Not only are these tasty treats two of my favorite indulgences, but they are the subjects of two pending products liability actions.

On May 13, 2010, New York resident Mirko Carrea (“Carrea“) filed a lawsuit in the U.S. District Court for the Northern District of California. Carrea, on behalf of himself and a nationwide class of consumers, alleged that Dreyer’s Grand Ice Cream labels are misleading and could deceive a reasonable consumer into believing that their products are healthier than they truly are. Carrea v. Dreyer’s Ice Cream, No. 3:10-1044, amended complaint filed (N.D. Cal. May 13, 2010). The Federal Drug Administration provided that a product with more than 13 grams of total fat or 4 grams of saturated fat cannot claim to be trans-fat-free. Carrea takes issue with the fact that nothing on the Dreyer’s Drumstick ice cream cone directs a consumer to the nutritional information, even though it contains 19 grams of fat and 10 grams of saturated fat. Carrea also takes issue with the fact that the label uses the work “original” and the ingredients when this product was first made differs from the ingredients used today. Carrea seeks restitution of funds gained through this alleged “false advertising” and an injunction to stop marketing in this manner.

Another interesting suit was filed on May 3, 2010 by Agnes Mercado (“Mercado”), a New York women, who asserted that she ate two to three bags of popcorn a day for about 16 years and, as a result, developed severe lung disease that may require a lung transplant. Mercado v. ConAgra Foods Inc., et al., No. 11069/10, complaint filed (N.Y. Supreme Ct., Queens County May 3, 2010). Mercado filed suit against ConAgra and Givaudan Flavors Corp., manufacturers of the butter flavoring diacetyl added to the popcorn. She alleges that the diacetyl causes “serious debilitating” respiratory illnesses. Mercado’s complaint alleges negligence, defective design, failure to warn and breach of warranty. She is seeking $100 million in compensatory damages and punitive damages.

Two thoughts – ice cream is not “healthy” in any form and 2 to 3 bags of popcorn a day for 16 years, she must be acquaintances with the Plaintiff we wrote about in our A Can of Tuna a Day post. Both of these action will be interesting to follow to see how at least two courts address claims by Plaintiffs seeking damages for what likely are open and obvious risks?

MTD moved for summary judgment on the grounds that there was no evidence that the mower was defective, Mavity unforeseeably misused the product, the hazard was open and obvious, and there was no failure to warn that made the product unreasonably dangerous.

Rulings against MTD kept on coming. Judge Jones granted Mavity’s motion to prevent MTD from offering evidence of the alleged intervening negligence of the doctors that treated Mavity after the accident. The Court reasoned that “the initial medical treatment of Mavity was a reasonably foreseeable result of the initial accident [and any] third-party negligence is thus irrelevant to Mavity’s claim against MTD and must be excluded from the jury.” The Court also rejected MTD’s motion to exclude approximately 500 documents listed as “sources” by Mavity’s expert in evaluating whether the mower was defectively designed. While the Court found that these documents were of limited value, it provided that the parties could challenge trial exhibits at a later time.

With seemingly credible expert testimony on design defect and failure to warn, Mavity was able to get past MTD’s motion for summary judgment and have a jury of his peers decide his case. This case is instructive to defendants that seek summary judgment in the face of expert evidence to the contrary.

Over the past several weeks, the U.S. Consumer Product Safety Commission (“CPSC“) issued new federal safety standards for the manufacture and importation of infant bath seats and infant baby walkers. These mandatory rules were prompted by Section 104 of the Consumer Product Safety Improvement Act (“CPSIA“), which requires the Commission to “study and develop safety standards for infant and toddler products” and either make the voluntary safety standards mandatory or impose a stricter standard.

Section 104 of the CPSIA applies to the following products: “full-size cribs and non full-size cribs; toddler beds; high chairs, booster chairs, hook on chairs; bath seats; gates and other enclosures for confining a child; play yards; stationary activity centers; infant carriers; strollers; walkers; swings; and bassinets and cradles.” This section does not allow the Commission to develop safety standards “as they see fit” or “on their own time,” it directed the Commission to “begin two rulemakings by August 14, 2009 and promulgate two more rules every six months until all products have mandatory safety standards.” According to the CPSC press release on May 20, 2010, “[t]he federal standard for infant bath seats is the first mandatory standard issued by CPSC as required under the [CPSIA] for a range of infant and toddler durable products.”

With respect to the infant bath seats, the CPSC voted 5-0 in favor of imposing a stricter standard than the current ASTM voluntary standard. This standard added the following:

stricter stability requirements to prevent the bath seat from tipping over, tighter leg opening requirements to prevent children from slipping through the leg openings and a larger permanent warning label alerting parents and caregivers that bath seats are not safety devices and that infants should never be left unattended in a bath seat.

The final mandatory rule for infant baby walkers also imposes additional requirements to the ASTM voluntary standard, including the following:

using the actual weight of a walker in a calculation to determine the launching distance for the stair fall test, specifying equipment used in the stair fall test, adding a parking brake test for walkers equipped with parking brakes.

These standards will become effective six months after publication to the Federal Register and bath seats or walkers manufactured or imported after that date must comply with these standards. Interestingly, the CPSC noted that no baby bath seat currently on the market complies with the new mandatory standard.

What we can expect is a number new mandatory standards for the types of products listed above. As with bath seats and walkers, the CPSC will likely impose additional standards beyond the voluntary ASTM standards. Counsel and management for companies selling these types of products need to be on the look out for these changing standards as to avoid non-compliance and hefty fines by the CPSC.

As we previously reported here, harm covered by New Jersey’s Products Liability Act (“PLA“) may not be redressed through a claim under New Jersey’s Consumer Fraud Act (“CFA“). However, based on a recent opinion from the United States District of New Jersey, practitioners should be aware that there are no hard and fast rules for early dismissal when a plaintiff asserts claims under both the PLA and CFA. Shannon v. Howmedica Osteonics Corp., No. 09-4171, 2010 WL 1492857 (D.N.J. Apr. 14, 2010).

In Fellner, discussed in our Tuna A Day post, the United States District Court of New Jersey found that the mere fact that the plaintiff sought damages for the cost of the allegedly defective tuna did not negate the fact that her underlying claim was that the product was defective, which claim was covered by the PLA. Fellner v. Tri-Union Seafoods, LLC, No. 06-0688, 2010 WL 1490927 (D.N.J. Apr. 13, 2010). As a result, on defendant’s motion to dismiss, Judge Cavanaugh found that the plaintiff’s claim under the CFA was subsumed by the PLA and dismissed plaintiff’s CFA claims.

In a matter decided one day after Fellner, Judge Linares was not as easily convinced that the plaintiff’s CFA claim was subsumed by the PLA. In this matter, Dave Shannon (“Shannon”) brought an action against Howmedica Osteonics Corporation (“Howmedica“) asserting that a “tibial insert manufactured and sold by Howmedica and inserted into his knee prematurely failed.” Shannon brought claims under both the PLA and CFA. Howmedica moved to dismiss his CFA claim on the ground that it was subsumed by the PLA.

Howmedica argued that the “essential nature of Plaintiff’s CFA claim is a product liability action,” and that the “damages that he seeks in his CFA claim are recoverable under the PLA.” This is a similar argument to the one defendant made in Fellner, which the Fellner Court accepted. In response, while the Shannon court agreed that generally “where the essential nature of a claim is a products liability claim, all other claims are subsumed by the PLA claim,” it pointed out that it appeared that Shannon was seeking damages for the cost to replace the insert — damages that may not be covered under the PLA. Then, however, the Court acknowledged that Shannon may be seeking the same damages under both the PLA and CFA. The Court denied Howmedica’s motion to dismiss and allowed discovery to proceed. Judge Linares stated the following:

If, after discovery, it is clear that all of the harm for which Mr. Shannon seeks redress is covered by his PLA claim, then Howmedica may move for summary judgment on the CFA claim.

From this decision, it appears that claimants in New Jersey may still be able to survive a motion to dismiss when he or she brings both PLA claims and CFA claims where the damages alleged raise the question whether they are covered by the PLA, even where the essential nature of the claim is that a product is defective. As a result, we may see more and more claimants pleading damages similar to Shannon to at least make defendants litigate both PLA and CFA claims through discovery. It will be interesting if the United States District Court of New Jersey further clarifies this issue, providing more concrete rules when CFA claims are subsumed by the PLA.

Defendant moved to dismiss the action on the grounds that (1) Plaintiff’s claims under the New Jersey Consumer Fraud Act (“CFA“) were subsumed by her claims under the New Jersey Products Liability Act (“PLA“), (2) Plaintiff had failed to state her claims with sufficient particularity, (3) Defendant had no duty to warn, and (4) public policy considerations warranted dismissal of the action. The Court granted Tri-Union’s motion on the first ground, but denied on the other grounds.

On Tri-Union’s first ground, the Court agreed with Tri-Union that Fellner’s claims under the CFA are subsumed by the PLA because the mere fact that Fellner sought economic damages to reimburse her for the cost of the product, did not negate the fact that her underlying claim was that the tuna was defective. A contrary finding would nullify the intended purpose of the PLA to “unify products liability causes of action into a single claim.”

Tri-Union’s third ground for dismissal was that it had no duty to warn of the potential danger of mercury in its tuna products. Tri-Union first argued that the dangers of mercury are obvious, operating as a complete defense to a failure to warn action. The Court found that level of consumer knowledge was relevant but that this determination could not be made at this stage of the pleadings. Next, Tri-Union argued that Fellner misused the product by consuming the product in “abnormal” quantities and, therefore, the danger caused by such misuse was unforeseeable. The Court again found that while her consumption may be relevant, this determination could not be resolved on a motion to dismiss. Finally, the Court rejected Tri-Union’s argument that since mercury is naturally occurring, no warning was necessary. The Court stated that this was not a per rule.

The Court’s ruling merely dismissed Fellner’s claim under the CFA but allowed her claim under the PLA for failure to warn to move forward. Therefore, it would be in the jury’s hands whether the dangers of consuming approximately 4,380 cans of tuna was knowledge a typical consumer possesses and whether this level of consumption was an unforeseeable misuse.

In 1999, Robert Jacobson (“Jacobson”) went to do errands with his two sons, Ryan and Christopher, in his BMW 325i. Jacobson stopped at a convenience store, parked, placed the gear shift in park, turned off the engine, engaged the emergency brake, removed the keys from the ignition, and exited the vehicle, leaving his sons inside. Ryan, playing with the gear shift, placed the vehicle in reverse or neutral and the vehicle began to roll. Christopher exited the vehicle without injury. However, Ryan sustained severe injuries as a result of his exit from the vehicle. Thereafter, Jacobson filed a action against BMW alleging that it should have had a device in place that would have prevented the car from shifting out of park.

Under Pennsylvania law, “a manufacturer can be deemed liable only for harm that occurs in connection with a product’s intended use by an intended user.” On appeal Jacobson cited to two Third Circuit opinions, Pacheco v. The Coats Co., 26 F.3d 418, 422 (3d Cir. 1994) and Sheldon v. West Bend Equipment Corp., 718 F.2d 603, 608 (3d Cir. 1983) for the proposition that “intended use” under Pennsylvania law includes all uses “reasonably foreseeable by the manufacturer.” The Court disagreed and held that this proposition had been expressly rejected by the Pennsylvania Supreme Court in Pa. Dep’t of Gen. Servs. v. U.S. Mineral Prods. Co., 898 A.2d 590 (Pa. 2006). The Court found no error in the underlying court’s decision to omit “foreseeability” from its jury instruction on “intended use.”

In fact, in the past two weeks, on April 6, 2010 and April 13, 2010, the Eastern District of Pennsylvania and Third Circuit, respectively, upheld the decisions by the settlement trust to deny benefits. In re Diet Drugs Products Liability Litigation, No. 99-20593, 2010 WL 1404624 (E.D. Pa. Apr. 6, 2010); In re Diet Drugs Products Liability Litigation, No. 09-2424, 2010 WL 1473752 (3d Cir. Apr. 14, 2010).

The Court found that Brown-Riddle merely disagreed with the reviewing physician’s determination that she lacked a medical basis for her claim. She failed to identify or substantiate any specific errors and rested on her physician’s “check-the-box diagnoses.” The Court affirmed the decision of the trust denying benefits.

These decisions by the the Eastern District of Pennsylvania and the Third Circuit show that even when a mass class action is settled, litigation continues and our courts are continually asked to evaluate expert evidence as it would in a case of traditional posture. Plaintiffs in these types of cases are not off the hook of providing expert testimony. It will be interesting to note when litigation surrounding this class settlement ends — 10 more years, maybe 20.

On April 13, 2006, ReNu with MoistureLoc contact lens solution, manufactured by Bausch & Lomb in its Greenville, South Carolina facility, was voluntarily withdrawn from the market in the United States when an increased number of consumers who used MoistureLoc began to develop Fusarium keratitis. On May 11, 2006, Bausch & Lomb met with the Federal Drug Administration and announced that they decided to remove the product from the market worldwide.

In May 2009, Baush & Lomb moved to exclude the testimony of Plaintiffs’ expert, Dr. Elisabeth Cohen, with respect to non-Fusarium infections. As reported by the Drug and Device Law blog on August 27, 2009, Judge Norton, along with Judge Shirley Werner Kornreich of the Supreme Court of the State of New York, granted Baush & Lomb’s motion to exclude “Dr. Cohen’s general causation opinions relating to non-Fasarium infections.”

The Court concluded that since Plaintiffs’ general causation expert, Dr. Cohen, was excluded, Plaintiffs could not prove general causation, and thus, could not prove the essential causation element of any products liability action. Further, the Court disagreed with Plaintiffs’ assertion that they could prove causation through Physicians’ differential diagnoses. This is a “technique of identifying the cause of a medical problem by eliminating the likely causes until the most probable one is isolated.” Judge Norton stated that Plaintiffs could not rely on this technique to “end-run” the general causation requirement.

Since Judge Norton’s ruling on February 17, 2010, two individual non-Fusarium Plaintiffs have filed motions to alter or amend the judgment pursuant to Rule 59(e) of the Federal Rules of Civil Procedure, Baush & Lomb has filed a response to one Plaintiff’s motion, and Baush & Lomb has filed a motion for summary judgement as to all other non-Fusarium Plaintiffs that were inadvertently not included in the February 2010 order. Therefore, be on the lookout for further rulings on the non-Fusarium Plaintiffs in addition to resolution of those claims by Fusarium