Toxic Tort Liability versus Conventional Products Liability in Massachusetts

In a recent opinion, Judge Mark Wolf of the District Court of Massachusetts made a distinction between cigarette-related toxic tort liability and conventional products liability to deny Plaintiff’s motion for reconsideration of an order dismissing six of her claims against Philip Morris. Sarro v. Philip Morris USA, Inc., No. 08-10224, 2010 WL 1930442 (D. Mass. May 12, 2010).

Sarro involved a fire caused by a cigarette. The administratrix of Linda Rivers’ (“Rivers”) estate, Rosalie Sarro (“Sarro”), filed a lawsuit against Philip Morris alleging that it defectively designed and manufactured Marlboro cigarettes. She claimed a lit Marlboro caused a fire that resulted in Rivers’ death and damage to property. On the motion of Philip Morris, the District of Massachusetts dismissed Sarro’s causes of action that “alleged that Philip Morris is liable because its product design was unreasonably dangerous because there was an alternative design for the cigarettes which would have reduced their propensity to continue to burn when left unattended.” Id. at *1. This ruling was based on the principle that “Massachusetts courts refuse to impose liability on manufacturers for injuries resulting from common everyday products whose obvious dangers are known to be associated with the product.” Id. at *4.

In response to the District Court’s order, Sarro filed a motion for reconsideration asserting an intervening change in the law of Massachusetts from a case that was decided after the court dismissed her claims, Donovan v. Philip Morris USA, Inc., 914 N.E.2d 891 (Mass. 2009). In Donovan, the alleged cause of injury was the quantity of carcinogens in the cigarettes — “physiological changes.” The Court in Donovan found it appropriate to extend general negligence principles to claims regarding “exposure to toxic substances . . . even if the full effects [of those substances] [we]re not immediately apparent.” Donovan, 914 N.E.2d 901.

In Sarro, on the other hand, the alleged cause of injury was the cigarette’s capacity to create fire — “mechanical forces.” As a result, the Sarro court distinguished Donovan and found that “because Donovan’s holding affects the analysis applicable to toxic tort liability, not conventional products liability, it does not impact this case.” Sarro, 2010 WL 1930442, at * 4. The Sarro court denied Sarro’s motion for reconsideration.

From this case, it is interesting to note how the Court differentiated “physiological changes” that put persons at risk of harm from “mechanical forces” that put person at risk of harm and associated that harm with toxic tort liability and conventional products liability, respectively. Practitioners should be aware of this distinction and analyze whether it could affect arguments against liability.

For A Limited Time Only And Not Forever After

If you are like me, you remember begging your parents to take you to Burger King in the early 1980’s. You had only one thing on your mind and no it wasn’t a Whopper, chicken fries or even to look for Herb. You, like me, were coveting the free glass that came with your drink. You know you wanted the one with Jabba the Hutt or maybe the one with Wickett the Ewok. I can remember taking my prized possession home with me and religiously asking for, neigh demanding to drink from it at every meal. You can imagine my dismay when after a month’s worth of running the glass through the dishwasher on a daily basis—what was left did not even resemble the vivid bright colors of Endor. The paint on the glasses faded along with my joy. Now I know why. In 1983 they weren’t using cadmium! I’m convinced that whatever lead substitute was in the paint of my prized Ewok glass was not cadmium.

Burger King may not have used cadmium in the paint of the famed Star Wars series glasses, but unfortunately the manufacturer of some 12 million Shrek Forever After glasses did. The glasses were, for a limited time only, distributed by McDonalds. On June 4, 2010, McDonalds and the U.S. Consumer Product Safety Commission voluntarily recalled the glasses. We here at Abnormal Use previously commented on other cadmium related news in 2010. For those posts, click here and here. It appears that the use of cadmium is more widespread than previously thought. In addition to the voluntary recall, McDonalds is offering a refund for the full purchase price ($2) plus and additional $1. For more details of McDonalds’ efforts and how to obtain your refund, click here.

Within a Month of "Obscene" Adverse Verdict, Drugmaker Halts Production of Sedative

In the wake of two headline-grabbing hits to its image and to its wallet, Israel-based Teva Pharmaceutical Industries recently announced it will stop production of its sedative propofol, which many worry will intensify an already existing shortage of one of the most widely used anesthetics in the United States.

We here at Abnormal Use previously reported on one of these two potential catalysts to the halt in production here, where we evaluated the Nevada jury’s “insane,” “obscene” $500 million verdict against the drugmaker. Specifically, Teva and its co-defendant were hit last month with the biggest verdict in Nevada history in a case in which the plaintiff alleged he was infected with hepatitis C when nurse anesthetists administering the drug reused vials and syringes among patients already infected with the disease. Although Teva announced plans to appeal, approximately 250 other lawsuits reportedly have already been filed in connection with the hepatitis outbreak.

The other of the two negative events garnering attention from the press: the death of Michael Jackson. Propofol became “infamous” last year when the superstar died from an overdose of the anesthetic, in combination with other sedatives, which were administered by Jackson’s personal doctor to help him sleep. Although the doctor has since been charged with involuntary manslaughter, Michael Jackson fan pages still are following the Teva announcement closely (see here and here).

The effect of Teva’s stop in production will be widespread, as the president of the American Society of Anesthesiologists has said that propofol is used in at least 75% of anesthetics administered throughout the United States. Doctors like it because patients are able to wake quickly after procedures and side effects are rare. Few companies make it because of its highly complicated manufacturing process. With no U.S. companies producing the drug, the FDA has authorized importation of a version of the sedative approved in Europe.

Although there are no doubt a litany of issues considered by a drugmaker prior to its ceasing production of a particular medication, it’s unfortunate to see such an incredibly useful product withdrawn from needy markets as the result, at least partially, of two anomalous events such as these, neither of which has anything to do with an inherent defect in the drug.

Friday Links

For this week’s edition of Friday Links, we present comic book case law:

  • “Captain America, a.k.a. Steve Rogers, was an army-reject turned superhero who was charged with protecting America from all enemies, especially Nazi spies.” Marvel Characters, Inc. v. Simon, 310 F.3d 280, 282 (2d Cir. 2002).
  • “Too often we are prone to forget the admonition so ably expressed by Judge Batman. We feel that after forty years it is well to again call it to the attention of the bench and bar.” Todd v. Ehresman, 175 N.E.2d 425, 431 (Ind. Ct. App. 1961). We wouldn’t want to be held in contempt by this jurist.
  • It’s not really a surprising why the following defendant wasn’t acquitted by the jury:

    At trial defendant admitted the robbery but explained that he had committed the crime to convince the owner of the 7-11 store of the need for additional security and specifically to induce the owner to resubscribe to the security service offered by defendant’s employer, a service which the owner had recently terminated. Defendant testified that he thought the gun he had used was inoperable and that he had specifically chosen to commit the robbery when the particular clerk in question was on duty because that clerk had been robbed on previous occasions and would not be unduly frightened. Defendant maintained that at all times he intended to return the stolen money to the store owner, but that he was apprehended before he could do so. Finally, in response to his counsel’s questioning, defendant related his participation in mock crime detection dramas in the past, describing how 10 years earlier, when he and his brother were in their late teens, they had dressed up as Batman and Robin and had roamed the streets “climbing on rooftops, swinging over . . . doing somersaults off of roofs (and) (t)hings like that.”

    Despite defendant’s testimony, the jury returned a verdict finding defendant guilty of first degree robbery and also finding that he had used a firearm in the commission of the offense.

    People v. Tanner, 151 Cal. Rptr. 299, 302 (Cal. 1978) (emphasis added).

  • “The Punisher is an ‘antihero,’ created by Marvel Comics in 1974 as an antagonist to Spider-Man. The Punisher ‘is a vigilante who considers killing, kidnapping, extortion, coercion, threats of violence, and torture to be acceptable crime fighting tactics.'” Sitzes v. City of West Memphis, — F.3d —-, 2010 WL 2219034, at *8 n.8 (8th Cir. June 4, 2010) (citing http://
  • “The attributes and antics of Superman and Wonderman are closely similar. Each at times conceals his strength beneath ordinary clothing but after removing his cloak stand revealed in full panoply in a skintight acrobatic costume. The only real difference between them is that Superman wears a blue uniform and Wonderman a red one. Each is termed the champion of the oppressed. Each is shown running toward a full moon off into the night, and each is shown crushing a gun in his powerful hands. Superman is pictured as stopping a bullet with his person and Wonderman as arresting and throwing back shells. Each is depicted as shot at by three men, yet as wholly impervious to the missiles that strike him. Superman is shown as leaping over a twenty story building, and Wonderman as leaping from building to building. Superman and Wonderman are each endowed with sufficient strength to rip open a steel door. Each is described as being the strongest man in the world and each as battling against evil and injustice.” Detective Comics v. Bruns Publications, 111 F.2d 432, 433 (2d. Cir. 1940) (quotations omitted).

Don’t Go To The Beach

Beach season is upon us. Although we here at Abnormal Use advocate staying inside at all times, maximizing the time that we can bill and blog, we understand that some of you yearn to have the sun forcibly remove layers of your skin. If you are one of those people, please read the following before going outside.

Karen Mather purchased some sunless tanning lotion that she alleged caused her injury. Mather v. L’Oreal USA, Inc., No. A10A0458, 2010 WL 2015337 (Ga. Ct. App. May 21, 2010). Mather has multiple sclerosis and “direct sunlight causes her pain.” Nevertheless, it’s beach season, and Mather decided to go to the beach. (The opinion does not reveal why someone who is sensitive to direct sunlight goes to the beach for recreation.) Just before leaving for the beach, Mather purchased two tubes of L’Oreal Paris Sublime Bronze self-tanning lotion, which she used “twice a day for three days and experienced no problems.”

On the drive home, Mather developed some problems “where the sunlight touched her skin through the car windows.” (Again, it is unclear why this plaintiff with such sun sensitivity refuses to wear a long-sleeve shirt). Mather’s skin reddened, and she developed small pustules. Her condition worsened, and she developed abscesses filled with pus, with lesions everywhere, and her multiple sclerosis was exacerbated. In fact,

“Mather testified that, as a result of using the self-tanning lotion, ‘[m]y organs will never be the same.’ “

That is true Plaintiffspeak if I have ever heard it. Dear Defendant, your $10 product affected me to the point where my organs will never be the same. Lots of money will fix my organs.

As you may have guessed, L’Oreal moved for and was granted summary judgment. Mather sued on a failure to warn theory, and, strangely enough, Mather had no evidence that L’Oreal should have known about a reaction such as Mather’s. L’Oreal showed that the active ingredient, hydroxyacetone, is common and safe for use by most people. Even during the product’s testing, of those that experienced some reaction, no reaction resembled Mather’s. This appears to be a case where Mather’s lawyer thought that he might find something decent in the discovery phase to support his case. That was not the case. In the end, Mather had no evidence contradicting L’Oreal’s assertion that the testing process was insufficient. Therefore, feel free to pick up some sunless tanner, or get out in the sun and give yourself lesions naturally.

CPSC v. Facebook?

Strange things are afoot with respect to the Internet presence of the Consumer Product Safety Commission (“CPSC“). Earlier this week, the government agency issued a formal tweet warning users not to “like” or “use” in “any way” any unofficial Facebook pages dedicated to or representing themselves as the CPSC. (See above for a screen capture of the tweet in question.). Curiously, the tweet reads like a formal directive forbidding any participation in Facebook’s unofficial CPSC fora. (Yes, we said “fora,” not forums. Get over it.). This stern pronouncement prompted some investigation on the part of our investigative reporters here at Abnormal Use, a site often covering the CPSC.

First, we logged into our Facebook account and input “CPSC” into the search field. Apparently, there is not one, but five unofficial Facebook pages with the titles referencing the agency. (The search results for “CPSC” are depicted above.). Note that collectively, the three unofficial Facebook pages in that initial search result have a total of twelve followers or admirers or likers or whatever they’re called on Facebook. Note also that the “Web Results,” depicted at the bottom of the page, return two links to the official CPSC site and a third to the agency’s Wikipedia entry (which, as far as we know, the CPSC has not yet warned us against).

We decided to investigate further.

The first Facebook Community Page (depicted above) boasts eleven followers. It appears to be some type of automated page which collects various Facebook status updates and posts which reference the search term “CPSC.” Facebook users who update their status or posts links including the acronym for the agency will find their posts collected on this community page.

The next Facebook Community Page is only slightly different (but it has no admirers, or perhaps it did, but the agency shooed them away with its austere tweet). Note that this second Community Page (depicted above) is dedicated to the “cpsc” (in all lower case). It’s collection of links and status updates is identical to that of the first page, but it’s group title features no capital letters. An interesting quirk in Facebook’s new Community Page system, or anti-government conspiracy? We here at Abnormal Use remain on the case.

The third Facebook Community Page (depicted above) is titled “CPSC” (in all caps) and is identical in all respects to the first Community Page save for two things: it has but one admirer and its default icon appears to be a suitcase rather than a student in a graduation cap and gown.

We also input the full name of the CPSC into Facebook’s search field and found the page depicted above, complete with a more official looking profile picture in the form of a seal. The content seems to be primarily derived from Wikipedia’s CPSC entry, though, and only one person “likes” this unofficial incarnation of the CPSC on Facebook.

Finally, we uncovered an unofficial page for the Consumer Products Safety Commission Injury Coder (Nationwide Children’s Hospital), which features no admirers or content of any kind.

And that, dear readers, is all that we uncovered.

It seems like the culprit is not some sinister villain but instead some type of automated page creation system at Facebook. Interestingly, while the CPSC has certainly dipped its toe into the social media pond, it has not established any official presence on Facebook. We see on the landing page of the agency’s official website that it maintains accounts on YouTube, Flickr, and of course, Twitter. (It even has a page dedicated to its official Podcasts, although the agency has not recorded one in some time.).

We are puzzled and perplexed.

Why the hate for Facebook? Why no official presence there?

What’s the beef against Facebook creating a Community Page for discussion of CPSC issues?

Why can’t we “like” or use an unofficial page collecting links to unofficial CPSC information?

Where on Facebook should we go for our CPSC fix?

All kidding aside, one of the advantages of using Facebook to promote one’s own agenda is that much of your audience is already there using the site for other reasons. One would think that the CPSC would want to use that site in order to reach as many people as possible about potential recalls and product information. By using that site, too, CPSC essentially deputizes other users, who have the option to forward along items posted by the CPSC to their friends.

All screen captures were taken on the morning of Tuesday, June 8.

Infant Safety Initiatives by the CPSC

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.

Live From Litchfield Beach, South Carolina

I was on vacation last week. My family and I visited one of the most sacred of all family vacation spots – the beach! Our family goes to Litchfield Beach every year the week of Memorial Day. Litchfield is a quaint little beach, found just north of Pawleys Island and just south of Murrells Inlet, the seafood capital of South Carolina. As I sat there during my vacation at the beach, I couldn’t help but think of all of the products liability cases waiting to happen.

First, I considered all of the sunscreen manufacturers out there that need representation. Seriously, think of all of the times that people have put on sunscreen that is too old and have gotten scorched as a result. Surely, those people checked the expiration date on their Bullfrog or Zinka before they went out onto the beach. Right? Manufacturers of these wonderful products that allow us all to enjoy the beach and to engage in swimming, fishing and sunbathing should not have to worry about the frivolous lawsuits that some cheapskate 30-something year old guy brings when his SPF 30 doesn’t work (Not that I have experienced such an event).
Second, as an avid fisherman I dwelled upon the weary travelers that prick their thumbs with the hooks on their terminal tackle when trying to place a dead mullet on the end of their line. Or what about the nimrod that takes his graphite TICA 9′ rod out to fish the surf during a thunderstorm? I’ve seen the warning on the rod and I think its adequate, but I would venture to guess that there are plenty of plaintiffs out there who think otherwise. For all of the surf rod manufacturers reading this, I will work for fishing gear, but my boss might ask for an hourly fee!
Finally, I thought about all of the air conditioner defect cases that are filed in counties all along the coast. While we were in our own little slice of heaven, our air conditioner went out. The repairman that answered our “after hours” call at 9 p.m. on Sunday night told me that he had fielded 27 calls in 48 hours! I also learned that despite the fact that the unit on our rental was less than two years old, the compressor was “shot.” According to the repairman, “none of these last more than 6 years on this side of the highway.” Apparently, if your home is located on the non-ocean side of the highway you can expect 10 to 15 years out of the same unit that only gets 6 on the ocean side. After talking to the repairman I couldn’t help but to think about two things: (1) all of the home owners filing warranty claims; and (2) all of the renters demanding reimbursement for rental fees for having to “sleep” in 86 degree heat.
In conclusion, I left my hammock behind with a pensive look upon my face and deep in thought. Last week it occurred to me that my vacation closely resembled that of Jack Chester in 1985. John Candy played Chester in one of my favorite movies from the 1980’s, Summer Rental. I am wondering if the manufacturer of that plastic air cast is still around? My foot still hurts after a week’s worth of particularly spirited games of Bocce!

Friday Links

The California Commission on Judicial Performance suspended a judge for two years for using his office computer to look at dirty pictures and then lying about it later during television interviews. For more, see this story at the Legal Profession Blog.

Lawyerist has this post entitled “Top 5 Social Media Ethics Concerns for Lawyers.”

The South Carolina Business Law Blog summarizes the recent South Carolina Supreme Court case of Blackburn v. TKT & Assocs., in which that court addressed the appropriate application of the “income approach” valuation in an action of dissolution.

The Legal Ethics Forum reminds us that next month sees the fiftieth anniversary of the publication of Harper Lee’s “To Kill a Mockingbird.” We expect to see a lot of coverage in the legal blogosphere commemorating that occasion.

Words of Wisdom: “As the ‘Star Trek’ era is ushered into our lives, this Court must be prepared to keep its perspectives progressive and its definitions flexible, or else this Commonwealth will fail to acquire modern, technological manufacturing operations.” Golden Triangle Broadcasting, Inc. v. City of Pittsburgh, 397 A.2d 1147, 1153 (Pa. 1979) (Manderino, J., dissenting).

Words of Wisdom II: “We are unable to find where the defendant-appellant could have been prejudiced by remarks about Superman and Batman.” Palmer v. State, 288 N.E.2d 739, 754 (Ind. Ct. App. 1972).

The Perils of "Free" Experts and Their Testimony

Oftentimes, practitioners will get lazy. They will seek to use the treating physician as the expert in their case. This is typically the case when the issue of causation seems clear. However, intuition and surmise are not enough to survive a summary judgment motion . . . at least not in the federal courts. In a recent opinion, the United States District Court for the Middle District of Georgia granted the defendant’s motion for summary judgment. In Williams v. Mast Biosurgery USA, Inc., No. 7:08-CV-114(HL), 2010 WL 2104955 (M.D. Ga. May 24, 2010), the court found that the plaintiff’s case must be dismissed for her failure to present evidence that the product was defective.

The plaintiff in Williams had undergone an exploratory laparotomy procedure conducted by Dr. David W. Adcock, II. Williams at*1. The purpose of the procedure was to remove adhesions that had formed after a prior surgery. Id. During the procedure, Dr. Adcock utilized a product, SurgiWrap, to “prevent future adhesions and to enhance Plaintiff’s likelihood of conception.” Id. Approximately two months after this procedure, the plaintiff developed pain in her sides as was admitted to the hospital whereupon a colonoscopy revealed the plaintiff had a perforated colon. Id. The physician that performed the procedure to repair the plaintiff’s perforated colon, “discovered and removed several pieces of ‘pliable’ plastic.” Id. The plaintiff then brought suit against the manufacturer of SurgiWrap upon a theory of strict liability. She contended that the product was defective since it did not properly dissolve inside her body. Id. On the issue of causation, the plaintiff sought to utilize Dr. Adcock (the physician that utilized the product at issue during the first surgery), Dr. George E. Yared (the physician that performed the colonoscopy), Dr. Robert Brown (the physician that repaired her colon) and Dr. Robert Nelms, Jr. (the pathologist that examined the removed pieces of plastic from the plaintiff’s body) to establish that the removed pieces of plastic were in fact SurgiWrap and that the product was defective. Id.

The defendant filed a Motion to Exclude Plaintiff’s Expert Testimony, and these physicians were prevented from testifying regarding the identification of the product and whether the product failed to operate as intended by the manufacturer. Furthermore, three of the physicians were prevented from testifying on the issue of causation. Id. The court essentially found that these physicians did not have the requisite familiarity with the product at issue in order to testify that the product was defective and that the alleged defect caused the plaintiff’s injury. Id. at*1-2.
There are multiple lessons to be learned from this case. First, if you represent a plaintiff in a products case you should be wary of settling for the treating physicians to establish the prima facie case. Second, and most importantly, if you a representing a manufacturer don’t give up so easily. The physician that is trained to utilize your surgical device may not be qualified to sufficiently identify the product, much less testify that it is defective. Daubert challenges to treating physicians are always worth the effort.