Products Liability

December 23, 2010

Food Safety Bill Close to Becoming Law

Bill Marler has shared this summary of the new food safety legislation with us. Bill actively worked to get this bill passed.

· S. 510 is intended to respond to several food safety outbreaks in recent years by strengthening the authority of the Food and Drug Administration (FDA) and redoubling its efforts to prevent and respond to food safety concerns.

· The legislation expands current registration and inspection authority for FDA, and re-focuses FDA’s inspection regime based on risk assessments, such that high-risk facilities will be inspected more frequently. The bill also requires food processors to conduct a hazard analysis of their facilities and implement a plan to minimize those hazards.

October 28, 2010

Do Auto Safety Standards Save Lives?

by The Law Offices of John Day, P.C.

On Tuesday the 26th I posted about a NHTSA report on traffic safety. I saved for today a reference to what the organization believes is a major cause of the decrease in deaths and injuries in motor vehicle cases: safety regulations and programs imposed by state and federal governments.

Here is a summary of the findings on this point:

The long-term declining trend observed in fatalities since reaching a high in the early 1970s has occurred while significant vehicle and occupant safety regulations and programs were being enacted by NHTSA and the States. NHTSA-administered behavioral and vehicle safety programs, both in the crashworthiness and crash avoidance areas, and through the issuing of Federal Motor Vehicle Safety Standards has contributed tremendously to the long-term downward trend seen in motor vehicle traffic crash fatalities. In 2008, an estimated 244 lives were saved by the use of child restraints, 13,250 lives of people 5 and older were saved by seat belts, 2,546 lives of people 13 and older were saved by air bags, 1,829 lives were saved by the use of motorcycle helmets, and 714 lives were saved by minimum-drinking-age laws (NHTSA, 2009). Significant life-saving vehicle technologies like electronic stability control (ESC) have begun to penetrate the vehicle fleet. NHTSA estimates ESC would save 5,300 to 9,600 lives and prevent 156,000 to 238,000 injuries in all types of crashes annually once all light vehicles on the road are equipped with ESC (NHTSA, 2007).

July 1, 2010

Suit Against Google Maps Falls Short on Causation Element

by The Law Offices of John Day, P.C.

Hat tip to Abnormal Use: The Unreasonably Dangerous Products Liability Blog for advising me about this Utah lawsuit.

Apparently, a woman followed Google Maps walking directions on her Blackberry, walking across a four-lane highway where she was struck by an approaching vehicle. She sued Google; here is a copy of the suit.

Her lawyer says that the plaintiff f was walking in an area she had never been before, at a time when it was very dark, and that Google failed to warn the Plaintiff that walking routes may be missing sidewalks or pedestrian paths. Here is an image of the scene from Google. Google says that every software version for mobile devices has had a disclaimer that advises walkers to use caution since Google Maps was launched in 2008.

June 3, 2010

SCOTUS To Consider Seatbelt Preemption Case

by The Law Offices of John Day, P.C.

The United States Supreme Court has agreed to consider whether the family of a woman killed in a car accident should be permitted to bring suit against Mazda Motor Corp. alleging that the death was caused by the failure of Mazda to install three-point seatbelts in its 1993 MPV minivan.

Here are the questions presented in the case:

1. Where Congress has provided that compliance with a federal motor vehicle safety standard “does not exempt a person from liability at common law,” 49 U.S.C. § 30103(e), does a federal minimum safety standard allowing vehicle manufacturers to install either lap-only or lap/shoulder seatbelts in certain seating positions preempt a state common-law claim alleging that the manufacturer should have installed a lap/shoulder belt in one of those seating positions?

May 2, 2010

Johnson and Johnson Issues Massive Product Recall

by The Law Offices of John Day, P.C.

The good news is that a division of Johnson and Johnson appears to be acting promptly to solve a problem. The bad news is that the consumers who use the 43 recalled products for children and infants are going to be wondering if their children have suffered any harm from them..

Federal regulators have identified what they called deficiencies at a Johnson and Johnson manufacturing facility. The products include liquid versions of Tylenol, Motrin, Zyrtec and Benadryl. The FDA called the potential for health problems "remote."

This is from the J & J subsidiary’s press release on the subject:

March 28, 2010

Products Liability Judgment Against Ford Reversed

by The Law Offices of John Day, P.C.

The South Carolina Supreme Court has reversed a judgment for the plaintiffs in a case against Ford Motor Company. The plaintiffs claimed that the Ford Explorer in which they were riding had a defective cruise control and defective seat belts.

The court ruled that the trial judge should have excluded Bill Williams as an expert on cruise control diagnosis. The court also ruled that Dr. Anoty Anderson was not qualified to reliabily testify as to alternative designs and his theory concerning the cause of teh sudden acceleration.

Finally, the court ruled that certain claimed "other similar incidents" were not substantially similar.

March 25, 2010

Medical Helicopter Crash Near Brownsville, TN

by The Law Offices of John Day, P.C.

Various television stations are reporting that a medical helicopter crashed outside of Brownsville, Tennessee. The NTSB has sent a team to the scene.

Apparently, the company operating the helicopter was Memphis Medical Center Air Ambulance Service, Inc., also known as Hospital Wing.

The helicopter was a Eurocopter Astar AS350B3 model.

March 15, 2010

Form Protective Order For Use in Products Liability Case

by The Law Offices of John Day, P.C.

Tim Edwards of Memphis has kindly shared a protective order in a products liability case.

March 11, 2010

SCOTUS Will Hear Vaccine Case

by The Law Offices of John Day, P.C.

The United States Supreme Court has decided to hear Bruesewitz v. Wyeth, a case where the Bruesewitz family says there should be legal recourse beyond the administrative process set up by the National Childhood Vaccine Injury Act.

The minor plaintiff suffered seizures two hours after receiving her six-month DPT vaccine in 1992. The seizures caused permanent neurological damage. The Third Circuit Court of Appeals ruled against the Bruesewitz family.

The USSC docket number is 09-152. The issue is stated as follows:

February 15, 2010

Product Manufacturer Cannot Use Release Against Consumer

by The Law Offices of John Day, P.C.

This is an interesting decision out of Colorado.

Executive Tans operated an upright tanning booth manufactured by Sun Ergoline. Before using the booth, Savannah Boles signed a release form provided by Executive Tans that said as follows: “I have read the instructions for proper use of the tanning facilities and do so at my own risk and hereby release the owners, operators, franchiser, or manufacturers, from any damage or harm that I might incur due to use of the facilities.” After entering the booth, several of Boles’s fingers came in contact with an exhaust fan located at the top of the booth, partially amputating them.

The Colorado Supreme Court refused to allow the manufacturer of the tanning both to assert the release as a bar to the claim. The court rejected the traditional test for determining the enforceability of exculpatory agreements (similar but not identical to the test we use in Tennessee) and court explained that