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Product Defect Cases

Fairfax Injury Lawyer Brien Roche Addresses Product Defect Cases

Brien Roche

Product Defect Cases and Federal Preemption

The Preemption Doctrine states essentially that where the federal government has passed legislation and has intended to, so to speak, occupy that particular field then the 50 states cannot intervene in terms of passing legislation that might somehow be inconsistent with the federal statute.  The logic in federal preemption is that you do not want the 50 states passing laws that are inconsistent with what the federal government has done.  In January 2012 the U. S. Supreme Court in the case of National Meat Association v. Harris dealt with a federal preemption issue.  In that particular case there had been a number of revelations about slaughterhouse practices and as a result federal regulators issued a massive beef recall.  The federal government also proposed regulatory amendments to remove from the market any products that had been derived from what are called downer animals, i.e. animals that were unable to move and therefore potentially had mad cow disease or other types of serious illness.

The state of California, however, went a bit further than that in dealing with the issue and imposed a ban on the slaughter of any non-ambulatory animals for human consumption including pigs and also added certain requirements as  to how these animals were to be dealt with.

Within the Federal Meat Inspection Act there is a provision that precludes the 50 states from imposing requirements within the scope of the Act related to slaughterhouse premises, facilities and operations.  There is also a provision within the Act that states that it does not preclude any state from making requirements or taking other action consistent with the Act with respect to any other matters regulated under this Act.

The Supreme Court concluded that California’s new law added certain requirements and imposed certain obligations that were inconsistent with the federal mandates.  In effect, what the Supreme Court said is that the California law should have stopped at the slaughterhouse gates because the federal rules applied at the moment a truck carrying livestock entered or is in line to enter a slaughterhouse’s premises.

Although the particular case in question may have raised more questions than it answered, it reaffirmed the federal government’s assertion that where the federal government has acted legislatively and has intended to occupy a particular field then the states cannot intervene.

Many claims against medical device manufacturers may be barred due to the fact that the federal government has exclusively dominated the field through federal regulation.  That product liabilty preemption gives much weight to federal pronouncements on the product.

In the case of Gross v. Stryker Corp., 2012 WL 876719 (W.D. Pa. 2012) the plaintiff sued under state law theories alleging a defect in a medical device.  The Medical Device Amendments to the Federal Food Drug and Cosmetic Act (FDCA) does contain language that no state may establish any requirements for a medical device that is different from or in addition to any requirement imposed by the FDCA and that relate to the safety or effectiveness of the device.

In Gross, the Court decided that the plaintiff’s claim in this particular case was barred although the plaintiff conceivably could have been able to premise the claim on an allegation that the manufacturer breached federal regulations.  By making such an allegation there would be no inconsistency between the state claim and the federal regulations.

The plaintiff, however, in Gross did not do so.

The Statute of Limitations For Product Defect Cases

Product liability statute of limitations were the subject of a decision from the Second Circuit Court of Appeals in New York where it dealt with a claim asserted by Virginia plaintiffs against the manufacturer of Fosamax.  The claims themselves were determined to be time barred under the two-year Virginia product liability limitations. The plaintiffs, however, argued that the statute of limitations was tolled by the filing of a class action in New York state.  The Fourth Circuit Court of Appeals, dealing with a separate case, had determined that Virginia would not allow such equitable tolling on the basis of a federal class action filed outside of Virginia.

The Second Circuit certified that question to the Virginia Supreme Court to get an express determination from the Virginia Supreme Court as to whether the filing of a class action in New York state on behalf of Virginia plaintiffs would toll the statute of limitations as to those non-class state law claims, which had also been filed in New York state.

Conceivably a different limitation analysis may apply where the claim is based on breach of warranty although Virginia typically looks to the injury as what determines the limitation and not the cause of action.

For more information on statutes of limitations and a review of Virginia case law on statutes of limitations see the highlighted sections

Choice Of Law Provisions Need To Be Analyzed

More and more contracts contain mandatory arbitration clauses and also what are called choice-of-law clauses.  Any injury attorney handling product liability matters needs to be sensitive to the language of any pertinent contracts. A choice of law clause may seem very innocent to the consumer but they can be critical.  What the choice-of-law clause does is it attempts to dictate what state law is going to govern any controversy between the consumer or the plaintiff and the corporate entity that is the potential defendant.  Although we live in a United States we also live in 50 different states.  All of those states have dramatically different laws when it comes to such issues as product liability and ability to pursue class action claims.

Many courts over the last few years have become vigilant of these choice-of-law clauses that appear in consumer contracts.  These types of provisions may even appear in warranty provisions with products that are purchased.  That is, after a product is purchased there is typically a warranty card that needs to be sent in with a warranty agreement.  That warranty agreement may contain a choice-of-law clause.

Many states apply a rule that is found in a well recognized treatise known as the Restatement (second) of Conflict of Laws which essentially states that even though there may be a choice-of-law provision, that provision is not going to govern in those circumstances where the chosen state has no substantial relationship to the parties or to the transaction and there is no reasonable basis for the choice of that state or where the application of the law of that state chosen in the contract would be contrary to the fundamental policy of the state where the claim is being litigated.

In spite of that principle, consumers need to be wary of any contract or agreement that contains a choice of law provision as these are typically designed to protect manufacturers/sellers and not consumers.

Product Defect Disclosures

Product liability disclosure may apply to publicly traded corporations.  In the case of Matrixx Initiatives v. Siracusano the U. S. Supreme Court heard argument on January 10, 2011 about the issue of when a publicly traded company may have a duty to inform stockholders of a problem with its product that is likely to cause the stock prices to fall.

In regards to Matrixx, the company failed to disclose claims that in some users its nasal spray Zicam caused anosmia, the loss of sense of smell.  When this was disclosed on public television the stock  price dropped over $3.00 per share.

Shareholders maintain that Matrixx had been warned about such a possibility many years before the drop in stock prices.  Matrixx maintained that the number of complaints about the product was statistically insignificant compared to the number of times that the product was used successfully.

In the course of oral argument Justice Kagan posed the example of where a particular product caused blindness in 10 people and asked if that would be something subject to disclosure even though it may be statistically insignificant.  The Justice answered her own question by indicating that she would stop using the product and probably would sell the stock in that company if she owned stock.

A unanimous decision written by Justice Sotomayor on March 22,2011 was that investors may proceed with their lawsuit against the manufacturer of the cold remedy Zicam saying that the manufacturer should have disclosed that some who used the spray lost their sense of smell. When the disclosure was finally made by a doctor on national television the stock price nose dived. To prevail in the case the investors must prove that the manufacturer made the decision not to disclose in order to deceive or manipulate the market.

Inquiry should be made of the manufacturer as to whether any disclosures were made to the stockholders relating to the product in question.

Autos and Product Defect Cases

Automobile Safety Data

Automobile safety data is now more available due to the excellent work of a motor vehicle safety advocate in Massachusetts by the name of Sean Kane.  Mr. Kane has developed the Vehicle Safety Information Resource Center (VSIRC) which is a massive database of motor vehicle safety records and documents from a host of entities including the National Highway Traffic Safety Administration (NHTSA).

This database contains four basic categories of information including information about recalls, defects and investigations, consumer complaints and also crash compliance tests.

Within this database the user can research for a particular year, make or model and will also receive results for all substantially similar vehicles.  For instance, if your focus is on one particular model the VSIRC will also retrieve information on what are called model twins even though they may be made by a different manufacturer.

This database takes a great deal of the mystery out of searching the governmental websites, many of which are coded in such a way that unless you are familiar with the coding process you will never get a complete picture relating to any particular vehicle or issue.

See Vehicle Accident  and Car Accident litigation section of our site for more information on auto accidents.

Rollovers

Rollover injuries continue to be a problem with many vehicles The doctrine of crashworthiness is a component of product liability law which  was developed many years ago and is based upon the duty of auto manufacturers to protect occupants in foreseeable crashes.  The nature of the vehicle defects that may contribute to the injury of passengers in rollover cases are such things as inadequate roof and pillar strength, seat belts that unlatch, seat belts that do not properly hold the occupant, door latches and locks that fail allowing ejection of the passenger, lack of proper glazing of windows in the vehicle in order to keep occupants inside and finally lack of airbags that can prevent ejection.

A common culprit in these rollover cases is the 15 passenger van.  These vehicles were originally designed to carry cargo.  They are classified neither as passenger cars nor as school buses and as such are exempt from some federal standards.  When these vehicles became popular as passenger vehicles the manufacturers simply took the existing frame and added seating, windows and other elements to the vehicle.  The evidence has shown that these 15 passenger vans, in general, have a considerably higher rollover risk than do other light trucks or vans.  In particular, when the 15 passenger vans have 10 or more passengers then the rollover rate in single vehicle crashes is nearly three times the rate of those that were lightly loaded.

In looking at any rollover case there are several factors to be considered:

  • Roof crush.  The entire roof structure of any vehicle should be designed as a safety cage that will create a survival space for occupants.In evaluating roof crush it is important to determine if the testing done by the manufacturer reflects the dynamic forces in an actual rollover and did the testing account for the fact that the windshield frequently breaks before the roof collapses thereby dramatically reducing roof strength.
  • Seat belts.  Seat belts need to be 3 point belts containing both lap and shoulder components.  The restraint system should function to keep the passenger in the seat and away from the roof’s interior components and also to  prevent ejection.
  • Window glazing.   Laminated safety glass is proven to prevent passenger ejections.
  • Door latches.  The purpose of these door latches is to keep the doors closed so that passengers cannot be ejected.
  • Padding.  Padding is necessary as part of the roof component to provide protection should the occupant’s head strike the upper interior area.  Padding is also necessary around support pillars, side rails and in general has been shown to be  highly effective in reducing injuries.
  • Side curtain air bags.  Side curtain air bags are designed to stay inflated during  a rollover for six seconds or longer while the vehicle is actually rolling.

Rollover injuries due to high center of gravity are most common with 15-passenger vans, certain sport utility vehicles and certain types of Jeeps. Ford Motor is the leader in the 15-passenger van category.  When designing the van, Ford considered different configurations but opted to simply add another 20 inches to the back of the van for another seat.  This had the effect of increasing capacity load and putting additional rear overhang behind the rear axle.  The net effect of that was to move the van’s center of gravity up and rearward.  Ford’s own documents indicate that its engineers considered different designs that would have been superior to this approach.

In particular, these types of vehicles become more prone to instability when they are loaded with 10 or more passengers and/or loaded with cargo in particular cargo that may be strapped to the roof.

The National Highway Transportation Safety Administration (NHTSA) found that vans with 10 or more passengers were in fact three times more likely to roll over than vans with fewer than 10 passengers.  This same study indicated that, the 15-passenger van, when loaded to full capacity the rear tire bore over 65% of the vehicle’s weight.

Whether dealing with the 15-passenger van, a sport utility vehicle or certain jeeps the key is to lower the center of gravity.  In regards to the 15-passenger van, the most straight forward alternative is the addition of dual rear wheels which not only reduce the likelihood of loss of tire pressure on the real wheels but also reduce the overall center of gravity.

In regards to its passenger vehicles, Ford Motor has admitted that these vehicles must be designed to be safe and predictable even in the most severe accident-avoidance situations and that its vehicles are designed to forgive or, in extreme situations, to slide out rather than to roll over on flat level pavement.

The ongoing failure of many manufacturers to conform with the basic need for a lower center of gravity may be a basis for liability.

The National Highway Traffic Safety Administration (NHTSA) has issued a number of different regulations dealing with some of these issues.

Product Defect Cases Involving Tires

Tire defect cases require a knowledge of how tires are made. Any accident lawyer who handles auto crashes needs to be sensitive to the possibility of a tire defect contributing to the collision which may give rise to an independent product liability claim.

In any tire defect case the first step is to determine who is the manufacturer.  If this is not readily apparent from the remains of the tire, then some investigation needs to be done.  The Department of Transportation Number is normally on the tire on the axle side.  A manual known as Who Makes It and Where is available in most tire stores and will tell you who the manufacturer is based upon the Department of Transportation number.  This number will also tell you the plant where the tire was made and the date when the tire was manufactured.

A steel belted radial tire has several components consisting of the inner lining,two polyester body plies,two steel belts,two bead reinforcing strips,the sidewall rubber and a tread.These components are assembled in their uncured state and then are subjected to a vulcanization process involving extreme heat and pressure.

The different causes of tire failure are:

  • Tread separation.  Typically the top steel belt and tread become detached from the rest of the tire.
  • Sidewall failure.  A sidewall failure consisting of a hole or a split in the sidewall of the tire is frequently caused by underinflation or contact with a sharp object.  If that is the case, then this may be a difficult matter to proceed with.
  • Bead failures.  The bead is the part of the tire that comes in contact with the wheel.  It acts as an anchor holding the tire to the rim.
  • Ozone cracking.  This manifests itself by small cracks or breaks on the surface of the rubber.  This is frequently the result of manufacturer negligence.

Within the industry it is recognized that tires more than six years old present an increased risk. A manufacturer’s failure to warn of this may itself be a basis for liability.

Product Defect Cases Involving Seat Belts

Seat belt injury claims received a bit of a boost from the U. S. Supreme Court on February 23, 2011 when the Court ruled that a California case against Mazda, claiming that Mazda was liable for installing lap belts instead of lap and shoulder belts in its 1993 MPV minivan, could proceed.  The Court said that a federal regulation that allows auto manufacturers to elect what type of seat belt to install in minivans does not protect them from being sued if they pick one that is less safe.

In 1989 the Department of Transportation said that lap and shoulder belts were required for minivan front seats and rear outer seats but that companies had a choice of which belt to install for the rear middle and aisle seats.  These regulations were subsequently changed in 2007 to require lap and shoulder belts for all seats.  In this Mazda case the Supreme Court said that the Department of Transportation’s main reason for not requiring lap and shoulder belts was the cost factor.  The Court attempted to distinguish this case from the Geier case wherein it barred lawsuits over a car maker’s decision not to install airbags  in favor of some other restraining device.  Mazda in this case argued that to allow this suit to go forward would, in effect, deprive it of the choice of lap belts versus lap and shoulder belts.

A concurring opinion in this case cited the Safety Act which expressly states that compliance with a motor vehicle safety standard prescribed under this chapter does not create an exemption from liability.

Product Defect Cases Involving Power Windows

Power windows injuries involving children have been known to kill and injure children.  Having an attorney who is experienced with these types of product liability claims is critical.  The flaw in many of these types of windows is that the manufacturers install rocker or toggle switches which can then be contacted by a child who is sticking his or  her head out the window causing the window then to activate and go up.

There are several design changes that have been known to manufacturers for years that can easily eliminate that hazard:

  • putting the window switches on a center console
  • using recessed switches
  • installing an auto-reverse safety mechanism like what exists with elevator doors

In handling a claim like this several things are important:

  • the vehicle must be preserved
  • all family members and witnesses must be thoroughly interviewed
  • police reports must be obtained
  • the vehicle must be thoroughly inspected and photographed.

Product Defect Cases Involving Auto Glass

Auto glass defects cause injuries in failing to contain passengers and in allowing glass to become a projectile. Many side and rear windows and sunroofs  in motor vehicles are made of tempered glass.Tempered glass is different than laminated glass in that the tempered glass when it breaks it shatters and can become  flying instruments of death within a motor vehicle.  A laminated piece of glass however, when it breaks, tends to stay in place.  Front windshields on vehicles are now mandated to be made of laminated glass.  The importance of laminated glass is that not only does it not become a mechanism of further injury but it also serves to contain the occupants within the vehicle.  Occupants who remain inside the vehicle during an impact tend not to suffer the same traumatic injuries as those that are projected through the window opening.

The cost of providing side and rear windows with laminated glass is not excessive.  It is estimated to be approximately $1o0.00 per vehicle.  There is substantial government and private industry testing that shows the benefits of laminated glass.

Indeed, laminated glass was widely used back in the 1970’s and 1980’s on a number of American made vehicles.  In addition, the suppliers of laminated glass have long espoused the need for it in motor vehicles.

The argument to be made for laminated glass is the common sense notion that passengers in motor vehicles in the course of an  impact should not be exposed to jagged pieces of glass flying around in the interior of the vehicle.

If  you have been injured as a result of the lack of laminated glass in a vehicle that you are riding in, contact us.

Historic Product Defect Cases

Ford Pinto

You may have some recall of a famous product liability claim that was brought against Ford Motor Company many years ago relating to their Pinto automobile. Ford made an engineering decision to place the gas tank on the Pinto in the rear of the vehicle even though they knew that the placement of the gas tank in that location would result in serious injury to the occupants if the vehicle was involved in a rear end collision.

Documentation was produced during that litigation that established that Ford knew or should have known of that risk yet made a conscious decision to continue to keep those vehicles on the road because they felt that the overall financial benefit would weigh in their favor even though they recognized that they would have to pay several million dollars in claims as a result of injuries. The jury in that case returned a very substantial award against Ford Motor Company for compensatory damages for the injuries suffered by the plaintiff and also awarded punitive damages to punish Ford for it wrongful conduct in not taking the vehicles off the road or warning the public of the dangers.

McDonald’s Hot Coffee Case

Another fairly well known product liability case that has received a good deal of press coverage involved a McDonald’s restaurant. In that case, an elderly woman purchased a cup of coffee from a drive-in window at McDonald’s and then apparently placed that cup of coffee between her legs and subsequently spilled the coffee. The case received a good deal of attention because it was touted by the insurance industry as being an example of a runaway jury verdict.

In fact, the insurance industry failed to disclose to the public that in that particular case the plaintiff had made an attempt to settle the case for simply her medical bills which were substantial because she was hospitalized for over a week. McDonald’s however, refused to entertain any reasonable settlement offers. The evidence that was presented at trial was that McDonald’s had been warned on many occasions that their coffee was approximately twenty degrees hotter than what was recommended by the local health department and was so hot that it could cause third degree burns. In fact the coffee served by McDonald’s was not just hot (135 to 140 degrees) but at a 180 to 190 degrees was able to cook through all layers of skin within seven seconds.

McDonald’s admitted that its coffee was 40 to 50 degrees hotter than is fit for human consumption and knew that more than seven hundred people, including babies, had been burned by its coffee. McDonalds, however, refused to reduce the temperature of its coffee because it felt that it sold more coffee at that level than it would at a lesser temperature. The plaintiff in this case was an elderly woman who suffered third degree burns over six percent of her body. The state where that case was tried was a comparative negligence state and as such the jury having found the plaintiff partially negligent in terms of how she carried the coffee reduced her verdict by that proportion which was due to her own negligence. The jury in addition to awarding a compensatory damages also awarded punitive damages against McDonald’s equal to its gross receipts of two days of coffee sales in order to teach it a lesson. The actual verdict in that case was $200,000.00 for compensatory damages and $2.7 million dollars in punitive damages. The punitive damage award was reduced by the court on a post trial motion to $480,000.00.

As a result of that verdict, McDonald’s reduced the temperature of its coffee. That case was a product liability case in that the theory of recovery asserted by the plaintiff was that McDonald’s was negligent in selling a product (coffee) that was defective (i.e., too hot).

Product Liability As To Guns

Product liability based on guns and shooter liability issues are not only important for the legal community but also of pressing general concern to the public. 

The National Rifle Association (NRA) has taken the lead in opposing any sort of background check or federal registry for handgun purchases and handgun owners. 

The present federal law prohibits the establishment of a national gun registry. 

Some organizations that have traditionally been aligned with the NRA are now breaking away from that alignment. 

The National Shooting Sports Foundation has become a proponent of an effective complete background check. 

In addition, the trade group for the nation’s leading firearm manufacturers said it will not actively oppose the expansion of background checks which are designed to prevent guns from reaching criminals or the seriously mentally ill. 

In addition a substantial group of large city mayors have written to major gun manufacturers telling them that their localities may begin using economic pressure to force manufacturers to support increased regulation and background checks.  Big cities across the country spend millions of dollars per year on police weapons and ammunition. 

The specific plan that many of these proponents are looking for is a ban on assault weapons, new restrictions on gun trafficking and criminal background checks.

Gun manufacturers themselves are somewhat wary of breaking ranks with the NRA.  Smith & Wesson learned a long time ago that when it took a view contrary to that of the NRA, gun rights groups swiftly punished the company by urging dealers not to carry the company’s products, creating serious financial trouble for the company.

Gun store owners and retail dealers have generally been supportive of an expansion of background checks since they are already required to perform them and an expanded background check probably would increase business for many of these licensed dealers.

The National Rifle Association has not wavered from its position that any incremental changes in background checks or gun registration is designed simply to force people to register their guns which will eventually lead to the confiscation of guns. 

Another ongoing issue is whether background checks should extend to gun shows and other venues where they are not required.  The Fraternal Order of Police is now taking the position that these venues should be governed by background checks.

Guns In The Workplace

A Wall Street Journal article of October 16, 2013 dealt with the issue of workplace guns.  Starbucks made headlines when its chief executive requested that customers not bring guns into their stores.  Twenty-two (22) different states have passed laws that limit the ability of the store owners or other property owners from banning firearms in their parking lots.  There are also several states that ban employers from prohibiting employees from bringing guns into their parking lots although most do allow employers to prohibit guns in the workplace.

The people on the pro-gun side of the argument argue that increased carrying of guns improves safety.

The data is that in the year 2012 375 workers were killed in shootings on the job.  A 2005 study reported that workplaces that allowed guns were about 5 times more likely to have a worker get killed on the job compared to workplaces that prohibited all kinds of weapons.

In particular at large employers, managers have reason to worry that emotional disciplinary confrontations could turn into mayhem.

Wal-Mart, which does allow customers to bring handguns into their store where the law permits such, likewise has not taken any particular precautions in those states that prohibit guns in parking lots.

Costco on the other hand bans its members from bringing guns into their stores.

For more information on product liability see the pages on Wikipedia.
For more information on job injuries see the site herein dealing with construction accidents.

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Product Defect Cases

Fairfax Injury Lawyer Brien Roche Addresses Product Defect Cases

Brien Roche

Product Defect Cases and Federal Preemption

The Preemption Doctrine states essentially that where the federal government has passed legislation and has intended to, so to speak, occupy that particular field then the 50 states cannot intervene in terms of passing legislation that might somehow be inconsistent with the federal statute.  The logic in federal preemption is that you do not want the 50 states passing laws that are inconsistent with what the federal government has done.  In January 2012 the U. S. Supreme Court in the case of National Meat Association v. Harris dealt with a federal preemption issue.  In that particular case there had been a number of revelations about slaughterhouse practices and as a result federal regulators issued a massive beef recall.  The federal government also proposed regulatory amendments to remove from the market any products that had been derived from what are called downer animals, i.e. animals that were unable to move and therefore potentially had mad cow disease or other types of serious illness.

The state of California, however, went a bit further than that in dealing with the issue and imposed a ban on the slaughter of any non-ambulatory animals for human consumption including pigs and also added certain requirements as  to how these animals were to be dealt with.

Within the Federal Meat Inspection Act there is a provision that precludes the 50 states from imposing requirements within the scope of the Act related to slaughterhouse premises, facilities and operations.  There is also a provision within the Act that states that it does not preclude any state from making requirements or taking other action consistent with the Act with respect to any other matters regulated under this Act.

The Supreme Court concluded that California’s new law added certain requirements and imposed certain obligations that were inconsistent with the federal mandates.  In effect, what the Supreme Court said is that the California law should have stopped at the slaughterhouse gates because the federal rules applied at the moment a truck carrying livestock entered or is in line to enter a slaughterhouse’s premises.

Although the particular case in question may have raised more questions than it answered, it reaffirmed the federal government’s assertion that where the federal government has acted legislatively and has intended to occupy a particular field then the states cannot intervene.

Many claims against medical device manufacturers may be barred due to the fact that the federal government has exclusively dominated the field through federal regulation.  That product liabilty preemption gives much weight to federal pronouncements on the product.

In the case of Gross v. Stryker Corp., 2012 WL 876719 (W.D. Pa. 2012) the plaintiff sued under state law theories alleging a defect in a medical device.  The Medical Device Amendments to the Federal Food Drug and Cosmetic Act (FDCA) does contain language that no state may establish any requirements for a medical device that is different from or in addition to any requirement imposed by the FDCA and that relate to the safety or effectiveness of the device.

In Gross, the Court decided that the plaintiff’s claim in this particular case was barred although the plaintiff conceivably could have been able to premise the claim on an allegation that the manufacturer breached federal regulations.  By making such an allegation there would be no inconsistency between the state claim and the federal regulations.

The plaintiff, however, in Gross did not do so.

The Statute of Limitations For Product Defect Cases

Product liability statute of limitations were the subject of a decision from the Second Circuit Court of Appeals in New York where it dealt with a claim asserted by Virginia plaintiffs against the manufacturer of Fosamax.  The claims themselves were determined to be time barred under the two-year Virginia product liability limitations. The plaintiffs, however, argued that the statute of limitations was tolled by the filing of a class action in New York state.  The Fourth Circuit Court of Appeals, dealing with a separate case, had determined that Virginia would not allow such equitable tolling on the basis of a federal class action filed outside of Virginia.

The Second Circuit certified that question to the Virginia Supreme Court to get an express determination from the Virginia Supreme Court as to whether the filing of a class action in New York state on behalf of Virginia plaintiffs would toll the statute of limitations as to those non-class state law claims, which had also been filed in New York state.

Conceivably a different limitation analysis may apply where the claim is based on breach of warranty although Virginia typically looks to the injury as what determines the limitation and not the cause of action.

For more information on statutes of limitations and a review of Virginia case law on statutes of limitations see the highlighted sections

Choice Of Law Provisions Need To Be Analyzed

More and more contracts contain mandatory arbitration clauses and also what are called choice-of-law clauses.  Any injury attorney handling product liability matters needs to be sensitive to the language of any pertinent contracts. A choice of law clause may seem very innocent to the consumer but they can be critical.  What the choice-of-law clause does is it attempts to dictate what state law is going to govern any controversy between the consumer or the plaintiff and the corporate entity that is the potential defendant.  Although we live in a United States we also live in 50 different states.  All of those states have dramatically different laws when it comes to such issues as product liability and ability to pursue class action claims.

Many courts over the last few years have become vigilant of these choice-of-law clauses that appear in consumer contracts.  These types of provisions may even appear in warranty provisions with products that are purchased.  That is, after a product is purchased there is typically a warranty card that needs to be sent in with a warranty agreement.  That warranty agreement may contain a choice-of-law clause.

Many states apply a rule that is found in a well recognized treatise known as the Restatement (second) of Conflict of Laws which essentially states that even though there may be a choice-of-law provision, that provision is not going to govern in those circumstances where the chosen state has no substantial relationship to the parties or to the transaction and there is no reasonable basis for the choice of that state or where the application of the law of that state chosen in the contract would be contrary to the fundamental policy of the state where the claim is being litigated.

In spite of that principle, consumers need to be wary of any contract or agreement that contains a choice of law provision as these are typically designed to protect manufacturers/sellers and not consumers.

Product Defect Disclosures

Product liability disclosure may apply to publicly traded corporations.  In the case of Matrixx Initiatives v. Siracusano the U. S. Supreme Court heard argument on January 10, 2011 about the issue of when a publicly traded company may have a duty to inform stockholders of a problem with its product that is likely to cause the stock prices to fall.

In regards to Matrixx, the company failed to disclose claims that in some users its nasal spray Zicam caused anosmia, the loss of sense of smell.  When this was disclosed on public television the stock  price dropped over $3.00 per share.

Shareholders maintain that Matrixx had been warned about such a possibility many years before the drop in stock prices.  Matrixx maintained that the number of complaints about the product was statistically insignificant compared to the number of times that the product was used successfully.

In the course of oral argument Justice Kagan posed the example of where a particular product caused blindness in 10 people and asked if that would be something subject to disclosure even though it may be statistically insignificant.  The Justice answered her own question by indicating that she would stop using the product and probably would sell the stock in that company if she owned stock.

A unanimous decision written by Justice Sotomayor on March 22,2011 was that investors may proceed with their lawsuit against the manufacturer of the cold remedy Zicam saying that the manufacturer should have disclosed that some who used the spray lost their sense of smell. When the disclosure was finally made by a doctor on national television the stock price nose dived. To prevail in the case the investors must prove that the manufacturer made the decision not to disclose in order to deceive or manipulate the market.

Inquiry should be made of the manufacturer as to whether any disclosures were made to the stockholders relating to the product in question.

Autos and Product Defect Cases

Automobile Safety Data

Automobile safety data is now more available due to the excellent work of a motor vehicle safety advocate in Massachusetts by the name of Sean Kane.  Mr. Kane has developed the Vehicle Safety Information Resource Center (VSIRC) which is a massive database of motor vehicle safety records and documents from a host of entities including the National Highway Traffic Safety Administration (NHTSA).

This database contains four basic categories of information including information about recalls, defects and investigations, consumer complaints and also crash compliance tests.

Within this database the user can research for a particular year, make or model and will also receive results for all substantially similar vehicles.  For instance, if your focus is on one particular model the VSIRC will also retrieve information on what are called model twins even though they may be made by a different manufacturer.

This database takes a great deal of the mystery out of searching the governmental websites, many of which are coded in such a way that unless you are familiar with the coding process you will never get a complete picture relating to any particular vehicle or issue.

See Vehicle Accident  and Car Accident litigation section of our site for more information on auto accidents.

Rollovers

Rollover injuries continue to be a problem with many vehicles The doctrine of crashworthiness is a component of product liability law which  was developed many years ago and is based upon the duty of auto manufacturers to protect occupants in foreseeable crashes.  The nature of the vehicle defects that may contribute to the injury of passengers in rollover cases are such things as inadequate roof and pillar strength, seat belts that unlatch, seat belts that do not properly hold the occupant, door latches and locks that fail allowing ejection of the passenger, lack of proper glazing of windows in the vehicle in order to keep occupants inside and finally lack of airbags that can prevent ejection.

A common culprit in these rollover cases is the 15 passenger van.  These vehicles were originally designed to carry cargo.  They are classified neither as passenger cars nor as school buses and as such are exempt from some federal standards.  When these vehicles became popular as passenger vehicles the manufacturers simply took the existing frame and added seating, windows and other elements to the vehicle.  The evidence has shown that these 15 passenger vans, in general, have a considerably higher rollover risk than do other light trucks or vans.  In particular, when the 15 passenger vans have 10 or more passengers then the rollover rate in single vehicle crashes is nearly three times the rate of those that were lightly loaded.

In looking at any rollover case there are several factors to be considered:

  • Roof crush.  The entire roof structure of any vehicle should be designed as a safety cage that will create a survival space for occupants.In evaluating roof crush it is important to determine if the testing done by the manufacturer reflects the dynamic forces in an actual rollover and did the testing account for the fact that the windshield frequently breaks before the roof collapses thereby dramatically reducing roof strength.
  • Seat belts.  Seat belts need to be 3 point belts containing both lap and shoulder components.  The restraint system should function to keep the passenger in the seat and away from the roof’s interior components and also to  prevent ejection.
  • Window glazing.   Laminated safety glass is proven to prevent passenger ejections.
  • Door latches.  The purpose of these door latches is to keep the doors closed so that passengers cannot be ejected.
  • Padding.  Padding is necessary as part of the roof component to provide protection should the occupant’s head strike the upper interior area.  Padding is also necessary around support pillars, side rails and in general has been shown to be  highly effective in reducing injuries.
  • Side curtain air bags.  Side curtain air bags are designed to stay inflated during  a rollover for six seconds or longer while the vehicle is actually rolling.

Rollover injuries due to high center of gravity are most common with 15-passenger vans, certain sport utility vehicles and certain types of Jeeps. Ford Motor is the leader in the 15-passenger van category.  When designing the van, Ford considered different configurations but opted to simply add another 20 inches to the back of the van for another seat.  This had the effect of increasing capacity load and putting additional rear overhang behind the rear axle.  The net effect of that was to move the van’s center of gravity up and rearward.  Ford’s own documents indicate that its engineers considered different designs that would have been superior to this approach.

In particular, these types of vehicles become more prone to instability when they are loaded with 10 or more passengers and/or loaded with cargo in particular cargo that may be strapped to the roof.

The National Highway Transportation Safety Administration (NHTSA) found that vans with 10 or more passengers were in fact three times more likely to roll over than vans with fewer than 10 passengers.  This same study indicated that, the 15-passenger van, when loaded to full capacity the rear tire bore over 65% of the vehicle’s weight.

Whether dealing with the 15-passenger van, a sport utility vehicle or certain jeeps the key is to lower the center of gravity.  In regards to the 15-passenger van, the most straight forward alternative is the addition of dual rear wheels which not only reduce the likelihood of loss of tire pressure on the real wheels but also reduce the overall center of gravity.

In regards to its passenger vehicles, Ford Motor has admitted that these vehicles must be designed to be safe and predictable even in the most severe accident-avoidance situations and that its vehicles are designed to forgive or, in extreme situations, to slide out rather than to roll over on flat level pavement.

The ongoing failure of many manufacturers to conform with the basic need for a lower center of gravity may be a basis for liability.

The National Highway Traffic Safety Administration (NHTSA) has issued a number of different regulations dealing with some of these issues.

Product Defect Cases Involving Tires

Tire defect cases require a knowledge of how tires are made. Any accident lawyer who handles auto crashes needs to be sensitive to the possibility of a tire defect contributing to the collision which may give rise to an independent product liability claim.

In any tire defect case the first step is to determine who is the manufacturer.  If this is not readily apparent from the remains of the tire, then some investigation needs to be done.  The Department of Transportation Number is normally on the tire on the axle side.  A manual known as Who Makes It and Where is available in most tire stores and will tell you who the manufacturer is based upon the Department of Transportation number.  This number will also tell you the plant where the tire was made and the date when the tire was manufactured.

A steel belted radial tire has several components consisting of the inner lining,two polyester body plies,two steel belts,two bead reinforcing strips,the sidewall rubber and a tread.These components are assembled in their uncured state and then are subjected to a vulcanization process involving extreme heat and pressure.

The different causes of tire failure are:

  • Tread separation.  Typically the top steel belt and tread become detached from the rest of the tire.
  • Sidewall failure.  A sidewall failure consisting of a hole or a split in the sidewall of the tire is frequently caused by underinflation or contact with a sharp object.  If that is the case, then this may be a difficult matter to proceed with.
  • Bead failures.  The bead is the part of the tire that comes in contact with the wheel.  It acts as an anchor holding the tire to the rim.
  • Ozone cracking.  This manifests itself by small cracks or breaks on the surface of the rubber.  This is frequently the result of manufacturer negligence.

Within the industry it is recognized that tires more than six years old present an increased risk. A manufacturer’s failure to warn of this may itself be a basis for liability.

Product Defect Cases Involving Seat Belts

Seat belt injury claims received a bit of a boost from the U. S. Supreme Court on February 23, 2011 when the Court ruled that a California case against Mazda, claiming that Mazda was liable for installing lap belts instead of lap and shoulder belts in its 1993 MPV minivan, could proceed.  The Court said that a federal regulation that allows auto manufacturers to elect what type of seat belt to install in minivans does not protect them from being sued if they pick one that is less safe.

In 1989 the Department of Transportation said that lap and shoulder belts were required for minivan front seats and rear outer seats but that companies had a choice of which belt to install for the rear middle and aisle seats.  These regulations were subsequently changed in 2007 to require lap and shoulder belts for all seats.  In this Mazda case the Supreme Court said that the Department of Transportation’s main reason for not requiring lap and shoulder belts was the cost factor.  The Court attempted to distinguish this case from the Geier case wherein it barred lawsuits over a car maker’s decision not to install airbags  in favor of some other restraining device.  Mazda in this case argued that to allow this suit to go forward would, in effect, deprive it of the choice of lap belts versus lap and shoulder belts.

A concurring opinion in this case cited the Safety Act which expressly states that compliance with a motor vehicle safety standard prescribed under this chapter does not create an exemption from liability.

Product Defect Cases Involving Power Windows

Power windows injuries involving children have been known to kill and injure children.  Having an attorney who is experienced with these types of product liability claims is critical.  The flaw in many of these types of windows is that the manufacturers install rocker or toggle switches which can then be contacted by a child who is sticking his or  her head out the window causing the window then to activate and go up.

There are several design changes that have been known to manufacturers for years that can easily eliminate that hazard:

  • putting the window switches on a center console
  • using recessed switches
  • installing an auto-reverse safety mechanism like what exists with elevator doors

In handling a claim like this several things are important:

  • the vehicle must be preserved
  • all family members and witnesses must be thoroughly interviewed
  • police reports must be obtained
  • the vehicle must be thoroughly inspected and photographed.

Product Defect Cases Involving Auto Glass

Auto glass defects cause injuries in failing to contain passengers and in allowing glass to become a projectile. Many side and rear windows and sunroofs  in motor vehicles are made of tempered glass.Tempered glass is different than laminated glass in that the tempered glass when it breaks it shatters and can become  flying instruments of death within a motor vehicle.  A laminated piece of glass however, when it breaks, tends to stay in place.  Front windshields on vehicles are now mandated to be made of laminated glass.  The importance of laminated glass is that not only does it not become a mechanism of further injury but it also serves to contain the occupants within the vehicle.  Occupants who remain inside the vehicle during an impact tend not to suffer the same traumatic injuries as those that are projected through the window opening.

The cost of providing side and rear windows with laminated glass is not excessive.  It is estimated to be approximately $1o0.00 per vehicle.  There is substantial government and private industry testing that shows the benefits of laminated glass.

Indeed, laminated glass was widely used back in the 1970’s and 1980’s on a number of American made vehicles.  In addition, the suppliers of laminated glass have long espoused the need for it in motor vehicles.

The argument to be made for laminated glass is the common sense notion that passengers in motor vehicles in the course of an  impact should not be exposed to jagged pieces of glass flying around in the interior of the vehicle.

If  you have been injured as a result of the lack of laminated glass in a vehicle that you are riding in, contact us.

Historic Product Defect Cases

Ford Pinto

You may have some recall of a famous product liability claim that was brought against Ford Motor Company many years ago relating to their Pinto automobile. Ford made an engineering decision to place the gas tank on the Pinto in the rear of the vehicle even though they knew that the placement of the gas tank in that location would result in serious injury to the occupants if the vehicle was involved in a rear end collision.

Documentation was produced during that litigation that established that Ford knew or should have known of that risk yet made a conscious decision to continue to keep those vehicles on the road because they felt that the overall financial benefit would weigh in their favor even though they recognized that they would have to pay several million dollars in claims as a result of injuries. The jury in that case returned a very substantial award against Ford Motor Company for compensatory damages for the injuries suffered by the plaintiff and also awarded punitive damages to punish Ford for it wrongful conduct in not taking the vehicles off the road or warning the public of the dangers.

McDonald’s Hot Coffee Case

Another fairly well known product liability case that has received a good deal of press coverage involved a McDonald’s restaurant. In that case, an elderly woman purchased a cup of coffee from a drive-in window at McDonald’s and then apparently placed that cup of coffee between her legs and subsequently spilled the coffee. The case received a good deal of attention because it was touted by the insurance industry as being an example of a runaway jury verdict.

In fact, the insurance industry failed to disclose to the public that in that particular case the plaintiff had made an attempt to settle the case for simply her medical bills which were substantial because she was hospitalized for over a week. McDonald’s however, refused to entertain any reasonable settlement offers. The evidence that was presented at trial was that McDonald’s had been warned on many occasions that their coffee was approximately twenty degrees hotter than what was recommended by the local health department and was so hot that it could cause third degree burns. In fact the coffee served by McDonald’s was not just hot (135 to 140 degrees) but at a 180 to 190 degrees was able to cook through all layers of skin within seven seconds.

McDonald’s admitted that its coffee was 40 to 50 degrees hotter than is fit for human consumption and knew that more than seven hundred people, including babies, had been burned by its coffee. McDonalds, however, refused to reduce the temperature of its coffee because it felt that it sold more coffee at that level than it would at a lesser temperature. The plaintiff in this case was an elderly woman who suffered third degree burns over six percent of her body. The state where that case was tried was a comparative negligence state and as such the jury having found the plaintiff partially negligent in terms of how she carried the coffee reduced her verdict by that proportion which was due to her own negligence. The jury in addition to awarding a compensatory damages also awarded punitive damages against McDonald’s equal to its gross receipts of two days of coffee sales in order to teach it a lesson. The actual verdict in that case was $200,000.00 for compensatory damages and $2.7 million dollars in punitive damages. The punitive damage award was reduced by the court on a post trial motion to $480,000.00.

As a result of that verdict, McDonald’s reduced the temperature of its coffee. That case was a product liability case in that the theory of recovery asserted by the plaintiff was that McDonald’s was negligent in selling a product (coffee) that was defective (i.e., too hot).

Product Liability As To Guns

Product liability based on guns and shooter liability issues are not only important for the legal community but also of pressing general concern to the public. 

The National Rifle Association (NRA) has taken the lead in opposing any sort of background check or federal registry for handgun purchases and handgun owners. 

The present federal law prohibits the establishment of a national gun registry. 

Some organizations that have traditionally been aligned with the NRA are now breaking away from that alignment. 

The National Shooting Sports Foundation has become a proponent of an effective complete background check. 

In addition, the trade group for the nation’s leading firearm manufacturers said it will not actively oppose the expansion of background checks which are designed to prevent guns from reaching criminals or the seriously mentally ill. 

In addition a substantial group of large city mayors have written to major gun manufacturers telling them that their localities may begin using economic pressure to force manufacturers to support increased regulation and background checks.  Big cities across the country spend millions of dollars per year on police weapons and ammunition. 

The specific plan that many of these proponents are looking for is a ban on assault weapons, new restrictions on gun trafficking and criminal background checks.

Gun manufacturers themselves are somewhat wary of breaking ranks with the NRA.  Smith & Wesson learned a long time ago that when it took a view contrary to that of the NRA, gun rights groups swiftly punished the company by urging dealers not to carry the company’s products, creating serious financial trouble for the company.

Gun store owners and retail dealers have generally been supportive of an expansion of background checks since they are already required to perform them and an expanded background check probably would increase business for many of these licensed dealers.

The National Rifle Association has not wavered from its position that any incremental changes in background checks or gun registration is designed simply to force people to register their guns which will eventually lead to the confiscation of guns. 

Another ongoing issue is whether background checks should extend to gun shows and other venues where they are not required.  The Fraternal Order of Police is now taking the position that these venues should be governed by background checks.

Guns In The Workplace

A Wall Street Journal article of October 16, 2013 dealt with the issue of workplace guns.  Starbucks made headlines when its chief executive requested that customers not bring guns into their stores.  Twenty-two (22) different states have passed laws that limit the ability of the store owners or other property owners from banning firearms in their parking lots.  There are also several states that ban employers from prohibiting employees from bringing guns into their parking lots although most do allow employers to prohibit guns in the workplace.

The people on the pro-gun side of the argument argue that increased carrying of guns improves safety.

The data is that in the year 2012 375 workers were killed in shootings on the job.  A 2005 study reported that workplaces that allowed guns were about 5 times more likely to have a worker get killed on the job compared to workplaces that prohibited all kinds of weapons.

In particular at large employers, managers have reason to worry that emotional disciplinary confrontations could turn into mayhem.

Wal-Mart, which does allow customers to bring handguns into their store where the law permits such, likewise has not taken any particular precautions in those states that prohibit guns in parking lots.

Costco on the other hand bans its members from bringing guns into their stores.

For more information on product liability see the pages on Wikipedia.
For more information on job injuries see the site herein dealing with construction accidents.

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