Product Defect Cases

Brien Roche

This posting deals with a number of product liability issues not addressed in the other page by that name. Also see the page on human factors for more info.

Product Defect Cases and Federal Preemption

The Preemption Doctrine states that where the U.S. has passed laws or has intended to occupy a field then the 50 states cannot step in. In other words the states cannot pass laws that might step on the toes of what the U.S. is doing.   The logic is that you do not want the 50 states passing laws that impede what the U.S. is doing. 

Harris

In January 2012 the U. S. Supreme Court in the case of National Meat Association v. Harris dealt with this issue.  There had been a number of exposes about slaughterhouse practices. U.S. regulators issued a massive beef recall.  Also the feds proposed new rules to remove from the market any products that came from what are called downer animals. These are animals not able to move. These animals possibly had mad cow disease or other types of serious illness.

California Overreached

The state of California chose to impose a ban on the slaughter of any non-ambulatory animals for human use. This included pigs. Also they required these downers be dealt with in a certain way.

Within the Federal Meat Inspection Act there is language that precludes the 50 states from passing laws or rules related to slaughterhouse premises, facilities and operations.  There is also a part of the Act that states that it does not preclude any state from taking other action consistent with the Act.

U.S. Supreme

The Supreme Court concluded that California’s action imposed certain duties in conflict with the U.S. mandates.  California should have stopped at the slaughterhouse gates. Inside the gates the U.S. was supreme. The states could not meddle. The doctrine is called federal preemption or federal supremacy. Call, or contact us for a free consult.

This case affirmed the practice that where the U.S. has acted and intended to occupy a field then the states cannot intervene.

Medical Devices

Many claims against medical device makers involve this concept. As a result they may be barred due to the fact that the U.S. has dominated the field through rule making.   That control gives much weight to any federal action on the product. The chance of preemption applying to these devices is a function of the danger posed. The greater the danger posed by the product the greater the chance of FDA involvement. The more FDA involvement the greater the chance of preemption.

Supremacy

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) contain language that no state may set any requirement for a medical device, relating to safety or effectiveness, that is different from or in addition to anything required by the FDCA.

The Court decided in Gross that the plaintiff’s claim  was barred. However the plaintiff could have based the claim on the theory that the maker breached the U.S. rules. By alleging such there would be no inconsistency between the state claim and the U.S. rules.

However the plaintiff in Gross did not do so.

The Statute of Limitations For Product Defect Cases

Product liability statute of limitations in Virginia is two years in most cases. There may be some exceptions.

A different statute may apply where the claim is based on breach of warranty. However Virginia looks to the date of damage as being the trigger to the limitation. In other words the statute does not begin to run based on the cause of action. It begins to run when the plaintiff suffers some damage.

For more information on statutes of limitations and a review of Virginia case law on statutes of limitations see the highlighted sections. Call, or contact us for a free consult.

Choice Of Law Provisions Need To Be Analyzed

Many contracts contain clauses that require you to arbitrate any dispte you have with the other party. Also most contracts have choice-of-law clauses.  These clauses state what law will be used by a court if the contract is subject to dispute.

Any injury lawyer handling product defect matters needs to be attuned to this language. A choice of law clause may seem innocent. However they can be deadly.  Although we live in the United States we also live in 50 different states.  All of those states have different laws. When it comes to product liability and the ability to pursue class action claims the choice of law can be fatal.

Consumer Contracts

Many courts have taken a closer look at these choice-of-law clauses in consumer contracts.  These clauses may appear in warranties for products. In other words the warranty card that needs to be sent in may contain a choice-of-law clause.

Many states apply a rule that is found in the Restatement (Second) of Conflict of Laws. This legal treatise states that even though there may be a choice-of-law clause it is not going to govern where the chosen state has no substantial relation to the parties or to the product. Likewise if there is no reasonable basis for the choice of that state or the law of that state is contrary to the policy of the state where the suit is pending then the choice may be voided.

As a result consumers need to be wary of any contract that contains a choice of law clause. These are most often designed to protect sellers and not consumers. Call, or contact us for a free consult.

Product Defect Disclosures

Corporations that are publicly traded on the stock market may be obliged to disclose to their shareholders known defects in their products. In Matrixx Initiatives v. Siracusano the U. S. Supreme Court reviewed the issue of when a publicly traded company has a duty to inform stockholders of a problem with its product that is likely to cause the stock prices to fall.

In Matrixx, the company failed to disclose claims that its nasal spray Zicam could cause the loss of sense of smell.  When this was disclosed the stock  price dropped over $3.00 per share.

Shareholders Have A Right To Know

Shareholders maintained that Matrixx had been warned about this claim many years before. Matrixx said the number of complaints about the product was small compared to the number of times that the product was used without event.
Justice Kagan posed the example of where a particular product caused blindness in 10 people. She asked if that would be subject to disclosure even though the number is small.  She answered her own question by stating she would stop using the product and probably would sell her stock.

A unanimous decision written by Justice Sotomayor on March 22,2011 was that investors may proceed with their lawsuit. The trial court would have to decide if the maker should have disclosed this problem. To prevail in the case the investors must prove that the maker did not disclose in order to deceive or manipulate the market.

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. His name is Sean Kane.  Mr. Kane has developed the Vehicle Safety Information Resource Center (VSIRC). This is a massive database of motor vehicle safety records. Also it includes documents from a host of entities including the National Highway Traffic Safety Administration (NHTSA).

This database contains four basic categories of info. They are recalls, defects and investigations, consumer complaints and crash compliance tests.

Data On Similar Cars

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

This database takes a great deal of the unknown out of searching government websites. Many of these sites are coded. Unless you are aware of the coding process you will never get a complete picture relating to your question.

See Vehicle Accident  and Car Accident litigation page of our site for more information on auto accidents. Call, or contact us for a free consult.

Rollovers

Rollovers continue to be a problem with many vehicles. The doctrine of crashworthiness is a part of product liability law. It was developed many years ago. It is based upon the duty of auto makers to protect occupants in foreseeable crashes.  The nature of the defects that may cause injury to passengers are inadequate roof and pillar strength, seat belts that unlatch or seat belts that do not properly hold the occupant. In addition there may be door latches and locks that fail allowing ejection. There may be lack of proper glazing of windows that otherwise would keep occupants inside. Finally there may be lack of airbags that can prevent ejection.

Vans

A common culprit in these rollover cases is the 15 passenger van.  These vans were originally designed to carry cargo.  They are classified neither as passenger cars nor as school buses. As a result they are exempt from some U.S. standards. These 15 passenger vans have a higher rollover risk than do other light trucks or vans.  In addition when they 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 many factors to be looked at:

Construction

• Roof crush.  The entire roof structure should be designed as a safety cage. It should create a survival space for occupants. You need to know if the testing done by the maker reflects the dynamic forces in an actual rollover. Did the testing account for the fact that the windshield may break before the roof collapses. This reduces roof strength.
• Seat belts.  Seat belts need to be 3 point belts. They need both lap and shoulder components.  The restraint system should function to keep the passenger in the seat and away from the roof. This also prevents ejection.
• Window glazing.   Laminated safety glass prevents passenger ejections.

Latches,Padding, Airbags

• Door latches.  The purpose is to keep the doors closed so that passengers are not ejected.
• Padding.  Padding is necessary as part of the roof to protect the occupant’s head.  It is also needed around support pillars and side rails.
• Side curtain air bags.  These are designed to stay inflated during  a rollover for six seconds or longer while the vehicle is actually rolling.

High Center Of Gravity

Rollover injuries due to high center of gravity are most common with these vans, certain sport utility vehicles and certain types of Jeeps. Ford Motor is the leader in the 15-passenger vans.  When designing the van, Ford opted to add another 20 inches to the back of the van for another seat.  This had the effect of increasing the load. In addition it put more rear overhang behind the rear axle.  The effect was to move the van’s center of gravity up and rearward.  Ford’s own documents show that its engineers looked at other designs that would have been safer.

Increased Load

Loading with cargo strapped to the roof makes these vans more unstable.

The National Highway Transportation Safety Administration (NHTSA) found that when the 15-passenger van was loaded to full capacity the rear tire bore over 65% of the weight.

Whether dealing with this van, a sport utility vehicle or certain jeeps the key is to lower the center of gravity.  The most straight forward way is the addition of dual rear wheels. Also this reduces the chance of loss of tire pressure on the real wheels.In addition it reduces the overall center of gravity. The failure of many makers 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. Call, or contact us for a free consult.

Product Defect Cases Involving Tires

Tire defect cases require knowledge of how tires are made. A tire defect contributing to the crash may give rise to a product liability claim.

In any tire defect case the first step is to find out who is the maker. If this is not seen from the remains of the tire then further inquiry needs to be done.  The Department of Transportation Number is normally on the tire on the axle side.  A book known as Who Makes It and Where is in most tire stores. It will tell you who the maker is based upon the DOT number.  This number will also tell you the plant where the tire was made and the date when made.

Parts Of The Tire

A steel belted radial tire has several parts. The inner lining, two polyester body plies, two steel belts, two bead reinforcing strips, the sidewall rubber and a tread.These parts are assembled in their uncured state. Then they are put through a vulcanization process involving extreme heat and pressure.

Causes Of Failure

The different causes of tire failure are:

• Tread separation.  The top steel belt and tread may become detached from the rest of the tire.
• Sidewall failure.  This may consist of a hole or a split in the sidewall caused by under inflation or contact with a sharp object.  If that is the case, then this may be a tough case 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 shows itself by small cracks or breaks on the surface of the rubber.  This is may be the result of maker error.

Tires more than six years old present an increased risk. A maker’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 boost from the U. S. Supreme Court on February 23, 2011. The Court ruled that a 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 U.S. rule that allows auto makers to elect the type of seat belt in minivans does not protect them from being sued if they pick one that is less safe.

In 1989 the DOT said that lap and shoulder belts were required for minivan front seats and rear outer seats. Makers had a choice of which belt to install for the rear middle and aisle seats.  These rules were later changed in 2007 to require lap and shoulder belts for all seats.  The Supreme Court said that the DOT’s main reason for not requiring lap and shoulder belts was the cost factor.  Call, or contact us for a free consult.

Product Defect Cases Involving Power Windows

Power windows 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 makers install rocker or toggle switches which can be contacted by a child who is sticking his head out the window. This causes the window to activate and go up.

Design Changes

There are several design changes that have been known to makers that remove 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 keep passengers in and in allowing glass to project inward. Many side and rear windows and sunroofs  are made of tempered glass. Tempered glass is different than laminated glass. Tempered glass when it breaks it shatters. It can become  a flying instrument of death.

However laminated glass when it breaks, tends to stay in place.  Front windshields are now mandated to be made of laminated glass.  In addition it serves to contain the occupants.  Occupants who remain inside during an impact tend not to suffer the same traumatic injuries as those that are projected through a window.

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. It related to their Pinto automobile. Ford decided to place the gas tank on the Pinto in the rear. They knew that the gas tank in that spot would result in death or serious injury to the occupants if the car was rear ended.

Documents showed that Ford knew or should have known of that risk. However Ford decided to keep the cars on the road. They felt that the overall financial benefit would weigh in their favor. They knew they would have to pay several million dollars in claims as a result of injuries. The jury in that case returned a large award against Ford for the injuries suffered and also punitive damages to punish Ford for it wrongful conduct. It should have warned the public or taken the cars off the road.

McDonald’s Hot Coffee Case

Another well known product liability case is the McDonald’s case. An elderly woman purchased a cup of coffee from a drive-in window. She then placed that cup of coffee between her legs. The cup spilled. The case was touted by the insurance industry as being an example of a runaway jury system.

However what they failed to disclose was that the plaintiff had made an attempt to settle the case for her medical bills which were substantial. She was hospitalized for over a week. McDonald’s chose not to settle. McDonald’s had been warned many times that their coffee was twenty degrees hotter than what was recommended by the local health department. Furthermore it so hot that it could cause third degree burns. It 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.

Hot Means More Sales

McDonald’s admitted that its coffee was 40 to 50 degrees hotter than is fit for human consumption. It knew that more than seven hundred people, including babies, had been burned by its coffee. However McDonalds refused to reduce the temperature of its coffee. It felt that it sold more coffee at that level than it would at a lesser temperature. An elderly woman who suffered third degree burns over six percent of her body was the one bringing this claim.

The state where that case was tried was a comparative negligence state. The jury found the plaintiff partially at fault in terms of how she carried the coffee. Her verdict was reduced by that percent which was due to her own fault. In addition the jury awarded punitive damages equal to McDonald’s gross receipts of two days of coffee sales. This was to teach it a lesson. The actual verdict 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.

A Lesson Learned

As a result of that verdict, McDonald’s reduced the temperature of its coffee. That case was a product liability case. The theory of recovery was that McDonald’s was negligent. It was selling a product (coffee) that was defective i.e., too hot. Call, or contact us for a free consult.

Product Liability As To Guns

Product liability based on guns and shooter liability issues are of pressing concern.
The National Rifle Association (NRA) has taken the lead in opposing any background check or U.S. registry for handgun purchases and handgun owners.  The present federal law prohibits a national gun registry. 

Breaking Ranks

Some groups that have been aligned with the NRA are now breaking away. 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 makers has said it will not actively oppose the expansion of background checks. These checks are designed to prevent guns from reaching criminals or the mentally ill. 

In addition a group of large city mayors has written to major gun makers telling them that they may begin using economic pressure to force makers to support increased regulation and background checks.  Big cities spend millions of dollars per year on police weapons and ammunition. 

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

Gun makers are wary of breaking ranks with the NRA.  Smith & Wesson learned a tough lesson a long time ago. It took a view contrary to that of the NRA. Gun rights groups swiftly punished them. They urged dealers not to carry their products. As a result this created serious trouble for S&W.

Registration

Gun store owners and retail dealers have generally supported an expansion of background checks. However the NRA maintains that any small changes in background checks or gun registry is designed to force people to register their guns.

Another ongoing issue is whether background checks should extend to gun shows and other venues. The Fraternal Order of Police says 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 store owners or other property owners from banning firearms in their parking lots.  Also there are several states that ban employers from prohibiting employees from bringing guns into their parking lots. However most do allow employers to prohibit guns in the workplace.

Volatile Places

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

In the year 2012 375 workers were killed in shootings on the job.  Also 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.

At large employers, managers have reason to worry that workplace disputes could turn into mayhem.

Wal-Mart does allow customers to bring handguns into their stores where the law permits such. However Costco bans its members from bringing guns into their stores.

Call, or contact us for a free consult. Also for more information on product liability see the pages on Wikipedia.
In addition for more information on job injuries see the site herein dealing with construction accidents.