September 26, 2007
SENATORS BROWN AND CASEY INTRODUCE THE FOOD AND PRODUCT RESPONSIBILITY ACT OF 2007
Last week, in response to the rash of product recalls and food borne illness problems, U.S. Senators Sherrod Brown (D-OH) and Bob Casey (D-PA) introduced the Food and Product Responsibility Act of 2007. The Bill is intended to protect U.S. consumers against unsafe food and products and promote sound business practices among distributors of food and products. The Food and Product Responsibility Act of 2007 would require distributors of food and consumer products to demonstrate the financial capacity to cover risks associated with recalls and product safety. U.S. Customs and Border Protection, in conjunction with other agencies, would develop a program to ensure distributors are able to cover the costs associated with both product recalls and all personal and property damages that could occur because of product defects. Distributors would be required to demonstrate that they possess product recall and liability insurance or have sufficient financial resources to afford a recall and any subsequent damage claims. The products covered would include auto parts; food, drugs, devices, and cosmetics; biological products; consumer products, and meat, poultry, and egg and meat, poultry, and egg products.
September 24, 2007
Consumer Product Safety Commission Announces Massive Crib Recall with Simplicity, Inc.
On Friday, September 21, the U.S. Consumer Product Safety Commission (CPSC) announced a voluntary recall with Simplicity Inc., of Reading, Pa., of about 1 million cribs, which were made in China and sold in department stores, children’s stores and mass merchandisers nationwide from January 1998 through May 2007. The problem with th cribs is that the drop-side can detach from the crib, which can create a dangerous gap and lead to the entrapment and suffocation of infants. The CPSC is aware of two deaths in Simplicity manufactured cribs with older style hardware, including a 9-month-old child and a 6-month-old child, where the drop-side was installed upside down. CPSC is also aware of seven infant entrapments and 55 incidents in the cribs. The drop-side failures result from both the hardware and crib design, which allow consumers to unintentionally install the drop-side upside down. That can weaken the hardware and cause the drop-side to detach from the crib. When the drop-side detaches, it creates a gap in which infants can become entrapped. The website contains detailed response information for consumers.
September 21, 2007
Mattel Issues Apology to China Over Recalls
The Wall Street Journal online
today notes that Mattel apologized today to China over its recall of Chinese-made toys, admitting that the vast majority of the recalled items were defective because of design flaws rather than faulty manufacturing, leading to a recall of more lead-tainted Chinese toys than was justified. The carefully worded apology was made by Thomas A. Debrowski, Mattel's executive vice president for world-wide operations, in a meeting with Li Changjiang, Chinese product safety chief.
September 19, 2007
Rhode Island Wants $2.4 Billion for Lead Paint Cleanup
In the wake of the February 2006 jury verdict against three former lead paint manufacturers, finding that the defendants had created a public nuisance, the State of Rhode Island has filed with the trial court a cleanup plan with a $2.4 billion price tag. The plan proposes the cleanup of thousands of homes in the state. The defendants have appealed the February 2006 jury verdict. See Eric Tucker's story for The Associated Press.
September 16, 2007
On Wednesday, September 12, the Senate Judiciary Committee held a hearing on “Regulatory Preemption: Are Federal Agencies Usurping Congressional and State Authority?” The witness list included the Honorable Donna Stone, Delaware General Assembly and President of the National Conference of State Legislatures. Her testimony is excerpted in part below, with references to NCSL's summary of proposed preemption legislation.
"NCSL is troubled by the growing trend in both Congress and federal agencies to pass or promulgate legislation and rules that have a substantial detrimental impact on states because of their intrusively preemptive nature. NCSL has tracked these preemptions in our Preemption Monitor, a publication that we initiated to alert state legislators nationwide to the alarming number of federal legislative and regulatory preemptions. As a result of federal preemption, a large part of the policy jurisdiction of state legislatures and of city and county officials has been lost. States and localities cannot legislate in response to their citizens’ needs when the federal government has preempted the policy field. What is lost is the capacity for regional and local self-government. . . .
Over the last two and one-half years, NCSL has tracked over one hundred and fifty proposed legislative preemptions of state law. The legislation has spanned the range of issue areas from homeland security, to health, to election reform, and are all reported in NCSL’s Preemption Monitor which can be found on our website at www.ncsl.org."
September 13, 2007
China and U.S. Safety Agencies Sign Memorandum of Understanding to Promote Product Safety
The U.S. Consumer Product Safety Commission and China's General Administration of Quality Supervision, Inspection and Quarantine signed a memorandum of understanding on September 11, 2007 in which they affirmed "their desire to protect consumers in both countries from unreasonable risk of serious injury or death from products originating within their respective jurisdictions."
Eighth Circuit Rejects Products Liability Claims in Case Involving 60-Year-Old Printing Press
In Robinson v. Brandtjen & Kluge, Inc. (8th Cir. Sept. 11, 2007), the Eighth Circuit upheld the grant of summary judgment by the U.S. District Court for the District of South Dakota in favor of the manufacturer of a printing press manufactured by B&K in 1939 in a products liability case brought by Robinson, who was injured while using the press in the course of her employment with Clark Printing in 2001. The press, a Kluge 6 Roller Automatic Platen Printing Press, was sold to a newspaper in 1940. Clark Printing acquired it over fifty years later. In order to use it as a foil stamping press, Clark removed the automatic feed so that the press could be fed only manually by hand, a more efficient process for the short-run foil stamping jobs the company did. The plaintiff was filling in for another employee and operating the press for the first time when she was injured when her caught hand became lodged between the two large surfaces of the press. Along with her husband, she brought suit against B&K alleging that the machine was defectively designed and that B&K failed to warn of the defects in the machine. The district court granted summary judgment to B&K on all claims. The Eighth Circuit affirmed.
The Robinsons alleged that there were two defects in the press. One was failure to include a detachable point-of-operation guard that would protect the user during manual operation of the press. The second was failure to warn users not to feed the machine manually. The issue, as stated by the Eighth Circuit, was “whether there is sufficient evidence to support a finding that the B&K press was defective when it was sold more than sixty-five years ago, in 1940.” South Dakota adopted section 402A of the Restatement (Second) of Torts (1965) and the Restatement’s consumer expectation standard. The Eighth Circuit noted that contemporary safety standards should not be superimposed on an earlier era, and that in determining whether a product was defective in an earlier period, “we look to evidence of the industry practice at the time, any direct evidence of what reasonable purchasers expected, and other evidence concerning injuries or knowledge of the dangers of the product in that time.” In addition, South Dakota law provides that compliance with the state of the art prevailing at the time the product was initially sold may be considered in determining whether a product was defective. S.D. Codified Laws § 20-9-10.1.
The court concluded that the evidence in the case was insufficient to justify a finding that the press was defective “in light of reasonable consumer expections of the time.” The court noted in a footnote that it is not clear whether South Dakota has adopted or would adopt the risk-utility standard in addition to the consumer expectation test, but that the evidence was in any event insufficient under that standard. The court also held that because the danger involved in putting one’s hand between two press plates “is sufficiently obvious that no warning is necessary.”
Because the strict liability claims failed, the court held that the negligence claims necessarily failed also. The remaining claim, negligent post-sale failure to warn, was also rejected by the court, because “[g]iven the passage of time, it would be unreasonable to require B&K to identify all owners of its platen presses.” Post-sale failure to warn theory requires a finding that product sellers can practically and efficiently discharge a post-sale obligation to warn.
September 10, 2007
In Utah, Regulatory Compliance Makes Product Presumptively Non-Defective
The Utah Supreme Court, in response to a certified question of law from the U.S. District Court for the district of Utah, has ruled that when a product complies with applicable governmental safety standards, Utah law presumes that the product is not defective. Juries must be informed of this presumption which a plaintiff may rebut by a preponderance of the evidence. The case, Egbert v. Nissan North America, 2007 WL 2404266 (8/24/07), arose out of a rollover accident in which the vehicle's front passenger window shattered and the plaintiff was ejected through that window opening. The window met federal safety standards at the time of manufacture.
September 5, 2007
Wrongful Death Suit Alleges Floor Buffer Caused Death
My first job, when I was 14 years old, was in a music store dusting, sweeping, and mopping and buffing the floors at the end of the day. I once let go of the floor buffer before the polishing disk had stopped rotating. The result was a floor buffer that traveled through a plate glass window and on to the sidewalk outside. Fortunately, no one was hurt in that incident but I learned early that these things can be dangerous. But dangerous enough to kill someone?
A Texas woman has brought a wrongful death claim against the manufacturer of an allegedly defective propane-powered floor buffer. Her husband was overcome by carbon monoxide fumes, rendered unconscious, and eventually died while operating the machine to clean floors inside a building. The owner's manual for the propane engine warned to "never run the engine indoors" and that the engine emitted "carbon monoxide gas which is toxic. Breathing it can cause unconsciousness and even kill you." The plaintiff alleges that the engine was defectively designed because it was not equipped with proper safety equipment. See Michelle Massey's story for the Southeast Texas Record.