Monday, July 23, 2012
Abnormal Use reports that a New Jersey Superior Court has rejected the "innovator liability" theory accepted by a California court in Conte v. Wyeth. Under this theory, a plaintiff sues a brand-name manufacturer of a drug for injuries allegedly caused by taking the generic version of the drug. To date, Conte is the only decision upholding this theory of liability.
Tuesday, May 1, 2012
Rather than creating an environment to foster safer products, product liability law often has adverse consequences. Some of the problems stem from the inherent nature of product risk decisions and the function of tort liability, while others may derive from individuals’ cognitive limitations and inability to think properly about balancing risk and cost. Thus it would be both incorrect and an oversimplification to blame all the ills on the tort liability system. That system functions reason- ably well for many types of accidents, such as personal motor vehicle accidents. However, tort liability falls short with respect to products.
Thursday, April 19, 2012
On Monday, the Ninth Circuit issued its decision in Stengel v. Medtronic, Inc., No. 10-17755, slip op. [pdf]. The case involved a Medtronic pain-pump that the plaintiff alleged caused his paraplegia. The Ninth Circuit upheld dismissal based on Reigel v. Medtronic, Inc., 552 U.S. 312 (2008), and also denied plaintiffs' "failure to report" claim under implied preemption.
Friday, March 9, 2012
The Legal Intelligencer reports on a variety of issues raised by the plaintiffs in a post-trial motion challenging a defense verdict in Webber v. Ford Motor Co. In particular, plaintiffs' counsel alleges that the verdict form was the result of ex parte contact by defense lawyers and the supervising judges in Philadelphia's Mass Torts Program.
Thanks to Lisa Smith-Butler for the alert.
Tuesday, February 28, 2012
Asbestos.com reports the heirs of dockyard workers in the tiny Mediterranean country of Malta filed asbestos-liability claims in New York against American companies that made products used aboard U.S. Navy ships.
The dock workers were exposed to the asbestos when the Navy ships were brought in for service and repairs. Although the exposure came as long as 40 years ago, some of the worker died only recently. Mesothelioma cancer, which is caused by the asbestos exposure, can linger for up to 50 years before it shows any symptoms.
According to Maltatoday, the leading news service in Malta, up to 400 workers or their families have filed claims through the United States court system.
Thanks to Cary Sklaren for the tip.
Thursday, February 16, 2012
Gawker presents a somehow-not-fictional air gun with the air pressure gauge in what might be called...not an ideal location. Check it out. I'd say it's exam-worthy, except the counterarguments would be a bit weak.
Friday, January 20, 2012
Monday, December 26, 2011
The Connecticut Law Tribune reports on an interesting trial strategy in a Segway fall case:
In the case of former Southern Connecticut University student John Ezzo, [Robert B.] Adelman and his partner, Neil Sutton, decided to take a calculated risk. They omitted any claim for treatment costs, lost income or future earnings.
Instead, they only focused on the pain and suffering “non-economic” damages, and the alleged recklessness of Segway Inc., the maker of two-wheeled, scooter-like vehicles that carry riders in an upright position.
The focus on non-economic factors paid off handsomely, in the form of a $10 million verdict on Dec. 14. The jury found Segway acted recklessly when its employees failed to provide Ezzo with a helmet during a test drive. “It’s a unique, almost never-seen-before strategy,” said a lawyer for Segway, which is currently attempting to get the verdict reduced or thrown out.
Thanks to Lisa Smith-Butler for the alert.
Wednesday, November 23, 2011
We wish you all a very happy Thanksgiving! We are, as ever, grateful for our readers, correspondents, and so on.
Monday, November 14, 2011
Interesting analysis of whether a learned intermediary (i.e., the prescribing/treating physician) voids a claim for breach of implied warranty in a medical device products case from the good people at Drug and Device Blog:
In a relatively recent case, Currier v. Stryker Corp., 2011 WL 4898501 (E.D. Cal. Oct. 13, 2011), the court stated, with respect to a claim for implied warranty
Because this is a medical implant case, and the [complaint] alleges that the product was surgically inserted in a hospital, the Court cannot plausibly infer from the [complaint] that Plaintiff relied on anything other than his physician's skill and judgment in selecting the . . . product, nor that any purchase of the product was based on a warranty from the manufacturer to Plaintiff. The Court cannot plausibly infer that there is a relationship between the Defendants and Plaintiff that would allow Plaintiff to state a breach of warranty claim.
Id. at *4. The court seems to be saying that, in a prescription medical product liability case, there can’t be an implied warranty claim unless the plaintiff, as opposed to the prescribing physician, relied on the alleged warranty.
D&D does its usually thorough job of canvassing other states' law to see how widespread this approach may be. Worth a read.
Tuesday, October 25, 2011
Troutman Sanders LLP has announced the launch of the Virginia Product Liabilty Law Blog, which will provide defense-perspective commentary on products liability litigation in Virginia.
Thanks to Bill Janssen for the news.
Sunday, October 9, 2011
At "Torts Today," George Conk (Fordham) is reporting that the First Circuit upheld a plaintiff's verdict in a case in which a table saw lacked instant braking "saw stop" technology. The case is Osorio v. One World Technologies; Conk's post is here.
Friday, September 30, 2011
In Jablonski v. Ford Motor Co., the Illinois Supreme Court held that duty analysis in a negligent-product- design case encompasses a risk-utility balancing test in which compliance with industry standards is relevant, but not dispositive. The court further refused to adopt a post-sale duty to warn for a product not defective at the time of manufacture. The opinion (pdf) is here.
Thanks to DePaul's Mark Weber for the tip.
Wednesday, July 27, 2011
A Texas man has filed products case against the manufacturer of Four Loko, alleging that the combination energy drink/alcoholic beverage caused him to suffer a stroke. He seeks $75,000 in compensatory damages, as well as punies. AboutLawsuits.com has the story.
Wednesday, July 6, 2011
A 29-year-old Pennsylvania woman diagnosed with malignant melanoma has filed a failure to warn claim against a tanning salon. She has been tanning since she was 16, and she went to defendant tanning salon from 2005 through 2009. AboutLawsuits has the details.
Saturday, June 11, 2011
The New York Times today has a story that could be from a law school exam, having as it does a new (flammable) product, a label susceptible of multiple interpretations, allegedly lacking warnings, and a withdrawal of the product pending revisions of the label. It describes two serious burn accidents resulting from using Napa Home and Garden's "Firelite...Safe Pourable Gel." Worth a read to get a real-world product warning example.
Thursday, May 19, 2011
The Engle progeny tobacco cases in Florida are continuing apace, including through the appellate process. On Tuesday, a case that ended with a total of a $15.75 million verdict was argued in Florida's First Circuit Court of Appeals. As usual, the focus was on the plaintiff's knowledge of the risks of tobacco.
Thursday, May 12, 2011
Or so goes the argument at Abnormal Use, addressing a case in which savvy expert selection probably got the plaintiffs past an otherwise-likely summary judgment.
(Incidentally, you should be reading Abnormal Use if you're doing anything connected to products liability.)
Thursday, March 17, 2011
Sushi Maki, a Miami-based Japanese restaurant chain, is kind enough to provide diners with chopsticks. Not uncommon. However, their chopsticks are far more entertaining than average. On one side of the wrapper, there are drawings of ways one can use the chopsticks as part of a costume. For instance, if you have both chopsticks behind your ears, they stick out like horns ("El Diablo"); if you hold them both straight up behind your ears, they look like antennae ("My Favorite Martian"). Here's the torts angle. On the other side of the wrapper is the warning:
WARNING: Professional Chopstick Stunt People were used for the drawings above. In real life, chop sticks are dangerous - even lethal in a ninja warrior's hands. You could poke your eye out, or tear your rotator cuff or something. So our lawyers tell us that we have to warn you that they can be dangerous and cause serious physical harm if you use them for anything but eating. Sushi Maki is not liable for any damage or harm that may come to you from the improper handling of these utensils. Parents, watch your children closely and please exercise caution. Or just ask for a fork. Which could be dangerous too, we guess. Eating with your hands would be safe, but messy. Good luck.
Thanks to my research assistant, Ulysses Wilson, for bringing these back from Florida.
Wednesday, February 23, 2011
In a 6-2 decision, the United States Supreme Court upheld preemption: “We hold that the National Childhood Vaccine Injury Act preempts all design-defect claims against vaccine manufacturers brought by plaintiffs who seek compensation for injury or death caused by vaccine side effects.” Justice Antonin Scalia wrote the majority opinion. Justices Sonia Sotomayor and Ruth Bader Ginsburg dissented, stating the high court was imposing “its own bare policy preference over the considered judgment of Congress.” Justice Elena Kagan recused herself. Coverage from The Christian Science Monitor is here; the opinion (pdf) is here; TortsProf coverage of last month's AALS panel on vaccines is here.