Articles Posted in Products Liability

The United States Supreme Court has ruled for the plaintiffs in a case involving an assertion of federal pre-emption in litigation involving whether selling "light" cigarettes was deceptive.

As pointed out in this article in the New York Times,

 "[t]he question before the court was not whether use of the term “light” amounted to fraud. It was, rather, whether plaintiffs should be allowed to sue at all given the federal Cigarette Labeling and Advertising Act, which required tobacco companies to place rotating warnings on their packaging and advertising."

The Insurance Institute for HIghway Safety has announced its TOP SAFETY PICKS for 2009.

The picks " recognize[ ] vehicles that do the best job of protecting people in front, side, and rear crashes based on good ratings in Institute tests. Winners also have to have electronic stability control (ESC), which research shows significantly reduces crash risk."

IIHS reminds us that "[f]ront and side impacts are the most common kinds of fatal crashes, killing about three-quarters of the 28,896 passenger vehicle occupants who died in 2007. Rear-end crashes usually aren’t fatal, but they result in a large proportion of crash injuries. Neck sprain or strain is the most commonly reported injury in two thirds of insurance claims for injuries in all kinds of crashes."

Paul Luvera is a highly-regarded trial lawyer from Seattle.  His blog has this great post on slogans (read: themes) for trying product liability cases for the plaintiff.

The Tennessee Supreme Court has released the opinion in Flax.  Stated briefly, the Court affirmed the dismissal of  the NIED claim and re-instated the remitted punitive damages for the wrongful death claim.

For the first time in my memory, the TSC released 4 opinions on the case.  Get the links to all of the opinions here.  Justice Holder wrote the majority opinion. 

Vehicle rollovers result in a significant number of fatalities every year, and there has been a vigorous debate about the roll that roof strength plays in those deaths. 

Now, a new study from the Insurance Institute for HIghtway Safety reveals that stronger roofs would save lives.  The study concludes as follows:

"Increased vehicle roof strength reduces the risk of fatal or incapacitating driver injury in single-vehicle rollover crashes. This finding contradicts those from two previous studies on the topic, but the present study more tightly controlled potential confounding factors. The study focused on midsize SUVs, but there is no obvious reason similar relationships would not be found for other vehicle types, although the magnitudes of injury rate reductions may differ. Any substantial upgrade to the FMVSS 216 roof strength requirement would produce reductions in fatal and incapacitating injuries that substantially exceed existing estimates."

The Tennessee Court of Appeals (Middle Section) has released an opinion in a products liability case.  As I have before, such decisions are few and far between and we can learn from everyone of them.

This decision is particularly important because it was authored by Judge (now Justice) Bill Koch.  It provides some insight into his views of compensatory and punitive damages.

The case is Duran v. Hyundai Motor America, Inc., No. M2006-00282-COA-R3-CV  (Feb. 13, 2008).  Read the opinion here.

There are relatively few products liability cases filed in Tennessee, very few actually tried, and even fewer appealed.

So, when a products case hits the appellate courts, we all learn.  And when  evidence issues are  discussed in a product liability opinion there is cause for absolute jubilation.

Sparks v. Mena  held that "the trial court erred in excluding evidence of other similar incidents involving actual or potential surgical injuries with the same model of device, and  … the trial court erred in excluding the testimony of plaintiff’s expert witness." 

General Mills Operations, a Wellston, Ohio, establishment, is voluntarily recalling approximately 3.3 million pounds of frozen meat pizza products because they may be contaminated with E. coli and may be linked to an outbreak of E. coli O157:H7 illnesses, the U.S. Department of Agriculture’s Food Safety and Inspection Service announced today.  Eight cases have been reported in Tennessee.

The products involved include the following:

The United States Supreme Court has agreed to decide "whether federal law pre-empts the product liability claims that diabetes patients filed in Michigan state court against pharmaceutical company Warner-Lambert & Co."    Read more here.

Ordinarily, product manufacturers have a duty to make and sell products that are reasonably safe and not defective.  If that is not reasonably possible, then the manufacturer has a duty to warn about defects or danger.  The  learned intermediary doctrine says that drug manufacturers owe no duty to warn consumers about the risks of consuming prescription drugs because the manufacturers can rely on the prescribing physician to do so.  Over twenty states follow this doctrine.  Tennessee  adopted the doctrine in Pittman v. Upjohn Co., 890 S.W.2d 425, 431 (Tenn. 1994)

But that ain’t the law in West Virginia no more.  In Johnson & Johnson Corporation v. Karl, No. 33211 (W.Va. June 27, 2007), a majority of the Supreme Court of Appeals said this:

In rejecting the application of the learned intermediary doctrine to drugs that had been the subject of direct-to-consumer advertising, the Supreme Court of New Jersey opined, and we agree, that such advertising obviates each of the premises upon which the doctrine rests: