April 29, 2008
Consumer Product Safety Commission's "Safety Review" is Now Available
The Consumer Product Safety Commission's monthly electronic newsletter, "Safety Review," is now available. Click here to see it.
$24.2 Million Verdict in Asbestos Suit Against Honeywell International
A Miami Herald article by Patrick Danner notes a Dade County jury verdict of almost $24.2 million for Stephen Guilder in an asbestos suit against Honeywell International. The plaintiff, a fifty-year-old surgeon, was exposed to asbestos when he worked on a farm as a teenager, repairing tractors and other farm equipment, where he was exposed to brake pads made with asbestos. The plaintiff's theory was that exposure resulted in a rare, fatal type of cancer, peritoneal mesothelioma,. The verdict was the largest compensatory damages verdict in a Florida asbestos case involving a single defendant. Honeywell International is the parent of Bendix, the brake maker.
April 23, 2008
Texas Supreme Court Holds Defective Lighter Claim Preempted by Consumer Product Safety Act
In Bic Pen Corp. v. Carter, ___ S.W.3d ___ (Tex. 2008), decided April 18, 2008, the Texas Supreme Court held that a products liability design defect claim based on the use of a J-26 model BIC lighter was preempted by federal law. The case arose out of burns sustained by a six-year-old whose five-year-old brother accidentally set fire to her dress with the lighter. The jury found for the plaintiff, awarding three million dollars in actual damages and two million dollars in exemplary damages. The exemplary damages were reduced to $750,000, as required by Texas law. The Consumer Product Safety Commission adopted has adopted regulations requiring that disposal lighters be child-resistant and establishing a protocol for testing a lighter’s child resistance. Those regulations establish specific requirements for compliance. The J-26 lighter met the standards and the Commission issued a certificate of compliance for the lighter. The Consumer Product Safety Act contains both savings and preemption clauses. 15 U.S.C. §§ 2074(a) and 2075(a). The plaintiff argued that conflict preemption did not apply because of the savings clause. The Texas Supreme Court noted that two courts had considered the issue, with conflicting results. The Mississippi Supreme Court held in Frith v. BIC Corp., 863 So.2d 960, 967 (Miss. 2004) (en banc), that implied preemption should apply, while the United States District Court for the Southern District of New York rejected the preemption claim in Colon v. BIC, 136 F. Supp. 2d 196, 209 (S.D.N.Y. 2000). The Court considered and applied the policy analysis from Riegel v. Medtronic, Inc., 128 S.Ct. 999 (2008), in arriving at its conclusion that the plaintiff’s claim was preempted:
Although Riegel addressed an express preemption provision, its policy analysis is likewise applicable here. . . Both the MDA provisions in Riegel and the CPSA provisions at issue here require products to go through safety testing before being released on the market. In both cases, a careful analysis of the provisions reveal that the testing is not merely a safety floor, but a balancing of factors that ensure the product meets carefully prescribed safety standards. Particularly here, where the Commission rejected the idea of more stringent standards, we agree that, under Riegel, a common-law tort claim could impose duties that conflict with the federal regulatory scheme and therefore would "stand as an obstacle to the accomplishment and execution of the full purpose and objections of Congress."
April 21, 2008
China Publishes New Draft Food Safety law
China published its new draft food safety law on Sunday on the website of the National People's Congress. The draft law was submitted to the NPC Standing Committee in December of last year for the first hearing. The draft makes producers of substandard food subject to fines, the confiscation of their incomes, and revocation of production certificates. In more serious cases, producers could face prison terms ranging from three years to life. Members of the public are being invited to make recommendations and submissions on the draft, until May 20, when the comments will be delivered to the NPC Standing Committee for further study. [READ MORE]
April 18, 2008
Arkansas Supreme Court Reverses No Preemption Finding in Light of Riegel
In a February ruling, the Arkansas Supreme Court reversed a circuit court's grant of summary judgment in favor of a hearing device manufacturer holding that a design defect claim regarding the allegedly defective product, approved for marketing by the Food & Drug Administration, was not preempted by the Medical Device Amendments (MDA) under which such regulatory approvals are granted. Less than two weeks later, the U.S. Supreme Court decided exactly the opposite in Riegel v. Medtronic, Inc., (169 L.Ed. 2d 892 (2008). When the defendant-manufacturer petitioined for reconsideration in light of Riegel, the Arkansas court reversed its earlier ruling in Despain v. Bradburn, (2008 Ark. LEXIS 233) and held that the state-law-based design defect claim was preempted. A concurrence bemoaned the conclusion in Riegel that state common law claims are preempted by the MDA and expressed "dismay at the summary abandonment of venerable principles of state common law that have been developed over many generations."
April 17, 2008
U.S. Food & Drug Safety Officials Plan Office in China
The U.S. Food & Drug Administration is planning to open an office in China as early as May 2008 once final approval is given by the Chinese government. The initiative is in response to the massive amount of Chinese goods imported into the U.S. and the impossibility of inspecting all such products for safety. The goal is to improve product quality and safety at the point of origin. Discussions of similar arrangements are underway with India and Mexico, also large importers of drugs or drug ingrediants. See Gillian Wong's story for the Associated Press.
April 16, 2008
Restatement 3d, Products Liability - 10th Anniversary Symposium
The Brooklyn Law School is sponsoring a symposium on November 13 - 14, 2008, occasioned by the tenth anniversary of the Restatement (Third) of Torts - Products Liability. The title of the symposium is "The Products Liability Restatement: Was it a Success?" A list of the distinguished speakers may be found on the law school's website at: http://www.brooklaw.edu/news/Scheduled_Participants_Restatement.pdf.
April 15, 2008
New York Appellate Court Overturns Negligent-Design Verdict Against Tobacco Companies
A New York appellate court overturned a jury verdict in favor of a decades-long smoker who claimed that the tobacco company defendants negligently designed their products by continuing to produce cigarettes with higher levels of tar and nicotine than so-called "light" cigarettes. A Manhattan jury had handed down a $3.4 million compensatory award to be evenly split between Philip Morris and Brown & Williamson, and a $7.1 million punitive award against Philip Morris. The appellate court noted that New York law requires a plaintiff in a negligent design case to prove that the product created a substantial likelihood of harm and that it was feasible to design the product in a safer manner. The majority held that, though it was technically feasible to manufacture "light" cigarettes, the plaintiff had failed to prove that regular cigarettes retained their "inherent usefulness" to consumers. Unless the plaintiffs proved such "consumer acceptability" of light cigarettes with their different tastes and psychological effects due to lower tar and nicotine levels, they could not show that the alternative design was "feasible" and thus failed to make out a prima facie case of negligent design. See Noeleen Walder's story for the New York Law Journal.
April 14, 2008
FDA Drug Regulation Preempts Failure-to-Warn Claim
The U.S. Court of Appeals for the Third Circuit ruled that the Food & Drug Administration's long history of regulating anti-depressants and its explicit rejection of a suicidality warning for the drugs Paxil and Zoloft preempts state-law based failure-to-warn claims. The divided and narrowly-tailored opinion is limited to circumstances in which the FDA has actively monitored the drug's risk and publicly rejected the need for the warning that plaintiffs argue state law requires. The court did not decide whether preemption would be appropriate in other circumstances such as where the FDA had not rejected the substance of the warning sought or where the FDA had only stated its legal postition after the litigation had begun. See Shannon Duffy's article for The Legal Intelligencer.
April 9, 2008
Eighth Circuit Applies Minnesota Statute of Repose To Bar Recovery for Damages Caused by Ventilation Fan
On April 7 the Eighth Circuit decided Integrity Floor Covering, Inc. v. Broan-Nu Tone LLC, No. 07-1824 (8th Cir. April 7, 2008) a case involving a claim for property damage to a building allegedly caused by a malfunctioning bathroom ventilation fan manufactured by the defendant. The suit was brought more than ten years after the fan was installed, raising the issue of whether the Minnesota ten-year statute of repose, Minn. Stat. § 541.051 barred recovery because the claim arose "out of the defective and unsafe condition of an improvement to real property" or whether, or whether the statutory exception in subdivision 1(d) for claims application to manufacturers or suppliers of "any equipment or machinery installed upon real property" applied. The statute applies to an "action by any person . . . to recover damages for any injury to property, real or personal . . . arising out of the defective and unsafe condition of an improvement to real property . . . brought against any person . . . furnishing . . . materials . . . ." Minn. Stat. § 541.051, subd 1 (a) The court held that the statute covered Broan as a product manufacturer and that the exception for equipment or machinery installed upon real property did not exclude Broan because the fan, which was incorporated into the structure of the building, was ordinary building material. The court acknowledged that the facts of the case presented a close issue, but that "the code-required interior bathroom ventilation fan is more analogous to the items Minnesota courts have found to be ordinary building materials." The Eighth Circuit incorporated its opinion in Integrity Floor Covering in a companion case, Chicago Avenue Partners, Ltd. v. Broan-Nutone, LLC, No. 07-1784 (8th Cir. April 7, 2008), even though the fan in question in that case was not hard-wired into the buildling but was plugged in. The court noted that the fan was connected to the buildling because it was nailed into a stud with a duct run to a hole in the roof or wall, and it required the services of someone familiar with wiring to complete the installation.
April 8, 2008
New York Court Rules Circumstantial Evidence of Product Defect Inadequate
In Ramos v. Howard Industries, N.Y., No. 26, March 13, 2008), the New York Court of Appeals dimissed an electrical lineman's suit against an electrical transformer manufacturer for his failure to rule out causes of the transformer's explosion other than product defect. Ramos first claimed that he had injured his back when he reached out of an aerial bucket while installing the transformer on a pole. Two years later, he claimed that the transformer had exploded and knocked him over within the bucket. By the time he described the explosion, the transformer itself could not be located for inspection or testing.
The court said that circumstantial evidence of a defect is enough to prove a product defective but that the plaintiff must prove that the product did not perform as intended and must rule out all other causes of the failure - the essential, traditional criteria for a res ipsa instruction to the jury. Ramos would have to offer enough competent evidence to rebut any evidence of alternative causes but Ramos' expert's theory amounted to "pure speculation" from which no reasonable jury could conclude that all other causes of the transformer explosion were excluded. Accordingly, the court upheld the trial court's grant of summary judgment to the defendant manufacturer. See the Product Liability Daily report.
April 7, 2008
California Adopts Sophisticated User Doctrine in Failure-to-Warn Cases
The California Supreme Court unanimously held that the sophisiticated user doctrine applies in California, bringing that state's law into line with both federal law and the law in most states. Johnson v. American Standard Co., Cal. No. S139184, April 3, 2008, involved a claim by an air-conditioning technician that his lung disease was caused by exposure to phosgene gas released when the evaporators in air conditioning systems are serviced. Johnson alleged that the defendants knew that phosgene gas forms when a commonly-used refrigerant is exposed to high heat, such as during welding, but failed to provide adequate warnings of that hazard.
American Standard argued that Johnson was a trained and certified professional who knew or should have known of an obvious risk widely known by industry technicians. "Although manufacturers are responsible for products that contain dangers of which the public is unaware, they are not insurers, even under strict liability, for the mistakes or carelessness of consumers who should know of the dangers involved," according to the court. A manufacturer is not liable to a sophisticated user of its product for failure to warn of a risk if the sophisticated user "knew or should have known of that risk." The court conclulded that the evidence was clear that HVAC technicians knew or should have known of this risk and upheld the court of appeals dismissal of Johnson's claim. See the Product Safety & Liability Reporter summary of the case.