Tuesday, February 9, 2010

Distracted Driving to Spark the "Next Big Thing" in Products Liability Law?

As technology and product innovation expand into new territory, breaking ground to appease a generation accustomed to instant, at-their-fingertips access to digital information, so too does products liability litigation. Some speculate the next “wave” of products liability litigation will stem from consumers’ use of communication devices and other electronic equipment while on the roadways, resulting in the “senseless and preventable destructive practice of distracted driving.” [PDF].

An article published recently by The New York Times as part of its “Driven to Distraction” series (which is worth checking out: try the “Gauging Your Distraction” game that has you attempt to respond to texts while changing lanes) explains that in spite of huge risks, technology giants and automakers are bringing Internet access – by way of what have been dubbed “infotainment systems” – to drivers’ dashboards. According to the article, one such system expected to be unveiled by Audi this fall allows drivers to access the Internet and pull up information as they drive. A notice reportedly will pop up that reads: “Please only use the online services when traffic conditions allow you to do so safely.” Although some automakers plan to restrict access to potentially distracting functions while the car is in drive, much of the responsibility in limiting use while driving will lie with drivers.

The issue of distracted driving is at the forefront, as there has been a government push to curb distracted driving dangers. Even Oprah has joined the cause. In terms of the scope of damages, The New York Times article cited a 2003 study by Harvard researchers, who estimated that motorists talking on cellphones caused 2,600 fatal accidents and 570,000 accidents involving injuries a year.

So how does this translate into product liability litigation? In its recently published “Client Alert,” the Micheal Best firm sets forth the three most likely product liability causes of action to be alleged against creators of these “distracting” products:

(1) Design Defect–when the foreseeable risks of harm posed by the product could have been reduced or avoided; (2) Inadequate Instructions or Warnings – an omission of a warning that renders the product not reasonably safe; and (3) Failure to Warn–the seller’s failure to provide a warning after the time of sale.

Numerous successful civil lawsuits have arisen against the distracted drivers themselves, including one settled here in South Carolina this month for $5 million by the insurer of a driver who, while talking on her cellphone, struck and killed two bicyclists. It is only a matter of time before a floodgate of litigation opens against the makers of these distraction-inducing products.

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Tuesday, February 2, 2010

Failure-to-Warn Claims Fail Without Evidence Plaintiff Would Have Pursued Alternative Course of Action

An overweight plaintiff who was seriously injured when her car’s seat failed in a collision recently lost her failure-to-warn case against Ford Motor Company. The plaintiff, who weighed more than 300 pounds, was driving a 2002 Ford Explorer at the time of the accident. She had stopped to make a turn and was rear-ended by an SUV travelling approximately 30 miles per hour. During the collision, the plaintiff’s seat collapsed backwards, and her head and shoulders hit the back seat. The impact with the back seat fractured her vertebra rendering her a paraplegic.

 

The plaintiff and her car accident lawyer riverside claimed that the Explorer’s seats were not designed for a person of her size and that Ford should have provided warnings. She claimed that she would not have purchased the vehicle if she had known that the seats were not designed or tested to perform with occupants of her size. She also claimed that Ford was negligent in failing to design and test seats for occupants who weighed more than 220 pounds.

The trial court granted Ford’s motion for directed verdict. The Missouri Court of Appeals upheld the directed verdict as to a plaintiff’s failure to warn claims. The court held that the plaintiff failed to present evidence that she would have taken an alternative course of action had Ford provided her with warnings. Moore v. Ford Motor Co., — S.W.3d —, No. ED 92770, 2009 WL 4932736 (Mo. Ct. App. Dec. 22, 2009).

 

The Court of Appeals held that it was it was essential to plaintiff’s failure to warn claim that she prove that “a warning would have altered the behavior of the individuals involved in the accident.” Id. (citing Arnold v. Ingersoll-Rand Co., 834 S.W.2d 192, 194 (Mo. 1992)). Although Missouri law calls for a rebuttable presumption that the plaintiff would have heeded a warning had it been available, the court held that the plaintiff must still offer evidence that she would have pursued an alternative course of action in heeding the warning. Here, the plaintiff offered no evidence of what alternative course of action she would have taken had she been warned of the fact that Ford’s seats had not been tested for a person of her size.

The court found it significant that the plaintiff admitted she did not review the owner’s manual until after she had purchased the car. This undermined her theory that she would have altered her behavior before buying the vehicle, had Ford provided adequate warnings. The court held that there simply was no evidence that plaintiff would have altered her conduct in purchasing the Ford even if there had been warnings. That fact precluded recovery on plaintiff’s failure to warn claims.

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Tuesday, January 26, 2010

1.5 Million Graco Strollers Recalled; Manufacturer Takes Advantage of Social Media Outlets to Inform Consumers

Graco Children’s Products, Inc. of Atlanta and the Consumer Product Safety Commission announced on January 20, 2010 an enormous recall of Graco children’s strollers. This decision was made after Graco received seven reports of injury resulting from children placing their fingers in the stroller’s canopy hinge mechanism while the canopy was being opened or closed. Five finger amputations and two fingertip lacerations were reported.

In all, 1.5 million units, including the Graco Passage, Alano and Spree Strollers, and Travel Systems, were recalled, making it the largest stroller recall in history.

This latest recall is not the first of its kind. In November 2009, approximately 1 million strollers were recalled by the CPSC and the British manufacturer Maclaren after twelve reports of children’s fingertips being amputated by a hinge mechanism similar to that involved in the latest Graco recall. In 2005, 1.1 million Graco-manufactured strollers were recalled as a result of their failure to latch properly, causing some strollers to unexpectedly collapse during use.

In this latest stroller recall, Graco has reportedly acted swiftly and cooperated with the CPSC in taking corrective measures for consumers. Graco immediately set up an interactive blog and FAQ page to provide information and instructions for consumers to order a free protective cover repair kit. Graco, taking advantage of all aspects of social media, has also been praised by some for its prompt responses to consumers’ questions and concerns on its Twitter account.

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Tuesday, January 19, 2010

Florida Federal District Court Tough on Plaintiff’s Phamaceutical Lawsuit Complaint Language

Last month, the U.S. District Court for the Southern District of Florida reiterated the significance of litigants’ properly and succinctly setting forth, within their pleadings, the factual and legal bases for which relief should be granted or denied. Gomez v. Pfizer, Inc. — F. Supp. 2d —, No. 09-22700-CIV, 2009 WL 4908937 (S.D. Fla. Dec. 21, 2009).

In Gomez, the plaintiff claimed to have developed severe headaches, body aches, and fever after taking the prescription medication Zoloft. She went to the hospital, where she was administered and prescribed Tylenol and Motrin for pain relief. Her condition allegedly worsened, and she was ultimately diagnosed with Stevens-Johnson syndrome, a life-threatening skin condition that causes the epidermis to separate from the dermis. She then filed suit against multiple defendants alleging theories of negligence and strict liability, and contending that her use of Zoloft, Motrin, and Tylenol – solely or in combination with one another – caused her to suffer the condition.

The defendants filed a motion to dismiss the plaintiff’s complaint. In so doing, they argued that the plaintiff’s negligence theory was insufficient in that it offered “nothing more than a recitation of the elements of duty and breach generally, a general recitation of alleged breaches, untethered to any actual facts, and the conclusion that those alleged breache[s] caused [the plaintiff’s] injury.” Id. The court agreed, holding that the plaintiff failed to set forth in detail each of the defendant’s individualized relationships to the medications in question, individualized duties to the plaintiff, and individualized breaches of that duty.

Second, the defendants attacked the plaintiff’s cause of action for strict liability. They argued that the complaint, which set forth that the products were “defectively designed and/or manufactured because [their] intended use resulted in a substantial and unreasonable likihood of causing Stevens-Johnson syndrome, which rendered [them] unreasonably dangerous for [their] intended use,” constituted nothing more than “bare legal conclusions.” The court agreed, noting that the plaintiff’s failure to set forth a specific theory upon which strict liability should be applied–defective design, manufacture, or failure to warn–prejudiced the defendants because they could not “determine which doctrine is at issue, much less how to frame a proper response.” Id.

The court dismissed the negligence and strict liability causes of action set forth within the complaint as a result of these fatal flaws, holding that a complaint’s allegations must include “more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Id. (internal citations omitted). “Threadbare recitals” of elements of a cause of action for products liability, supported by mere conclusory statements, will not suffice. Id. (internal citations omitted).

As this court demonstrates, a complaint which does not thoroughly and specifically set forth the theories and facts upon which it argues relief should be granted should be attacked for insufficiency. Defendants who are thereafter called upon to establish and foster an appropriate defense are prejudiced by anything less.

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Tuesday, January 5, 2010

Texas Supreme Court Reverses $14 Million Verdict Based on Plaintiff’s Expert’s Failure to Test in Products Liability Case

In December, the Supreme Court of Texas demonstrated that it will rigorously examine the basis for expert testimony in products liability cases. A plaintiff’s expert’s failure to test his hypothesis may be fatal to plaintiff’s claims. In Whirlpool Corp. v. Camacho, No. 08-0175, 2009 WL 4728004 (Tex. Dec. 11, 2009), the supreme court reversed a jury award of $14 million to a family who lost their home and their son in a fire that they alleged was caused by a defective dryer.

Santos and Margarita Camacho had purchased the used Whirlpool clothes dryer for use in their mobile home. Several months later, Margarita Camacho smelled smoke and saw fire “coming from the rear part of the dryer and from inside the dryer.” The fire destroyed the trailer home and killed the Camacho’s teenage son who was the only family member unable to escape.

At trial, the Camachos relied on the expert testimony of an electrical engineer who opined that the fire started when clothes in the dryer were ignited by clogged, smoldering lint particles. The Texas Supreme Court, noting that courts are to “rigorously examine” the manner by which an expert applies principles and methodology in reaching his conclusions, disregarded the engineer’s testimony. Citing the Texas version of Daubert, E.I. du Pont de Nemours & Co. v. Robinson, 923 S.W.2d 549, 556 (Tex. 1995), the court held that testing of machinery in products liability cases is highly significant in providing support for an expert’s conclusions:

Testing is not always required to support an expert’s opinion, but lack of relevant testing to the extent it was possible, either by the expert or others, is one factor that points toward a determination that an expert opinion is unreliable. . . . If testing of critical aspects of an expert’s testimony has not taken place either by the expert or others in the relevant scientific or expert community, then an explanation of why it has not is an important consideration in evaluating the expert opinions and determining whether they are substantively more than merely the expert’s conclusory, subjective opinion.


Id. (internal citations omitted).

Regardless of the expert witness’s level of experience in the applicable field, the court here held that the engineer’s failure to test his theories or to provide evidence of others’ testing was an important factor in its concluding that the engineer’s opinions were unreliable.

This Texas Supreme Court opinion shows that evidence of testing of the allegedly faulty machinery is imperative. Otherwise, as here, the expert’s opinions are “subjective, conclusory, and are not entitled to probative weight.”

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