No, it is not quite July yet — even though I truly wish it was with all this cold weather the past couple of weeks in South Carolina — the Consumer Product Safety Commission (“CPSC”) is already anticipating next July. On December 8, 2010, the CPSC announced that four fireworks firms agreed to pay a $100,000 civil penalty for importing violative fireworks. The entire agreement can be viewed here [PDF].

Jake’s Fireworks, Inc., Far East Imports, Inc., Wholesale Fireworks Enterprises, LLC, and Pacific Northwest Fireworks, Inc. are all in the business of putting fireworks into the stream of United States commerce. From December 2006 to September 2007, these companies imported over 200,000 fireworks that violated CPSC’s regulations at 16 C.F. R. Section 1500.17 (a)(3) and 16 C.F.R. Part 1507. Section 1500.17(a)(3) requires that fireworks that are intended to make an audible sound to contain no more than two (2) grains of pyrotechnic composition.

The fireworks imported contained more than the allowable limit, which could cause serious injury or death if they exploded at ground level. Not only did the CPSC impose a civil penalty, it ordered the destruction of these fireworks within six months of their final order. The CPSC will supervise the destruction but if these companies fail to destroy the subject fireworks within the allowable six months, they will be fined $5,000 a day, not to exceed $750,000 in one year.

With the Fourth of July less than 7 months away, it seems to us that the destruction deadline may be cutting it a bit close. However, with the possibility of a $750,000 fine, these companies will more than likely destroy the violative fireworks sooner than later, making it safe for next summer’s festivities.

Recently, the United States District Court for the District of Massachusetts granted summary judgment in favor of a manufacturer of an injection molding machine on plaintiff’s claim that it was defectively manufactured, for lack of causation evidence. Brown v. Husky Injection Molding Sys., Inc., — F.Supp.2d —, No. 08-11840-RGS, 2010 WL 4638761 (D. Mass. Nov. 17, 2010). This case is interesting for the Court’s analysis of a manufacturing defect claim regarding a product that was manufactured and installed in the 1970s.

Defendant, Husky Injection Molding Systems, Inc. (“Husky”) manufactured a 1525 series injection molding machine with serial number 3350 (“3350 machine”) which was sold to WNA Comet East, Inc. (“Comet”) in 1974. Plaintiff, Jimmy Brown (“Brown”), began working for Comet as an injection molding machine operator in 2003. In 2006, while trying to clean the 3350 machine, his left hand got caught in the belt and pulley, suffering “crush injuries.” It was undisputed that the 1525 series was designed with a front pulley guard, and if it had been in place, the accident would not have happened. It was also undisputed that in 2000, Comet had “rebuilt the 3350 machine, stripping it to its base, and replacing or refurbishing constituent parts as needed.”

Brown asserted a claim against Husky alleging that the 3350 machine was defectively manufactured because Husky failed to install the front pulley guard. In response, Husky asserted that Brown had no evidence that the 3350 did not have the pulley guard when it was delivered to Comet. Husky filed a motion for summary judgment. In support of Husky’s position, the technician that installed the 3350 machine in 1974 testified that it had the front pulley guard when installed. In rebuttal, Brown offered testimony of a Comet employee that testified that he had never seen a guard on the 3350 machine. However, this employee did not begin working with these machines until 1976, two years after installation.

The Court first distinguished a claim for a design defect and a manufacturing defect. To prove the first, a plaintiff must only prove that a defect in the design existed at the time the product left the manufacturer’s control. To prove the latter, a plaintiff must show that the defect was caused by a manufacturing error affecting only one particular product and that it was not caused by intermediaries. The Court concluded that while Brown had testimony that no guard was on the machine in 1976, he could not rebut Husky’s installer’s testimony that at installation, a guard was on the machine. Further, Brown did not have testimony regarding the presence or absence of guards before and after the 2000 refurbishment. Therefore, the Court found that Brown could not prove causation and granted Husky’s motion for summary judgment.

This case exemplifies the difficulties in proving a manufacturing defect case, especially when a product is in the hands of an intermediary for a long period of time. Essentially, in this type of case, a plaintiff must be armed with testimony accounting for a product’s condition and non-alteration the entire period of time from the date it left the manufacturer’s control until the injury. Sometimes this can be extremely hard. But without that testimony, a defendant will be able to raise, like here, the potentially fatal absence of evidence of causation.

In July 2009, the Southern District of Ohio decided, on the defendant-manufacturers’ motion for summary judgment, that a manufacturer of football equipment has a duty to warn that wearing full pads and a helmet could cause heat stroke. That case followed the well-publicized death of Korey Stringer of the Minnesota Vikings in 2001. Stringer v. National Football League, et al., No. 2:03-cv-665, 2009 WL 6885869 (S.D. Ohio Jul. 10, 2009).

Following Stringer’s death, his widow brought suit. After the summary judgment ruling, the defendant-manufacturers asked the Court to reconsider its decision denying the motion for summary judgment on plaintiff’s failure to warn claim. The defendants asserted that “this court committed clear error in holding that [defendant], as a matter of law, had a duty to warn of the risk of heat exhaustion and heat stroke, and in extending the duty to non-injured, non-users of the products, i.e. the Vikings’ trainers and coaches.” The court found no clear error in its July 2009 decision and denied the defendants’ motion for partial reconsideration.

The Court’s underlying July 2009 decision was brought to our attention as a result of this recent denial of the defendants’ motion for partial reconsideration. While this decision is more than a year old, it provides an interesting set of facts. In 2001, Minnesota Vikings player Korey Stringer died from complications of a heat stroke while practicing at training camp. Stringer was over 300 pounds, and he suffered heat stroke on a hot and humid day while wearing full pads and helmet. Stringer’s widow filed a lawsuit against the equipment manufacturers for failure to warn, design defect, breach of implied warranty and breach of express warranty.

The Court had granted the defendants’ summary judgment on all of the Plaintiffs’ claims except for her failure to warn claim. First, the court found that since the plaintiff could not show an alternative design for the equipment, it was not unreasonably dangerous and the plaintiff’s defective design claim failed. Second, the court found that “strict products liability has effectively preempted implied warranty claims where personal injury is involved.” Third, the court found no evidence that the defendants expressly warranted that the helmet and pads were safe for their intended use.

On plaintiff’s failure to warn claim, the court denied summary judgment because it found that “[d]efendants had a duty to warn of the specific risk of developing heat stroke because it was not an obvious risk, and because the connection between Stringer’s heat stroke and Defendants’ failure to warn was not remote enough to preclude liability as a matter of law.” Further, the court found issues of material fact about whether a warning would have changed the conduct of Viking trainers and prevented Stringer’s injuries.

The aspect of the court’s decision most intriguing to us is the court’s finding that the danger presented by the helmet and shoulder pads was not obvious. Stringer was a 300+ pound football player that was not new to the game and had likely practiced in full gear in the heat for many years prior. How could the danger not be obvious? In determining that the danger was not obvious, the court distinguished the general risk of becoming hotter when wearing a helmet and shoulder pads and the specific risk of developing heat stroke. The court stated that the first was obvious but the specific risk was not. We are still not convinced there is much a difference.

Now that the Thanksgiving holiday has passed, the shopping season is officially under way! Last week, the U.S. Consumer Product Safety Commission (“CPSC”) released tips for a “Safer Holiday Toy Shopping and Playing Experience.” If you are one of those shoppers that got their holiday shopping finished at 3:00 a.m. on Black Friday, these tips come too late. For all other sane people, the CPSC’s tips are helpful to consider when shopping during the upcoming holidays.

According to the CPSC, from 2008 to 2010, both toy recalls and toy-related fatalities have declined. The CPSC attributes the decrease in recalls and fatalities with the increased safeguards put in placed in the recent years. Some of those safeguards included establishing lead paint and lead content limits, tracking imports and converting voluntary toy standards into mandatory standards.

Despite the decrease in toy recalls and toy-related fatalities over the past several years, the CPSC reported that toy-related injuries are increasing. “In 2009, there were an estimated 186,000 emergency room-treated injuries related to toys with children younger than 15, which is up from 152,000 injuries in 2005.” While these injuries may be associated with a toy, they were not necessarily caused by the toy. Regardless, this increase in injuries is a concern of the CPSC and, therefore, it released three main tips to help keep the holiday season incident-free:

1. Always choose age appropriate toys.
2. Always include safety gear when purchasing sports-related or ride-on toys.
3. Always take note of the location of play — avoid traffic, water, kitchens, and bathrooms.

In addition to the above, the CPSC recommended avoiding balloons and magnets for small children, immediately discarding wrapping when a toy is opened, and supervising children when they are charging batteries. The CPSC hopes that with these tips, shoppers will be armed with considerations when buying toys for their family members. Happy shopping!

On November 5, 2010, Judge Glenn Kelley of the 15th Judicial Circuit for Palm Beach County, Florida ruled in favor of defendant homebuilders on homeowners’ claims that Chinese drywall installed in their houses was defective resulting in economic loss and personal injuries. Bennett v. Centerline Homes Inc., No. 50 2009 CA 014458 (15th Jud. Circuit Fla.) [PDF].

This court made several determinations that will be helpful to homebuilders in lawsuits around the country — that is if other courts will follow the principles applied by Judge Kelley. First, Judge Kelley provides that there are two applications of the economic loss rule in Florida — contractual privity economic loss rule and products liability economic loss rule. The Court found that the second, products liability economic loss rule, did not apply to the tort claims asserted by plaintiffs because it only applies where the defect in the product causes damage to the product but does not cause personal injury or damage to other property. Plaintiffs here assert the opposite — no damage to the drywall but personal injury and damage to other property. Despite this ruling, the Court did find that the first application of the economic loss rule — contractual privity economic loss rule — applied here. The Court found that since the damages sought by the homeowners arose out of the contract they entered with homebuilders, traditional contract damages must be applied to the economic losses suffered by the plaintiffs.

Second, Judge Kelley dismissed plaintiffs’ claims for private nuisance because there is no case law relied on by plaintiffs that “support the contention that a nuisance may exist absent a defendant’s exercise of its property rights.” Third, Judge Kelley ruled that strict liability does not apply to improvements to real property as improvements to real property are not considered products and that homebuilders are not in the distributive chain of a product, thus cannot be held strictly liable. This last ruling may be the most significant and, if adopted by other courts in Chinese drywall cases, will work to the advantage of homebuilder defendants in these cases.

One consideration that practitioners need to always keep in front of them is how choice of law principles can affect what state’s law applies in an action. A recent opinion by the District of Maryland is a good example of how the application of choice of law rules can result in the application of multiple states’ laws in one action. Desrosiers v. MAG Indus. Automation Sys., LLC, No. WDQ-07-2253, 2010 WL 4116991 (D. Md. Oct. 19, 2010). This opinion does not discuss any novel choice of law rules but is relevant to show the importance of the question — “What law is going to apply?”

The Maryland district court granted summary judgment for the two holding company defendants and granted in part and denied in part summary judgment for the manufacturer.

In making its determination on defendants’ motions for summary judgment, the court first applied the basic rule that “[i]n a diversity case, the choice of law rules are those of the state in which the Court sits.” Therefore, the Court looked to the choice of law rules of Maryland. “Maryland generally follows the principle of lex loci delicti, which applies the law of the place ‘where the last event required to give rise to the tort occurred.'” Further, in Maryland, wrongful death actions are governed by statute.

Therefore, on Desrosiers’ survival claims, the Court applied lex loci delicti and determined that Maryland law applied because the decedent was at his work site in Maryland at the time of the injury that resulted in his death. However, on Desrosiers’ wrongful death claims, the Court looked to Maryland statutory law that stated that “if a wrongful act occurred in another state, [the Court] shall apply the substantive law of that jurisdiction.” The Court interpreted “wrongful act” as the act that entitles another party to recovery, and since Desrosiers claimed that the machine was defectively designed, the “wrongful act” occurred in Wisconsin where it was manufactured. The Court, therefore, applied Wisconsin law on Desrosiers’ wrongful death claims.

The Court applied both Maryland law and Wisconsin law throughout its opinion. The differences between Maryland law and Wisconsin law were not outcome determinative in this matter; however, it could be in other matters. That said, we need to always determine at the outset of a matter what law applies and be ready for any differences in the application of those states’ laws.

Today, Abnormal Use continues its series, “Abnormal Interviews,” in which this site will conduct brief interviews with law professors, practitioners and other commentators in the field. For the latest installment, we turn to law professor David G. Owen of the University of South Carolina School of Law. Renowned for his scholarship in products liability law, Professor Owen co-authored the products liability treatise, Madden & Owen on Products Liability (with S. Madden and M. Davis). The interview is as follows:

1. What is the most significant new development in products liability in recent years?

The most significant development in products liability doctrine is the continuing decline of “strict” products liability. The rise of strict liability occasioned by Judge Traynor’s decision in Greenman v. Yuba Power Products, Inc. in California in 1963 and the ALI’s adoption of § 402A of the Restatement (2d) of Torts in 1964 (published in 1965) fueled the spectacular development of modern products liability law. The idea was that the law demands safe products, and manufacturers and other sellers of defective products should pay for accidents such products cause.

Beginning in the mid-1980s, however, courts began to rethink the idea of strict liability as they began to parse the concept of “defect” according to whether a product danger was a manufacturing flaw, a danger in design, or a danger not adequately warned about. And as the law developed, spurred by the Restatement (3d) of Torts: Products Liability during the 1990s, it became more and more clear that the law would tolerate true “strict” liability only in cases of manufacturing flaws. In state after state, negligence principles (and in some states negligence doctrine) reclaimed center place in judging both design and warning safety, with design safety increasingly turning on the availability of a feasible alternative design the manufacturer unreasonably failed to adopt, and warning safety increasingly turning on the foreseeability of a danger about which the manufacturer unreasonably failed to warn.

This development—away from strict liability and back toward negligence principles—continues to spread across the land, sometimes with a state’s adoption of a defense to “strict” liability based on “state of the art,” and other times with a court’s or legislature’s switch from a design defect liability test based on consumer safety expectations to a risk-utility test based on a manufacturer’s failure to adopt a reasonable design precaution. As for this latter switch, the most recent example is the South Carolina Supreme Court decision in Branham v. Ford Motor Co., just a couple months ago.

2. What rule of modern products liability jurisprudence is the most outdated? How would you change it and why?

Putting aside the decline of “strict” liability in design and warning cases just discussed, products liability law has a number of secondary rules that deserve reconsideration. Near the top of this list is the “learned intermediary doctrine,” applicable in prescription drug cases. Normally, a manufacturer has a duty to provide warnings directly to persons who need the warnings the most, usually end users. But the widely applied learned intermediary doctrine provides an exception to this duty rule for prescription drugs, based on the belief that doctors—learned intermediaries situated between drug manufacturers and patients—can best process drug warnings and decide when and how to pass along to patients those that are most relevant to particular patients. So, this rule provides that manufacturers only have to warn doctors about dangers in their drugs, and that they have no duty to provide warnings directly to the patients who will consumer their drugs.

In this day of mass merchandising of prescription drugs in the media, where drug manufacturers have chosen to jump over doctors and market their drugs directly to patients, it seems that manufacturers logically should have a corresponding duty to supply warnings of dangers directly to patients, too. Courts in New Jersey and West Virginia have so held in recent years, and I predict that other courts will reasonably follow suit—and abandon the learned intermediary doctrine—in the years ahead. Moreover, I would like Congress or the FDA to require manufacturers to provide patient warning inserts with all prescription drugs, written by public health professionals and reviewed by the FDA to assure effective translation of complex scientific medical information to a comprehensible form for ordinary patients. Finally, I would abolish the pharmacist’s immunity from liability for failing to warn and require pharmacists, as well as manufacturers, to provide patient warning sheets with all prescription drugs they sell.

3. What is the biggest challenge for lawyers practicing products liability today? What advice would you give?

The biggest challenge for products liability lawyers today concerns the use and abuse of expert witnesses and the lessons of Daubert v. Merrell Dow Pharmaceuticals, decided by the Supreme Court in 1993. The purpose of Daubert was to rid courtrooms of “junk science”— questionable scientific testimony often allowed into evidence by judges who felt uncomfortable evaluating the reliability of such testimony, evaluations they traditionally could avoid by uttering the mantra that any weaknesses in such testimony went merely to its weight, not its admissibility. Interpreting Federal Rule of Evidence 702, Daubert ruled that modern judges now must serve as scientific “gatekeepers,” keeping out scientific testimony that is not “reliable.” Now applied to expert testimony on technology as well as science, Daubert spans all products liability litigation in federal court; and its principles are rapidly spreading to state court litigation, too.

After Daubert, the challenge for products liability lawyers—many of whom went to law school because of an aversion for science and technology—is to realize that they can no longer leave science (and technology) to their experts, and that the lawyers themselves now have to bite the bullet and learn the science their experts preach. In addition, lawyers now need to “Daubertize” their expert witnesses by requiring their witnesses to rigorously apply reliable principles of science and technology to their research and testimony in a products liability case, and to clearly explain their reasoning—on how a product was defective, on how the defect caused the plaintiff’s accident/illness, and precisely how the product practicably could have been made differently to prevent the accident/illness.

Lawyers, in short, now need to know their science and technology in a case well enough to guide their own experts to be able to explain how they arrived at their conclusions, step by step, so that the expert’s reasoning process is transparent and, therefore, subject to effective cross examination by opposing counsel. This is no small task, and lawyers will continue to be challenged fresh in every new products liability case with learning the scientific or technological details of the “how” and “why” a particular product failed. This is a challenge that has made products liability litigation more difficult and more expensive, with the result that plaintiff’s lawyers are trying fewer products liability cases today than they did a couple decades in the past. By the same token, however, plaintiffs today are preparing themselves and their experts more thoroughly than in olden days, with the result that they are winning a higher percentage of cases, and receiving higher verdicts, than before Daubert marched across the land.

BIOGRAPHY: David Owen is the Carolina Distinguished Professor of Law and Director of the Office of Tort Law Studies at the University of South Carolina where he teaches courses and seminars on Tort Law, Tort Theory, and Products Liability. Prior to teaching, Professor Owen received degrees in economics (Wharton) and law from the University of Pennsylvania, was law clerk for Chief Justice Kenison of New Hampshire, and practiced law at Holland & Hart in Denver. In addition to numerous journal articles, Professor Owen has authored, co-authored, and edited various books, including a hornbook/treatise, Products Liability Law; Products Liability in a Nutshell; the leading casebook, Products Liability and Safety (with J. Montgomery and M. Davis); a products liability treatise, Madden & Owen on Products Liability (with S. Madden and M. Davis); a theoretical work, Philosophical Foundations of Tort Law; and Prosser & Keeton on Tort Law (with W. Prosser, P. Keeton, R. Keeton, and D. Dobbs). He is an Adviser to the American Law Institute on the Restatement (Third) of Torts, and he was the ALI’s Editorial Adviser for the Restatement of Products Liability.

On October 4, 2010, Second Circuit Judges, John M. Walker, Jr., Jose A. Cabranes, and Chester J. Straub, upheld the decisions of the Eastern District Court of New York in two lawsuits filed against Eli Lilly & Company, manufacturer of Zyprexa. Belcher v. Eli Lilly & Co., No. 09-5004-CV, 2010 WL 3853003 (2d Cir. Oct. 4, 2010) and Gove v. Eli Lilly & Co., No. 10-216-CV, 2010 WL 3852840 (2d Cir. Oct. 4, 2010). Lawsuits against Eli Lilly & Company (“Eli Lilly”) began to be filed around the country by plaintiffs alleging that its anti-psychotic medication, Zyprexa, caused them to suffer from diabetes. Plaintiffs asserted that if Eli Lilly had properly warned of the drug’s dangers, they would have never been prescribed the drug and not developed diabetes. These similar lawsuits around the country were transferred to the Eastern District of New York pursuant to an order of the Judicial Panel on Multidistrict Litigation. The Belcher and Gove matters discussed here were both decided in favor of Eli Lilly on motions for summary judgment. Thereafter, these appeals were filed.

The Belcher matter was decided in favor of Eli Lilly solely on the ground that her claim was barred by the statute of limitations. Applying California’s discovery rule and its two year statute of limitations for product liability and personal injury actions, the Second Circuit upheld the decision of the Eastern District Court of New York. California was the applicable law since the matter was filed in California and the events giving rise the action occurred there. The Second Circuit found that the statute of limitations began to run in October 2001 when a physician who knew the association between the drug and increased weight gain and blood glucose levels prescribed Zyprexa. Her claim was barred as it was filed in February 2006. The decision of the District Court dismissing the action was upheld.

The Gove matter was also decided in favor of Eli Lilly on the ground that her claim was barred the by the statute of limitations as well as on the ground that Gove had failed to establish that Eli Lilly’s failure to warn was the proximate cause of her injuries. The Second Circuit upheld the District Court’s decision merely on the ground that Gove failed to establish proximate cause. The applicable law in this matter was Arizona’s substantive law because this matter was filed in Arizona and the events giving rise the action occurred there. The Second Circuit found that Arizona recognized the learned intermediary doctrine but applied the “heeding presumption” by shifting the burden of production to the manufacturer. If the manufacturer meets this burden, the burden shifts to plaintiff to show proximate cause. Applying these principles, the Second Circuit found Eli Lilly’s presumption satisfied by evidence that Gove’s nurse practitioner that prescribed the drug testified that an alternative warning would not have affected her prescribing habits. Further, because Gove’s practitioners were aware of the risks and would not have changed their treatment decisions, the Second Circuit found that Gove failed to establish proximate cause. The Court upheld the decision of the District Court.

The District Court of Massachusetts was recently asked to grant a new trial under Federal Rule of Civil Procedure 59(a)(1)(A) on the ground that the jury instructions delivered to the jury were erroneous. O’Neil v. Electrolux Home Prods., Inc., No. 06-10433-DPW, 2010 WL 3504191 (D. Mass. Sept. 7, 2010). What makes this case of interest is the fact that Plaintiffs, who base their motion for a new trial on the alleged erroneous jury instructions given, submitted the identical instructions to the court and did not object to the oral recitation of these instructions to the jury prior to deliberation. It was only after the jury requested a typed copy of the instructions that Plaintiffs objected.

This is a products liability action involving an accident in which Plaintiff backed over his young son with a lawn mower. Plaintiffs filed suit against the manufacturer, asserting among other claims, breach of warranty by design defect. At the trial of this action, the following jury instructions were given:

To determine whether there was a design defect you should consider whether the product has a potential, sometimes referred to as a propensity, resulting from the manufacturer’s conscious design choice that rendered the product unreasonably dangerous to foreseeable users and, therefore, unfit for its ordinary foreseeable uses . . .

The phrase at issue is italicized above — “unreasonably dangerous to foreseeable users.” As stated above, the instructions requested by Plaintiffs included this very language and Plaintiffs made no objections when orally given by the Court. Hours into deliberation, the jury asked for criteria to determine when a product is “unreasonably dangerous.” The Court proposed sending a typed copy of the prior instructions to the jury. Plaintiffs objected to the phrase above and suggested the following phrase as a replacement — “unreasonably dangerous to foreseeable users or foreseeable bystanders.” The Court declined Plaintiffs’ suggestion and submitted the original instructions to the jury. Shortly thereafter, the jury found in favor of Defendants.

Then, Plaintiffs sought a new trial on the ground of erroneous jury instructions. The District Court of Massachusetts first stated that the test was a two-part test: 1) whether the objection was waived and 2) whether the instruction was erroneous.

The Court’s analysis of the first part of the test is most interesting. Defendants claimed that since Plaintiffs did not object to these instructions orally given, they cannot now object to the same exact language being given to the jury in hard copy. The Court disagreed with Defendants on this point, stating that Plaintiffs only “waived any challenge to that instruction at that time,” but not the supplemental instructions, even if they had the same content. Under the second prong of the test, Plaintiffs argued that failure to include “foreseeable bystander” in the instruction was “misleading and gave an inadequate understanding of the law.” The Court now disagreed with Plaintiffs, finding that the instructions as written were in line with Massachusetts law and the jury was fully aware that Defendants could be liable for injury to Plaintiffs’ son as a bystander from both parties’ opening and closing arguments and through the testimony at trial. Therefore, the Court found no error and denied Plaintiffs’ motion for a new trial.

We thought that the Court’s finding no waiver was interesting: it is a “second bite at the apple” for Plaintiffs. Therefore, practitioners should be aware of how this Court analyzed this issue if faced with a similar argument on a motion for a new trial.