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Last Entry: August 16, 2009 at 14:17:18

About Products Liability Prof Blog

Posted on August 16, 2009
If you are interested in serving as an editor of Products Liability Prof Blog for the Law Professor Blogs Network, please contact Paul Caron and Joe Hodnicki by email.

Taking stock of the last 20 years of product liability law

Posted on July 11, 2009
The popular Drug and Device Law blog posted a piece yesterday where they reviewed the developments in product liability law for the last few decades and graded them in relation to help to their corporate clients. It is a nice...

GM Product Liability Plaintiffs Better Off Than Secured Creditors

Posted on July 02, 2009
General Motors Corporation has agreed to assume responsibility for all future liability claims filed after the automaker emerges from bankruptcy, regardless of when the vehicle was made. GM had planned to include its product liability claims with its bad assets...

Post-Sale Duties Update

Posted on June 29, 2009
An article in the most recent issue (74:3) of the Brooklyn Law Review by Ken Ross and J. David Prince provides an overview of the post-sale duty sections of the Restatement (Third) of Torts: Products Liability. The article discusses the...

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Continuous Infusion Pain Pump Case Dismissed

Posted on June 29, 2009
Judge K. Michael Moore of the United States District Court for the Southern District of Florida granted summary judgment for the defendant in Kilpatrick v. Breg, Inc.: Download Kilpatrick - Order for SJ, one of about 200 continuous infusion pain...

The End of Preemption Preambles?

Posted on May 21, 2009
Yesterday, President Obama issued a memorandum calling for a rollback of Bush Administration regulations that included claims, often in the form of a preamble to a set of agency regulations, that the federal agency's regulations preempted state law. Obama's memo...

New York Court of Appeals and Delegation of Safety Choices to Employers

Posted on May 06, 2009
In Passante v. Agway Consumer Products, Inc., decided on May 5, the New York Court of Appeals considered a products liability case in which the plaintiff's employer, given a choice in product selection, selected a product without a safety device...

Attorneys Highlight Problems Created by the Consumer Product Safety Improvement Act

Posted on April 22, 2009
A National Law Journal article by Marcia Coyle focuses on the continuing debate over the Consumer Product Safety Improvement Act, focusing this time on the difficulties attorneys have in advising their business clients about the impact of the Act. Ken...

State Food Inspections Vary Significantly

Posted on April 21, 2009
A New York Times article by Gardiner Harris points out the significant variances in state food inspection. The article notes that while Congress and the Obama administration have noted the need for new food production rules and more inspections, less...

Mega Brands America agrees to $1.1 Million Civil Penalty Arising from Dangers in Magnetic Building Sets

Posted on April 15, 2009
The Consumer Product Safety Commission announced in an April 14 releasethat Mega Brands America has agreed to pay a $1.1 million civil penalty, which the Commission has provisionally accepted, to settle allegations that Mega Brands America, formerly Rose Art Industries,...

FDA Update on the Pistachio Recall

Posted on April 09, 2009
The FDA's "In the spotlight" focuses on the recent pistachio recall. The FDA and California Department of Health are continuing their investigation of salmonella contamination in pistachios and pistachio products. Setton Pistachio, Terra Bella, Calif...

Consumer Product Safety Commission Announces $1,055,00 Civil Penalty

Posted on April 09, 2009
The U.S. Consumer Product Safety Commission (CPSC) announced in aTuesday release that 14 firms have agreed to pay a total of $1,055,000 in civil penalties to "settle allegations that the firms knowingly failed to report to the CPSC immediately, as...

NINTH CIRCUIT CERTIFIES STATUTE OF LIMITATIONS ISSUE TO CALIFORNIA SUPREME COURT

Posted on April 08, 2009
In Pooshs v. Phillip Morris USA, Inc., ___ F.3d ___ (9th Cir. April 1, 2009), Nikki Pooshs brought suit against the defendants based upon her terminal lung cancer, alleging a variety of theories, including "(1) negligence; (2) product liability; (3)....

Fifth Circuit Applies Texas Learned Intermediary Law to Bar Recovery in Ebel v. Eli Lilly & Co.

Posted on April 03, 2009
In Ebel v. Eli Lilly & Co., ___ F.3d ___ (5th Cir. March 30, 2009), the Fifth Circuit in a per curiam opinion applied the learned intermediary defense to bar recovery in a wrongful death action arising out of Philip...

Supreme Court Dismisses Writ of Certiorari in Philip Morris USA, Inc. v. Williams

Posted on April 01, 2009
On March 31 the Supreme Cout of the United States dismissed the writ of certiorari as impovidently granted in Philip Morris USA Inc. v. Williams. The dismissal means that the $79.5 million punitive damages award affirmed by the Oregon Supreme...

Nothing Related to Products Liability

Posted on March 16, 2009
But Professor Anthony Varnoa at American University asked nicely, so here is the announcement of their conference and call for papers: LatCrit XIV: Fourteenth Annual LatCrit Conference www.latcrit.org CALL FOR PAPERS & PANELS OUTSIDERS INSIDE: CRITICAL OUTSIDER THEORY AND PRAXIS...

Supreme Court Finds No Preemption in Wyeth v. Levine

Posted on March 04, 2009

Florida Jury Awards $8,000,000 against Philip Morris USA

Posted on February 19, 2009
A Miami Herald article today by Patrick Danner notes that a Florida jury in the Hess case, noted on February 13 on this blog, awarded $8,000,000 to the widow and son of Stuart Hess, who died of lung cancer as...

Wisconsin Supreme Court Rules Product Liability Claim Against Device Manufacturer Preempted

Posted on February 18, 2009
The Wisconsin Supreme Court ruled yesterday that state law tort claims against the manufacturer of an FDA-approved medical device are preempted. In Blunt v. Medtronic, 2009 WL 367768 (Wis., 2-17-09), the Wisconsin court concluded that the U.S. Supreme Court's ruling...

Florida Jury: Smoker Was Addicted

Posted on February 13, 2009
In the latest chapter in the long-running Engle tobacco litigation saga that began in 1994, a Florida jury has found that Stuart Hess, a 40-year chain smoker who died in 1997, was helplessly addicted to nicotine as a result of...

CPSIA Activity for this week - it went from bad to worse

Posted on February 05, 2009
This was an active week regarding CPSIA implementation (or non-implementation). Last Friday, as my last blog summarized, the CPSC approved a stay of certain testing and certification requirements. Then on Tuesday, they issued a ballot for another stay, this time...

Criminalizing Products Liability

Posted on February 04, 2009
Professor Frank J. Vandall of Emory University School of Law has published an article entitled "The Criminalization of Products Liability: An Invitation to Political Abuse, Preemption, and Non-Enforcement," in 59 Cath. U.L. Rev. 341 (2008). The SSRN abstract reads as...

CPSC stays enforcement of testing and certification provisions

Posted on January 31, 2009
Under crushing pressure from manufacturers, the CPSC issued a 1-year stay on enforcement of the testing and certification provisions for certain products. However, the CPSC made it clear that manufacturers and retailers can still be fined for selling products after...

Webcast - Litigate the Torts, Not the Mass

Posted on January 29, 2009
The Washington Legal Foundation is hosting a web seminar entitled "Litigate the Torts, Not the Mass" on Friday, January 30th beginning at 10:00 a.m. EST. My apologies for this late notice. The details are below as is a link to...

CPSC meeting with manufacturers concerning exclusions to lead testing

Posted on January 27, 2009
The CPSC posted details yesterday of a meeting with various trade associations including the Craft Yarn Council and Needlearts Association on January 22 where they were presented information about the lack of lead in certain materials. Here is a summary...

CPSIA activity for last week

Posted on January 25, 2009
After Congressional leaders sent their letter of January 16th to the CPSC (see January 20 post), two Republican Congressman sent a letter to Chairman Waxman (see Barton letter to Waxman 1.21.09 ) on the 21st demanding hearings. Business leaders and...

Prosser and Strict Products Liability

Posted on January 23, 2009
Professor Christopher J. Robinette at Widener University School of Law has authored a very interesting article regarding several of William Prosser's seminal accomplishments such as his influential contribution to the development of strict products liability law...

Peanut Butter Related Salmonella Lawsuit Filed

Posted on January 21, 2009
A Marler Clark press release notes that it filed a lawsuit on January 20 against the Peanut Corporation of America in the United States District Court for the Middle District of Georgia based on the national outbreak of Salmonella Typhimurium...

Congress applies pressure on CPSC

Posted on January 20, 2009
Congress sent a letter to the CPSC last Friday concerning CPSIA and implored CPSC to clarify things for manufacturers in four areas so they could comply with the February 10 implementation date of some of the Act's provisions. Procedurally this...

Fifth Circuit Applying Mississippi Law Concludes Beryllium Sensitization is Not a Compensable Injury

Posted on January 14, 2009
Harris v. Brush Wellman, Inc., a Fifth Circuit negligence, product liability, and breach of warranty case applying Mississippi law, arose out of claims by the plaintiffs alleging that Brush's beryllium-containing products sold to the plaintiffs' employers caused personal injuries to...

Product Liability Prevention (PLP) in Tough Economic Times

Posted on January 07, 2009
Company personnel involved in safety and quality are usually the first to be laid off in tough economic times. In the late 70's, when I was a young in-house lawyer, my company laid off all PLP staff except for the...

CPSIA

Posted on January 07, 2009
New CPSC law has continued to turn into a big mess. See my CPSIA article that is current as of today. Includes a discussion of CPSC actions taken yesterday on various proposals concerning lead and testing requirements. Also discusses what...

Big fight over effective date of phthalate ban

Posted on January 01, 2009
There is a fascinating legal fight going on over the effective date of the phthalate ban as enacted by Congress in the Consumer Product Safety Improvement Act that was signed by the President on August 14, 2008. The Act says...

Publisher recalls book because of errors

Posted on December 31, 2008
On December 30, 2008, a publisher announced a recall of its book on how to electrically wire a house. The book contains several errors in the technical diagrams that could lead consumers to incorrectly install or repair electrical wiring, posing...

CPSC files suit for late reporting

Posted on December 30, 2008
The CPSC rarely tries to fine companies for late reporting safety issues to them. And, when they do, the manufacturer and CPSC usually agree on a fine. It is extremely rare for the CPSC and manufacturer to not agree. In...

No Preemption of Deceptive Advertising Claims Against Cigarette Manufacturers

Posted on December 18, 2008
The Supreme Court ruled 5-4 that state-law-based claims for deceptive advertising brought by smokers of "light" or "low tar" cigarettes are not preempted by the Federal Cigarette Labeling and Advertising Act. Writing for the majority in Altria Group v...

Recent Developments in Safety Law for Foreign-Sourced Products

Posted on December 09, 2008
Facing an increasingly global supply chain, Congress and various states have enacted a number of changes in the country's product safety codes designed to protect consumers. Walk down the aisle of any department store today and you're likely to find....

Impact of Management & Operational Processes on Product Quality

Posted on December 02, 2008
This following comments are from Tom Taormina, a forensic business pathologist and expert witness: There is an aspect to proving design and manufacturing defects little known to attorneys practicing products liability tort. The root cause of defects leading to injury...

Too Many Warnings?

Posted on November 25, 2008
I couldn't resist sharing this humorous article about a serious problem: How does a manufacturer effectively convey warnings to consumers who are over-warned? Dave Barry wrote this story for the Greene County Dailies in response to a Washington Post story...

US, EU, and China Reach Toy Safety Agreement

Posted on November 24, 2008
According to Reuters (11/17), the consumer chiefs of the European Union and the United States called on China on Monday to crack down on unsafe products, especially toys, ahead of Christmas. It's been a rough year for the toy industry,...

Restatement 10th Anniversary Symposium at Brooklyn Law School

Posted on November 17, 2008
The Brooklyn Law School's symposium commemorating the 10th anniversay of the Restatement (Third) of Torts: Products Liability was held on November 13 - 14 at Brooklyn Law School. In attendance were the Reporters for the Restatement, Aaron Twerski and Jim...

Illinois Supreme Court Addresses Design Defect Standards

Posted on October 22, 2008
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...

American Association for Justice on Preemption

Posted on October 15, 2008
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. MKS

Geogia Supreme Court Finds Vaccine Suit in Autism Case Not Preempted

Posted on October 09, 2008
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...

Implementation of National Motor Vehicle Title Information System Ordered

Posted on October 08, 2008
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...

First Monday in October - First Preemption Case

Posted on October 07, 2008
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...

Illinois Law Does Not Require Motor Vehicle Manufacturers to Consider Risk to Occupants of Other Vehicles

Posted on October 07, 2008
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,...

Paxil Suit Not Pre-Empted

Posted on September 04, 2008
A suit brought by the family of a teenager who committed suicide in 2002 after taking the anti-depressant drug Paxil may proceed because the U.S. Food and Drug Administration (FDA) had not yet taken a position on whether there was...

Ken Ross's Summary of the Consumer Product Safety Improvement Act

Posted on September 03, 2008
The new U.S. Consumer Product Safety Improvement Act is neatly summarized by Ken Ross,Of Counsel, Bowman and Brooke LLP here. MKS

Alaska Supreme Court Decides the Case of the Collapsing Law Office Chair

Posted on September 03, 2008
Burnett v. Covell. Burnett, who weighed approximately 330 pounds, visited Covell?s law office to participate in a meeting with Covell and one of Covell?s clients. When he attempted to sit in one of the chairs in Covell?s office, the chair...

Cornell Law Review Symposium - U.S. Food and Drug Regulation in Its First Century and Beyond

Posted on August 26, 2008
The recently published Cornell Law Review Symposium, "U.S. Food and Drug Regulation in Its First Century and Beyond," includes the following articles: James T. O'Reilly, Losing Deference in the FDA's Second Century: Judicial Review, Politics & a Diminished Legacy of...

The Tobacco Law Consortium's Newsletter, Legal Update, Is Now Online

Posted on August 25, 2008
The new issue of Legal Update, the Tobacco Control Legal Consortium's newsletter, is now available online. It features the Consortium's most recent publication, ?Workplace Smoking: Options for Employees and Legal Rights for Employers.? MKS

The FDA and Risk Communication

Posted on August 22, 2008
The FDA This Week: Andy's Take, is written by Randall Lutter, Ph.D., Deputy Commissioner for Policy of the Food and Drug Administration. His focus is on the importance of risk communication, and his take is that that activity is as...

Medical Devices - Pleading to Avoid Preemption

Posted on August 21, 2008
An Illinois federal district court suggested two possible ways to get around a federal preemption ruling even as it dismissed a medical device product liability complaint on preemption grounds (Heisner v. Genzyme Corp., N.D. Ill., No. 08-C-593, 7/25/08), The court...

Texas Plaintiffs' Claims Preempted by Buckman

Posted on August 12, 2008
The judge overseeing multidistrict litigation regarding the bone-building drugs Aredia and Zometa dismissed plaintiffs' claims finding that a Texas law shields manufacturers of Food & Drug Administration-approved drugs from liability for failure to warn...

Consumer Expectation Test Applied to Airbag Defect Claim

Posted on August 11, 2008
The U.S. Court of Appeals for the Sixth Circuit overturned a summary judgment ruling in favor of Honda Motor Company in a case involving a non-deploying airbag. The court said that since the plaintiff stated her expectation about the airbag...

When is a Product Seller a "Seller" for Strict Liability Purposes?

Posted on August 07, 2008
The U.S. Court of Appeals for the Second Circuit has certified an important question of state product sliability law to the New York Court of Appeals. A worker suffered a serious hand injury while working for Glenville Universal Packaging and...

Tennessee Supreme Court Sustains Punitive Damages Award Against DaimlerChrysler Corp.

Posted on July 25, 2008
Flax v. DaimlerChrysler Corp. arose out of the death of eight-month old Joshua Flax when the Dodge Grand Caravan his grandfather was driving was rear-ended by a pickup truck that was traveling at an excessive rate of speed. Joshua's mother,...

A New Essay by Prof. Sharkey on the Impact of Riegel on FDA Preemption of State Law Claims

Posted on July 23, 2008
Click here to see Professor Catherine Sharkey's recently posted essay in Northwestern Colloquy, "What Riegel Portends for FDA Preemption of State Law Products Liability Claims." MKS

CPSC's Safety Review

Posted on July 07, 2008
The July issue of the U.S. Consumer Product Safety Commission's The Safety Review is available online. Following is an excerpt from the introductory comment, "Picking up the Pace," by Nancy Nord, acting chair of the Commission: Lawmakers responded to my...

Consumer Product Safety Commission Fireworks Safety Tips

Posted on July 03, 2008
As we close in on the Fourth of July it's worth taking a look at the Consumer Product Safety Commission's Fireworks Safety Tips. MKS

New Jersey Superior Court Appellate Division Rules on Merck's Appeal in Vioxx Cases

Posted on July 02, 2008
In McDarby v. Merck & Co., Inc., and Cona v. Merck & Co., Inc., the New Jersey Superior Court Appellate Division on Monday ruled on two appeals involving products liability and consumer fraud claims against Merck. The appeals were heard...

Texas Supreme Court Applies Proportionate Responsibility Law to Implied Warranty Theory

Posted on July 01, 2008
JCW Electronics, Inc. v. Garza, a June 27 decision of the Texas Supreme Court, arose out of the death of Rolando Montez, who was arrested for public intoxication and jailed In the Port Isabel jail. He made a call to...

New European Commission Product Safety Report

Posted on June 09, 2008
An EU press release notes that on June 5, 2008, European Consumer Affairs Commissioner Meglena Kuneva presented a report by independent experts entitled "Evaluating Business Safety Measures in the Toy Supply Chain." The expert report is the culmination of a...

$6.2 Verdict Against Taser International

Posted on June 07, 2008
An article by Margaret Cronin Fisk in Bloomberg.Com notes that on Friday the plaintiffs in Heston v. City of Salinas, C 05-03658 JW (N.D. Cal. 2008), were awarded damages in a jury trial against Taser International Inc. in the amount...

New Jersey Supreme Court Holds Medical Monitoring Costs Unavailable in Products Liability Absent Manifest Injury

Posted on June 04, 2008
In Sinclair v. Merck & Co., decided June 4, the New Jersey Supreme Court held the New Jersey Products Liability Act does not permit the recovery of costs for medical monitoring where no manifest injury is alleged. The plaintiffs' amended...

Court of Civil Appeals of Texas Reverses Vioxx Case Judgment Against Merck & Co.

Posted on June 03, 2008
On May 29, the Court of Civil Appeals of Texas overturned a plaintiff's judgment in Merck & Co. v. Ernst, a Vioxx case tried in Brazoria County. The decedent's estate filed suit against Merck alleging that the decedent's ingestion of...

R.I. Supreme Court Will Webcast Arguments in Lead Paint Nuisance Appeal

Posted on May 13, 2008
The much-anticipated oral arguments in the various appeals in Rhode Island v. Lead Industries Association will be webcast over the internet on May 15, 2008. Arguments begin at 9:00 AM EDT. At trial, the defendants were found liable on a...

Second Circuit Rejects NYC's Nuisance Suit Against Gun Industry

Posted on May 12, 2008
The U.S. Court of Appeals for the Second Circuit has dismissed a public nuisance suit brought by New York City against gun manufacturers and wholesalers. The court reversed the federal trial court's ruling that the case fit within an exception...

Trial Court Adopts Colacicco Preemption Ruling

Posted on May 07, 2008
Adopting the recent ruling by the Third Circuit in Colacicco v. Apotex, Inc., 521 F.3d 523 (3rd CIr. 2008), a federal trial judge in Illinois has ruled that the U.S. Food & Drug Administration's repeated rejection of a scientific basis...

Consumer Product Safety Commission's "Safety Review" is Now Available

Posted on April 29, 2008
The Consumer Product Safety Commission's monthly electronic newsletter, "Safety Review," is now available. Click here to see it. MKS

$24.2 Million Verdict in Asbestos Suit Against Honeywell International

Posted on April 29, 2008
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...

Texas Supreme Court Holds Defective Lighter Claim Preempted by Consumer Product Safety Act

Posted on April 23, 2008
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...

China Publishes New Draft Food Safety law

Posted on April 21, 2008
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...

Arkansas Supreme Court Reverses No Preemption Finding in Light of Riegel

Posted on April 17, 2008
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...

U.S. Food & Drug Safety Officials Plan Office in China

Posted on April 17, 2008
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...

Restatement 3d, Products Liability - 10th Anniversary Symposium

Posted on April 16, 2008
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...

New York Appellate Court Overturns Negligent-Design Verdict Against Tobacco Companies

Posted on April 15, 2008
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...

FDA Drug Regulation Preempts Failure-to-Warn Claim

Posted on April 14, 2008
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...

Eighth Circuit Applies Minnesota Statute of Repose To Bar Recovery for Damages Caused by Ventilation Fan

Posted on April 09, 2008
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...

New York Court Rules Circumstantial Evidence of Product Defect Inadequate

Posted on April 08, 2008
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...

California Adopts Sophisticated User Doctrine in Failure-to-Warn Cases

Posted on April 07, 2008
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,...

Drug Companies May Be Liable for Off-Label Use of Third Parties' Generics

Posted on March 24, 2008
In a case of first impression in Pennsylvania, a trial judge has refused to grant the defendant drug companies' motion for summary judgment, ruling that those companies may be liable for money paid by patients to other drug companies making...

Supreme Court Upholds Preemption Claim Under Medical Device Amendments

Posted on February 20, 2008
The Supreme Court made it harder for consumers to sue manufacturers of federally-approved medical devices when it ruled in Riegel v. Medtronic that many state common law claims are preempted by federal law. Riegel was injured when a balloon catheter....

Third Circuit Certifies Strict Liability Bystander Recovery Case to Pennsylvania Supreme Court

Posted on February 07, 2008
Berrier v. Simplicity Manufacturing, Inc., No: 05-3621 (3d Cir. Jan. 17, 2008), arose out of injuries sustained by a four-year-old Ashley Berrier when her grandfather inadvertently backed over her foot while mowing his lawn with a riding mower manufactured by...

Teflon Paste Failure-to-Warn Claim Preempted by Medical Device Amendments

Posted on February 04, 2008
In yet another case, a court has ruled that a failure to warn claim regarding a Class III medical device is preempted by the FDA's approval of the product for sale. In Mathis v. E.I. dupont De Nemours & Co.,...

Tobacco Control Legal Consortium Newsletter Overview of Light Cigarette Lawsuits

Posted on February 04, 2008
The latest issue of Legal Update, the Tobacco Control Legal Consortium newsletter, is now available at www.tclconline.org. The issue includes the Legal Consortium?s most recent law synopsis, Light Cigarette Lawsuits in the United States: 2007, an overview of light cigarette...

Oregon Supreme Court Reaffirms $79.5 Punitive Damages Award in Williams

Posted on February 01, 2008
In an opinion issued today the Oregon Supreme Court reaffirmed a $79.5 million punitive damages award in Williams v. Philip Morris Inc., following remand by the Supreme Court in Philip Morris USA v. Williams, 127 S.Ct. 1057 (2007). This is...

Chinese Manufacturer of Tainted Cancer Drugs at Center of Nationwide Drug Scandal

Posted on February 01, 2008
A New York Times article by Jake Hooker and Walt Bogdanich Shanghai Hualian, a large Chinese state-owned pharmaceutical company that exported drugs to dozens of countries, including the U.S., has been the subject of a national drug scandal in China...

Gail Charnley's Qualifications for the Consumer Product Safety Commission

Posted on January 31, 2008
Dr. Gail Charnley is being considered as a potential replacement for Consumer Product Safety Commission chairman Nancy A. Nord, as noted in an earlier post. A short post doesn't give a full sense of qualifications. A full cv is attached...

Preemption of Prescription Drug Failure to Warn Claim Adds Emphasis to Supreme Court Term

Posted on January 30, 2008
A federal trial court in Okalahoma has concluded that a the claim of a widow, whose husband committed suicide while taking an anti-depressant medication, is preempted by federal law, Dobbs v. Wyeth Pharmaceuticals, 2008 WL 169021 (W.D. Okla.). Annabel Dobbs...

New York Court to Decide Defendant's Burden of Proof for Summary Judgment on "Defect" Question

Posted on January 29, 2008
The New York Court of Appeals will hear arguments in February in Ramos v. Howard Industries, Inc., to consider a manufacturer's burden of proof to establish in a motion for summary judgment that its product was not flawed or defectively...

White House Considering Consumer Product Safety Commission Candidates

Posted on January 29, 2008
Annys Shin reported in the Washington Post Saturday that the White House is considering Gail Charnley to replace Nancy A. Nord as chairman of the Consumer Product Safety Commission. Charnley, who has a doctorate in toxicology from MIT, has a...

Suicide Studies in Drug Trials Required by FDA

Posted on January 24, 2008
Gardiner Harris writes in today's New York Times that The FDA is now requiring drug companies to study closely the impact of the drugs on patients during clinical trials, and that "[t]he new rules represent one of the most profound...

Benzene Exposure Failure-to-warn Claim Preempted by OSHA Regulations

Posted on January 24, 2008
A Minnesota DIstrict Court dismissed a wrongful death action brought by the family of a former industrial worker against the makers of benzene-containing products to which he was allegedly exposed in his workplace. OSHA regulations that govern warning and labeling...

New Preemption Articles

Posted on January 21, 2008
There are two new articles covering preemption in products liability cases that should be of particular interest in light of the Supreme Court's decision last week to grant review in two preemption cases. Professor Catherine M. Sharkey of the New...

Supreme Court Grants Review in Vermont Supreme Court Preemption Case

Posted on January 18, 2008
The Supreme Court granted review on January 18 in Wyeth v. Levine, --- S.Ct. ----, 75 USLW 3500, 76 USLW 3018 (U.S.Vt. Jan 18, 2008) (NO. 06-1249) of the Vermont Supreme Court's decision in Levine v. Wyeth, --- A.2d ----,...

Supreme Court Grants Review in Light Cigarette Preemption Case

Posted on January 18, 2008
The Supreme Court granted review today in Altria Group v. Good. The plaintiffs in the case alleged that they smoked Marlboro Lights for at least fifteen years. They sued Philip Morris USA, Inc. and its parent company, Altria Group, Inc.,...

Minnesota Bridge Collapse Result of Design Flaw?

Posted on January 17, 2008
A National Transportation Safety Board's (NTSB) investigation has preliminarily concluded that the August 1, 2007 collapse of the Interstate-35W bridge in Minneapolis, Minnesota into the Mississippi River was due to a flaw in the bridge's original design and that there...

Hunting Tree Stand Manufacturer Agrees To Pay $420,000 Civil Penalt

Posted on January 13, 2008
The U.S. Consumer Product Safety Commission (CPSC) announced in a release on January 10 that a Wisconsin-based tree stand manufacturer, Ardisam Inc., of Cumberland, Wisconsin, has agreed to pay the government a $420,000 civil penalty. The penalty settles a government...

Florida Supreme Court Deadline for Smokers' Suits is Today

Posted on January 11, 2008
In Engle v. Liggett Group, Inc., 945 So.2d 1246 (Fla. 2006), the Supreme Court of Florida overturned a $145 billion punitive damages verdict against cigarette makers, decertifying a class action, but upholding jury findings that the companies were negligent and...

Tennesseee Supreme Court Hears Arguments in Mesothelioma Case Based on Second-Hand Exposure to Asbestos

Posted on January 11, 2008
The Tennessee Supreme Court heard arguments on January 8 in a case that will decide whether Alcoa Inc. is responsible for the asbestos-related death of a former worker's daughter who contracted mesothelioma because of second-hand exposure to asbestos dust brought...

Nancy Nord Emphasizes Retail Safety in National Press Club Speech

Posted on January 08, 2008
A Wall Street Journal article by M.P. McQueen summarizes Nancy Nord's National Press Club comments on January 7. The highlights: ? The News: The CPSC may increase scrutiny of retailers and require them to test products they sell to certify...

Chinese Product Safety Progress

Posted on January 07, 2008
An International Herald Tribune article notes that in China, a four-month product safety initiative, which was part crackdown and part public relations drive, ended in December. The initiative was in response to a variety of problems with Chinese products, including...

FDA to Clear Cloned Livestock

Posted on January 04, 2008
A Wall Street Journal article by Jane Zhang, John W. Miller and Lauren Etter notes that the FDA is expected to declare as early as next week that milk and meat from cloned animals and their offspring are safe for...

Seventh Circuit Affirms Judgment in Second Trial for Crane Rebuilder

Posted on January 04, 2008
Mesman v. Pro Crane Services, Inc., 2008 WL 36168 (7th Cir. 2008), decided January 2, was before the Seventh Circuit for a second time after the court had previously affirmed the district court's order for a new trial, 409 F.3d...

CPSC Announces Recall of Chinese-Manufactured Wagons Because of Excessive Lead Levels in the Paint

Posted on January 03, 2008
The Consumer Product Safety Commission announced the first voluntary recall of the year of a Chinese-manufactured toy, this time a metal toy wagon. About 15,000 of the units, red metal wagon model MH1250, were recalled by Tricam Industries because of...

CPSC Announces First Recall of New Year

Posted on January 02, 2008
The Consumer Product Safety Commission announced the first voluntary recall of the new year today. KYMCO Co. recalled all model year 2006-2008 MXU 500 ATVs. The recall included 1,350 units. The hazard statement was that "[t]he pivot bolts holding the...

"Dubious Data Awards" from STATS

Posted on January 02, 2008
A consumeraffairs.com article notes the year's "Dubious Data Awards" from STATS (non-profit Statistical Assessment Service), which is affiliated with George Mason University. It "highlights the top-ten abuses of science and statistics in the media," according to Don Rieck, STATS spokesperson...

A Congressional Push for Increased Product Safety

Posted on December 31, 2007
Jim Tankersley and Maurice Possley note in a Chicago Tribune article that "[a] year of recalls and lead scares in the toy industry is spurring Congress toward the largest overhaul in decades of the nation's product safety watchdog," and that...

"State Health Officials Fault Lack of Federal Action on Waterproofing Sprays"

Posted on December 29, 2007
A New York Times article by Eric Lipton says that "[t]he Consumer Product Safety Commission is unnecessarily leaving the American public at risk through its failure to properly investigate a long-running series of lung injuries tied to widely available waterproofing...

Ohio Supreme Court Upholds Statutory Caps on Punitive and Compensatory Damages Against Constitutional Attack

Posted on December 28, 2007
In Arbino v. Johnson, Slip Opinion No. 2007-Ohio-6948 (December 27, 2007), the Ohio Supreme Court upheld caps on damages from 2005 Ohio tort reform legislation in a 5-2 opinion. Chief Justice Moyer wrote for the court. Justice O'Donnell dissented in....

Shopping Channel HSN Agrees to Pay $875,000 Civil Penalty

Posted on December 27, 2007
On December 27, the Consumer Product Safety Commission announced that HSN LP (previously known as the Home Shopping Network) of St. Petersburg, Fla., agreed to pay a civil penalty of $875,000 in settlement of allegations that it failed to make...

Fifth Circuit Refuses to Permit Texas Plaintiff to Dismiss Accutane Case with No Prejudice to Avoid Texas Statute of Repose

Posted on December 27, 2007
A recent Fifth Circuit case provides a good illustration of the impact of conflicts of laws rules in products liability cases. In Hyde v. Hoffman LaRoche, Inc, 2007 WL 4441065 (5th Cir. Dec. 20, 2007), the plaintiff claimed that he...

What Happens After the Recall?

Posted on December 24, 2007
A New York Times article by Louise Story and David Barboza focuses on the aftermath of the recent recalls of lead-tainted products. The article notes that the recall is only the first step in the process. The second step is...

Medtronic to Settle Defibrillator Suits for $114.1 Million

Posted on December 22, 2007
A Minneapolis StarTribune article by Janet Moore today notes that on Friday, Medtronic Inc. said that it had reached a $95.6 million settlement of 2,682 lawsuits filed by patients who sued following a 2005 safety recall of one of the...

Out-of-State Lawsuits Flood Minnesota Courts

Posted on December 21, 2007
A recent ABA article, "Lawsuits Travel Up North," by Mark Hansen points out that Minnesota has become a haven for products liability lawsuits arising in other jurisdictions. Minnesota has longer statutes of limitations for negligence (six years) and strict liability...

American Tort Reform Association's New List of "Judicial Hellholes"

Posted on December 21, 2007
The American Tort Reform Association recently released its sixth annual "Judicial Hellholes" report. The Executive Summary defines hellholes as "places where judges systematically apply laws and court procedures in an inequitable manner, generally against defendants in civil lawsuits...

House of Representatives Passes Consumer Product Safety Modernization Act by a 407-0 Vote

Posted on December 20, 2007
On Wednesday the House of Representatives approved H.R. 4040, the Consumer Product Safety Modernization Act, by a 407-0 vote. The bill represents a comprehensive approach to improving consumer safety and provides for the first reauthorization of the Consumer Product Safety...