The case arises out of a plane crash that occurred shortly after takeoff on January 21, 2005. Id. at *1. The crash resulted in the deaths of the pilot and all four passengers. Id. The Plaintiffs in this consolidated action were the heirs of the four deceased passengers. Id. The plane’s engines were manufactured by Honeywell’s predecessor-in-interest in 1979. Honeywell repaired the plane’s left engine in 2003 and subsequently declared that the engine was airworthy. Id. The Plaintiffs brought suit against Honeywell for wrongful death on three theories: (1) negligent repair of the left engine; (2) strict product liability; and (3) breach of implied warranty. Id.

The majority of the opinion dealt with each parties’ respective motions to exclude expert testimony. However, the most intriguing portion of the opinion was the court’s analysis of Honeywell’s Motion for Summary Judgment on the Plaintiffs’ strict liability and implied warranty claims. Honeywell argued that since it had only repaired the engine in 2003, Kansas law would not support a claim for strict product liability or breach of an implied warranty when there was not an accompanying sale of the product. Id. at *8.

The court began by recognizing the fact that the Plaintiffs had conceded that their claims for strict liability and breach of warranty were not based on an alleged defect in the engine when it was originally manufactured and sold in 1979. Id. The court then provided a brief summary of Kansas law with respect to strict liability and implied warranty claims. Specifically, the court stated that Kansas, with respect to strict liability claims, had adopted section 402A of the Second Restatement of Torts. Id. at *9. As such, liability attaches to one who sells a defective product. The court also reiterated that Kansas courts have required a plaintiff to show that the good’s defect was present when it left the manufacturer’s control and that an implied warranty arises out of a contract for the sale of goods. Id.

In response, the Plaintiffs argued that Honeywell’s repair of the left engine in 2003 was of such magnitude to have constituted a remanufacturing of the engine. Id. Nevertheless, the court stressed the fact that there was no evidence that the repair in 2003 constituted a sale: “[t]here is no evidence, however, that the title to the engine did not remain with the owner during repair or that the engine was re-sold by the defendant at that time.” Id. Furthermore, the court relied on Kansas law for the proposition that the term “manufacturer” includes one that remanufactures a product before its sale to a consumer. Id. Finally, the court held that under Kansas law, which is now in line with the majority of jurisdictions, a claim for strict liability or breach of an implied warranty will not extend to repair situations where there is not a sale of the product. Id.

Thus, in light of this opinion, it appears that the bleeding will now stop with regards to strict liability and breach of implied warranty claims arising out of a repair of a product that has already been sold.

As I prepare to leave for Las Vegas to attend the annual DRI Products Liability Conference, I have been thinking about the current state of products liability law in the United States. As everyone knows, our current products liability law consists of separate laws – including a myriad of statutes, codes and case law – in every state, some of which conflict and some of which overlap, supplemented by various federal laws, rules and regulations. As a result of this conflicting system, U.S. products manufacturers face increasingly complex and expensive litigation which has expanded exponentially over the years. With a couple of possible exceptions, one would be hard-pressed to find an area of litigation that has become more expensive than products liability.

There is also no question that manufacturers who produce products for use in the United States are the most regulated, legislated and litigated industry in the world. The question is whether there is too much regulation and litigation and, if so, what can and/or should be done to ease this burden so as to ensure that U.S. products manufacturers can compete in the global economy. It is obvious that relief is needed. We have all read the news and it is not good. Jobs are being lost daily, the United States industrial and manufacturing community is shrinking rapidly, if not dying, and products manufacturers face substantial litigation exposure and expense, all of which makes it extremely difficult for them to compete.

This burden needs to be substantially reduced. So what to do? Some would say the answer is to take products liability law out of the hands of the states and place it under the control of the federal government in the name of uniformity and consistency. God forbid that this occur. While allowing states to generally control products law does lead to some problems and inconsistencies, the federal government has done nothing worthwhile in the legislative arena in the last several decades and what it has done generally creates more problems than it solves. The current health care fiasco will, I believe, prove this point conclusively. That legislation will most assuredly lead us down the path of substantially higher health care costs, increased taxes and decreased quality of care. Turning control of the health care system in America over to the likes of Congress, including congressmen who are afraid Guam might tip over, and whoever might be in the White House at any given moment is a terrible idea and allowing it to take over products liability law would be just as bad, if not worse.

Another, and I would submit, much more appropriate remedy is to abolish the doctrine of strict liability. Strict liability laws were introduced at a time when products manufacturers needed regulating. These laws have clearly served their purpose of requiring U.S. manufacturers to make the safest products in the world. That they do so is really without question. To coin a phrase – planes, trains and automobiles – as well as toys, food, electronics, pharmaceutical products, medical devices, you name it – if it is designed and manufactured to be sold here, it is the safest product in the world. However, the doctrine of strict liability is no longer used to ensure reasonable safety; rather, it has gone beyond reasonableness to the point where a degree of “defensive design and manufacturing” akin to the concept of defensive medicine, is required. This has driven up costs, both on the design and manufacturing side as well as the back-end cost of defending litigation involving strict liability claims.

Assuming this to be the case, one answer is to do away with strict liability laws. Would doing so result in manufacturers suddenly abandoning the concept of making safe products? I think not. Would it result in a multitude of defective products being dumped into the marketplace? I think not. Would it result in manufacturers being able to make sensible decisions in designing and manufacturing products without having to worry about the concept of “defensive design and manufacturing,” thus lowering costs? I think so. Would it result in fewer frivolous claims being filed and litigation costs being driven down substantially? I think so. Is this a bad thing? Absolutely not!

Let me hasten to say that I do not believe that manufacturers should be insulated from liability where they are negligent and/or grossly negligent in connection with the design or manufacture of products. If they are negligent and they cause harm, they should pay reasonable actual damages. If they are reckless and consciously indifferent in their conduct, they should be liable for reasonable punitive damages. However, should they be liable after having used all due and reasonable care in the design and manufacturing process simply because some paid expert somewhere says that he or she thinks the product is defective or unreasonably dangerous? It seems to me that the time for that cause of action has come and gone.

As society changes, laws which, when enacted, fulfilled a valid and societal purpose become unnecessary. It is no longer necessary for us to legislate the manufacture and use of buggy whips. Times change, and the need for laws change, as well. Has the time to do away with the concept of strict liability arrived? I think so.

A Florida jury recently ordered two cigarette companies to pay a total of $26.6 million to the widow of a longtime smoker who died of lung cancer after smoking for more than 50 years.

The verdict, handed down on March 24, was the latest in a string of “Engle progeny” cases to be submitted to Florida juries in recent years. Engle v. R.J. Reynolds was a landmark class-action lawsuit filed in 1994 against makers of cigarettes, in which a Florida jury awarded the plaintiffs $145 billion. This award was subsequently overturned by the Florida Supreme Court in 2006.

However, in doing so, the court reportedly did allow the approximately 700,000 Florida smokers in that class to pursue their claims individually. In addition, the state supreme court actually allowed the findings of the original jury pertaining to causation, addiction of cigarettes, negligence, and breach of implied warranty to stand, thereby reducing the burden of proof required in these subsequent actions. This likely has served as a significant advantage for plaintiffs’ counsel, who go to trial without having to jump the causation hurdle. As a result, the defendants’ strategy is also limited.

Of the 13 Engle progeny cases to reach juries in the last 13 months, plaintiffs have won 11. Counsel for the tobacco companies have alleged that each of these cases raises constitutional issues, though, because allowing one jury to rely on the findings of a prior jury that are totally unrelated to the individual smoker at each trial is in violation of both Florida law and due process.

Representatives for Philip Morris have said it will appeal the jury’s latest verdict on the grounds that the trial court improperly eliminated the majority of the plaintiff’s burden of proof. However, as of now, at least, it appears as though the latest will be one of a continuing string of verdicts to strike blows to the tobacco industry.

From July 2002 to April 2007, Plaintiff Mary Cleo Couick took generic metoclopramide pills for treatment of gastroesophasgeal reflux. Reglan, the name-brand version of the drug, was manufactured by Wyeth, Inc. and Schwarz Pharma, Inc. Couick stipulated that she only took the generic version of this drug. However, Couick filed suit against both the name-brand manufacturers and generic manufacturers claiming that they failed to adequately warn her doctors about the risks associated with metoclopradmide, which caused her to develop tardive dyskinesia.

Against name-brand manufacturers, Couick brought claims for negligence, breach of undertaking special duty, misrepresentation by omission, negligent misrepresentation, constructive fraud, fraud by concealment, intentional infliction of emotional distress, negligent infliction of emotional distress, unfair and deceptive trade practices, breach of express warranty, and breach of implied warranties. In response, name-brand manufacturers filed a motion for summary judgment.

The Court first found that since “[e]ach of [Couick’s] claims [are] based on the premise that Wyeth and Schwarz are liable for Couick’s physical condition because they failed to adequately warn Couick’s doctors about the dangers of metoclopramide,” Couick’s claims, while masked in various legal theories, were a single claim for products liability.

The Court then held that under clear North Carolina and Fourth Circuit authority, a “name-brand manufacturer’s statements regarding its drug [cannot] serve as the basis for liability for injuries caused by another manufacturer’s drug.” As a result, the Court granted name-brand manufacturers’ motion for summary judgment.

This case is instructive to products liability practitioners in two main respects. First, despite a plaintiff’s artful pleading, claims based upon personal injury or property damage as a result of the manufacture, construction, design, selling, advertising, etc. of the product, is generally considered only one claim under a state’s products liability law. Second, the rule that a name-brand manufacturer is not liable for injuries caused by another manufacturer remains intact. See Foster v. Am. Home Products Corp., 29 F.3d 165 (4th Cir. 1994). Recently, we have reported on a number of cases here against drug manufacturers. This re-affirmed rule will become particularly important as these types of suits increase.

We greatly enjoyed the opportunity to engage in a bit of a hoax with yesterday’s April Fool’s Day post about a fake verdict from a non-existent Texas court arising from the consumption of an unsatisfactory Snickers bar. Surely you were tipped off by the “reasonable degree of confectionary certainty” standard and the “nougat defense.” Thanks to all those who linked the post, and for those of you who wrote in asking for a copy of the opinion, we won’t tell. In sum, we haven’t had this much fun since our chicken sandwich post (which, actually, was about a real court opinion).

Andrew Giuliani, son of former New York City mayor Rudy Giuliani, apparently sued Duke University over his being removed from the school’s golf team. This, he argued was some type of breach of agreement which deprived him both of team membership but also life time use of the school’s golfing facilities. This week, however, a federal district judge dismissed his lawsuit. Really, with this one, you just need to come up with your own golf pun. We’re fresh out. (See additional coverage of this opinion here at the Findlaw Courtside blog, here from the WSJ Law Blog, and here at Overlawyered.).

Over at the South Carolina Women Lawyers Association’s Blog: The Briefcase blog, you can find a post entitled “Eight Simple Ways to Lose Your Law License by Email.” The article, written by Barbara M. Seymour of the South Carolina Office of Disciplinary Counsel, concludes with a series of email usage tips for attorneys.

Richard Goldfarb at the Food Liability Law Blog offers his preliminary thoughts on the food labeling provisions of the new health care bill.

Sara Turner at DRI’s For the Defense blog comments upon speculation that Apple’s new iPad may be “the hot new technology for trial.” The associates writing this blog will need to forward that link to the shareholders in the procurement department. After all, how can one not have the latest in trial technology?

Wells, the Plaintiff, sued Smithkline Beecham d/b/a GSK, because he claimed that GSK’s drug Requip caused irresistable gambling urges. Wells was a pathologist who had to retire due to Parkinson’s disease. Wells was originally prescribed Mirapex to alleviate his symptoms, but he later read an article that Mirapex might cause “problem gambling.” Wells had already lost $2 million at this point. He was then prescribed Requip, which did not bear any warning about problem gambling. You can bet what happened next.

The district court granted summary judgment to GSK on causation, and the Fifth Circuit affirmed, citing Daubert. Wells put up three experts to say something like “Requip causes gambling problems.” Although Wells’ counsel was able to string together some case-specific information showing some correlation between Requip and gambling impulses, the Fifth Circuit was pretty clear:

Each of the three experts, though, conceded that there exists no scientifically reliable evidence of a cause-and-effect relationship between Requip and gambling.

Id. I imagine that the defense lawyer was somewhat bewildered when each expert admitted at deposition that there was no scientific evidence on which to base an opinion as to causation. The summary judgment motion pretty much writes itself. Without any scientific basis of opinion, the experts can’t opine in court, and, therefore, Wells claim failed for lack of proof of causation. What’s the big deal, you say? This seems pretty straightforward. Well yes, but I would point out two issues on which I will pontificate. First, Wells was just unlucky in the factual sense of the word. Based upon the Requip Patient Information [PDF] (which admittedly is an updated version that notes the potential for impulsive behaviors, including gambling) Wells could have experienced some other side effects that may or may not have been preferable. First, the warnings indicate that a patient may fall asleep during an activity of daily living, perhaps without a warning of drowsiness. Narcolepsy in Vegas could have its positives and negatives. I could envision a scenario where you’re losing at a table without the will to get up, and then you faceplant into your chips. While having a chip impaled through your forehead may hurt, at least the (figurative) bleeding would stop (maybe). I suppose there’s always the chance for somnambulistic wagering.

Seroquel, with a reported $4.9 billion in sales in 2009, has been widely utilized for treatment of psychotic disorders such as bipolar disorder and schizophrenia. In the present case, the plaintiff was a 61-year-old Vietnam veteran who took the drug for treatment of posttraumatic stress disorder. He is one of thousands of users of the drug who allege that AstraZeneca causes diabetes and that the company failed to adequately warn patients of that risk.

Not surprisingly, the huge volume of litigation over the drug has resulted in “millions of pages” of discovery material. The New York Times reports that among those millions of pages were at least two seemingly explosive emails. The first of those, it reports, was a 1997 message from an AstraZeneca official in which he praised the work of the company’s physician for minimizing adverse conclusions regarding the drug in a “cursed” study. Specifically, he reportedly wrote: “Lisa has done a great ‘smoke-and-mirrors’ job!” The second of those emails was written in 1999, two years after the drug was approved for use in the United States. In it, the company’s publications manager reportedly wrote: “The larger issue is how do we face the outside world when they begin to criticize us for suppressing data.”

Prior to this amendment, the Commission considered the following factors in its determination of the amount of a civil penalty: “the severity of the risk of injury; the occurrence or absence of injury; and the number of defective products or the amount of substance distributed.” Now, the Commission is required to consider the following additional factors:

Of interest is not that the Commission now has additional factors to consider but some of the reasons that this was not a unanimous vote of approval. Chairman Inez M. Tenenbaum, Commissioner Robert S. Adler, Commissioner Thomas H. Moore, and Commissioner Nancy Nord voted to approve this rule. Chairman Tenenbaum, along with Commissioners Adler and Moore filed a joint statement of approval, and Commissioner Nord filed an independent statement of approval. [PDF]. Commissioner Anne M. Northup, on the other hand, “voted against the proposed Final Rule Interpreting Civil Penalty Factors because it fail[ed] to take the agency where [she] believe[d] it should arrive five years from now.” [PDF].

• Last week, we commented upon our fair city of Greenville’s attempt to woo Google to bring its fiber optic initiative to town. The search engine giant plans to choose a medium sized city in which it will offer Internet service up to 100 times faster than that currently available from traditional Internet service providers. Thus, cities across the nation are actively attempting to convince Google to select their locale to be the site of the Google’s new initiative. Above, you’ll see Greenville’s entry into the fray: an aerial photograph depicting thousands of glow stick wielding Greenvillians spelling out Google’s name in lights. For more photographs (aerial and otherwise), please see Greenville’s We Are Feeling Lucky website. We here at Abnormal Use greatly applaud this effort. If you’re on Twitter (like we are), you can follow news of Greenville’s quest with the hashtags #GoogleOnMain and #LuckyGVL. We offer our congratulations to the event’s organizers, who apparently organized the enterprise in less than two weeks time. Below, you can see a bird’s eye video of the scene:

• Foreign manufacturers should take note of some new law in New Jersey. In a recent piece entitled “Buy Globally, Sue Locally for Products Liability,” J. Russell Jackson of The National Law Journal notes that a recent New Jersey case significantly expands the concept of personal jurisdiction in products cases. That case is February’s Nicastro v. McIntyre Machinery America, Ltd., 987 A.2d 575 (N.J. 2010), and it may ensnare a number of foreign manufacturers, even those who do not purposefully avail themselves of the benefits of the forum. Jackson, of course, is also the author of the Consumer Class Actions and Mass Torts blog, long a staple of this site’s blogroll.
• On Wednesday, former circuit court judge John C. Few of Greenville was sworn in as the new chief judge of the South Carolina Court of Appeals. See here for the Greenville News report of the investiture.
• Here’s another interesting post. In a piece entitled “Toyota’s Embedded Software Image Problem,” Michael Barr of Embedded Gurus opines: “It remains unclear whether Toyota’s higher-than-industry-average number of complaints regarding sudden unintended acceleration (SUA) is caused (in whole or in part) by an embedded software problem. But whether it is or it isn’t actually firmware, the company has clearly denied it and yet still developed an embedded software ‘image problem.’ They’ve brought some of this on themselves.” Check out the full story for the rest of his thoughts on that topic.