Products Liability Prof Blog

NHTSA Reports Compact Cars Have Highest Fatality Rate

On Monday, January 30, the National Highway Traffic Safety Administration released a report (PDF) comparing death rates among different kinds of vehicles after examining fatality data from 1997 to 2004.  According to the report, compact cars had a fatality rate of 17.76 per 100,000 vehicles in 2004.  Compact pickup trucks followed with 16.87 and subcompact vehicles with 16.85.  Large vans had the lowest rate at 9.34.  Pickup trucks and sport utility vehicles had rates of about 15 deaths.  In rollover crashes, mid-size sport utility vehicles had a fatality rate of nearly 10 deahts per 100,000 registered vehicles in 2004, the highest automobile rollover rate.  Full-size passenger cars had the lowest fatality rate in rollover accidents.  The report showed that overall, fatality rates have mostly declined since the late 1990s in every vehicle classification.  The death rates in all passenger cars dropped to 14.2 per 100,000 vehicles in 2004 from 16.9 in 1997.  Reactions to the report by various industry and consumer groups varied.  By Ken Thomas,  AP

MKS

Ford Appeals $150 Million Verdict in California Explorer Rollover Case

The plaintiff, Benetta Buell-Wilson, paraplegic due to a rollover accident in a 1997 Ford Explorer, won a jury verdict of $349 million before remittitur in San Diego County Superior Court, one of the largest verdicts ever in an automobile-related products liability case. 

The trial court reduced the award to $150 million, including $70,000 million in compensatory damages to Buell-Wilson, $5 million to her husband, and $75 million in punitive damages.  Ford appealed the verdict and judgment to the Fourth District Court of Appeal, arguing that the trial court committed several highly prejudicial errors in the trial and that the remittitur should have been more substantial. 

Ford argued in its brief that evidence concerning instability of the Bronco II should not have been admitted, and that evidence concerning the Explorer's real-world safety record and comparative data were wrongly excluded.  Ford also argued that punitive damages should not have been awarded as a matter of law because the plaintiff did not meet California's required clear and convincing evidence standard, and that the damages award, and that the punitive damages award, unrelated to any objective factors or rational basis violates the due process standards set out in  State Farm v. Campbell, 538 U.S. 408 (2003) and BMW v. Gore, 517 U.S. 559 (1996). 5-10 Mealey's Prod. Liab. & Risk 1 (2006) (Sub'n Req'd)

MKS

Merck's Legal Strategy To Be Tested

Legal Strategy for Vioxx to Test Merck

Merck & Co. has vowed to fight every suit claiming injuries because of the painkiller Vioxx.  Eleven cases are scheduled for trial in the next five months, which will test the viability of the company's scorched-earth policy.  Merck is facing more than 9,200 lawsuits involving 18,250 plaintiff groups.  Merck pulled Vioxx off the market in September of 2004 because of a study showing that the drug was asociated with an increased risk of heart attacks and strokes after eighteen months of use.  Publically, at least, Merck has ruled out the possibility of a mass settlement, noting that studies do not demonstrate increased risk until 18 months of use, and that many plaintiffs have other risk factors for cardiac problems.  The aggressive strategy could help to discourage marginal suits, even if the company changes its mind later. Outside lawyers say that the real test will come in February when two judges who are presiding over more than 90 percent will begin more of the trials.  United States District Judge Eldon E. Fallon in New Orleanbs has scheduled three trials in as many months.  He has said that after the trials he hopes to convene broad settlement talks.  By Brooke A. Masters, Washington Post Staff Writer.  Link

Volvo To Recall 42,000 Trucks in North America

AB Volvo said on Thursday that it is recalling 42,000 trucks in North America because of defective inlet pipes that could cause engine compartment fires.  The recall of Volvo's VN and VHD models follows what the company said was "a number of cases of heat damage" in engine compartments becauseof inlet pipes that could crack or break.  Two cases of fires have been reported, but there were no injuries, according to Volvo.  The company will  replace any damaged parts as well as installing a heat shield on all recalled trucks.  By Associated Press. Findlaw

MKS

Cause of Death Argued in Texas Vioxx Case

Lawyers made opening statements Wednesday, January 25, in a Vioxx case against Merck & Co. that arose out of the death of a 71-year-old man, Leonel Garza, from a fatal heart attack.  The lawyer for his family argued that the heart attack was a sudden reaction to Vioxx and not the end result of 23 years of heart disease, as contended by Merck lawyers.  The trial is being held in Rio Grande City.  The suit seeks compensatory and punitive damages. 

In previous cases, Merck lost a decision in a Texas trial court, and won in New Jersey.  A federal case resulted in mistrial.  Additional coverage by Lynn Brezosky, AP on  Findlaw.

MKS

Support for FDA Drug-Labelling Rule Preemption

An editorial in The Washington Times by Peter J. Pitts, a former associate commissioner of the FDA, supports the position taken by the FDA in its recent rulemaking that FDA-approved prescription drug labels should preempt state law tort claims for inadequate warnings.  The editorial concludes by saying that the FDA "has the authority, the ability, the means, the mission and the mandate to manage the health-care risks and benefits inherent in the products it regulates on behalf of the American public." 

It does not address the question of what should happen if there is a failure in the FDA regulatory program.  Time, and the inevitable court challenges, will tell us whether the FDA does indeed have the authority to preempt state law through this new regulation.

JDP

Mississippi Supreme Court Holds Handgun Seller Not Liable for Accidental Handgun Discharge

In Williams v. Bennett, ___ So. 2d ___  (Miss. 2006 [Docket No. 2005-CA-00754-SCT]) |Lexis| the Mississippi Supreme Court held that a plaintiff whose Lorcin .380 handgun, safety off, accidentally fell out of the door of his vehicle and discharged, hitting him in the leg, was not entitled to recover against a pawn shop operator who at one point had sold the gun, although not to the plaintiff. 

The plaintiff's theory was that the handgun was defectively designed.  The Mississippi Products Liability Act requires a plaintiff asserting a design defect claim to prove that "[t]he manufacturer or seller knew, or in light of reasonably available knowledge or in the exercise of reasonable care should have known, about the danger that caused the damage for which recovery is sought," and that [t]he product failed to function as expected and there existed a feasible design alternative that would have to a reasonable probability prevented the harm." 

While the proof in the case established that the plaintiff owned a handgun that the defendant had sold, there was no proof in the record that the seller, if he was considered a handgun seller for purposes of the statute, had knowledge or should have had knowledge of the danger that caused the plaintiff's injury.  There was no proof of the condition of the handgun at any point in the chain of ownership and there was no proof concerning a feasible alternative design.

MKS

New FDA Drug Labeling Guidelines Intended to Preempt State Law

On January 18 the FDA unveiled a major revision to the format for prescription drug information, the package insert, in order to provide healthcare professionals clear and concise prescribing information.  The purpose is to manage the risks of medication and reduce medical errors by means of a newly designed package insert that will provide the most up-to-date information in an easy-to-read format intended to draw physician and patient attention the most important aspects of drug information. 

The new format is also intended to make prescription drug information more accessible for use with electronic information resources and electronic prescribing tools.  This is the first major of the policy in more than twenty-five years. |FDA|  The agency also said in a formal policy statement that the guidelines preempt state law.  The federal preemption assertion was included in a preamble to the the guidelines and it became immediately controversial.  For instance, see also Diedtra Henderson's Boston Globe article from January 19th on this issue.

Preemption of federal drug labeling has been the subject of frequent litigation.  For a recent example holding that preemption was inapplicable, see Witczak v. Pfizer, Inc., 377 F. Supp. 2d 726 (D. Minn. 2005).  |Lexis|

MKS

Missouri Court of Appeals Reverses $80,000,000 Damages Award in Products Case

In Peters v. General Motors Corp. [Docket No. WD 62807], | Lexis | the Missouri Court of Appeals reversed a jury verdict in a products liability case brought against General Motors for injuries sustained by Constance Peters when her 1993 Oldsmobile Cutlass traveled in reverse at 22 - 25 miles per hour from her house some 118 feet before it sideswiped a neighbor’s tree and continued in reverse to the front yard of her house before it stopped. She suffered serious injuries in the accident, including seven cranial fractures and severe brain injury. Her left arm was amputated at the forearm and her brain injuries left her in a persistent vegetative state.

The complaint alleged that the accident was caused by a defective three-mode cruise control on the vehicle. General Motors took the position that the injury was caused by her inadvertent application of the accelerator pedal. Mr. Peters filed a four-count petition seeking damages for Mrs. Peters’ personal injuries and his loss of consortium. He alleged strict products liability theories based on defective design and failure to warn and negligence on the part of General Motors.

The jury returned a verdict awarding $20,000,000 in compensatory damages on behalf of Mrs. Peters, $10,000,000 in compensatory damages to Mr. Peters' in his individual capacity and assessing GM $50,000,000 in punitive damages. The trial court entered judgment on the verdict. The Missouri Court of Appeals reversed in a decision handed down on January 17, 2006.

On appeal, GM asserted ten errors, including the trial court’s admission of the testimony of seven witnesses who were permitted to testify about their experiences with sudden unwanted vehicular acceleration while driving certain GM-made vehicles equipped with cruise control and in the admission of 213 reports made to GM involving sudden unwanted vehicle acceleration without the driver’s input. Seventy-four of those reports involved vehicles with cruise control. The court of appeals held that the punitive damages issue was improperly submitted to the jury, and that there were various evidentiary errors, including the admission of the testimony of the seven witnesses, and 139 of the accident reports that did not involve vehicles with cruise control, and remanded for a new trial, with the exception of the punitive damages issue.

MKS

Somebody's Got Some Explaining To Do!

A bankruptcy judge has raised questions about the state court testimony of some victims of a bus crash in south Texas in 2003 in his consideration of a motion to deny claims filed by those victims.  A charter bus owned by Central Texas Trails and driven by Johnny Cummings crossed the highway median and struck a Chevrolet Suburban.  The crash killed five bus passengers and injured many more.  Two passengers in the Suburban also were killed and another, Donnie Hagan, was seriously injured.

Shortly after the accident, the bus company and bus driver filed for bankruptcy protection.  Half of the 34 parties that filed claims against the bus company in bankruptcy court agreed to accept half of the $5 million available through the bus company's insurance carrier.  The other half of the crash victims elected to bring a products liability claim against the bus manufacturer, Motor Coach Industries (MCI), and allowed by the bankruptcy court to defer acceptance of their portion of the insurance proceeds until the state court suit had been resolved.

In the state proceeding, a jury awarded $17.5 million after finding that the bus was defective because it didn't have seatbelts. 

During that trial, MCI attempted to join the bus company and driver as defendants in an effort to allocate some of the liability to them.  The trial judge refused to allow MCI to bring the bus company and driver into the suit but did, for purposes of appeal, allow MCI to question the plaintiffs outside the jury's hearing about the bankruptcy claims.  According to the Waco Tribune-Herald, most of those questioned said that they had never filed claims against the bus company in bankruptcy court and had never blamed the bus driver for the accident.  One claimed that he "didn't even know there was a bankruptcy court."

Based on this testimony, the attorney for Hagen, the injured Suburban passenger, then filed a motion in bankruptcy court to withdraw, strike or deny the bankruptcy claims of those plaintiffs who had testified in state court.  That motion has triggered hearings before U.S. Chief Bankruptcy Judge Larry E. Kelly and criticism of both the state court plaintiffs and their attorneys.  Judge Kelly has questioned why the lawyers' did not attempt to intervene to correct their clients' testimony, said that he thinks some of the plaintiffs may have lied under oath in the state trial, and added that he would refer them to the U.S. Attorney's Office for prosecution if he becomes convinced that they did.

JDP

Proposed FDA Rule Attempts to Preempt State Law

According to the Wall Street Journal, the Food and Drug Administration is proposing to include in the preamble of a new drug-labelling rule a declaration that federally-approved drug labels preempt state products liability law.  So long as a drug was labelled in compliance with the FDA-approved label, the proposed rule would declare, the drug manufacturer is shielded from state law failure to warn and other claims.  This proposal mirrors a position taken in the past by the FDA in briefs filed in a number of cases arguing that agency labelling guidelines preempt state law.  Those arguments have met with a mixed reception in the courts and the courts could also reject the FDA's position if included in a rule preamble.  This proposal is part of the on-going clash between federal and state officials over their respective authorities to regulate product safety, a clash heightened in recent years by the Bush Administration's focus on tort reform.  Also see Kaiser Network story.

JDP

Korea to Increase Consumer Protection

The Finance and Economy Minister of Korea and other ministers of government endorsed a comprehensive consumer protection plan at the first Consumer Policy Deliberation Committee meeting in Korea. The government decided to adopt a Prompt Measures Against Unsafe or Defective New Products System that recommends product recalls or market withdrawal measures to manufacturers if the products have consumer safety problems or pose hazard risks. The new regulations will extend product recall obligations from current 39 industrial items to all manufactured goods. The plan also includes a Voluntary Product Safety Validation System, pursuant to which manufacturers document that their products conform to the consumer safety standards.

After government authentication of the voluntary product safety report, manufacturers will be allowed to label product safety marks on their new products but otherwise, the government has the authority to impose a product recall order. The government will also draw together all product labeling related information into a single window on the Web, which will provide consumers easily accessible information on various quality and safety marks and advertising regulations.

Additional coverage by Kim Sung-jin, Korea Times. |Link|

MKS

FDA Warns Consumers about Brazilian Diet Pills

In a January 13 press release, the Food and Drug Administration is warning consumers not to use two unapproved drug products, Emagrece Sim Dietary Supplement, also known as the Brazilian Diet Pill, and Herbathin Dietary Supplement, that are being marketed as dietary supplements for weight loss. The drugs may contain several active ingredients that could lead to serious side effects or injuries. |Link|

MKS

U.S. Consumer Product Safety Commission Signs Consumer Product Safety Agreement with India

On January 12, 2006, the United States Consumer Product Safety Commission signed a Memorandum of Understanding with India to improve the safety of consumer products that are exported to the United States from India.  The agreement provides for an exchange of consumer product safety information, the development of training programs on consumer product safety, and the exchange of experts and professionals and official to carry out consumer safety programs.  The CPSC Chairman, Hal Stratton, noted the increasing importance of India in the United States marketplace, and that working directly with governments such as India’s will help both the CPSC and India’s counterpart to “identify dangerous products faster, save lives and prevent injuries in both countries.”  Last year the CPSC signed agreements with Mexico and Canada to improve consumer product safety.CPSC News Release

MKS

Increased Risk & Medical Monitoring Claims

Medical monitoring claims got their start in Friends for All Children, Inc. v. Lockheed Aircraft Corp., 746 F.2d 816 (D.C. Cir. 1984),|Lexis| a case in which children who had survived a plane crash sought and recovered the costs of diagnostic examinations to determine if they suffered from "minimal brain disfunction." A number of states soon followed the D.C. Circuit's lead and recognized medical monitoring claims in a variety of cases in which the plaintiffs were suffering no present injuries but were at increased risk of injury in the future due to the defendant's negligence. 

In 1997, the issue was considered by the U.S. Supreme Court which rejected a medical monitoring claim brought by employees against an employer under the Federal Employers' Liability Act (FELA) 45 U.S.C 51 et seq.  In Metro-North Commuter R.R. v. Buckley, 521 U.S. 424 (1997) |Lexis||LII|, the court concluded that recognition of such claims under FELA was not an appropriate way to resolve the competing considerations raised by the medical monitoring debate.  There has also developed a small counter-trend among state courts, four of which have now rejected claims for medical monitoring costs in enhanced/increased risk cases. 

Michigan has recently joined the supreme courts of Alabama, Kentucky and Nevada by rejecting medical monitoring claims in cases where the plaintiff does not allege a present physical injury.  In Henry v. Dow Chemical Co., 473 Mich. 63; 701 N.W.2d 684 (2005) |Lexis||PDF|, the Michigan Supreme Court concluded that, in the absence of a present injury, there is no viable negligence claim under Michigan common law.  "Mere exposure to a toxic substance and the increased risk of physical injury do not constitute an 'injury' for tort purposes." 

JDP

Are Punitive Damages Too High?

Two leading scholars crunch the numbers and come up with very different answers.  See "Go Figure" in the American Lawyer.

KR

Wisconsin Governor Vetoes Products Liability-Related Bills

On January 6, Wisconsin Governor Jim Doyle vetoed four bills that would have imposed varying limitations on the right to recover in products liability cases.   Assembly Bill 56 would have granted immunity from civil liability for the entire gun industry. He saw no reason to provide the gun industry with greater protection than that provided by federal law. Senate Bill 58 would have required proof of a safer design to justify recovery in a design defect case. He vetoed it because he thought it would discourage industry innovation. He vetoed Senate Bill 70, which was not limited to products cases. The bill would have established new standards for the admissibility of lay and expert testimony, because it would have diminished the role of the jury in determining the credibility of witnesses, instead mandating that judges act as "gatekeepers" of information and the arbiters of what testimony is allowable. For Governor's veto message see Veto.

Senate Bill 402 was the legislature’s response to the Wisconsin Supreme Court’s decision in Thomas v. Mallet, 701 N.W.2d 523 (Wisc. 2005) |Lexis|, which applied Wisconsin’s relaxed causation risk-contribution theory to white lead carbonate claims. The bill would have reversed the court’s decision and required proof of which manufacturer’s product caused specific injury. The Governor vetoed the bill stating, in part, that “the problem of lead paint poisoning is substantial and ongoing, and children injured by the ingestion of lead paint should have some recourse against the companies that manufactured lead paint.”  For Governor's veto message see Veto.

MKS

ATV Regulation To Be Considered

The Georgia Legislature and the Consumer Product Safety Commission will consider whether additional safety rules are warranted to address the injury hazards posed by all-terrain vehicles. State Rep. Chuck Sims (R-Douglas) plans on introducing legislation today that would require safety training, helmet use by ATV riders who are under 16, and prohibit more than one person from riding on single-seat ATVs. It would also prohibit ATV users who are under 16 from riding their vehicles in public access areas.

The staff of the Consumer Product Safety Commission is looking at several potential regulatory changes. Recommendations to the commissioners are expected in 2006. The staff is considering whether:

1. the voluntary standards covering stability, speed and braking should be strengthened and whether the standards should be mandatory;
2. ATV sales to individuals under 16 should be prohibited;
3. a new, intermediate-size ATV would be appropriate for individuals 13-15;
4. information concerning the hazards of ATV operation should be posted where they are sold; and
5. training, which manufacturers make available, should be mandatory. 

For more coverage see the Atlanta Journal-Constitution's ATV Regulation.

MKS

Wacky Warning Labels

The winners in the Michigan Lawsuit Abuse Watch's (M-LAW) annual Wacky Warning Label Contest have recently been announced.  They include this warning on a heat gun designed to remove paint and producing temperatures of 1000 degrees:  "Do not use this tool as a hair dryer."  A warning on a sharp knife reads:  "Never try to catch a falling knife."  Other winners include a warning on a baking pan that "Ovenware will get hot when used in oven."  This year's winners and a list of past winners can be found on the organizations website, www.mlaw.org/wwl.

JDP

Federal Liability Shield Law Developments

Controversy has arisen over the inclusion in a defense spending bill, enacted by Congress and signed into law by the President, of provisions protecting vaccine and other manufacturers from liability for defective products when those products are used in response to a public health emergency (109 H.R. 2863). The law's sweeping protections are triggered by a declaration made by the Secretary of Health and Human Services that a product is needed to respond to a public health emergency.  Thereafter, any loss resulting from the manufacture or use of a covered product is shielded from liability under state or federal law unless willful misconduct can be shown.  The Secretary's declaration is not subject to judicial review.  Unlike the no-fault injury compensation program established by the National Childhood Vaccine Injury Act (Pub. Law 99-660, title III, 100 Stat. 3755) this new law does not provide an alternative source of compensation for injuries resulting from defective vaccines.

Meanwhile, a federal judge has decided that recently-enacted legislation designed to shield gun manufacturers from civil liability for third-party misuse of firearms (Protection of Lawful Commerce in Arms Act) does not bar New York City's public nuisance suit against the industry.  The city's suit was brought under a state statute (P.L. 240.45) that is essentially a criminal codification of the common law public nuisance doctrine.  A provision in the federal law [Section 4(5)(A)(iii)] exempts from its provisions cases in which the manufacturer or seller knowingly violates a statute "applicable to" the sale or marketing of firearms.  The court ruled (New York v. Beretta USA Corp., E.D.N.Y., No. 00 cv3641, 12/2/05) that the New York law under which suit was brought is just such a statute.

JDP