Safety and Health Reporter
Brien Roche Law > Blog > Personal Injury > Product Liability Generally

Product Liability Generally

Fairfax Injury Lawyer Brien Roche Addresses Product Liability Generally

Brien Roche

Product Defects 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.

Product Liability 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.

See historic product liability cases and other related articles on this site.

Product Liability Statute of Limitations

Product liability statute of limitations were the subject of a recent 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.

Job Injuries Due To Product Defects

Job injuries due to product defects or product liability issues can be devastating. In any job related injury that is the result of some product defect it is critical to gain control of the equipment/product as quickly as possible.  In some cases if the piece of equipment is inexpensive it may be worthwhile to purchase it from the employer.

The OSHA investigation likewise is going to be critical.  The OSHA investigator may well be receptive to ideas from the attorney representing the injured worker.

These types of injuries can come in a number of different forms:

  • A uniform manufacturer may be liable if it fails to warn the employer of the frequency with which the uniform can be washed, in those instances where the washing may detract from the overall protective purpose of the uniform.
  • A manufacturer who has developed a complicated procedure to provide for the safe use of the product should know that it is highly foreseeable that some of those complicated steps in the safety procedure are not going to be followed.  As such, a backup safety mechanism needs to be built in to the device.  The failure to do that may constitute a product defect.
  • If a product has a hazard associated with it that cannot be eliminated by design, then a warning must be included with the machinery or product.  The failure to provide these adequate warnings or safety instructions may constitute negligence on the part of the supplier.

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

Comments are closed.

Contact Us For A Free Consultation

Product Liability Generally

Fairfax Injury Lawyer Brien Roche Addresses Product Liability Generally

Brien Roche

Product Defects 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.

Product Liability 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.

See historic product liability cases and other related articles on this site.

Product Liability Statute of Limitations

Product liability statute of limitations were the subject of a recent 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.

Job Injuries Due To Product Defects

Job injuries due to product defects or product liability issues can be devastating. In any job related injury that is the result of some product defect it is critical to gain control of the equipment/product as quickly as possible.  In some cases if the piece of equipment is inexpensive it may be worthwhile to purchase it from the employer.

The OSHA investigation likewise is going to be critical.  The OSHA investigator may well be receptive to ideas from the attorney representing the injured worker.

These types of injuries can come in a number of different forms:

  • A uniform manufacturer may be liable if it fails to warn the employer of the frequency with which the uniform can be washed, in those instances where the washing may detract from the overall protective purpose of the uniform.
  • A manufacturer who has developed a complicated procedure to provide for the safe use of the product should know that it is highly foreseeable that some of those complicated steps in the safety procedure are not going to be followed.  As such, a backup safety mechanism needs to be built in to the device.  The failure to do that may constitute a product defect.
  • If a product has a hazard associated with it that cannot be eliminated by design, then a warning must be included with the machinery or product.  The failure to provide these adequate warnings or safety instructions may constitute negligence on the part of the supplier.

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

Contact Us For A Free Consultation

Contact Us For A Free Consultation