September 25, 2006
"Light" Cigarette Suit Certified As Class Action
Judge Jack B. Weinstein has granted class-action status to the lawsuit filed by "light" cigarette smokers who accuse tobacco companies of defrauding smokers into thinking cigarette brands labelled "light" or "low tar" were safer than regular cigarettes when they are not. The class potentiallly includes anyone who bought cigarettes labelled "light" or "lights," beginning in the early 1970s. Only a few months after an important legal victory represented by the dismissal of the Engle class action in Florida, the tobacco industry now faces a claim representing a potential $200 billion liability. See Brad Dorfman's story for Reuters.
Judge Weinstein has a reputation for looking with favor upon class action claims and has presided over trials involving asbestos, Agent Orange, and handgun sales. But in early March, he dismissed a class action claim brought under the Alien Tort Claims Act on behalf of Vietnamese victims of Agent Orange. His certification of a class that would have included all current and former smokers who had been diagnosed with smoking related diseases was overturned in 2005 by the U.S. Court of Appeals for the Second Circuit.
September 21, 2006
Falling From Top Bunk An Obvious Risk
A Stockton State College student, startled awake by his pager and his roommate's yelling, fell from a top bunk bed in his dorm room and dislocated his shoulder. He sued the loft bed manufacturer and prevailed at trial on a failure to warn theory, recovering $179,001 in damages. He claimed that, if he'd been warned about the risks of falling out of a bed placed six feet above the floor, he would have slept closer to the wall. Can sharp knives cut you? Will hot coffee burn you? Which risks are sufficiently obvious to 21-year-old college seniors so that no warning of such risks is required? A three-judge panel of the Appellate Division of the Superior Court of New Jersey concluded that risk of falling out of this bed was so obvious that no warning was required as a matter of law. "The risks are so obvious here," said the court, "that we fail to see what a college student would or could have done differently while asleep to protect himself from falling, or what a warning could have advised in addition to the obvious.
September 20, 2006
European Products Liability News
The European Commission has made its third Report on the application of the EU Product Liability DIrective which provides a common basis of liability for defective products throughout the EU. The Report concludes that "the Directive works by and large in a satisfactory way," offering throughout the EU a common level of protection for consumers and a common basis for liability of producers and striking an appropriate balance between producers and consumers. The Report specifically concludes that the "development risks defense," commonly called the "state-of-the-art" defense in the U.S., is a significant factor in achieving this balance. The Report concludes that there is, at this stage, no need for major reform of the Directive.
The European Commission must review the efficiency of the product liability legal framework provided by the Directive on a regular basis. Two earlier reports were issued in 1995 and 2001.
September 13, 2006
Component Supplier's Fault Limits Manufactuer's Liability
The Arizona Court of Appeals has concluded that product manufacturers can escape full liability for their defective products if a component part supplier is at fault for providing a faulty component. A homeowner's insurer sued the manufactuer of a water filtration system that had leaked and caused property damage. The leak was caused by faulty filter canisters obtained from a component supplier. The defendant manufacturer was liable only for the damages attributable to its 25% fault, limiting the plaintiff's recovery because the remaining fault was allocated to the component supplier which had gone out of business. According to the court, defendants are liable only for the damages attributable to their share of the fault under the state's law regarding apportionment of liability even where both faulty parties are in the chain of manufacture of a defective product. See Howard Fischer's story for Capitol Media Services.
September 7, 2006
Tort Reform's Next Big Push
Tort reform groups and lawyers representing some of the nation's largest corporations are looking to introduce proposed amendments to consumer protection laws, particularly in those states with a history of large class certifications or high-dollar settlements and verdicts in products liability and other kinds of class actions. The momentum for these reform proposals was provided by California Proposition 64, the 2004 ballot initiative which required plaintiffs to prove they suffered an actual harm as a result of an alleged violation of the state's consumer protection laws and imposed other procedural requirements traditionally associated with class actions. Many state consumer protection laws do not require that a plaintiff show an injury or show reliance on a defendant's reprentations about a product in order to bring suit under the statute.
Plaintiffs' lawyers acknowledge that such reforms would have a "chilling effect" on, and raise significant hurdles in bringing, consumer class actions such as the recent multidistrict litigation filed against DuPont over the alleged health dangers of Teflon cookware. See Amanda Bronstad's story for The National Law Journal.
September 6, 2006
Chicken Little or Dangerous Chicken Litter?
A case has been brought to trial in Arkansas by plaintiffs in one of several lawsuits who claim that chicken litter used as fertilizer causes cancer. The plaintiffs allege that Roxorsane, distributed by Alpharma and fed to chickens, has caused high arsenic levels in chicken litter spread on agricultural land. Six poultry companies also named as defendants were dismissed from the case in June by the trial judge who ruled that the plaintiffs could not show that those companies were substantial factors in causing the plaintiffs' diseases. See Trish Hollenbeck's story for the Northwest Arkansas Times.
September 1, 2006
Texas Juror Took Loans From Plaintiff in Vioxx Case
A juror on the panel that found Merck & Co. liable for a fatal heart attack due to taking Vioxx, testified in a post-trial deposition to borrowing as much as $10,000 interest free from the plaintiff's widow. Merck's attorneys want to look further into the extent of the financial relationship between the juror and the plaintiff in a case which ended in April. In the case, the jury returned a $32 million verdict for a plaintiff who claimed only 17 days' use of Vioxx before suffering a heart attack and dying. The plaintiff was a 20-year smoker with a history of heart disease. See Lynn Brezosky's story for the Associated Press.