Products Liability

September 14, 2009

Products Liability Case Settled

A settlement has been reached in Mohr v. Daimler Chrysler Corp., a products liability case which alleged defects in a 2000 Dodge Caravan.

The Court of Appeals affirmed almost $5,000,000 in compensatory damage awards for the death of the driver and front-seat passenger in the case. The court also affirmed a finding of no liability for injuries suffered by two passengers. The court reduced the punitive damage award from almost $49,000,000 to $13,800,000. A Rule 11 Application was pending before the Tennessee Supreme Court.

With interest, the judgment was over $26,000,000.

August 31, 2009

“New” Chrysler Steps Up to the Plate

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

New Chrysler (Chrysler Group LLC) has announced that it will be accepting product liability claims on vehicles manufactured by its predecessor, now known as Old Carco, but only for accidents occurring after June 10, 2009. Chrysler yielded to pressure from consumer groups that aggressively lobbied for a law requiring warning stickers on used Chrysler vehicles, an effort which would have reduced the value of the vehicles.

From the New Chrysler Press Release:

"We know a lot more about the viability of our business today than when we purchased Old Carco’s assets in its bankruptcy proceedings several months ago," said John Bozzella, Senior Vice President, External Affairs & Public Policy, Chrysler Group LLC. "While Chrysler Group still faces challenges, we are confident that the future viability of the company will not be threatened if we accept these claims."

August 22, 2009

CPSC Renews Warnings About Bassinets

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

The Consumer Product Safety Commission has renewed warnings to parents that certain bassinets made by Simplicty present a risk of death to children. From the press release:

[The CPSC] is once again urging all parents and caregivers to immediately stop using convertible "close-sleeper/bedside sleeper" bassinets manufactured by Simplicity Inc., of Reading, Pa. CPSC has learned of two additional infant deaths since the August 2008 safety alert and recall announcements that notified consumers of two infants who had strangled in their Simplicity bassinets. To date, CPSC is aware of four infants who have died in the close-sleeper bassinets.

Here is the problem:

August 20, 2009

AAJ Seminar: “Litigating Pharmaceutical and Medical Device Cases”

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

AAJ is sponsoring a pharmaceutical and medical device seminar at the Venetian in Las Vegas on September 24-25, 2009. The seminar, open only to AAJ members who represent plaintiffs, offers 11.25 CLE hours.

The seminar is an effort lead by AAJ’s Section on Toxic, Environmental, and Pharmaceutical Torts (STEP), which focuses on the toxic effects of pharmaceuticals, pesticides and herbicides, medical devices, consumer products, industrial pollution, and other environmental poisons.

The products that will be discussed include various heart devices, Hydroxycut, Avandia, pain pumps, asbestos, Paxil, and Gadolinium. There is also be a presentation on Chinese drywall.

July 30, 2009

Memphis BBQ Causes Salmonella Infections

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

For the last five or six years my friend Bill Marler, food poisoning lawyer extraordinaire, and I have worked together on food poisoning cases. Bill knows this area like the back of his hand and is widely understood to be the lawyer with the greatest expertise in this field.

One thing I really respect about Bill is that he still practices law at what I call the "retail" level. I contrast that with what I call lawyers who function as "wholesalers;" that is, lawyers who race to file personal injury cases as class actions (medical monitoring is different) and treat cases as "inventory." Bill actually cares about the people he represents, and despite the fact that he files cases across America (unfortunately there is a real food safety problem in America) and spends a lot of time in Washington DC speaking out for food safety he still is hands-on with clients and gives them the attention that they deserve.

Earlier today our firms filed a case on behalf of two people in Memphis who contracted salmonella poisoning after eating food served by A & R Barbecue in Memphis. Both plaintiffs, a father and his son, suffered acute kidney failure as a result of their Salmonella infections, and needed extensive medical treatment, including dialysis. Apparently twenty people were poisoned at this event. Read more about the litigation here.

July 10, 2009

Post-Sale Duties

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

The current Brooklyn Law Review contains this article 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

provides an overview of the Restatement (Third)’s post-sale duty sections. In addition, it discusses relevant case law and the impact of the Restatement (Third) on developing case law. Part II provides a background of the post-sale duty sections of the Restatement (Third). Parts III-IX look back to case law prior to the Restatement (Third) and analyze how courts at that time dealt with post-sale duty issues including negligence standards, post-sale knowledge, defect timing questions, identification of product users, the duty to inform of safety improvements, and the duty to recall. Part X examines case law decisions that post-date the Restatement (Third)’s drafting, divided according to whether the court accepted, rejected, or adopted some variation of the Restatement sections. And lastly, Part XI provides a brief discussion of regulatory post-sale duties.

July 7, 2009

West Virginia Rejects Claim That Ford Should Have Used Laminated Glass in Side Window

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

The Supreme Court of Appeals of West Virginia has ruled that a products liability claim was preempted by FMVSS 205, a safety standard that it says permits vehicle manufacturers to make a choice between tempered glass and laminated glass in side windows.

The court felt compelled to rely on Geier v. American Honda Motor Co., Inc., 529 U.S. 861 (2000), "the guiding law of the land," even though it felt that the decision was "flawed because it requires courts to look beyond the properly-enacted federal statute or law and divine an agency’s intent from extraneous materials to determine the preemptive effect of a regulation."

The bottom line: "the NHTSA gave manufacturers the option to choose to install either tempered glass or laminated glass in side windows of vehicles in FMVSS 205, permitting the plaintiff to proceed with a state tort action would foreclose that choice and would interfere with federal policy."

July 6, 2009

GM Allowed to Escape Responsibility to Victims in Pending Tort Cases

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

Here is a copy of the court order in the GM bankruptcy that makes tort victims stand in line with other general creditors of the company.

The discussion of successor liability issues begins on Page 50. Here is key language from Page 60 and 61:

This Court fully understands the circumstances of tort victims, and the fact that if they prevail in litigation and cannot look to New GM as an additional source of recovery, they may recover only modest amounts on any allowed claims—if, as is possible, they do not have other defendants who can also pay. But the law in this Circuit and District is clear; the Court will permit GM’s assets to pass to the purchaser free and clear of successor liability claims, and in that connection, will issue the requested findings and associated injunction. [Footnotes omitted.]

July 3, 2009

Post-Sales Duties

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

The current Brooklyn Law Review contains this article 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

provides an overview of the Restatement (Third)’s post-sale duty sections. In addition, it discusses relevant case law and the impact of the Restatement (Third) on developing case law. Part II provides a background of the post-sale duty sections of the Restatement (Third). Parts III-IX look back to case law prior to the Restatement (Third) and analyze how courts at that time dealt with post-sale duty issues including negligence standards, post-sale knowledge, defect timing questions, identification of product users, the duty to inform of safety improvements, and the duty to recall. Part X examines case law decisions that post-date the Restatement (Third)’s drafting, divided according to whether the court accepted, rejected, or adopted some variation of the Restatement sections. And lastly, Part XI provides a brief discussion of regulatory post-sale duties.

July 1, 2009

GM Will Reman Liable for Future Products Claims

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

The New York Times reports that General Motors wil not be let off the hook for future products liability claims when it emerges from bankruptcy.