall of the ready-to-eat taquito and quesadilla products containing the HVP was warranted due to the determination that the HVP ingredient was added after Salmonella prevention steps were applied.

The products subject to recall include Beef Taquito Products:

• 1.25-pound cartons of "JOS OL TAQUITOS SHREDDED STEAK ROLLED IN CORN TORTILLAS," bearing any of the following identifying package code numbers: "3359327," "3359334," "3359337," "3359338," "3359342," "3359343," "3359344," "3359345," "3359353," "3359354," "3359355," "3359356," "3359363," "3350002," "3350004," "3350007," "3350008," "3350012," "3350016," "3350017," "3350018," "3350023," "3350025," "3350026," "3350029," "3350031," "3350033," "3350036," "3350040," "3350042," "3350046," "3350047," "3350055," "3350057," "3350060," "3350062." These products were produced between the dates of Nov. 23, 2009 through March 3, 2010.

• 2.5-pound cartons of "JOS OL TAQUITOS SHREDDED STEAK ROLLED IN CORN TORTILLAS," bearing any of the following identifying package code numbers: "3359340," "3359357," "3350005," "3350014," "3350028," "3350037," "3350053," "3350020," "3350044." These products were produced between the dates of Dec. 6, 2009 through Feb. 22, 2010.

• 1.6-pound cartons of "EL PASADO BEEF TAQUITOS," bearing any of the following identifying package code numbers: "3350017," or "3350029." These products were produced on Jan. 17 and 29, 2010.

• 4-pound cartons of "EL PASADO SHREDDED BEEF MINI TAQUITOS," bearing any of the following identifying package code numbers: "3350002," "3350005," "3350023," "3350037." These products were produced between the dates of Jan. 2, 2010 through Feb. 6, 2010.

• 4-pound cartons of "CASA SOLANA SHREDDED BEEF MINI TAQUITOS," bearing any of the following package code numbers: "3359344" or "3350060." These products were produced on Dec. 10, 2009 and March 1, 2010.

• 12.5-pound cartons of "E-Z EATS! BEEF TAQUITOS," bearing the identifying package code number "3350042." These products were produced on Feb. 11, 2010.

• 1.25-pound cartons of "GIANT EAGLE STEAK TAQUITOS," bearing the identifying package code "3350025." These products were produced on Jan. 25, 2010.

• 20-pound cartons of "JOS OL BEEF TAQUITOS," bearing any of the following identifying package codes: "3359337," or "3350012." These products were produced on Dec. 3, 2009 and Jan. 12, 2010.

• 3.3-pound cartons of "POSADA TAQUITOS CORN SHREDDED BEEF," bearing any of the following identifying package codes: "3359357," "3350005," "3350020." These products were produced on Dec. 23, 2009, Jan. 5, 2010, and Jan. 20, 2010.

• 15-ounce cartons of "JOS OL TAQUITOS SHREDDED STEAK ROLLED IN CORN TORTILLAS," bearing any of the following identifying package codes: "3359342," "3359354," "3350018," "3350031," "3350047," "3350051." These products were produced between the dates of Dec. 8, 2009 through Feb. 20, 2010.

Chicken Quesadilla Products

• 15-pound boxes containing 3-pound 12-ounce cartons of "EL PASADO GRILLED CHICKEN QUESADILLAS GRILLED WHITE MEAT CHICKEN, CHEESE & SALSA FOLDED IN A FLOUR TORTILLA," bearing the identifying package code "3530028," or "3539352." These products were produced on Dec. 18, 2009 and Jan. 28, 2010.

Each of the beef taquito cartons subject to recall bear a label with establishment number "EST. 5590" inside the USDA mark of inspection. The chicken quesadilla boxes subject to recall bear the USDA mark of inspection, with the establishment number "P-34708" located separately on each box.

These products were distributed to foodservice and retail establishments nationwide. When available, the retail distribution list(s) will be posted on FSIS' Web site.

FSIS says it has received no reports of illnesses associated with the consumption of these products. Individuals concerned about an illness should contact a physician.

According to FDA's March 4, 2010 release, FDA conducted an investigation after a customer of an FDA regulated firm reported finding Salmonella in the HVP ingredient. This resulted in the subsequent recall of the contaminated HVP products.

FSIS routinely conducts recall effectiveness checks to verify recalling firms notify their customers, including restaurants, of the recall and that steps are taken to make certain that the product is no longer available to consumers.

The housing crisis has gotten so bad, even solvent homeowners are feeling the effects.

Despite the economys recent modest strides, over 13% of homeowners are currently behind on their mortgages. And as more and more consumers default, confused banks occasionally find themselves foreclosing on the wrong house.

Thats what happened to 46-year-old Pittsburgh resident Angela Iannelli, who came home last October to find her front door padlocked. Once she finally got inside -- with the help of a bolt cutter -- she discovered that her house had been ransacked, power and water lines had been cut, floors and furniture had been damaged, and antifreeze had been poured in sink drains and toilets.

As Iannelli later discovered, Bank of America incorrectly identified her property as vacant and in default, and sent in a contractor to lock and clean out the house.

But worse, Luke was gone.

Iannelli searched the whole house, but to no avail: the contractor who secured the property had also snatched up her beloved 11-year-old blue macaw. It would be a week before Iannelli was reunited with her feathered friend.

Adding insult to injury, Bank of America was less than helpful.

When Iannelli called to complain, the bank initially told her it didnt know where Luke was. When it finally relented, it told her that she could pick up the bird from the contractor -- 80 miles away. Unsatisfied, Iannelli kept calling back, until the bank told her it was tired of her calls and suggested that she contact the police.

Iannelli has predictably filed suit, and is seeking upwards of $50,000 in damages. Her complaint, filed in the Allegheny County Court of Common Pleas, says that Bank of America improperly told Snyder Property Services to enter, seize, padlock, winterize and take possession of the house, and that the banks de facto foreclosure process and seizure proceedings have caused her severe emotional distress, embarrassment and ridicule.

If you or I had done to Bank of America what Bank of America did to my client wed be in prison for 10 years, said attorney Michael Rosenzweig of Pittsburgh-based Edgar Snyder & Associates, who is representing Iannelli.

More suits

The situation is bad enough by itself, but Bank of America is facing suits from three other homeowners who allege their houses were wrongfully seized.

One couple who paid cash for their Florida vacation home found the door padlocked and the electricity shut off, causing the pipes to freeze. A Texas plaintiff also had his power shut off, meaning that the 75 pounds of salmon and halibut he had frozen in anticipation of a Halloween party was, shall we say, less than fresh.

A contrite Bank of America spokesman said the company has zero tolerance for events like those that spurred the suit, and promised that the bank will quickly review the allegations in the lawsuit, the actual events that led to them and the causes of those events, and consider any hardship that resulted.

Samsung and Panasonic have started selling their 3D sets this week while Sony's version hits the market this summer. But if you showed caution in the face of HDTV, it might be prudent to continue that caution. As with any new technology, there are bound to be glitches.

Cheaper flat screen TVs, for example, continue to be the source of constant complaints. One of the most common complaints is with the power supply. Many simply go dead after two or three years of use. Other consumers, like Frank, of Monroe Township, N.J., still have power but no picture.

"I have a Samsung LCD TV, Model LNS4692DX/XAA. With just 2.5 years of use I have audio with no video," Frank told ConsumerAffairs.com. "After looking into the problem on the Internet I came across hundreds of people posting the same problem with the same model number."

Though Samsung draws scores of complaints about its sets, so do most other low-priced manufacturers, including Vizio and Polaroid.

Samsung will employ some of the basic technology in its 3D sets that it uses in its current flat screens; that is, 3D sets will include LED, LCD and plasma screens. What's new is an optional Blu-ray player and upgraded speakers.

Samsung's 3D LED sets include the C7000, C8000, and C9000 series with screen sizes ranging from 40 inches to 65 inches. The cheapest 3D set will cost $2,000 while the top of the line will set you back $7,000. The C7000 series starts shipping right away, while the C8000 and C9000 models won't be available until next month.

Samsung's 3D sets with LCD screens will be available in May, beginning with a 46-inch screen model for $1,700. The 3D plasma TVs range from 50 inches to 63 inches, with prices from $1,800 to $3,800. They also will ship in May.

Samsung's 3D Blu-ray player offers surround sound, high-definition 1080p video playback, and eight speakers. The system will cost $900.

Partnering with Best Buy

Panasonic is partnering exclusively with Best Buy to sell its new line of 3D sets and is leading off with a 3D TV bundle for $2,900. It includes a 50-inch plasma screen set with 3D compatible Blu-ray player and one pair of 3D glasses. The company later plans to roll out 54, 58, and 65 inch versions of the bundle later in the year.

As with any new technology, early adopters may make up the lion's share of the market. For one thing, there is very little 3D content available for viewing, though broadcast networks may adopt 3D more quickly than they did HD. There's also the little issue of trust.

Experience shows that the more complex an appliance is, the more things there are to go wrong. It's hardly ever basic washing machines that break down, for example, it's usually the top of the line, with all types of programmable features, that produce the complaints from consumers.

Judging from the complaints received at ConsumerAffairs.com about TV set manufacturers, is there any reason to believe that 3D sets will perform more reliably than the current generation of flat screens? Most consumers may not want to spend $3,000 or more to find out.

Toyota has issued a statement denying media reports that it plans a new recall of the 2004-2009 Prius to address the potential risk for floor mat entrapment of accelerator pedals.

"There is no new recall being planned for the Prius to address this issue," the company said in a statement Tuesday.

The report first appeared in the Wall Street Journal.

The company said the 2004-2009 Prius was part of Toyota's November 2, 2009 announcement of a voluntary safety recall campaign to address floor mat entrapment in certain Toyota and Lexus vehicles. Other models involved in this previously-announced recall include 2007-2010 Camry, 2005-2010 Avalon, 2005-2010 Tacoma, 2007-2010 Tundra, 2007-2010 ES 350, 2006-2010 IS 250, and 2006-2010 IS 350. On January 27, 2010, Toyota expanded the campaign to include the 2008-2010 Highlander, 2009-2010 Corolla, 2009-2010 Venza, 2009-2010 Matrix and 2009-2010 Pontiac Vibe.

The remedy process for these vehicles began at the end of 2009 and is occurring on a rolling schedule during 2010, Toyota said. Owners of the involved vehicles that have not yet been remedied are asked to take out any removable driver's side floor mat and not replace it with any other floor mat.

Not the mat

But the driver of that 2008 Prius involved Monday in the highly publicized runaway car incident on the San Diego Freeway says the floor mat had nothing to do with the uncontrolled acceleration in his car.

James Sikes' Prius took him on a terrifying 30 minute ride when he accelerated to pass a car and the car kept gaining speed, even though he pressed on the brakes. Sikes said he immediately looked down to see if the pedal was caught on the floor mat and said it was not.

Sikes eventually stopped his car with the assistance of a California Highway Patrol Officer, who pulled alongside and used his PA system to instruct Sikes to hit the brakes and pull on the emergency brake at the same time. With the car slowed to about 50 miles per hour, the frightened driver was able to turn off the ignition, allowing the car to roll to a stop.

While Sikes' wild ride was international news this week, another out of control Prius, with circumstances almost identical to Sikes' incident, received almost no coverage other than by ConsumerAffairs.com, when it occurred in 2005.

Similar incident

In October of that year, Herbert, of Battle Creek, Mich., was traveling down the highway in his Prius with the cruise control active at 55 miles per hour.

He said he found it necessary to speed up while passing a slower vehicle on the highway. That is when the problem with the Prius began.

"I let off the accelerator and pressed the brakes several times, but the vehicle continued to accelerate under full power," Herbert said. "I tried to slow the vehicle by pushing the power button, manipulating the cruise control lever, and putting the vehicle in neutral. All attempts were unsuccessful."

Herbert found himself barreling down the road with the cruise control stuck wide open, running approximately 20 miles over the posted speed limit, all the while continuing to accelerate.

Still searching for someway to slow his runaway hybrid, Herbert "elected to apply full braking force to the Prius while 'laboring' the vehicle to a standstill on the gravel shoulder of the road."

Once he had regained his composure, Herbert pushed the main power button, and the vehicle shut down. "The cabin of the Prius exhibited a strong odor reminiscent of an electrical motor smell," Herbert said.

Little interest in 2007

It is worth noting that ConsumerAffairs.com reported in 2007 that the National Highway Traffic Safety Administration was "aware of" complaints of runaway acceleration in the popular Toyota Prius hybrid and at the time, said they were in a "monitoring mode."

"It is currently like dozens, or maybe hundreds, of other issues of this kind," an agency official said at the time.

The Toyota Product Communications office did not responded to several 2007 requests from ConsumerAffairs.com to discuss the issue of unintended acceleration in the Prius.

To date, Toyota has recalled some 6 million cars in the United State because of acceleration and braking problems. Safety Regulators have linked 52 deaths to crashes possibly caused by uncontrolled acceleration.

Two Classmates.com members have sued the well-known social networking site, accusing it of exposing members' personal information to unknown parties without giving a proper warning.

The suit, filed in federal court in Seattle, concerns a January 30 e-mail announcing that the site was coming up with ways to let more people use Classmates from around the Internet without having to visit Classmates.com.

To do that, we're about to start making your public Classmates content available to people using a variety of sites and devices, including Facebook and the iPhone, the message continued. This content can include your name, photos, community affiliations, and more Look for our new Facebook app: We're about to release a Facebook application that lets people curious about their old friends and schoolmates explore our class lists and member activity.

The e-mail insisted that Classmates care[s] about your privacy as much as we do your ability to catch up with your past, and that it was accordingly updating our privacy policy to make these new features possible, and you're able to opt out.

But plaintiffs Thomas Ferguson and Patrick Fahy say that the e-mail is presented in such an innocuous and favorable manner that Users would not even be tempted to 'opt out' of the new policy. They specifically complain that most Classmates users have no idea what an 'app' or 'application' is or does, and that Classmates members are never explicitly warned that the new policy will expose the personal information of Classmates Users to millions of persons.

Older users

The plaintiffs' first point -- that the website doesn't adequately explain how users' information will be shared -- is especially salient in light of Classmates' unique demographics.

Among social networking sites, Classmates has the largest number of users over 65 -- fully eight percent of that demographic is registered with the site. Since most of those users aren't also registered with Facebook or MySpace, assuming that they'll know what an app is, much less how it works, is a stretch at best.

Finally, Ferguson and Fahy point out that Classmates has 'pre-clicked' the option to permit disclosure of personal information via the Applications; that is, it forces consumers to take affirmative action in order to opt-out. This type of 'negative option' is well-known to be confusing to consumers, according to the complaint.

Classmates' privacy modification was part of a strategy to tap into Facebook's more than 100 million users, and direct their attention to the store of information accumulated over the years on the Classmates Web site, according to the plaintiffs. It has done this despite the fact that (unlike Classmates) Facebook has been repeatedly sued for violating its users' privacy rights and mishandling information contained on its Web site.

Classmates, which launched in 1995, has around 40 million members and 3.5 million paid subscribers. Despite its relative antiquity, in 2006 Nielsen Online ranked the site third in unique visitors per month -- behind only MySpace and Blogger.

The site has not been especially popular with ConsumerAffairs.com readers, many of whom have repeatedly tried to cancel their accounts, but continue to be billed for the service. As Jamie of Weatherford, Tx, wrote last week:

Classmates.com is a ripoff. Can't get them to stop charging my credit card although I cancelled my membership over 6 months ago. You can call and never get a human on the phone. They're always "experiencing an unusual high volume of calls" and your placed in the que to wait and wait. Try online contact with no success either.

The suit accuses Classmates of breach of contract, unjust enrichment, and violations of the Electronic Data Privacy Act and the Washington Consumer Protection Act. The proposed class -- consisting of all registered users of the site -- is seeking an injunction and unspecified damages.

The recall affects about 149,000 Gator Machetes and 6,000 Gator Machetes Jr.

Gerber has received five reports of individuals cutting themselves while using the Gator Machete, all of whom required stitches. Gerber has received no reports of injuries associated with use of the Gator Machete Jr.

This recall involves the Gerber Gator Machete and Gator Machete Jr. with the original handle (see picture below). The Gator Machete is approximately 25 1/2" long and the Machete Jr. is approximately 18 3/4" long. The blade is marked with the "Gerber" trademark. The Gator Machete and Machete Jr. with a modified handle (an extended hand guard) are not included in this recall (see picture below). Consumers should visually inspect their machete to determine if it is included in this recall.

The machetes were sold at retail stores nationwide, including The Sportsman's Guide, Dick's Sporting Goods and Bass Pro Shops/American Rod & Gun, and through on-line stores from March 2007 through February 2010 for between $16 and $25. They were made in China.

Consumers should stop using the recalled machetes immediately and contact Gerber to receive instructions on how to return the machete for a free replacement machete.

For more information, contact Gerber Legendary Blades toll-free at (877) 314-9130 between 9 a.m. and 5 p.m. PT, Monday through Friday, or visit the firm's Web site at www.gerbergear.com (pdf).

The recall is being conducted in cooperation with the U.S. Consumer Product Safety Commission (CPSC).

Bank of America says it is ending its practice of automatically charging consumers $35 when they make a debit card purchase that exceeds the funds in their account. Under the new policy, such purchases will be declined at the point of sale unless customers have requested overdraft "protection."

"Our customers have been clear that they want to know if a purchase is going to overdraw their account," said Susan Faulkner, Deposits and Card Product executive. "Our solution is simple, clear and helps customers control their finances by reducing the possibility of over-extending themselves at the point of sale with a debit card."

Nearly all banks provide what they call "courtesy overdraft protection" to their customers, whether they want it or not. While this policy allows the sale putting the account in the red to go through, it costs the consumer $35 per overdraft.

Most consumers have said they would prefer to have the purchase declined rather than be hit with a $35 fee, often assessed on a purchase that overdraws their account by only a dollar or two.

Bank America's move is widely seen as an attempt to get out in front of new Federal Reserve regulations that will severely limit the use of overdraft fees. Under the new Fed policy that takes effect later this year, customers must be allowed to "opt in" to overdraft protection. In other words, banks can't automatically provide it.

The new Bank of America policy takes effect June 19, 2010, for new customers and in August for existing customers, the bank said. The new Fed regulations go into effect July 1.

Sore point

Mandatory overdraft protection has long been a sore point with consumers, who have complained over the years that banks seemed to be exploiting any overdraft. For example, if a consumer were shopping and made five small debit purchases that all went over the amount of money in their account, the bank charged five $35 fees.

"We understand that the environment has changed, and we are changing with it," said Faulkner. "We will continue to make changes to our products, services and solutions that deliver more value to our customers by providing the clarity, control and choice they need to better manage their everyday finances."

While Bank of America's policy change is bound to please consumers, it could have an impact on the bottom line, since all banks have begun to rely on fees on customers for a big source of profits. Various financial analysts put the revenue generated by fees at between $30 billion and $40 billion per year.

Bank of America, for its part, says its new policy goes "above and beyond" the new government regulations. It is the second major bank to take this step. Citigroup has already adopted a similar policy.

There's an increasingly popular Web site out there that authorities in Texas claim poses a threat to children. The site, www.chatroulette.com, gives users -- including dangerous sex offenders -- an opportunity to conduct live video chats with randomly selected participants.

Armed with only a Web camera and Internet access, the site's users are paired with a random stranger for a video chat. Neither a login nor registration is required before young users can be face-to-face with a total stranger. Worse, users who simply click "next" are shuffled to a new video chat partner.

An undercover investigation by the state's Cyber Crimes Unit revealed startling results. Nearly half of the randomly selected users encountered by investigators immediately exposed themselves and conducted sexually explicit acts on camera.

In light of the serious threat that children will be exposed to graphic sexual conduct, parents are being urged to prohibit their kids from accessing the site. Although users are supposed to be at least 16 years old, the rule is not clearly enforced -- which means parents' preventative role is particularly important.

Texas Attorney General Greg Abbott reminds parents to closely monitor their children's Internet activities by using the following safety tips:

• Place the computer in a public room at home so parents can monitor their children's Internet use. Do not allow computers in a child's bedroom or permit the use of Web cameras.

• Make sure children know never to agree to a face-to-face meeting with someone they meet online and never to divulge personal information to an Internet stranger.

• Stay informed. Surf the Internet with children or at least talk to them about the Web sites they are visiting.

• Establish ground rules for children's Internet usage, including the hours they may surf and the kinds of Web sites they may visit. Post the rules near the computer.

Separately, Idaho Attorney General Lawrence Wasden has released ProtecTeens Version 3.0, a completely updated Internet safety program to inform and assist parents regarding the dangers children face from sexual predators and other risks on the Internet.

ProtecTeens consists of a 25-minute video presentation, the AG's Internet Safety Manual, a Parents' Guide to Social Networking Websites, the Internet Lingo Dictionary, the Family Contract for Internet Safety, and information about parental control software.

The new video includes sections covering:

• general Internet risks and safe practices;

• social networking websites;

• online chat and instant messaging;

• cell phones and "sexting";

• online gaming and virtual worlds; and

• cyberbullying.

"We tend to take our electronic technology for granted these days, but if you think about the devices you use today, and the way you use them, the technology has changed considerably since we produced the original ProtecTeens program in 2005," Wasden said. "This new video addresses many of those changes in technology and includes subjects that were not even on the radar screen five years ago."

A recent study has found that chat sites and instant messaging present a huge danger to tweens and teens.

The higher the occupancy rate at your hospital, the less likely you are to leave alive.

That's the conclusion of a new University of Michigan Health System study that shows you have a 5.6 percent higher risk of dying in a hospital operating at near capacity.

For the study, published in the March issue of Medical Care, researchers evaluated a set of critical factors that can affect hospital deaths: hospital occupancy, nurse staffing levels, weekend admission and seasonal influenza.

Having more nurses made patients safer, decreasing risk by 6 percent. But weekend admission raised the risk by 7.5 percent and admission during widespread seasonal flu had the greatest impact by increasing the risk of death by 11.7 percent, according to the study.

Because of the size of the study, which included 166,920 adult patients admitted to 39 Michigan hospitals over three years, the findings can be generalized to hospitals nationwide, authors say.

"The study establishes that there is indeed a connection between hospital occupancy and death rates in U.S. hospitals," said lead author Peter L. Schilling, M.D., a resident in orthopedic surgery at U-M Health System. "It's important to emphasize though that this study does not identify a specific occupancy level above which patient care suffers and deaths abruptly become more common. The key occupancy level may differ for each hospital."

First study to consider all four factors

The findings are considered robust because each factor still had a significant impact even while evaluated in a model simultaneously. While this study is not the first to demonstrate that these factors are associated with in-hospital mortality, the U-M Health System is the first to compare all four at once.

"The study further establishes each factor as a major predictor of hospital deaths but the good news is that each can be modified in some way," said co-author Darrell A. Campbell Jr., M.D., chief of clinical affairs at the U-M Health System.

For instance, generally the peak flu season can be predicted and during those times, hospitals can reinforce the importance of hand washing and covering coughs and sneezes.

The impact of seasonal flu may also be diminished by improving vaccination rates in the community and among health care workers. The rate of vaccination among health care workers and high-risk patients remains surprisingly low nationwide.

Researchers calculated the occupancy of the hospitals every day for the years 2003-2006. On average, patients in the study were admitted while hospital occupancy was 73 percent of full capacity. One-third of patients were admitted on high occupancy days, at average levels of 80 percent or more.

Study patients were admitted after being seen in the emergency department for a heart attack, congestive heart failure, stroke, pneumonia, hip fracture or gastrointestinal bleeding.

"Hospital occupancy changes from day to day, so patients shouldn't try to choose a hospital based on its occupancy level," said co-author Matthew M. Davis, M.D. "But these kinds of study findings should prompt hospitals to look at the flow of patients and processes of their care teams during high occupancy times. Those are more challenging moments when more things can go wrong."

A phishing scam targeting members of credit unions has emerged in Mississippi, and perhaps in other states. Mississippi Attorney General Jim Hood says his office has received a number of calls from potential and actual victims.

The phishing attack targets mostly cell phones, with both calls and text messages. The messages warn victims that their credit union account has been frozen and instructs the victim to call a number to provide account information. If victims comply, the scammer steals their information.

"One consumer that called our office actually contacted the 800 number and later found that her account had been wiped clean by the phishers," said Hood. "It is important to remember that no reputable financial institution is going to send a text message or ask for your information."

Several credit unions operating within the state have been targeted.

"If you receive such a text, do not call that number," Statewide Credit Union warns in a message on its Web site. "This is a "phishing" attempt to steal your member information and to try to steal funds from your account. We will not attempt to contact you through text messaging, or ask for your member information over the phone, since we already have it."

Don't reveal personal information

Phishing scams have become a problem with the spread of the Internet. Most use email or pop-up ads to try to trick consumers, though some old fashioned scammers still use the telephone. To avoid becoming a victim:

• Do not reply to an email, pop-up, telephone or text message that asks for personal or financial information. Legitimate companies don't ask for this information. If you are concerned about your account, contact the organization using a telephone number you know to be genuine.

• Do not return the phone call to the number left in the message and never follow the Internet link to the site.

• Do not email personal or financial information. Email is not a secure method of transmitting personal information.

• Review credit card and bank statements as soon as you receive them to determine whether there are any unauthorized charges.

• Use anti-virus software and keep it up to date. A firewall helps make you invisible on the Internet and blocks all communication from unauthorized sources.

• Be cautious about opening any attachment or downloading any files from emails you receive, regardless of who sent them.

LifeLock, Inc. has agreed to pay $11 million to the Federal Trade Commission and $1 million to a group of 35 state attorneys general to settle charges that the company used false claims to promote its identity theft protection services, which it widely advertised by displaying the CEOs Social Security number on the side of a truck.

In one of the largest FTC-state coordinated settlements on record, LifeLock and its principals will be barred from making deceptive claims and required to take more stringent measures to safeguard the personal information they collect from customers.

While LifeLock promised consumers complete protection against all types of identity theft, in truth, the protection it actually provided left enough holes that you could drive a truck through it, said FTC Chairman Jon Leibowitz.

This agreement effectively prevents LifeLock from misrepresenting that its services offer absolute prevention against identity theft because there is unfortunately no foolproof way to avoid ID theft, Illinois Attorney General Lisa Madigan said. Consumers can take definitive steps to minimize the chances of having their personal information stolen, and this settlement will help them make more informed decisions about whether to enroll in ID theft protection services.

Since 2006, LifeLocks ads have claimed that it could prevent identity theft for consumers willing to sign up for its $10-a-month service.

According to the FTCs complaint, LifeLock has claimed:

• By now youve heard about individuals whose identities have been stolen by identity thieves . . . LifeLock protects against this ever happening to you. Guaranteed.

• Please know that we are the first company to prevent identity theft from occurring.

• Do you ever worry about identity theft? If so, its time you got to know LifeLock. We work to stop identity theft before it happens.

No protection

The FTCs complaint charged that the fraud alerts that LifeLock placed on customers credit files protected only against certain forms of identity theft and gave them no protection against the misuse of existing accounts, the most common type of identity theft. It also allegedly provided no protection against medical identity theft or employment identity theft, in which thieves use personal information to get medical care or apply for jobs.

Even for types of identity theft for which fraud alerts are most effective, LifeLock does not provide absolute protection. They alert creditors opening new accounts to take reasonable measures to verify that the individual applying for credit actually is who he or she claims to be, but in some instances, identity thieves can thwart even reasonable precautions.

New account fraud, the type of identity theft for which fraud alerts are most effective, comprised only 17 percent of identity theft incidents, according to an FTC survey released in 2007.

The FTCs complaint further alleged that LifeLock also claimed that it would prevent unauthorized changes to customers address information, that it constantly monitored activity on customer credit reports, and that it would ensure that a customer always would receive a telephone call from a potential creditor before a new account was opened. The FTC charged that those claims were false.

Poor security

In addition to its deceptive identity theft protection claims, LifeLock allegedly made claims about its own data security that were not true. According to the FTC, LifeLock routinely collected sensitive information from its customers, including their social security numbers and credit card numbers. The company claimed:

• Only authorized employees of LifeLock will have access to the data that you provide to us, and that access is granted only on a need to know basis.

• All stored personal data is electronically encrypted.

• LifeLock uses highly secure physical, electronic, and managerial procedures to safeguard the confidentiality and security of the data you provide to us.

• The FTC charged that LifeLocks data was not encrypted, and sensitive consumer information was not shared only on a need to know basis. In fact, the agency charged, the companys data system was vulnerable and could have been exploited by those seeking access to customer information.

"LifeLock sold Californians a false sense of security against identity theft with advertisements that were chock full of inflated claims and promises," California Attorney General Edmund G. Brown Jr. Brown said. "Today's settlement prevents the company from misrepresenting and overstating its services and reimburses LifeLock subscribers who were misled."

The Attorneys General of Alaska, Arizona, California, Delaware, Florida, Hawaii, Idaho, Illinois, Indiana, Iowa, Kentucky, Maine, Maryland, Massachusetts, Michigan, Missouri, Mississippi, Montana, Nebraska, Nevada, New Mexico, New York, North Carolina, North Dakota, Ohio, Oregon, Pennsylvania, South Carolina, South Dakota, Tennessee, Texas, Vermont, Virginia, Washington, and West Virginia participated in the settlement.

Long-standing complaints

LifeLock has been the target of consumer complaints, class action lawsuits and criticism from consumer and privacy activists for years.

LifeLock's co-founder and chief executive officer, Todd Davis, is so confident in the product that he shares his own Social Security number in the company's many TV, radio and print ads.

But consumer advocates and two class action lawsuits claim that LifeLock actually provides very little protection. LifeLock, based in Tempe, Arizona, works by renewing an individual's fraud alert with one of the nation's three large credit bureaus, a service which federal laws mandate any individual can do for free, usually within a few minutes over the phone or Internet.

What the fraud alert does is it basically puts a red flag on your credit report and it tells any potential creditor that if they receive an application for credit, they should take additional measures to determine that the person is the person that they're claiming to be. Typically that would be a phone call, said Paul Stephens, director of public policy at the Privacy Rights Clearinghouse, a nonprofit consumer advocacy organization.

Fraud alerts last 90 days and then must be renewed. LifeLock charges $10 a month to make sure its customers' fraud alerts never expire a service most consumer advocates are baffled anyone would pay money for.

No one needs to pay a third party firm to assert their federal rights, Ed Mierzwinski, consumer program director at the U.S. Public Interest Research Group, a nonprofit consumer advocacy organization, wrote in an e-mail. And for one hundred bucks plus each year, it is certainly not cheap to do so.

Concierge service?

I like to think of LifeLock as being a concierge service, Stephens said Are you the kind of person who would pay somebody, for example, to do your shopping for you?

I would point out that to do the sorts of things that LifeLock does for you, you don't even need to leave your house, Stephens continued. You can get on the phone or get on your computer and do it in a couple of minutes. So I don't really see that they bring a lot of value to the consumer.

Davis didn't argue the concierge analogy in a phone interview with ConsumerAffairs.com, but said the company offers much more than the renewal service.

There are certainly steps beyond just convenience that we're doing, but one of the things that people love are those convenient steps: us renewing the fraud alerts, us being there if you have a question in a retail store when you're applying for credit, us being available 24/7, us being there in case you lose your wallet; (we will) assist canceling and renewing credit cards and helping to get a new driver's license, Davis said.

We're also doing other things like scouring the (Internet) looking for your personal information being bought or sold on the black market, Davis said. We're authenticating when someone puts in a change of address to confirm it's you.

In advertisements, the company also promises to stop junk mail, including pre-approved credit offers and provide a credit report services that again, a consumer can do for free over the phone or Internet.

$1 million 'guarantee'

The most controversial aspect of LifeLock is its $1 million guarantee.

LifeLock's $1 million guarantee is our intent to go support any member of LifeLock who might become a victim of identity theft while subscribed to our service so we that can go out and (fill) our intent to do everything the law allows us to do to help that person recover their good name, Davis said. So whether that's hiring third person personnel, whether that's covering any losses or expenses, whether it's getting accounts closed and getting new ones issued, that's what we'll do.

But two pending class action lawsuits claim that the company's $1 million guarantee is not a guarantee at all, but just a promise that the company is not actually obligated to fulfill.

There is no $1 million guarantee, said Leonard Aragon, one of the attorneys who filed a class action lawsuit against the company. If you look at the terms of the contract it very clearly says 'we won't pay consequential damages. We won't pay you directly' so there's really no way to get up into the million dollars.

What to do

Consumers who wish to sign up for the 90-day fraud alert or a credit report, can do so for free at any of the three major credit bureaus' websites or by calling them. Once one of the credit bureaus has been notified of the fraud alert, it will immediately notify the other two.

• TransUnion: (800) 680-7289
• Equifax: (800) 525-6285
• Experian: (888) 397-3742

Consumers who wish to opt out of credit offers can do so by calling the Consumer Credit Reporting Industry at (888) 567-8688 or by visiting its website.

Toyota, the U.S. Government, and a host of private engineering firms are hard at work trying to pinpoint the cause of the reported cases of sudden acceleration that have resulted in the recall of millions of cars.

One step might be to listen to the Toyota owners who have actually experienced the problem. In recent days ConsumerAffairs.com has received an increasing number of these stories, some from consumers who experienced the incidents years ago but are only now coming forward.

Do they shed light on the problem? That's for an automotive engineer to decide. But some of the descriptions of the incidents are highly detailed and could be relevant.

"We have a 1995 Previa. In 2007, at about 93000 miles, it would accelerate on its own inside the city and on the freeway," S.J., of Michigan, told ConsumerAffairs.com this week. "It was very scary. We used to call it the rogue vehicle with a mind of its own."

S.J took the car to a dealer who replaced one of the car's two oxygen sensors. The sudden acceleration problem stopped.

"We have not had unintended acceleration for three years, S.J. said."

Oxygen sensor?

This week, thinking her Previa's problem might shed light on Toyota's current problem, she called her dealer and reminded him on the oxygen sensor fix.

"He said the problem they are discussing is different- we were not even on same page," she said.

And it should be noted that the Previa is not among the recalled Toyota models, though S.J. insists uncontrolled acceleration was a problem in her vehicle until the oxygen sensor was replaced.

Minneh of Arlington, Va., experienced a sudden acceleration incident Sunday in her 2006 Prius, so the facts are still fresh in her mind.

"I was doing a three point turn," she told ConsumerAffairs.com. "I went halfway into the parking spot, reversed to get a better angle and then engaged drive to go forward. The accelerator pedal just went loose, as if a spring had disengaged. There was no tension at all and the accelerator pedal just fell all the way down to the floor. The car lurched forward and accelerated."

Pressing the brake as hard as she could, Minneh said the car came to a stop and missed hitting the car in the next parking spot by inches. Nancy of Norlina, N.C.

Jean of Charlottesville, Va., reports similar behavior from the accelerator in her 2002 Toyota Camry.

On September 9, 2004, as I was approaching a busy intersection, as I started across 11 lanes of traffic at a green light, the accelerator left my foot and stuck to the floor," Jean said. "The brakes did not respond, and I could not downshift or use the emergency brake. It was necessary to go around traffic in the same direction by going up onto the curb. Because nursing homes were situated on both sides of the street with a senior center on the next corner, I could not risk losing power steering by turning off the ignition. I was unable to avoid shearing off a fire hydrant, a street sign, and two small trees by the time I decided to aim for a landscaped embankment at the end of one nursing home, hoping the elevation would stop the car when I turned off the ignition at impact."

Jean said she received only minor injuries and no one else was hurt, though the car caused considerable damage before crashing. Though the incident occurred five and a half years ago, she retains the memory of it in vivid detail.

15 seconds of terror

"The entire incident from the pedal's leaving my foot to impact probably took no more than 15 seconds, if that, Jean told ConsumerAffairs.com. "Toyota of North America did not respond to my letter and no local attorney would pursue the case; all I asked was replacement of my 2-year-old car with one OTHER than a Toyota, which I will never again trust."

Three other consumers mentioned their cars' cruise control when describing incidents of sudden acceleration.

"When placing my car into "cruise control" my car would accelerate until I would press on the brake out of fear to stop it," said Julie, of Worcester, Mass. "The acceleration reached speeds of 90 mph before I stopped it for the first time."

She said the same problem occurred three or four times after that. Carol of Colorado Springs, Colo., reports a similar problem.

"I purchased a 2001 Toyota Solara. The cruise control accelerates the vehicle when used. I've been unable to use that feature," she said.

Hamid of Nagasaki City, Japan, said cruise control played a role in stopping his car's sudden acceleration.

"I experienced unintended acceleration while driving on the Highway in my 2005 Toyota Prius whilst under cruise control on May 3, 2009," Hamid told ConsumerAffairs.com. "Breaking failed to slow down the vehicle as did initial cancellation of cruise control. I tried to decrease speed with cruise control stick by holding down. Switching off cruise control button and on again followed by repeated cancellation eventually worked."

In nearly every case, the consumers reporting the above incidents were driving older Toyotas not included in the current recall. But all insist they had the problem and no one at the time would listen.

But people are listening now, and it could be that the eyewitness testimony of people behind the wheel will prove useful in tracking down the source of the runaway cars.

The Securities Investor Protection Corporation (SIPC), which maintains a special reserve fund mandated by Congress to protect the customers of insolvent brokerage firms, said today that it is alerting international regulators about a "look-alike" Web site for a fictitious organization that is mimicking the SIPC Web site in an apparent attempt to target Madoff victims.

The so-called International Securities Investor Protection Corporation (I-SIPC.com) copies several aspects of the SIPC Web site artwork and structural design. It is soliciting Madoff victims to submit claims, which SIPC is warning could result in phishing or other identify theft problems. The phony group claims to be based in Geneva and also maintains that it has ties to the United Nations and the International Monetary Fund, among others.

In one section of the Web site, the group includes a supposed testimonial from a Madoff victim who is reported as having received funds from the organization. In a link from the homepage of the site that leads to a photo of a huge stack of U.S. currency, the group falsely claims to have collaborated with Interpol to recover $1.3 billion in Madoff money from a hideout in Malaysia.

SIPC President Stephen Harbeck said: "We know from information provided to us by individuals that this bogus group is already attempting to obtain funds and confidential financial information from investors in the U.S. SIPC wants to be as clear as possible that Madoff victims and other investors should not share any personal financial information via this Web site or rely upon it as an information source. We intend to use every available means to shut down this illicit operation.

Harbeck said that SIPC recently became an ancillary member of the International Organization of Securities Commissions (IOSCO) and will publish a related Investor Alert through that organization.

SIPC is looking into trademark issues and will seek to have the violator prosecuted to the extent the law allows.

In 2004, SIPC got law enforcement involved when it identified a look-alike Web site seeking to defraud investors. In 2007, SIPC prevailed in arbitration proceedings after an organization sought to register and use the www.sipc.com Web domain.

Toyotas breathtaking implosion has been a big boon to the long-struggling American car industry, which less than a year ago saw GM and Chrysler declare bankruptcy at the height of the economic downturn.

GM has been especially aggressive, offering Toyota owners $1,000 toward a new car and zero percent financing for 60 months. The automaker must be doing something right: it saw sales climb 12% in February, the fifth consecutive month that the company posted a gain.

But as GM tries to move forward, it finds itself haunted by the once-promising Pontiac Vibe, the now-defunct crossover that shared its platform with the Toyota Matrix. The Vibe has been added to the Toyota recall, and now GM has been sucked into a Canadian class action lawsuit filed on behalf of Toyota owners. Its the third Toyota-related suit filed by New Brunswick attorney Tony Merchant, an aggressive lawyer who calls himself one of Canadas most active litigators.

All of Merchants suits allege that Toyotas acceleration problem is caused by an electronic -- rather than a mechanical -- defect. Specifically, Merchant alleges that the Toyotas are equipped with an electronic throttle control system that may suddenly accelerate without driver input and against the intentions of the driver.

As a result, Merchant says that the companys fix -- a steel reinforcement bar designed to reduce the excess friction that Toyota says is causing the problem -- does not correct the design flaw and diminishes the value" of the affected vehicles.

Merchant says that the Vibe shares an electronic system with the Matrix, and therefore is susceptible to the same danger of unintended acceleration.

Although branded differently, the Pontiac Vibe and Toyota Matrix are veritable twins, according to a statement Merchant filed last week. The Pontiac Vibe is manufactured at the Toyota plant in Fremont, California.

Data supports Merchants theory

Recent reports tend to support Merchants theory that the root cause is electronic. The National Highway Traffic Safety Administration (NHTSA) has been contacting Toyota owners who had the steel bar installed on their vehicles. The results are disturbing: at least 10 consumers say the remedy hasnt stopped the problem.

Toyota adamantly denies an electronic defect, but that hasnt stopped NHTSA from launching its own investigation. Transportation Secretary Ray LaHood, who declared that safety is our top priority, has vowed to see the probe through to the end.

GM halted sales of the Vibe in late January, around the same time that Toyota suspended the sale of potentially affected vehicles. As part of its bankruptcy restructuring, GM agreed to retire the Pontiac brand, with the last Pontiac rolling off the line last August.

Pontiac sold just under 100,000 second-generation Vibes in the United States before pulling the plug. Whatever the outcome of the suit, Merchant is insistent that Toyotas solution doesnt lessen the danger faced by Toyota owners.

Low-tech solutions to high-tech problems simply dont work, says Merchant. Toyotas problems are extremely difficult to solve.

Let's face it; some really great tasting food is not good for you. Eaten rarely it may cause little harm, but a steady diet of it can lead to problems.

To encourage healthier choices, some have advocated a tax on sugary soft drinks and other food products often linked to obesity. The idea is a controversial one, but new research indicates it might just have the desired effect.

A study published in the Archives of Internal Medicine says adults tend to eat less pizza and drink less soda as the price of these items increases, and their body weight and overall calorie intake also appear to decrease.

"To compensate for food environments where healthful foods tend to cost more, public health professionals and politicians have suggested that foods high in calories, saturated fat or added sugar be subject to added taxes and/or that healthier foods be subsidized," the authors write as background information in the article. "Such manipulation of food prices has been a mainstay of global agricultural and food policy, used as a means to increase availability of animal foods and basic commodities, but it has not been readily used as a mechanism to promote public health and chronic disease prevention efforts."

Kiyah J. Duffey, Ph.D., of the University of North Carolina at Chapel Hill, and colleagues assessed the dietary habits of 5,115 young adults, age 18 to 30, beginning in 1985 to 1986 and continuing through 2005 to 2006. Food price data were compiled for the same timeframe. Participants' height, weight and blood levels of glucose and insulin were also collected and a measure of insulin sensitivity was calculated.

Higher prices, lower consumption

Over the 20-year period, a 10-percent increase in price was associated with a seven percent decrease in the amount of calories consumed from soda and a 12 percent decrease in the amount of calories consumed from pizza. A one-dollar increase in the cost of soda or pizza was also associated with a lower overall daily calorie intake, lower body weight and an improved insulin resistance score, and a one-dollar increase in the cost of both soda and pizza was associated with even greater changes in these measures.

The researchers estimate that an 18-percent tax on these foods would result in a decline of roughly 56 calories per person per day. These declines would amount to weight loss of approximately 5 pounds per person per year, with corresponding reductions in the risk of obesity-related diseases, they note.

"In conclusion, our findings suggest that national, state or local policies to alter the price of less healthful foods and beverages may be one possible mechanism for steering U.S. adults toward a more healthful diet," the authors write. "While such policies will not solve the obesity epidemic in its entirety and may face considerable opposition from food manufacturers and sellers, they could prove an important strategy to address over-consumption, help reduce energy intake and potentially aid in weight loss and reduced rates of diabetes among U.S. adults."

There have been a number of proposals to raise taxes on food thought to contribute to obesity. There's been consideration of a tax on fast food in Detroit and the Senate has mulled a levy on soft drinks filled with sugar.

By Lisa Wade McCormick
ConsumerAffairs.com

March 9, 2010
A 72-year-old dog owner has won what may be a landmark decision against the countrys leading maker of pet care products and fueled the ongoing debate over the safety of topical flea and tick treatments.

A Texas jury awarded Frank Bowers $4,440.75 in the small claims court action he filed against Hartz Mountain Corporation. In this David-versus-Goliath court battle -- believed to be the first small claims court action of its kind --- Bowers alleged that Hartz Ultra Guard Pro Flea and Tick Drops caused the death of his beloved Olde English Bulldog, Diesel.

The six-member jury deliberated less than 30 minutes before reaching a unanimous decision in favor of Bowers, who was widely considered the underdog in the case.

"When the bailiff walked in the courtroom and said we have a unanimous decision, I nearly passed out," said Bowers, who represented himself in the court action. The jury said we find Mr. Bowers integrity outweighed what was presented by (Hartz) attorney. He lost an animal of value and all costs hes out are awarded to him."

I just literally went numb, Bowers added. I caught up with three jurors in the hallway after the hearing. All I said to them was: thank you, thank you, thank you. And they just said: we did our job.

Hartz told ConsumerAffairs.com that it believed the case was "without merit," but did not appeal because of the time and cost involved.

Sense of justice

For Bowers, the jurys decision brings closure and a sense of justice to an emotional issue that started at 8:30pm on August 7, 2008. On that warm summer night in Texas, Bowers applied Hartz Ultra Guard Pro Flea and Tick Drops to the 14-month-old, 68-pound, Diesel.

I nipped off the top of the tube and put it on his back, Bowers recalled. I precisely used it as directed nothing more, nothing less than directed. By early the next morning Diesel had become gravelly ill.

I went to my garage to work and I smelled this odor from excretion, Bowers said. Diesel was laying on the floor. He was shaking and having spasms of some kind. And he was passing a horrible odor of diarrhea. Bowers called his daughter, who told him to immediately take the ailing dog to the vet.

Diesels health continued its rapid decline during the ride to his vets office, Bowers said.

He continued to have bowel movements on the way. When we got to the vets office, he couldnt walk. They got one of those stainless steel tables and took him back to an exam room.

The veterinarian asked Bowers a battery of questions about Diesel, including one that caught him off guard.

The vet asked me if Id put any flea treatment on him, Bowers said. And I said: yes, last night. I told him what it was and went back to the store to get a tube to show him.

The vet, he said, took one look at the Hartz Ultra Guard Pro Flea and Tick Drops and shook his head. He said: Oh, my God. Hes going to have kidney failure.

By 4 oclock the next morning, Diesels kidneys had shut down.

He was in total renal failure, Bowers said. The vet wanted permission to euthanize him. I said you know whats best and I dont want any animal to suffer. I picked Diesel up around 7am and took him out in the country and buried him on my daughters 10 acres.

This painful chapter in Bowers' life happened in less than 35 hours from the night he applied the flea and tick drops to the morning of Diesels death.

He wanted answers

Bowers wanted answers. He wanted to know why Diesels health deteriorated so quickly.

The plain-spoken Texan went straight to the source. He called Hartz.

But they did not care to discuss this with me, Bowers said of the companys customer service representatives. They insinuated that I did something wrong. At that point, I said my dog is dead and I need you pay. Its about $4,000.

Hartz balked at his suggestion, Bowers said.

They said we wont pay that, sir. Its a risk you take when you use our products. I asked for this persons supervisor, but she hung up on me.

Bowers then sent the company a letter about Diesels death.

I got no response, he said. This irritated me. They acted like I didnt exist.

About two months later, someone (from Hartz) called me and told me it was my fault (that Diesel died) or neglect that caused the death and they were not responsible.

Bowers contacted a few attorneys to see if theyd take his case. But none wished to be bothering Hartz as there was not enough money, he said. The determined pet owner, however, didnt give up or back down.

He took matters into his own hands and represented himself in court, specifically Small Claims Court, Precinct 3, in Travis County, Texas. Consumers in the Lone Star State can seek damages of up to $10,000 in their small claims court proceedings. Texas also allows jury trials in small claims court actions.

I filed papers in small claims court, said Bowers, who lives in Austin, Texas. But the court called me a while later and said I needed to re-file my case because Hartz did not respond.

Bowers filed his case again on July 28, 2009. And this time, Hartz did respond to the court, he said. The court sent the company a registered and non-registered letter about my case. An attorney contacted the court and said she represented Hartz.

The court wanted Bowers and Hartz to resolve the case through mediation. But that process wasnt too productive, Bowers said.

I looked at the girl (Hartz attorney) square in the eyes and said: do you have a check for this amount -- $4,400? She said no. I said then this mediation is over. At this time, there is nothing to negotiate.

Bowers and Hartz attorney then went back and talked to the judge.

The judge said well have to reschedule for another appearance, Bowers said. But I told the judge that I wanted a trial by jury. She said thats your privilege. The attorney (for Hartz) didnt like it. She wanted to settle this between her and I.

Here I am -- 72-year-olds old. I have a high school education. I dont have a law degree. But I still wanted a trial by jury. The judge asked me if I thought I could get a jury verdict in my favor and I said I wouldn't be here if I didnt.

Day in court

Bowers' day in court finally arrived on January 12, 2010.

Before the trial, each side had a chance to question a pool of potential jurors.

I chose not to ask them any questions, Bowers said. But Hartz attorney kicked a few potential jurors off because they had pets. She also asked the jurors if theyd had any problems in the past with pet medications. She didnt want any pet owners or people who had problems with pet medications on the jury. There were also no vets on the jury.

In the end, a jury of three men and three women heard the case.

The trial took less than two hours, Bowers said. I wasnt able to tell the jury everything I wanted to.

The judge, for example, wouldnt allow Bowers to enter into evidence any of his Environmental Protection Agency (EPA) documents about the adverse reactions dogs and cats have experienced from topical flea and tick products. The vets he wanted to call as witnesses also couldnt make it to court that day.

I had no witnesses, Bowers said. I was riding the brass rail by myself. And he was up against Hartz savvy attorney, who he learned had taken a special course on flea and tick products to prepare her for the case.

Hartz had all kinds of statements about flea and tick products and they had everything notarized so it could be entered into evidence, Bowers said. I didnt know I needed to do that (get documents notarized). Hartz had statements from their vets, too.

During the trial, Hartz also cross-examined Bowers about Diesels death. Hes glad they did.

Thats when I got in the information that they wouldnt let me enter, Bowers said. I entered it by blurting it from the witness box. The attorney asked me a question like how did I know it was Hartz that killed my animal? And I said Hartz has killed many other animals.

The attorney was screaming to get me to shut up and I just kept talking, Bowers added. The judge then told me to shut up. At that point, I looked at the judge and said Im sorry. And then I looked at the jury and smiled.

Used as directed?

Hartz attorney also suggested that Bowers didnt apply the flea and tick drops as directed.

They screamed that over and over, Bowers said. But I precisely used it as directed.

Hartz and other makers of fleas and tick products often cite the misuse of these treatments for adverse reactions. Pet owners, they say, may put a flea and tick product intended for a dog on a cat. Or they may apply too much flea and tick product on their pets.

Last summer, the ASPCAs Animal Poison Control Center also studied its data on topical flea and tick products. That study revealed the likelihood of severe adverse reactions was significantly less when dogs and cats were treated according to directions.

From the data we have collected, the adverse reactions tend to be mild, like skin sensations and stomach upset, the ASPCAs Dr. Steven Hansen said after the organization released its study. We dont have very many cases of true neurological issues when these products are properly used.

Bowers, however, repeatedly told ConsumerAffairs.com that he used the Hartz flea and ticks drops as directed when he applied them to Diesel. He also told us the court didnt give him the chance to cross-examine any of Hartz witnesses during the trial. I wasnt asked to, he said. I asked the judge why I could ask any questions and she said thats procedure.

The jury, however, wasnt swayed by the witnesses or documents Hartz used in its defense.

After deliberating for less than 30 minutes, the jurors ruled in Bowers favor.

I didnt know what to think when I heard that, he said, adding the $4,440 he won covers the cost of Diesel and the dogs vet bills. I was dumbfounded.

Bowers is convinced the jury sided with him because of one issue that surfaced during the trial: whether the chemical Phenothrin, which is in Hartz Ultra Guard Flea and Tick Drops, is the same or similar to the chemical Permethrin. Bowers said he argued that, according to his carnal knowledge, those two are the same chemical compound.

I kid you not, that is the thing that saved my case, he said.

Hartz vehemently disputes that contention, saying those are completely different ingredients.

The trade name for Phenothrin is Sumithrin, the companys spokeswoman, Anne Isenhower, told ConsumerAffairs.com. Permethrin is a completely different ingredient that Hartz does not use in any of our on-animal products in the United States.

Hartz also downplayed Bowers allegations and the jurys decision. This case was without merit and the allegations werent supported by evidence (presented in the trial), said Isenhower, senior vice president, with GolinHarris, Hartz public relations firm. Hartz, however, did not appeal the jurys decision because of the time and cost involved to pursue such action, Isenhower said.

Asked if Bowers case marked the first time a consumer has successfully sued Hartz over one of its topical flea and tick products, Isenhower said: Yes, we believe so. We are not aware of any verdict against Hartz flea & tick drops.

She had an identical comment when asked if Bowers case was the first small claims court victory against Hartz. Yes, we believe so. We are not aware of any verdict against Hartz flea & tick drops.

Safety defended

In spite of the jurys decision, Isenhower defended the safety of Hartz flea and tick products.

Weve conducted extensive analysis of the adverse event reporting on our products as well as all topic treatments in the market, she said. Although Hartz is the leader in flea and tick retail sales, we are less than three percent of all adverse effects reported to the EPA in 2008 for topical dog flea and tick treatments.

The safety of topical or spot-on flea and tick products has come under intensified scrutiny by the EPA for the past 11 months.

The agency started that probe last April, saying it had received more than 44,000 reports of adverse reactions associated with spot-on flea and tick products.

Adverse reactions reported range from mild effects such as skin irritation to more serious effects such as seizures and, in some cases, the death of the pet, the EPA said.

Data delayed

The agency told ConsumerAffairs.com that it planned to release its findings last fall. The EPA, however, has since delayed that release date.

The EPA will post its findings about topical flea and tick products, and any regulatory action it may take, on its Web site.

In the meantime, animal experts recommend pet owners consult their veterinarians about which flea and tick product to use on their dogs or cats.

Beware

Back in Texas, Bowers warns pet owners to be earthly aware of any topical flea and tick products they put on their animals.

I think Ill utilize just plain soap and water, he said. I use Head and Shoulders shampoo on my dogs now. I bathe them every time I see them scratching. We used to get Myrtle Bush when I was a child growing up in Louisiana, he added. It was a natural killer of fleas.

Bowers is also keenly aware that his legal victory could have ripple effects in courtrooms across the country. He suspects his case may serve as a rallying call for other pet owners whove seen their dogs or cats suffer burns, blisters, seizures, neurological problems, or even die after using topical flea and tick products.

His case, he said, may open the floodgates for similar lawsuits nationwide.

I think this case will make pet owners wonder why they have not gone forward with their cases in small claims court, Bowers said. And if they do, my advice to them if get a trial by jury; I would never accept a non-jury trial.

The amount of money consumers can recover in small claims court varies by state. And some states do not allow trials by jury in small claims court. ConsumerAffairs.com has a comprehensive small claims court guide.

These tires fail to conform to the requirements of Federal Motor Vehicle Safety Standard No. 139, "New Pneumatic Radial Tires for Light Vehicles." At various mileages, the subject tires may develop and exhibit tread chunking or cracking in the tread shoulder area. Tread chunks may separate from the tire casing resulting in body damage to the vehicle or the driver may lose control resulting in a crash.

TBC will notify owners and replace the tires free of charge. The safety recall is expected to begin on or about March 15, 2010. Owners may contact Cooper Tire Customer Relations toll-free at 1-800-854-6288 or TBC Corporation at 1-800-739-7698.

Consumers may contact the National Highway Traffic Safety Administration (NHTSA) at 1-888-327-4236 (TTY: 1-800-424-9153) or at www.safercar.gov.

These tires fail to conform to the requirements of Federal Motor Vehicle Safety Standard No. 139, "New Pneumatic Radial Tires For Light Vehicles." At various mileages, the subject tires may develop and exhibit tread chunking or cracking in the tread shoulder area. Tread chunks may separate from the tire casing resulting in body damage to the vehicle or the driver may lose control resulting in a crash.

Pep Boys will notify owners and replace the tires free of charge. The safety recall is expected to begin during March 2010. Owners may contact Cooper Tire Customer Relations toll-free at 1-800-854-6288 or Pep Boys at 1-800-PEP-BOYS (1-800-737-2697).

Consumers may contact the National Highway Traffic Safety Administration (NHTSA) at 1-888-327-4236 (TTY: 1-800-424-9153) or at www.safercar.gov.