TortsProf Blog

Editor: Christopher J. Robinette
Widener Univ. School of Law

A Member of the Law Professor Blogs Network

Tuesday, October 23, 2012

Meningitis Lawsuits

The Sunday Boston Globe contained an article by Jay Fitzgerald on the potential suits from the outbreak of meningitis linked to a Framingham drug compounding pharmacy.  Suffolk's Mike Rustad is quoted in the piece.

--CJR

October 23, 2012 in Current Affairs, Products Liability | Permalink | Comments (0) | TrackBack (0)

Saturday, October 6, 2012

Conk on Exploding Gas Cans, Products Liability, and Plaintiff's Misconduct

His coverage at Torts Today is here and he links to the NYT story (quoting Marshall Shapo and Frank Vandall).

--CJR

October 6, 2012 in Current Affairs, Products Liability | Permalink | Comments (0) | TrackBack (0)

Tuesday, September 25, 2012

"Philly Regrets Flood of Cases"

The Wall Street Journal reports that mass tort filings in the Philadelphia Court of Common Pleas have "skyrocketed from 550 in 2008 to nearly 2,700 last year. The surge left an already busy court system buried in lawsuits and scrambling to repair the damage."    The article reports:

Also contributing to the surge of cases: the success of the Complex Litigation Center, a specialized Philadelphia court established in 1992 largely to handle the growing asbestos and pharmaceutical docket. The center adopted techniques that were designed to move cases through quickly, such as setting early trial dates, holding frequent meetings among the lawyers, and consolidating similar cases.

The Complex Litigation Center drew more mass-tort cases to Philadelphia. But until recently, it was largely able to manage its docket. Since 2008, the backlog of asbestos and pharmaceutical cases has shot up from about 2,600 to more than 6,100 through last month. Last year, 88% of the pharmaceutical cases were filed by out-of-state plaintiffs, according to the court.

The mess is now largely Judge Herron's to deal with. Since taking over as the administrative judge late last year, he has put into place several measures designed to reverse the trend—and to send a message to out-of-state lawyers to take their lawsuits to other courts. "Go elsewhere," he says, when asked to describe the message he is hoping to send to out-of-state lawyers. "There are a lot of really wonderful courts in the U.S., and you should make broader use of them."

- SBS

 

September 25, 2012 in Current Affairs, MDLs and Class Actions, Products Liability | Permalink | Comments (1) | TrackBack (0)

Friday, August 17, 2012

PA: Is R3:PL the Law or Not?

This week, Amaris Elliott-Engel, of PA Law Weekly, wrote the first of a series of articles on tort law.  Her first piece is on the uncertainty in Pennsylvania products law.  Twice in the last 3 years, the U.S. Court of Appeals for the Third Circuit has opined that the Pennsylvania Supreme Court would adopt the Restatement Third (Products Liability).  However, the state Supreme Court has not directly addressed the issue, although there has been some provocative dicta and one instance in which the justices announced they had improvidently granted allocatur to consider whether section 2 of R3 should replace 402A of R2.  Thus, in general, state courts are applying 402A and federal courts are applying R3, though even among federal courts, some apply 402A.  As elsewhere, most plaintiffs' lawyers tend to prefer 402A and most defense lawyers tend to prefer R3.

Thanks to Scott Cooper for the tip.

--CJR

August 17, 2012 in Current Affairs, Products Liability | Permalink | Comments (2) | TrackBack (0)

Monday, July 23, 2012

New Jersey Court Rejects Brand-Name Manufacturer Liability for Injuries Caused By Generic

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.

- SBS

July 23, 2012 in Products Liability | Permalink | Comments (0) | TrackBack (0)

Tuesday, May 1, 2012

Does Product Liability Makes Us Safer?

Kip Viscusi (Vanderbilt) recently pubished an article in Cato's Regulation, on "Does Product Liability Make Us Safer?"  The article is now available on SSRN.  The article concludes:

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.  

- SBS


May 1, 2012 in Products Liability, Scholarship | Permalink | Comments (0) | TrackBack (0)

Thursday, April 19, 2012

9th Circuit Preemption Case of Interest

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.

Drug & Device Law has a thorough examination of the opinoin. Arizona Central also has a report.

- SBS

April 19, 2012 in Products Liability | Permalink | Comments (0) | TrackBack (0)

Friday, March 9, 2012

Philly Asbestos Verdict Challenged

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.

- SBS

March 9, 2012 in Current Affairs, Products Liability | Permalink | Comments (0) | TrackBack (0)

Tuesday, February 28, 2012

Asbestos Claims from Malta

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.

--CJR

February 28, 2012 in Products Liability | Permalink | Comments (0) | TrackBack (0)

Thursday, February 16, 2012

Maybe Not the Best Place for That Gauge

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.

--BC

February 16, 2012 in Products Liability | Permalink | Comments (0) | TrackBack (0)

Friday, January 20, 2012

Burger King, Spit, and Emotional Damages in Products Liability

A suit over a burger, spat upon by an employee of Burger King, resulted in the Ninth Circuit certifying a question to the Washington Supreme Court.  Plaintiff developed an uneasy feeling after receiving a Whopper with cheese.  When he lifted the bun, he saw a "slimy, clear and white phlegm glob" on the burger.  The glob was tested and was a DNA match with one of Burger King's employees, who pled guilty to felony assault.  Plaintiff claims ongoing emotional distress.  The district court granted judgment on the pleadings to Burger King.  On appeal, the Ninth Circuit certified the following question:  “Does the Washington Product Liability Act permit relief for the emotional distress damages, in the absence of physical injury, caused to the direct purchaser by being served and touching, but not consuming, a contaminated food product?”
The case is available here.  (Link has been fixed)
Thanks to Susan Raeker-Jordan for the tip.
--CJR



January 20, 2012 in Food and Drink, Products Liability | Permalink | Comments (0) | TrackBack (0)

Monday, December 26, 2011

Omitting Claim for Economic Damages Pays Off - $10M Verdict in Segway Fall Case

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.

- SBS

December 26, 2011 in Current Affairs, Products Liability | Permalink | Comments (0) | TrackBack (0)

Wednesday, November 23, 2011

Happy Thanksgiving! Also, Beware of the Toys!

We wish you all a very happy Thanksgiving!  We are, as ever, grateful for our readers, correspondents, and so on.

In what is a delighfully cheery tradition, US PIRG has released its annual toy safety report ("Trouble in Toyland," which sounds like it could also be a film ripe for riffing by RiffTrax).  Enjoy!

--BC

November 23, 2011 in Products Liability | Permalink | Comments (0) | TrackBack (0)

Monday, November 14, 2011

Implied Warranty, Products Liability and Medical Device Cases

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.

- SBS

 

November 14, 2011 in Products Liability | Permalink | Comments (0) | TrackBack (0)

Tuesday, October 25, 2011

Virginia Product Liability Blog

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.

- SBS 

October 25, 2011 in Current Affairs, Products Liability | Permalink | Comments (0) | TrackBack (0)

Sunday, October 9, 2011

1st Cir: Plaintiff's Verdict for Table Saw Without "Saw Stop" Upheld

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.

--CJR

October 9, 2011 in Products Liability | Permalink | Comments (0) | TrackBack (0)

Friday, September 30, 2011

IL Clarifies Duty Analysis, Post-Sale Duty to Warn in Products Case

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.

--CJR

September 30, 2011 in Products Liability | Permalink | Comments (0) | TrackBack (0)

Wednesday, July 27, 2011

TX: Four Loko Stroke Case Filed

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.

--CJR

July 27, 2011 in Current Affairs, Food and Drink, Products Liability | Permalink | Comments (0) | TrackBack (0)

Wednesday, July 6, 2011

Failure to Warn Suit Filed Against Tanning Salon

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.

--CJR

July 6, 2011 in Current Affairs, Products Liability | Permalink | Comments (0) | TrackBack (0)

Saturday, June 11, 2011

Fire Gel - Dangers and Labels

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.

--BC

June 11, 2011 in Products Liability | Permalink | Comments (3) | TrackBack (0)