TortsProf Blog

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

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

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

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

 

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 

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

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

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

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

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

Argument Over Engle Progeny Verdict

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.

--BC

Good Expert = Fact Issue

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.)

--BC

Warning on Chopsticks

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.

--CJR

Bruesewitz v. Wyeth

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.

--CJR

Vaccine-Autism Link Study a "Fraud," Motivated by Money

By now, most have heard about the three-part series BMJ is publishing about Andrew Wakefield's now-discredited Lancet study linking vaccines to autism.  Part 1 explored the [to describe it charitably] flawed data; an accompanying editorial described it as an "elaborate fraud."  Part 2, published yesterday, discusses the role money -- lots and lots of money -- played in the fraud.

Also, over the weekend, NPR's All Things Considered had an interview with Seth Mnookin, whose new book, The Panic Virus, explores the history of the vaccine-autism issue.

--BC

A Tortious Day in Western Mass

We subscribe to the Daily Hampshire Gazette, a paper that is not technically daily (since it has no Sunday edition) and that, until a few years ago, was an afternoon paper (confusing me to no end when we moved here).  Also, it's behind a paywall, so there's a lack of links to it.

In any event, it is rarely a big source for Torts news -- but yesterday's paper had two new and interesting suits.

• First, a mother from Westfield sued Rite Aid over her son's oxycodone intoxication death two years ago.  "Lona St. Martin claims that Rite Aid's pharmacy...filled three separate prescriptions for her son, Scott A. St. Martin, from three different health care providers within a four-day period in early 2007."  Her son was found dead in his apartment a day later.  She contends that the pharmacists ought to have determined whether or not he was overusing the medication.
• Second, a woman from Easthampton has sued Playtex, Babies "R" Us, and Dr. William Sears for injuries she allegedly suffered from her use of a breast pump.  Her suit states that she used the breast pump in question three times, and that the third time resulted in an injury that made expressing breast milk painful and caused her anxiety about being able to feed her baby.  Dr. Sears (whose books we relied on extensively) evidently collaborated on the design and marketing of the pump.

--BC (who is back on the regular posting rotation)

Vaccines & Drugs: A Brave New Tort World

AALS Torts & Compensation Chair Cathy Sharkey has put together a fantastic panel for the 2011 Annual Meeting in San Francisco.  The overview:

The proliferation of vaccine and pharmaceutical drug-related injuries challenges our conceptions of how the tort system can best meet its compensatory and regulatory aims in the 21^stcentury.  In 1986, Congress created the National Childhood Vaccine Act, establishing a no-fault compensation scheme for vaccine-related injuries.  In 2010, the U.S. Supreme Court granted certiorari in Bruesewitz v. Wyeth, Inc. to decide whether design defect claims against vaccine manufacturers are preempted.  This follows closely on the heels of the U.S. Supreme Court’s decision in Wyeth v. Levine, finding that failure to warn claims against a drug manufacturer were not preempted.  Our panelists—who include two prominent torts and products liability scholars (Mary Davis, who posted on a related issue on Monday, and Bob Rabin, who will guest blog with us next semester), a seasoned litigator (Mal Wheeler), and a policy expert (James Copland)—will explore whether it makes sense to have separate legal regimes for vaccines and other pharmaceuticals.  They will also address issues at the core of tort law in the modern administrative state: the need for no-fault victim compensation and the respective roles of litigation and governmental regulation.

The program is Saturday, January 8th from 1:30 to 3:15.  The location has not been finalized because of an ongoing labor dispute.  I'll provide an update on the location when it's available.  I hope to see you there.

--CJR

Defedants Win Summary Judgment in Peanut Butter Salmonenlla Cases

A defense win on causation in the peanut butter salmonella cases filed against Con Agra.   Mass Tort Defense has the details.

- SBS

 

BP Spill Fund vs. 9/11 Fund

An article in Saturday's NY Timescompares the work ahead of Ken Feinberg with the BP Oil Fund, with his prior work on the 9/11 Fund.

- SBS

Bublick on Drunk Driving and Crashworthiness

Ellen Bublick (Arizona) has posted to SSRN The Tort-Proof Plaintiff:  The Drunk in the Automobile, Crashworthiness Claims, and the Restatement (Third) of Torts.  The abstract provides:

This article, for the Brooklyn Law School Symposium on the 10th Anniversary of the Restatement (Third) of Torts: Products Liability, looks at the difficult challenge courts face when they review crashworthiness claims that arise in conjunction with drunk driving. These claims highlight the difficulty of preserving structural accountability in tort law after the shift toward apportionment of liability that includes intentional, reckless and strict liability torts as well as negligence. The article suggests that certain court-created causal-apportionment doctrines help to preserve structural accountability. It also urges a more systematic confrontation of structural accountability questions in comparative responsibility systems like those recommended by the Restatement of Torts.

--CJR