October 22, 2008
Illinois Supreme Court Addresses Design Defect Standards
In Mikolajczyk v. Ford Motor Co., the Illinois Supreme Court considered the relationship between the consumer-expectation and risk-utility standard in a design case that arose when a Ford Escort James Mikolajczyk was driving was rear-ended by a vehicle whose driver was intoxicated. Mr. Mikolajczyk suffered severe injuries, from which he died a few days later. His widow, as special administrator of his estate, brought suit against the other driver and Ford and Mazda Motor Company, alleging that the design of the driver's seat of the Ford Escort was defective. The trial court granted summary judgment against the other driver. The claims against the other two defendants went to trial. The jury in the case found them liable and awarded the plaintiff $2 million in damages for loss of money, goods, and services, and $25 million for loss of society. The damages for loss of society were reduced by the Illinois Court of appeals. On a second appeal to the Illinois Supreme Court the issue was whether the trial court in the case erred in instructing the jury on the consumer-expectation standard and refusing to instruct on the defendants' proposed risk-utility standard.
In a lengthy opinion the court held considered two questions for this court. The first was whether a defendant is entitled to an instruction on the risk-utility test over the objection of a plaintiff whose chosen method of proof is consumer expectation. The second was "if both consumer-expectation and risk-utility instructions are given and the tests yield inconsistent answers, which result prevails?"
The court held "that both the consumer-expectation test and the risk-utility test may be utilized in a strict liability design defect case to prove that the product is 'unreasonably dangerous,' and that "[w]hether an instruction is required on either test or both tests will depend on the issues raised in the pleadings and the evidence presented at trial, and if "both tests are employed, consumer expectation is to be treated as one factor in the multifactor risk-utility analysis."
The defendant asked the court to adopt section 2(b) of the Restatement (Third) of Torts: Products liability (1998), as the exclusive test for resolving design defect issues. The court rejected the invitation because of its conclusion that section 2(b) would alter the "unreasonably dangerous" element in Illinois design defect cases by requiring the plaintiff to prove the existence of a feasible alternative and also by requiring proof not that a product is "unreasonably dangerous" but only "not reasonably safe." The court's concern about the "not reasonably safe" standard related less to "the aspirational goal that might be set for manufacturers than with parties' and jurors' need for clarity." The court's concern was that the ‘unreasonably dangerous" standard would be more likely to be understood by the average juror than the "not reasonably safe" test.
Having rejected the Restatement standard, the court nonetheless thought that the risk-utility formulation was "instructive":
Under section 2(b), the risk-utility balance is to be determined based on consideration of a “broad range of factors,” including “the magnitude and probability of the foreseeable risks of harm, the instructions and warnings accompanying the product, and the nature and strength of consumer expectations regarding the product, including expectations arising from
product portrayal and marketing,” as well as “the likely effects of the alternative design on production costs; the effects of the alternative design on product longevity, maintenance, repair, and esthetics; and the range of consumer choice among products.” (Emphasis added.) Restatement (Third) of Torts: Products Liability § 2, Comment f, at 23 (1998).
The test integrates the risk-utility and consumer expectation standards by making consumer expectations a factor in the risk-utility analysis. The court said that its formulation of the risk-utility standard would be an appropriate basis for a jury instruction "when the evidence presented by either or both parties supports the application of this integrated test, an appropriate instruction is to be given at the request of either party." The consumer expectation standard could still be the sole standard for determining the existence of a design defect if "both parties' theories of the case are framed entirely in terms of consumer expectations, including those based on advertising and marketing messages, and/or whether the product was being put to a reasonably foreseeable use at the time of the injury, the jury should be instructed only on the consumer-expectation test."
October 15, 2008
American Association for Justice on Preemption
In a release today the American Association for Justice reports on its findings of a coordinated efffort at the highest levels of the Bush administration to achieve preemption of state safety laws. Click here to read the report.
October 9, 2008
Geogia Supreme Court Finds Vaccine Suit in Autism Case Not Preempted
The Georgia Supreme Court, in a ruling that conflicts with two federal district courts and state courts in New York and Pennsylvania, has concluded that a suit brought by parents of an autistic child against a vaccine manufacturer is not preempted by the federal National Childhood Vaccine Injury Compensation Act. The case was brought on behalf of Stefan Ferrari against two pharmaceutical firms, Wyeth and GlaxoSmithKline, that manufactured vaccines for children. Ferrari stopped speaking at the age of 18 months, after he was vaccinated. The suit claims that thimerosal, a preservative containing mercury that until 2001 was commonly used in the production of childhood vaccines, caused the child's autism.
The defendants argued that the federal act preempts claims against companies which produce vaccines approved by the U.S. Food and Drug Administration if an injury or death resulting from a vaccine's side effects are considered "unavoidable," and that any vaccine-related side effect should be deemed to be "unavoidable" if the vaccine was properly prepared and accompanied by the proper FDA-mandated warnings. But the Georgia court rejected such a "far-reaching interpretation" of the federal statute and suggested that the U.S. Supreme Court may be asked to consider the question.
October 8, 2008
Implementation of National Motor Vehicle Title Information System Ordered
On September 29, 2008, in Public Citizen v. Mukasey, Judge Marilyn H. Patel of the U.S. District Court for the Northern District of California ordered the Justice Department to implement the National Motor Vehicle Title Information System, which was enacted into law in 1992. This national database is supposed to gather information from insurance carriers and junk and salvage yards about vehicles written off by insurance companies due to accidents, fires, floods, and the like, thereby helping to prevent consumers from being defrauded by unwittingly purchasing vehicles that have been previously deemed total losses.
According to Judge Patel’s order, January 30, 2009 is the deadline for the Attorney General to publish final policies and procedures in the Federal Register, as well as to provide a database that is accessible to consumers. The information gathered must include the validity of a vehicle’s title; whether the vehicle is titled in a particular state; whether the vehicle has been junked or salvaged; and an odometer mileage disclosure. In addition, the Attorney General has to establish a monthly reporting system for insurance companies and junk and salvage yards by March 31, 2009.
Consumer advocates clalim that this database has not been created because the insurance industry has been putting pressure on the federal government to delay implementation of the law.
Judge Patel’s ruling is a victory for all car buyers, but the database isn't fail-safe. State laws regarding re-titling vehicles as "total losses," vary considerably. In other words, a vehicle that might be considered a total loss in one state might not be in another. This can lead to the practice of "title washing," whereby vehicles are transported from a strict state to a more lenient state in order to obtain a clean title.
A total loss database is long overdue, but measures should be taken to ensure its integrity. Similarly, a national lemon buyback database should be initiated, so that consumers who buy used cars can get reliable information about whether or not the car they are considering has been repurchased by the manufacturer as a "lemon."
This post was provided by Sergei Lemberg, an attorney specializing in auto fraud and lemon law.
October 7, 2008
First Monday in October - First Preemption Case
The U.S. Supreme Court opened its October 2008 term yesterday by hearing arguments in Altria Group v. Good, No. 07-562, a case in which the issue is whether a suit alleging that claims of reduced tar and nicotine in so-called "light" cigarettes were false is preempted by federal cigarette labelling and advertising law. Altria Group, the parent company of Philip Morris, argued that if states are allowed to impose different restrictions on advertising that those imposed by federal law, "national advertising becomes impossible." The group of Maine smokers who brought the suit argued that the suit is about deceptive consumer practices and not preempted by the federal law dealing with "smoking and health" issues. See Tony Mauro's story for Law.Com.
The court has one other much-anticipated preemption case before it this term, Wyeth v. Levine, 07-1249, a state-law-based product liability case in which the plaintiff alleges a failure to warn of a specific use of an FDA-approved prescription drug. That case is set for argument on November 3rd.
October 6, 2008
Illinois Law Does Not Require Motor Vehicle Manufacturers to Consider Risk to Occupants of Other Vehicles
Illinois law does not impose a duty on automakers to design a vehicle which is safe to crash into, according to the U.S. Court of Appeals for the Seventh Circuit. Rennert v. Great Dane LP, 7th Cir., No. 07-2989, 9-11-08, arose out of an accident in which Rennert was injured, and his wife killed, when their minivan collided with the back of a trailer designed by Great Dane. The trailer's underride guard failed and Rennert's van slid underneath the trailer. The court said that Illinois courts had on two prior occasions spoken to the issue and, in consistent holdings, determined that a manufacturer has a duty to design a vehicle that is reasonably safe for its occupants but owes no duty to those who collide with that vehicle, even if the harm was foreseeable. While several courts in other jurisdictions have ruled to the contrary, "the choice is Illinois' to make," the court said, "and it is our responsibility to respect it." There being no indication that the Illinois Supreme Court would overturn its prior ruling, the federal court no reason to certify the question to the state court. See the report in Product Liability Daily.