Aside from the amount of the jury’s award, the more intriguing issue in this case is the role of the Consumer Product Safety Commission.  At trial, the estate argued that the slide did not comply with federal safety standards for swimming pool slides, citing to standards set forth by the CPSC in 1976.  Toys ‘R’ Us contends that the 1976 regulations do not apply to inflatable slides, but only to rigid pool slides.  According to the toy retail chain, inflatable slides were not around in 1976 and, thus, were not contemplated by the standards.

Nonetheless, the slides apparently were imported and never certified that they met any standards.  Regardless of whether Toys ‘R’ Us should be held responsible for this regulation snafu, it’s the CPSC’s response that draws our ire.  The CPSC did not recall the slide until May 2012 – months after the verdict and years after the 2006 incident.  The CPSC was also aware of at least two other cases of serious injury arising out of use of the slide.  If the slide really is afoul of CPSC regulations and has allegedly caused several cases of serious injury and/or death, then why wait until a jury verdict to issue a recall?  It is not like the CPSC has a firm rule to exercise due diligence in these things.  Remember Bucky Balls?

We have been critical of the CPSC in the past over its draconian measures.  Regardless, if the CPSC knows it is going to issue a recall, it might as well go ahead and do it – especially if the only fact that changed between the 2006 accident and the 2012 recall is a Massachusetts jury deciding the issue is worth $20 million.

In the suit, Plaintiff alleged a design defect in the CROCS shoe and a failure on the part of Crocs to warn of the latent danger CROCS shoes posed to young children riding escalators.  Plaintiff relied primarily on a Japanese study, which purported to conclude that Crocs-type sandals were extremely apt to getting caught in escalators, perhaps more than other styles or brands of children’s footwear.

Crocs, Inc. filed a motion for summary judgment, and it was granted by the district court.  The court held that the study was never properly authenticated as a foreign document; it was inadmissible because no expert had been identified to explain the results of the study.  In addition, the warning signs on the escalator depicting and warning of the danger of children’s shoes getting caught in the escalator precluded a failure to warn theory against Crocs.  Finally, because Plaintiff’s negligence theories of defective design and failure-to-warn failed as a matter of law, her breach of warranty claims did as well.

This case is an interesting twist on the failure to warn theory.  Crocs, the manufacturer of the footwear, relied on the warnings on the escalator as evidence that Plaintiff was warned about the risk of injury from exactly this type of accident.  A good reminder that the warnings don’t always have to come from the actual product that a plaintiff alleges was the proximate cause of the injury – the warning itself is the issue, not what party is responsible for giving it to the user.

According to the complaint:

“Defendants have claimed that running in FiveFingers, inter alia, improves posture and foot health, reduces risk of injury, strengthens muscles in feet and lower legs, and promotes spine alignment. Defendants have used these claims to charge a premium for FiveFingers that consumers readily paid, believing FiveFingers would confer upon them significant health benefits. Unbeknownst to consumers, Defendants’ health benefit claims are deceptive because FiveFingers are not proven to provide any of the health benefits beyond what conventional running shoes provide.”

Interestingly, the plaintiffs’ lengthy complaint repeatedly claims that the FiveFingers product causes injury, yet presents no scientific evidence to support this claim.  Basically, the plaintiffs argue that there are no studies to support Vibram’s claims.  The plaintiffs then turn around and present no science to dispute Vibram’s claim.  Plaintiffs don’t rely on any type of scientific and controlled testing that they expect of Vibram.  Instead, they offer on the same anecdotal “evidence” that they criticize Vibram for using.  They quote a story in which a podiatrist says that 85 percent of her patients sustained injuries trying to transition to minimalist shoes.  They, of course, fail to note that a podiatrist is unlikely to be examining runners who have not sustained some sort of injury.  They also fail to mention whether that podiatrist’s patients followed Vibram’s warnings against over training.

Where this suit goes from here could have wide reaching impact on the footwear industry.  Many other shoe companies have been jumping on the barefoot running bandwagon, including New Balance, Merrill, and Adidas.  These companies use technology similar to that of the Vibram FiveFingers.   Merrill seems to have  aggressive advertising materials similar to that of  Vibram.  However, New Balance and Adidas tend to make far less claims as to the benefits of barefoot running.

In the interest of full disclosure, I actually own a pair of FiveFingers and a pair of the New Balance Minimus.  I’m happy to report that haven’t sustained any running injuries while using theses shoes.  Then again, I don’t think anyone would accuse me over training.

The woman started smoking on July 31, 1968, her fourteenth birthday, allegedly due to PM’s marketing campaign. In the years that followed, she became addicted to cigarettes. In 2004, while in an impaired state, the women lit and fell asleep with the Marlboro cigarette that caused the fire at her home. Essentially, the plaintiff alleged that had PM not engaged in the willful and wanton conduct of advertising cigarettes to consumers in 1968, the woman would have not fallen asleep with a lit cigarette in 2004. Even though the theory tests the outer limits of proximate causation, it does make some sense in a crazy temporal but-for-this, but-for-that way.  We suppose.

The Court indicated that PM could be held liable only if

[T]he evidence is sufficient to prove that prior to July 31, 1968, it knew, or had reason to know, of facts creating a high degree of risk or physical harm to others, but it did not realize or appreciate the high degree of risk involved, although a reasonable actor in its position would have done so.

Unable to find any evidence that PM, in marketing cigarettes prior to July 31, 1968, should have been aware of the probability that the woman would become addicted, smoke while impaired, and die due to a fire started by a cigarette, the Court granted PM’s motion for summary judgment. The Court got this one right.  Not only does this case present a series of “but for” facts reminiscent of a Torts exam, it also begs the question:  Don’t we assume the risk of fire when falling asleep with a lit object?  Regardless of PM’s culpability in marketing cigarettes, the hazard of falling asleep with a lit object should be apparent to us all.  Perhaps the plaintiff could have presented a reasonable alternative design for a self-terminating cigarette had her product liability claims not been dismissed back in 2009.  While we wait for those results, we may want to consider electronic cigarettes.

On June 15, 2007, [Plaintiff] and his wife boarded the M/V ODYSSEY, owned and operated by Premier Yachts, at Rowes Wharf in Boston to attend a cruise dinner. Tillson sat down on a chair at his table for the first time at 7:30 p.m. During the three-hour dinner, [Plaintiff] left his table on three occasions. Upon his return to the table at 10:45 p.m., [Plaintiff] attempted to sit on the chair he had been occupying throughout the evening. At that time the chair’s left rear leg “gave way or broke.” As the chair was settling to the left and rear, [Plaintiff] slipped to his left, while remaining seated, and eventually landed on the floor.