Products Liability Prof Blog

Florida Abolishes Joint & Several Liability

The Florida Legislature has passed a bill abolishing the doctrine of joint and several liability.  Governor Bush is expected to sign the bill next week.  The key language is found in what will become the amended version of subsection (3) of section 768.81 of the Florida Statutes.  That subsection will now read:  "In cases to which this section applies, the court shall enter judgment against each party liable on the basis of the party's percentage of fault and not on the basis of the doctrine of joint and several liability."

Not surprisingly, the business community is pleased with this development while the plaintiffs' bar opposed the change.  See the story by Mary Ellen Klas in the Miami Herald.

JDP

Consumer Product Safety Commission Releases New Helmet Guide

At a March 29, 2006 Consumer Product Safety Commission (CPSC), press event, Chairman Hal Stratton released a new guide "Which Helmet for Which Activity." |PDF| The guide was released in conjunction with "Brain Injury Awareness Month."  The CPSC believes that the guide will aid consumers in determining the best type of helmet to use for their activities to prevent head and brain injuries.  Different activities require different helmets.  Each helmet type is designed to protect your head from the impact that can take place in the particular sport for which the helmet is designed.  The helmets are intended to absorb most of the impact energy in a fall.  Bicylists, for example, can reduce their risk of head injury by 85% and brain injury by 88 percent by wearing helmets, according to a New England Journal of Medicine study.  CPSC estimates that in 2004, bicyclists received about 151,000 head injuries that were treated in hospital emergency rooms and skateboarders had 18,000 head injuries resulting in emergency room visits.  Many of the head injuries could have been avoided through proper helmet usage.

MKS

Texas Supreme Court: "Innocent" Component Part Manufacturers Have No Duty to Indemnify Customers Who Assemble End Product

The Texas Supreme Court ruled, in General Motors Corp. v. Hudiburg Chevrolet, Inc., 2006 WL 741552 (March 24, 2006), Docket No. 03-0987 |PDF|, that a manufacturer of a non-defective component part had no duty to indemnify its customer who had used the component in the assembly of the final product.  The case arose out of an auto accident involving a truck assembled by Hudiburg from a chassis supplied by General Motors and a truck bed supplied by Rawson-Koenig, Inc.  The plaintiff's alleged that the truck was defective since the bed and chassis separated in the accident causing the fuel tanks' filler systems to rupture.  The resulting fuel spill and fire killed one plaintiff and injured another.  After the truck dealer settled the plaintiff's claims, it sued the component manufacturers for indemnity.  The court reasoned that, if the plaintiff's loss was caused by the independent negligence of the dealer in assembling the truck, it is not entitled to indemnity under Texas law except to the extent that a component part supplier was itself at fault.  The court held that "if the component part manufacturer does not participate in the integration of the component into the finished product, it is not liable for defects in the final product if the component itself is not defective."

JDP

Wrongful Death Suit Alleges Guidant Defibrillator Failed

In a wrongful death lawsuit filed last week in Ramsey County District Court in St. Paul, Minnesota, the plaintiff is claiming that the decedent, Allan Gohde, died because of a short-circuit in his defibrillator.  According to an article in the Boston Globe, Kathleen Gohde was paying her final respects to her husband when she heard a beeping sound coming from his chest.  The products liability suit alleged that the sound was an indication that something had gone wrong with the defibrillator that was implanted in his chest and that was supposed to maintain his heart beating at a normal rhythm.  The defendants in the suit are Guidant Corp. and its Arden Hills subsidiary, where the defibrillators are made.  The claim against Guidant is one of several that have been filed against the company since it recalled several thousand of the devices.  A document, an adverse event reporting form Guidant filed with the Food and Drug Administration, concluded that on the morning of the death of Mr. Gohde the defibrillator attempted a shock but the device became non-responsive. Guidant's conclusion on the form was that the "device failure directly contributed to event."  The event was marked as "death."  By Amy Forliti, AP
MKS 

Reebok Likely to Conduct Global Recall of Bracelets

A four-year-old child in Minneapolis died last month after he swallowed a charm on a bracelet contained a dangerous amount of lead. Reebok is now recalling more than 300,000 of the bracelets engraved with the "Reebok" name and given away as a promotional gift with the sale of children's shoes.  According to a report by WCCO-TV in the Twin Cities, Jarnell Brown died in late February of acute lead poisoning.  Doctors initially thought that Brown was suffering from the flu but later investigation revealed that he had swallowed the charm which was almost pure lead.  Reebok International is likely to now conduct a global recall of the bracelets according to reports in Great Britain, Ireland, Canada, and Australia.  The Consumer Products Safety Commission has recalled has recalled nearly 162 million pieces of jewelry over the last two years, including the Reebok charms.  Pictures of the recalled bracelet and its shoebox packaging can be seen on the CPSC website.

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Jury Awards $26.2 Million in Products Liability Suit Against Ford Motor Co. and Garden State Engine and Equipment

A New Jersey jury awarded the plaintiff, twenty-two-year-old Michael Boyle, $26.2 million in a products liability suit against Ford Motor Co. and Garden State Engine and Equipment, a parts manufacturer, because of the failure of an "under-ride guard" that was installed on a flatbed truck for purposes of preventing vehicles from becoming lodged underneath certain trucks in cases involving rearend collisions with the trucks.  The plaintiff's theory was that the installed guard snapped off on impact, resulting in massive head injuries to him.  The plaintiff's theory against Ford was based on the lack of a guard on the F800 truck in question.  Ford sold an incomplete chassis cab which it said fully complied with all applicable regulations at the time of sale.  By John Petrick, NorthJersey.com

MKS

Guidant Rebuked for Lax Safety Oversight

A sharply-worded report from a panel of outside experts faulted high-ranking Guidant Corporation executives for shortcomings in their oversight of the company's cardiac rhythm division.  That division was criticized last year for not telling doctors about defects in some of the heart devices that it makes.  Guidant now faces lawsuits from more than 2000 patients.  According to an article by Jeff Swiatek in the Indianapolis Star, the report - commissioned by Guidant - calls for a more hands-on role for the Indianapolis headquarters in running the St. Paul-based division that produces pacemakers and defibrillators.  The panel concluded that too much reliance on engineers and a lack of physician input in evaluating the importance of reports about safety defects reflected significant shortcomings in the company's oversight of product safety.  The report comes on the eve of Guidant's $27 billion takeover of Boston Scientific, set to be finalized in two weeks.

JDP

Summary Judgment Denied in DES Case

In Clayton v. Eli Lilly and Company, 2006 WL 658854, 2006 Lexis 10309, Docket No. 04-1363 (D.D.C. Mar. 16, 2006), the United States District Court for the District of Columbia denied the defendant's motion for summary judgment in a DES (or diethylstilbestrol)case brought by the daughter of a woman who had taken DES in 1964 when she was pregnant with the plaintiff while living in Birmingham, Alabama.  The plaintiff claimed that she sufffered "uterine and cervical malformations with resulting infertility, incurred medical expenses for care and treatment, and suffered physical and mental pain and suffering, and that her injuries were caused by her exposure to DES in utero."  The plaintiff's mother filled the prescription at a specific pharmacy and recalled taking white cross-scored DES tablets during her pregnancy.  The defendant manufactured similar pills during the relevant time period in Birmingham.  The plaintiff filed her complaint in District of Columbia Superior Court.  The defendant removed the case to the United States District Court for the District of Columbia. 

In determining whether to grant the defendant's motion for summary judgment the court applied Alabama law, which requires a plaintiff in a products liability case to establish that the defendant's product caused her injuries. See Sheffield v. Owens-Corning Fiberglass Corp., 595 So.2d 443, 450 (Ala.1992) ("threshold requirement of any products liability action is identification of the injury-causing product and its manufacturer").  The defendant argued that the evidence was insufficient to establish the necessary connection for various reasons, including the fact that the plaintiff's mother did not initially remember taking any pills during her pregnancy, that the plaintiff did not eliminate the possibility that her mother took a pill manufactured by some other defendant, and that the evidence of the dispensing practices of the pharmacy at the time of sale were insufficiently described.  The court denied the motion, holding that there was an issue upon which reasonable minds could differ as to whether the plaintiff was exposed to the defendant's pill.

MKS

New Jersey Court Opens Door to Accutane Suits by Out-of-State Users

A Michigan plaintiff's products liability suit against Hoffman-LaRoche claiming that his use of the acne drug Accutane nearly caused him to commit suicide may be brought in New Jersey under New Jersey law according to that state's intermediate appellate court (Court's opinion).  A lower court had ruled that the Michigan plaintiff's claim should be controlled by Michigan's product liability statute that offers almost complete immunity for manufacturers of drugs that have FDA approval.  Under New Jersey law, the FDA's approval only raises a rebuttal presumption of non-defectiveness making the state a far more plaintiff-friendly jurisdiction for such suits.  Though no relationship between the drug and depression has been proved, the FDA strengthened the product's warning label in 1998 to state that Accutane may cause depression and psychosis and in rare cases may cause suicidal thoughts or attempts.  See a story by Michael Booth in the New Jersey Law Journal.

JDP

Chrysler Will Appeal $3.4 Million Award in Transmission Design Case

DaimlerChrysler will appeal a $3.4 million jury award to the mother of a two-year-old girl who dislodged the transmission lever in the parked 1991-model minivan in which she was sitting and was subsequently run over and killed when the vehicle rolled away.  According to a story by Greg Land in the Fulton County Daily Report, the case arose out of a July 2002 accident that occured when the child was left in the parked car, which was not running, as it was being washed by the mother's fiance.  The car rolled down a 120-foot driveway and struck a small tree.  The child fell out and was pinned under the right front tire resulting in her death.  The car's transmission lacked an interlock that prevents the transmission from being shifted out of "Park" unless the brake pedal is depressed, a feature that other manufacturers have been using on their vehicles since at least 1995 according to the plaintiff's attorney.  DaimlerChrysler issued a statement saying that "[t]his tragic accident occured because a two year old child was left alone in a vehicle with the key in the ignition, the doors open and the parking brake not in use . . . .  A brake shift interlock was not designed . . . to relieve adults of their responsibility to never leave children alone in cars, with 12 states criminalizing leaving a child alone in a vehicle."  The statement also indicated that the judgment could be reduced because the jury found the child's mother 49% responsible for the accident.

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Maryland Court of Appeals Holds Pharmacy is Liable under Express Warranty Theory for Package Insert Directions on Doxycycline Use

In Rite Aid Corp. v. Levy-Gray, decided March 13, |PDF|Lexis| the Court of Appeals of Maryland held that a pharmacy was liable under express warranty theory for directing Levy-Gray, the plaintiff, to "take" a prescription drug, doxycycline, "with food or milk if upset stomach occurs." The plaintiff was treated by her physician for Lyme disease. He gave her a prescription for doxycycline. In doing so he told her to stop nursing while she took the drug but provided no other instructions as to how to take the drug. The plaintiff filled the prescription at Rite Aid Pharmacy. The plaintiff received the drug from the pharmacy, along with the "patient package insert," which provided that the drug should be taken "with food or milk if stomach upset occurs unless your doctor directs you otherwise." The plaintiff started taking the drug with water, but began taking it with milk the following day because of stomach upset. In addition, she also consumed large quantities of dairy products in order to maintain her breast milk when she resumed nursing her son. She alleged that her consumption of the milk and other dairy products reduced the absorption of the drug and prevented it from operating as effectively as possible, and that that failure proximately caused the post-Lyme syndrome for which she sought recovery against Rite Aid. The plaintiff sought recovery under negligence and breach of express warranty claims. The jury found in favor of Rite Aid on the negligence claim but in favor of the plaintiff on the express warranty claim, awarding damages of $250,000.

The Court of Appeals noted that other courts have consistently refused to impose the Uniform Commercial Code warranties of fitness and merchantability on pharmacies because the prescription of medication is part of the delivery of medical services, but that Rite Aid provided no authority for the proposition that express warranty claims should be barred. The court held that the facts supported the express warranty claim. The court also noted that while it has adopted the learned intermediary doctrine with respect to the ordinary pharmacist-patient relationship where the pharmacist simply fills the prescription ordered by the physician, the doctrine should not be extended "to those cases in which the pharmacy is disseminating information concerning the properties and efficacy of a prescription drug." The court declined to hold as a matter of law that the learned intermediary doctrine "precludes a pharmacy from being held liable for breach of an express warranty when it provides a package insert that could provide the basis for" an express warranty.

MKS

State's Tobacco Settlement Bars Punitive Damages

The Georgia Supreme Court has ruled that the state's participation in the 46-state, $246 billion master settlement agreement with tobacco companies precludes an individual's claim for punitive damages (Court's opinion).  The Court considered the issue as a pre-trial question of state law certified to the court by Senior U.S. District Judge Robert Vining who is presiding over a products liability suit brought against Brown & WIlliamson Tobacco Corp.  The court concluded that, in the settlement agreement, the state released Brown & Williamson from all claims, including claims for punitive damages, arising out of the manufacture or sale of tobacco.  The court reasoned that punitive damages serve a public interest and are intended to protect the general public as opposed to benefitting or rewarding private parties.  Consequently, the state's settlement of punitive damages claims on behalf of all of Georgia's citizens is res judicata as to punitive damages claims.  According to a story by Alyson Palmer in the Fulton County Daily Report, other state courts have upheld punitive damages awards in suits brought by citizens of states that entered into the 1998 master settlement agreement.

JDP

Disputed Report on Rising Tort Costs

Tillinghast, an insurance industry consulting firm, has released a new report |PDF|which calculates the total cost of the U.S. tort system at $260 billion - nearly $900 for every person in the nation - according to a story in the Wall Street Journal (subscription required).  The Bush Administration has cited Tillinghast's figures in the past as evidence that the "the U.S. tort system is the most expensive in the world" creating "deadweight losses" to the national economy.  However, the figures are vigorously disputed by others who say that the calculations are deeply flawed and heavily inflated.  Critics note for example that in 1985 the Rand Corporation's Institute for Civil Justice estimated that tort costs for that year were between $29 billion and $36 billion.  For that same year, Tillinghast's figure was $83.7 billion.   Others point out that cost alone is not a justification for law reform nor are these cost estimates weighed against a calculation of the social and economic value of deterring negligent behavior.

JDP

"Silent Tort Reform" Limits State Law

A March 10 New York Times article by Stephen Labaton focuses on the "silent tort reform" movement being achieved by federal agencies that are establishing industry driven preemptive safety standards implicitly sanctioned by the White House.  The insertion of clauses in the agency rules that block the application of higher state law standards, whether legislative or judicial, could have a significant impact on state tort law.  As examples, the article noted that the Consumer Product Safety Commission adopted a preemptive mattress fire safety rule, the FDA a preemptive drug safety rule, and a proposed rule by the  National Highway Traffic Safety Administration that would pre-empt state laws on the safety standards for car roofs and seat positions.  While the new regulations will likely face court challenges, the agencies have included the preemptive language in the preambles of the rules, which is intended to make the preemption challenges more difficult.  The trend has been criticized by consumer and victims rights groups.  By Stephen Labaton, New York Times.

MKS

Criminal Penalties for Defective Products?

The Senate Judiciary Committee held a hearing on March 10th to consider a proposal that would create criminal sanctions for "knowingly introducing a defective product into the stream of interstate commerce."  The proposal was supported in a statement by Senator Patrick Leahy and in testimony by the Consumers Union.  Both argued that strict civil liability for defective products and enhanced whistleblower statutes are not enough to prevent product manufactuers from putting and keeping defective products on the market.  Leahy cited Vioxx as an example.  The proposal is opposed by the U.S. Chamber of Commerce, the National Association of Manufacturers, and the American Tort Reform Association, all of whom cite the difficulty of defining the criminal act with sufficient objectivity.  The opponents acknowlege that the proposal is well-intended but observe that "knowing" a product to be "defective" is an inherently subjective judgment.  They also cite as another serious drawback to the proposal the liklihood that, to the extent Fifth Amendment rights are exercised, plaintiffs in civil proceedings will have to wait until criminal proceedings have run their course, perhaps many years, before obtaining compensation for injuries.

JDP

Consumer Product Safety Commission Recalls in March

The Consumer Product Safety Commission (CPSC) has announced several voluntary recalls of products in March.  In cooperation with the CPSC, the voluntary recalls are:

• American Suzuki Motor Corp., Brea, Cal. (voluntary recall of about 1,900 Suzuki 2005 Model Year Eiger ATVs, which were assembled with an improperly assembled plastic fuel tank, which posed a potential fuel leak and fire hazard)
• American Tack & Hardware Co., Saddle River, N.J.(voluntary recall of about 35,000 “Forever-Glo Nite Lites, because of a short circuit in the lite light which could cause it to overheat)
• BRIO® Corp., Germantown, Wis., a subsidiary of RIO AB, of Sweden (voluntary recall of about 2,100 BRIO Pull-along Snails, a toy with a rattle containing a bell; the rattle can come apart and the bell poses a small parts choking hazard for young children)
• Performance Inc., Chapel Hill, N.C.(voluntary recall of about 10,200 2006 Performance Travel Trac Trainers, because of a blocking mechanism in the base of the trainer that could break and cause the bicycle to disengage from the stand, creating a fall hazard)
• Eugster/Frismag, of Switzerlandand Capresso Inc., of Closter, N.J.(voluntary recall of about 28,000 C100 Capresso Automatic Coffee Centers, because of an electrical connector in the espresso machine that could erode, presenting a fire hazard)
• Nashbar Direct, Canfield, Ohio(voluntary recall of about 2,500 because of a blocking mechanism in the base of the trainer that could break and cause the bicycle to disengage from the stand, creating a fall hazard)
• Decathlon USA, Wilmington, Mass.(voluntary recall of about  230 Quechua “Rn’x7FX” snowboard bindings, because the binding’s plastic base could break during use, posing a risk to snowboarders of falling and serious injury)
• Sunright International, Norcross, Ga.And Manco Power Sports Inc., Fort Wayne, Ind. (voluntary recall of about 3,200 Manco Blazer Fun-Karts and Sunright International Go-Karts, because of a throttle failure preventing return of the vehicles to idle speed, creating a loss of control hazard for drivers)
• Big Lots Stores Inc., Columbus, Ohio (voluntary recall of about 233,000 sets of Harvest Brand Tea Light Candles, because the candles can burn with a high flame and melt the plastic holders, creating a fire and burn hazard to consumers)
• Little Tikes Co., Hudson, Ohio(voluntary recall of about 20,800 Glowing’ Dino and Glowin’ Doggy Animal Flashlights, because pain on the flashlights could contain excessive levels of lead)
• SSS Inc., Fairfield, N.J. (voluntary recall of about 4,000 Safe-Seat Plus Model Infant Seats  for Shopping Carts, because the sets have a white chalky powder or residue on their surface, which could cause skin to children coming into contact with the residue; the UV Absorber has separated from the seat due to a molding defect affecting some of the seats produced in one or more molding runs).

MKS

Company to Pay $700,000 Penalty for Failure to Report Hazardous Lights

The Consumer Product Safety Commission (CPSC) announced on March 9 that Acuity Brands, Inc., Atlanta, Georgia, has agreed to pay a $700,000 civil penalty, which the CPSC has provisionally accepted.  The penalty settles allegations that the company neglected to make a timely report to the Commission about defects and hazards in over 1.4 million of the company's Lithonia Lighting products.  In agreeing to the settlement, Acuity did not admit CPSC’s allegations and denied that it violated any law.CPSC Release

MKS

Is America Exporting Class Actions to Europe?

A recent article in The American Lawyer notes that governments and businesses across Europe are learning that the desire to sue en masse is not uniquely American.  Globalization and the domination of U.S. companies is a driving factor.  Citing as an example the hundreds of cases filed against Volvo in the wake of the 1999 Mont Blanc tunnel fire that killed 39 people and closed the tunnel for three years of repair work, the article notes that enterprising European lawyers are finding ways to overcome the significant traditional barriers to class actions in European legal systems.  One example is the use in Britain of an Australian innovation, professional litigation funders, to circumvent the ban on contingent fees.  Several countries have been prompted to adapt their legal systems to better content with this new reality. 

JDP

Rhode Island May Not Recover Punitive Damages for Lead Paint Contamination

Rhode Island may not seek punitive damages against the lead paint manufacturers found liable last week for having created a public nuisance in the state.  According to the Associated Press, the court concluded that there was no evidence that the defendants had engaged in reckless or wilfully wrongful conduct.  The companies remain liable for the costs of cleaning up the contamination.

JDP