February 2009

From the editors of Wolters Kluwer Law & Business, this update describes important developments from CCH products liability and safety publications.

If you have any comments or suggestions concerning the information provided or the format used, we'd like to hear from you. Please send your comments to pamela.maloney@wolterskluwer.

Hot Topic – CPSC Lead Limits Enforcement

CPSC Announces Lead Limit Enforcement Policy
The Consumer Product Safety Commission has announced an enforcement policy on the lead limits established by the Consumer Product Safety Improvement Act (CPSIA) (CPSC News Release, #09-120, February 6, 2009). The CPSIA requires that, beginning February 10, 2009, consumer products intended for children 12 and under not have more than 600 parts per million of lead in any accessible part. The Commission also issued an interim final rule, establishing alternative lead limits for certain electronic devices, in order to prevent unnecessary removal of certain children’s products from store shelves. The Commission has withdrawn a proposed rule on exemptions for certain electronic devices published in the Federal Register on January 15, 2009 [CCH Consumer Product Safety Guide, Report No. 931, January 26, 2009]. The interim final rule is effective February 10, 2009. Comments should be submitted by March 16, 2009. (CCH Consumer Product Safety Guide ¶42,000 (ip access users))

CPSC Announces Stay of Testing/Certification Requirements
The Consumer Product Safety Commission (CPSC) has decided to delay enforcement of certain provisions of the Consumer Product Safety Act (CPSA) as amended by the Consumer Product Safety Improvement Act of 2008 (CPSIA). The Commission is postponing certain testing requirements and issuance of certificates of compliance by manufacturers, including importers, of products subject to an applicable consumer product safety rule as defined in the CPSA or similar rule, ban, standard, or regulation under any other act enforced by the Commission. The Commission emphasized that the stay only applied to testing and certification, not to the sale of products that do not comply with applicable mandatory safety requirements. All children's products must comply with all applicable children's product safety rules, including, but not limited to, the upcoming limits on lead and phthalates in the CPSIA, the CPSC added. The stay is effective February 10, 2009, and will remain in effect until February 10, 2010, at which time the Commission will vote to terminate the stay. (CCH Consumer Product Safety Guide ¶56,998 (ip access users))

Products Liability

Jury Questions Raised by Evidence of Halogen Lamp Defect
Parents of a man who died in a house fire presented sufficient evidence to raise material issues of fact as to whether an allegedly defective halogen lamp caused the fire, a Texas appellate court ruled. The parents brought products liability claims against a national retailer that allegedly sold the defective halogen lamp which was inadvertently lost after the fire. The results of the fire investigation failed to discern a specific cause for the fire, but noted a heavily burnt chair with a broken lamp next to it and the fact that the inhabitants had been smoking marijuana. Expert testimony on behalf of the parentswas found by the appellate court to be legally competent, and, while not irrefutable, had factual substantiation. The court also found that there was sufficient evidence that the lamp was unreasonably dangerous. The expert pointed to scientific literature documenting that halogen lamps can cause fires in four different ways and the record contained numerous articles and a Commission memorandum detailing incidents of halogen lamps causing fires from a variety of sources. A reasonable jury could conclude from the evidence that an incandescent torchiere lamp was an adequate substitute for a halogen torchiere lamp and, therefore, that the utility of the halogen lamp did not outweigh its dangers. (Merrell v. Wal-Mart Stores, Inc., Tex. Ct. App., CCH Products Liability Reporter ¶18,146 (ip access users))

Punitive Damages Possible for Ladder Maker, But Not Retailer
A consumer, who was injured in when a rented aluminum ladder collapsed about four inches, introduced sufficient evidence to raise a jury question as to whether the ladder's manufacturer was liable for punitive damages for knowingly authorizing the release of a defective product into the stream of commerce. However, there was no evidence that the retailer knew of the ladder's defect and, thus, there was no basis for submitting the consumer's punitive damages claim against it to the jury. The consumer introduced three pieces of evidence, including expert testimony and company documents, which provided sufficient support for his contention that the manufacturer knew of the defect. The first expert's testimony presented test results showing false latching conditions that occurred when the latch was partially deployed as in this case. (Bethel v. Home Depot U.S.A., Inc., S.D. Cal., CCH Products Liability Reporter ¶18,145 (ip access users))

Post-Sale Duty to Warn Action Allowed to Proceed
The Virginia Supreme Court would allow a cause of action based on a negligent breach of a post-sale duty to warn to proceed in the case of a patient who alleged he suffered injuries caused by the use of an ambulatory drug delivery system, commonly called a "pain pump," designed to deliver pain medication to an operative site following surgery. The patient claimed that the pain pump was defective because it had inadequate post-marketing warnings or instructions. The medical device was designed, manufactured, and sold by a corporation that sought to dismiss the patient's complaint on the grounds that a post-sale duty to warn did not exist under Virginia law. However, the Restatement (Third) of Torts: Products Liability and dicta from a Fourth Circuit Court of Appeals opinion supported the determination that the state high court would allow the cause of action to proceed. The Restatement provided that if a reasonable person in the seller's position would provide a warning after the time of a product's sale, then a product seller or distributor who failed to provide such a warning may be liable for any resulting harm. This standard was flexible and allowed a jury to balance the need to protect consumers from dangerous products with the burdens imposed on manufacturers from a post-sale warning requirement. The Fourth Circuit's opinion was consistent with this view, and many states favor a post-sale duty to warn as well (Rash v. Stryker Corp., W.D. Va., CCH Products Liability Reporter ¶18,151 (ip access users))

Testing Not Required for Alternative Design Opinion
Expert testimony on alternative designs for a hot asphalt machine that allegedly injured an employee who was sprayed with hot asphalt from what he claimed was a defective spigot on the machine was not barred for lack of testing, the U.S. District Court for the Western District of New York held. The employee alleged that when he turned the spigot on the machine, which was an insulated tank for the temporary storage and distribution of roofing asphalt, the entire spout turned toward him, and poured hot asphalt, at about 300 degrees Fahrenheit, onto him, filling his work boots and causing him severe burns. The employee's expert opined that there were alternate designs available that would have prevented the accident. The court found that it was not required that the hypothesis be tested, only that it could be tested. The extent to which the expert could have strengthened the foundation of his testimony by conducting tests went to the weight of his testimony rather than its admissibility, according to the court. (Robinson v. Garlock Equipment Co., W.D. NY, CCH Products Liability Reporter ¶18,160 (ip access users))

Injury Claims Due to Defibrillator Leads Preempted
Claims sounding in negligence and strict products liability filed by patients injured allegedly by defibrillator leads manufactured by a medical device corporation were preempted by the Medical Device Amendments to the Federal Food, Drug, and Cosmetic Act, the U.S. District Court for the District of Minnesota held. In 2006, patients with implantable cardiac defibrillators (ICDs) using the manufacturer's leads began to suffer unnecessary and painful shocks, but it was not until October 15, 2007, that recalls of the leads by both the manufacturer and the FDA were issued. According to the patients in this multidistrict litigation, the leads were not adequately tested by the manufacturer prior to its seeking approval for the product from the Food and Drug Administration (FDA), and that the manufacturer knew, but failed to disclose to the FDA, that the welding method of manufacturing the leads was prone to damaging the product, leading to their failure. The patients also alleged that the manufacturer failed to take adequate steps to ensure that the leads were not damaged during production, including failing to perform adequate testing on the leads' components. (In re: Medtronic, Inc. Sprint Fidelis Leads Prods. Liability Litig., D. Minn., CCH Products Liability Reporter ¶18,152 (ip access users))

Preemption for Makers of Generic Reflux Drug Rejected
Generic drug manufacturers of metoclopramide, the active ingredient in a brand name drug prescribed for treatment of gastroesophageal reflux disease (GERD), failed to show that Congress clearly intended to preempt state products liability warning claims filed by a patient who took the generic form of the drug as prescribed treatment for GERD, according to the U.S. District Court for the District of Vermont. The patient alleged that her use of metoclopramide caused her to develop tardive dyskinesia syndrome, a neurological disorder. Several generic drug manufacturers sought dismissal of the patient's complaint, arguing that her claims were preempted by the Federal Food, Drug, and Cosmetic Act (FDCA) and its accompanying regulations. Specifically, the generic drug manufacturers asserted that because federal law requires them to label their product with exactly the same label as the one approved by the Food and Drug Administration (FDA) for the brand name manufacturer, federal law preempted any state court tort claim based on failure-to-warn. However, the presumption against preemption could not be overcome by the manufacturers. (Kellogg v. Wyeth, D. Vt., CCH Products Liability Reporter ¶18,149 (ip access users))

Ohio Asbestos Law Constitutional; Estate's Case Dismissed
A trial court erred in concluding that an Ohio statute governing asbestos-related personal injury litigation [R.C. 2307.91, et seq. at CCH Products Liability Reporter ¶93,620, et seq. (ip access users)] violated Ohio's constitutional ban on retroactive legislation, the Ohio Court of Appeals ruled. The executrix of her deceased husband's estate brought an action against 62 companies alleging that the companies had supplied asbestos-containing products to workplaces frequented by her husband and that he had significant exposure to asbestos and/or asbestos-containing products during the 23 years of his employment as a sheet-metal worker and laborer, and that as a result of that exposure had developed and died of asbestos-related lung diseases. Her complaint included causes of action in negligence, strict liability, breach of warranty, and products liability. The statute required that claimants meet certain prima facie requirements in order to maintain tort actions involving asbestos claims. The court of appeals agreed with the companies who argued that the statute was incompatible with the state's constitutional prohibition against retroactive laws, and that the lower court erred in finding the executrix submitted sufficient evidence to demonstrate an accrued cause of action for asbestos injury. The appellate court said that the statutory provisions at issue did not impair substantive rights, and, therefore, did not run afoul of the prohibition against retroactive laws under the Ohio Constitution. (Neal v. A-Best Products Co., Ohio Ct. App., CCH Products Liability Reporter ¶18,150 (ip access users))

Product Safety

Lasko Fined $500,000 For Failing to Report Defective Fans
Lasko Products Inc. of West Chester, Pennsylvania was fined $500,000 in civil penalties for failing to timely notify the Consumer Product Safety Commission of defective portable fans. Between November 2002 and September 2005, Lasko received about 42 reports of fans overheating, smoking, melting, or catching fire, resulting in personal injuries and property damage. Under the Consumer Product Safety Act (CPSA), a company must report to the Commission within 24 hours of receiving information reasonably supporting a conclusion that the company's product contains a defect that could create a substantial risk of injury to the public, presents an unreasonable risk of serious injury or death, or violates a federal safety standard. CPSC alleged that Lasko failed to report, in a timely manner, that fans sold by the firm could overheat, smoke, or catch fire, and pose fire and burn hazards to consumers. The company recalled about 5.6 million fans in February 2006 [CCH Consumer Product Safety Guide ¶55,629 (ip access users)]. The settlement agreement does not constitute an admission by Lasko or a determination by the Commission that Lasko violated the CPSA's reporting requirements. (CCH Consumer Product Safety Guide ¶56,977 (ip access users))

Changes to 1998 Heating Vent Pipe Recall Program Announced
Home owners who have not yet responded to a 1998 recall of Plexvent and Ultravent HTPV pipe systems attached to gas or propane furnaces and boilers in homes [CCH Consumer Product Safety Guide ¶52,974 (ip access users)] are being urged to do so by the Consumer Product Safety Commission (CPSC) and various home heating furnace, boiler, and high-temperature plastic vent (HTPV) manufacturers. After May 1, 2009, the remedy consumers receive under the existing program will change. (CPSC News Release, #09-099, January 15, 2009, CCH Consumer Product Safety Guide, Report No. 932, February 9, 2009)

Phthalates Requirements Compliance Guidance Provided
In response to a decision by a New York federal district court, the CPSC has announced (CPSC News Release, #09-121, February 6, 2009) that the phthalates limits set for children's toys and child care articles by the CPSIA, which were effective February 10, 2009, apply to all inventories of these products as well as to all products manufactured or sold after the effective date. The CPSIA specifically requires that, effective February 9, children's toys and child care articles cannot contain more than 0.1 percent of six phthalates. The CPSC had issued an advisory opinion letter stating that products violating Sections 108(a) and 108(b)(1) could continue to be sold and distributed in commerce after February 10, 2009, as long as the products were manufactured prior to February 10, 2009. ( Nat’l Resources Defense Council, Inc. v. U.S. Consumer Product Safety Commission, (SD NY) CCH Consumer Product Safety Guide ¶75,775 (ip access users))

Temporary Exemption from Rear Impact Standard Requested
Beall Corporation has applied for a temporary exemption from the requirements of FMVSS No. 224, “Rear Impact Protection” stating that they have tried in good faith to comply with the standard and that compliance would cause substantial economic hardship. Beall has requested a three-year hardship exemption. Comments should be submitted not later than March 16, 2009. (CCH Consumer Product Safety Guide ¶57,011(ip access users))

Class Action Certification Denied Against Teflon Maker
Certification of 23 classes of persons who acquired cookware coated with Teflon was denied by a federal diestrict court in Iowa because class representatives failed to establish, among other factors, the typicality and adequacy of representation requirements for a class. It was alleged that in producing and marketing its Teflon and unbranded, non-stick cookware coatings (NSCC) the manufacturer made false, misleading and deceptive representations regarding the safety of its product, and that the manufacturer should have known about the potential risks of using cookware with its coating but failed to disclose this information to consumers. None of the class representatives alleged personal injury but instead sought only economic damages. In addition to failing to establish typicality and adequacy of representation, the court found that the proposed class definition was insufficient to ensure the presence of an objectively ascertainable class and a clear showing that all class representatives were actually members of the class. (In re Teflon Products Liablity Litigation, SD Iowa, CCH Consumer Product Safety Guide ¶75,774(ip access users))

Concealment of Defects May Have Tolled Limitations Period
Evidence that an automobile manufacturer concealed alleged defects in the engine design of certain Saturn class vehicles was sufficient to raise a question of fact as to whether the manufacturer’s conduct amounted to fraud and estopped the manufacturer from raising the four-year statute of limitations as a defense to implied warranty claims, the federal district court for Nebraska determined. Owners of these vehicles alleged that the engines contained two defects—a weak and insufficiently chromized timing chain and an insufficiently lubricating oiling nozzle, which caused the timing chains on the vehicles overheat. The car owners' evidence showed that the National Highway Traffic Safety Administration (NHTSA) received complaints about timing chain failures in Saturn vehicles both in the early 1990s and again in 2000 after the automaker redesigned the timing chain. In 2006, NHTSA initiated an investigation into the timing chain failures during which it was disclosed that the automaker had received more than 1,000 consumer or field reports of broken or replaced timing chains and over 2,200 warranty claims involving these parts. According to the court, this evidence was sufficient to establish that the automaker knew at the outset of production as well as after the autos entered the stream of commerce that both the timing chain and oiling nozzle in the Saturn series cars were defectively designed. The court also concluded that allegations that the automaker misrepresented the strength of the steel timing chain as a desired feature of its vehicle and that the maintenance schedule contained in the vehicles’ owner’s manuals did not mention the timing chain was sufficient to raise an issue as to whether the automaker concealed their product’s defects. The question of whether the owners were fraudulently deceived, thus tolling the limitations period, was a mixed question of law and fact and, therefore, the court directed that the jury resolve the issues of fact. (In re Saturn L-series Timing Chain Products Liability Litigation, DC Neb., CCH Consumer Product Safety Guide ¶75,773(ip access users))