July 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.

Tort Law Desk Reference – 2009 Edition Released

Tort Law Desk Reference --A Fifty-State Compendium, 2009 Edition, provides a succinct survey of the tort laws of the fifty states and the District of Columbia. Whether you are confronted with multi-state tort litigation, have the opportunity to litigate a tort case in one of several states, or must initiate or defend a case in an unfamiliar jurisdiction, Tort Law Desk Reference quickly gives you the information you need about the tort laws of each state.

With succinct summaries of laws and citations to controlling statutes and case law, this indispensable guidebook answers vital questions about each state’s tort laws, such as:

• Is the claim or lawsuit barred in the jurisdiction where it was filed?
• Does a “no-fault” statute limit the right to recovery?
• Do joint liability provisions require a minimally liable defendant to pay the entire judgment?
• If there is no breach of contract or breach of warranty claim, is a fraud and misrepresentation claim viable?
• Under what circumstances can a trespasser recover against a property owner?

You’ll be able to quickly determine available causes of action, realistic defenses, and permissible damages...and you’ll have at your fingertips current and leading citations necessary for more detailed research of specific issues. No other resource simplifies the process for making critical tort litigation choices like Tort Law Desk Reference. It’s the only single volume book that expertly digests the many significant provisions of every state’s tort law in a clearly organized and uniform format. State-by-state, you get up-to-date coverage of statutes and case law covering

• “No-fault” limitations
• The standard for negligence
• Causation
• Res ipsa loquitur and ultra-hazardous activities
• Negligence per se
• Indemnity
• Bar of workers’ compensation statute
• Premises liability
• Dram shop liability
• Economic loss
• Fraud and misrepresentation
• Wrongful death
• Attorney’s fees

The 2009 edition contains a significant new section covering recovery of medical expenses and lost earnings. There is an astonishing variety in the laws of the states concerning recoverable medical expenses. The evidence necessary to prove medical expenses also varies widely from state to state. In some states the plaintiff's testimony is sufficient. Other states require testimony from a doctor. Some states provide a presumption that medical expenses, at least up to a maximum dollar amount, are reasonable and necessary. The 2009 edition of Tort Law Desk Reference provides succinct analysis of the law concerning recovery of medical expenses and lost earnings.

Products Liability

Groups Petition High Court to Review Automaker’s Products Claims
A number of consumer groups have petitioned the U.S. Supreme Court (Center for Auto Safety, et al. v. Chrysler, LLC, et al., Dkt. No. 08-1513) to review a sale order affirmed by the U.S. Court of Appeals for the Second Circuit of substantially all of Chrysler’s assets to “New Chrysler” free and clear of “claims,” including current and future products liability claims for which New Chrysler would be liable under state successor liability laws if New Chrysler continues to manufacture the same or similar product lines. According to the petition, the proposed sale also leaves the bankruptcy estate without funds to cover existing products liability claims and does not attempt to provide for people who will be injured by defects in Chrysler vehicles in the future. The petition asks whether successor liability under state law for product-liability claims can be eliminated through a sale under Section 363(f) of the Bankruptcy Code, governing the authorization of, and requirements for, the sale of property free and clear. In addition, the Court was asked whether Section 363(f) authorizes a sale that eliminates successor liability for future product liability claims—claims that have not yet accrued because injury has not yet occurred—and, if so, whether such a sale would violate the Due Process Clause of the Fifth Amendment to the U.S. Constitution. The petition was filed on June 9, 2009.

Dock Leveler Design, Warning Claims Allowed to Proceed
An injured employee's causes of action for defective design and failure to warn against the manufacturer and nonmanufacturing seller of a mechanical dock leveler were reinstated and allowed to proceed by the New York Court of Appeals. The employee was injured at his employer's warehouse while using a mechanical dock leveler, a mechanical platform designed to provide a ramp between a loading dock and the bed of a truck or tractor trailer. In the process of "walking down" the dock leveler, the employee was standing on the leveler's hinged lip as it made contact with the trailer bed when the driver of the tractor trailer moved the vehicle forward and the leveler’s lip fell to the pendant position causing the employee to fall onto a cement and steel grate. The employee's action alleged, among other things, that the dock leveler the nonmanufacturing seller sold to the employer was defectively designed by the manufacturer because it lacked equipment restraining the tractor trailer or securing it to the loading dock while the dock leveler was in use, and lacked a system warning the operator when it was safe to enter the trailer or, in the alternative, notifying the driver that a dock leveler was in position. The court concluded that that the manufacturer and nonmanufacturing seller failed to show that the dock leveler normally would be used in circumstances in which the product was not unreasonably dangerous without a trailer restraint system. The court also determined that triable issues of fact existed as to the sufficiency of the warnings concerning the mechanical dock leveler. While an instruction sheet posted on a wall in the loading dock area included a warning not to walk on the lip of a dock leveler when "walking down" the leveler, it did not contain any warning that remaining on the lip was dangerous, even momentarily, after the leveler had engaged the trailer bed. (Passante v. Agway Consumer Products, Inc. (N.Y. Ct.App.) CCH Products Liability Reporter ¶18,241 (ip access user))

Jury Issues Remained in Attempted Suicide Case
A husband and wife's negligence, strict liability, and warranty claims against the manufacturer of a prescription antidepressant drug, which they claimed was the cause of the husband's attempted suicide by drilling a chisel bit into his head after he used the drug, were allowed to proceed by the U.S. District Court for the Eastern District of Wisconsin, and were not time-barred by the applicable Wisconsin statute of limitations. The court found that genuine issues of material fact existed regarding the drug maker's duty to warn consumers or physicians of a potential for increased suicidal behavior among patients who ingested the drug. In addition, the court rejected arguments by the drug manufacturer relating to the learned intermediary doctrine, causation, and breach of express warranty. Because the Wisconsin Supreme Court has never determined whether the learned intermediary doctrine applied to drug manufacturers in Wisconsin, the federal court declined to apply the doctrine without indication from the state's high court. Further, the court said, a jury could find that the patient's psychiatrist was not adequately warned about the drug's increased risk for suicidality and that such information would have affected the doctor's prescribing decision. Finally, the court ruled that a reasonable jury could find that the drug manufacturer knew that its prescription antidepressant drug increased the risk for suicidality based on clinic trial results and expert testimony, and, as a result, that the manufacturer's conduct was "substantially certain" to result in the patient's rights being disregarded, thus supporting an award of punitive damages. (Forst v. SmithKline Beecham Corp. (E.D. Wis.) CCH Products Liability Reporter ¶18,238 (ip access user))

Exclusion of "Other" Asbestos Exposure Evidence Was Error
The exclusion of all evidence of a worker's exposure to asbestos products throughout his 38-year career from products other than those of the defendant manufacturer was improper because it eliminated evidence of alternative causes for the worker's death, the Illinois Supreme Court ruled. The worker's estate brought an action against 12 corporations alleging that the worker had developed mesothelioma after being negligently exposed to their asbestos-containing products. Eleven of the twelve manufacturers either settled or were dismissed and the complaint against the remaining company specifically alleged that the worker was exposed to asbestos-containing products while installing, repairing or removing boilers manufactured by the company. The manufacturer sought to introduce evidence that the sole proximate cause of the worker's death was his exposure to asbestos-containing products manufactured by the non-party corporations. The Illinois Supreme Court determined that the ultimate burden of proof remained with the estate and did not shift to the manufacturer. Also, the court clarified that the exclusionary rule fashioned in Lipke v. Celotex Corp. [CCH Products Liability Reporter ¶11,402] for evidence of other exposure neither suggested nor held that a manufacturer should be barred from introducing evidence of other potential causes of injury when it pursued a sole proximate cause defense, nor that juries should be deprived of evidence critical to a causation determination. Further, the court found that previous Illinois rulings excluding evidence of other asbestos exposure conflicted with well-settled rules of tort law that plaintiffs bear the burden of proof to establish the element of causation through competent evidence, which defendants had the right to rebut. To the extent that those cases have been interpreted as excluding other exposure evidence, they were overruled by the court. The court concluded by remanding the case for a new trial because the exclusion of evidence of other exposure was not harmless error. (Nolan v. Weil-McLain (Ill. S.Ct.) CCH Products Liability Reporter ¶18,229 (ip access user))

State Claims Not Preempted by CPSA in Lighter Accident
State law claims by the conservator for a minor against a cigarette lighter manufacturer were not preempted by the Consumer Product Safety Act (CPSA), the U.S. District Court for the Western District of Kentucky ruled. A three-year-old was severely burned when he apparently used a cigarette lighter to ignite the t-shirt he was wearing. The parties agreed that the child-resistant guard on the lighter had been removed. The manufacturer's theories of implied field preemption and conflict preemption were both rejected by the court. First, the court stated that Congress's intent to preempt state laws and regulations through the Consumer Product Safety Act, under which the Consumer Product Safety Commission’s disposable lighter regulations were enacted, was express, not implied. In addition, the court said, Congress made clear that some common law tort claims were excluded from the preemption. Second, because the CPSC, having addressed lighter design generally and minimally without defining when a child-resistant mechanism was “easily deactivated,” had no rule for whether a lighter should or should not continue to work after the child guard was removed. The court concluded that the conservator's state law claims would not upset the regulatory scheme established by federal law, but instead would bolster the minimum federal requirement and further Congress's goal of protecting the public against unreasonable risks of injury associated with consumer products. (Cummins v. BIC USA, Inc. (W.D. Ky.) CCH Products Liability Reporter ¶18,244 (ip access user))

Liability Rule for Foreseeable Product Alterations Adopted
The rule that even if a product is substantially altered, a manufacturer still may be strictly liable if those changes are foreseeable was adopted by the New Mexico Court of Appeals in a case concerning a rock crushing machine accident. A worker died after his leg was broken by a moving flywheel from a portable rock crushing machine while the worker was trying to clear a rock jam. The worker later died from a blood clot in the hospital during treatment for the injury. The machine had been modified after it was delivered to the worker's employer. The worker's estate argued that the modifications to the machine, which included the removal of a metal shield for easier worker access to the machine’s feed box to clear rock jams or maintain parts, were foreseeable, and, therefore, the machine's manufacturer was strictly liable. No New Mexico cases specifically addressed the liability of a manufacturer for injuries caused by a product that had been modified subsequent to its manufacture, according to the court of appeals. The court reasoned that the machine's manufacturer conceivably could be liable if the modifications to the rock crushing machine were reasonably foreseeable. Further, the court concluded that it was for the jury to determine these factual questions concerning the nature of the modifications, their relationship to each other, causation, and foreseeability. As a result, the court reversed the lower court's summary judgment ruling in favor of the manufacturer. Finally, an argument by the worker's estate that that the worker's employer should be held liable under the dual persona doctrine for claims based on the worker's death as a result of a work-related accident was rejected by the court. The New Mexico Court of Appeals was not persuaded by the argument that if an employer modifies a piece of construction equipment, the employer then takes on a separate persona as an equipment manufacturer, thereby losing its protection under the Workers' Compensation Act. (Chairez v. James Hamilton Construction Co. (N.M. Ct.App.) CCH Products Liability Reporter ¶18,228 (ip access user))

Court Rules on Expert, Other Evidence in Rifle Design Action
A rifle user's expert was qualified to give an opinion as to whether the rifle which the user fired and which allegedly injured him, was defective in design, a federal court in Louisiana ruled. The rifle user alleged that he was injured upon firing the rifle when the bolt was ejected into his eye and head. The rifle manufacturer contended that the expert was not qualified to offer expert testimony in the field of firearm design because he was not a mechanical engineer and had not designed any firearms or component parts. The court, however, found that the expert had extensive experience as a consultant in cases involving firearm mechanical failures which made him qualified to render an opinion on the possible defect in the rifle. The court also ruled that although the expert's testimony and a second expert's testimony on behalf of the rifle user as to the cause of the accident and the adequacy of the warnings in the rifle’s owner manual was cumulative opinion requiring limitation in scope for whoever testified second, their testimony regarding the feasibility of alternative designs was not cumulative and, thus, each design opinion was admissible. Because the feasibility of an alternative design was an element of the design defect claim, the court held that the experts were permitted to offer opinions on different alternative designs. Additionally, a determination of whether evidence or testimony regarding alleged inadequacies in the rifle's owner manual and/or the content of owner manuals published by other firearms manufacturers should be excluded was deferred by the court until trial. The court also found that written customer incident records kept by the rifle manufacturer relating to alleged explosions of the model of rifle that allegedly injured the user were admissible hearsay under the business record exception, assuming a proper foundation was laid at trial. However, the rifle user also was required to show that the other accidents were substantially similar to the rifle user's accident. (Matthews v. Remington Arms Co., Inc. (W.D. La.) CCH Products Liability Reporter ¶18,231 (ip access user))

Product Safety

$2.3 Million Civil Penalty for Violation of Lead Paint Ban
Mattel Inc. and its wholly-owned subsidiary, Fisher-Price Inc., agreed to pay a civil penalty of $2.3 million for violation of the federal lead paint ban. The provisional settlement resolves several allegations. Commission staff alleged that Mattel imported up to 900,000 non-compliant toys between September 2006 and August 2007. The “Sarge” die cast toy cars were recalled in August, 2007 [CCH Consumer Product Safety Guide ¶56,223] and the various “Barbie” accessory toys were recalled in September, 2007 [CCH Consumer Product Safety Guide ¶56,260]. The second allegation resolved by the settlement pertains to the importation of up to 1.1 million non-compliant toys by Fisher-Price between July 2006 and August 2007. These toys were recalled in August 2007 [CCH Consumer Product Safety Guide ¶56,206], September 2007 [CCH Consumer Product Safety Guide ¶56,262] and October 2007 [CCH Consumer Product Safety Guide ¶56,341]. (CCH Consumer Product Safety Guide ¶57,168)

CPSC Adds “Detonator” Term to Labeling Requirements
In a final rule, effective June 9, 2009, the CPSC supplemented the current definition of “blasting cap” in regulations under the Federal Hazardous Substances Act by adding the term “detonator” in addition to the term “blasting cap” to reflect the current usage of those terms in the explosives industry. (CCH Consumer Product Safety Guide ¶42,004 (ip access user))

NHTSA Proposes Increases for Maximum Civil Penalties
NHTSA has proposed increases of the maximum civil penalty amounts for violations of motor vehicle safety requirements involving school buses, bumper standards, consumer information requirements, odometer tampering and disclosure requirements, and vehicle theft protection requirements. The agency is required by the Federal Civil Monetary Penalty Inflation Adjustment Act of 1990, as amended by the Debt Collection Improvement Act of 1996, to review and, as warranted, adjust penalties based on inflation at least every four years. Comments on the proposal must be received by July 15, 2009. (CCH Consumer Product Safety Guide ¶40,722 (ip access user))

Tire Fuel Efficiency Consumer Information Program Proposed
A new consumer information program that would require tire manufacturers and tire brand name owners to rate all replacement passenger car tires for fuel efficiency, safety, and durability has been proposed by the National Highway Traffic Safety Administration (NHTSA). The new rule would also require the submission of reports to NHTSA regarding the test values on which these ratings are based. The ratings for safety and durability are based on test procedures specified under the uniform tire quality grading standards (UTQGS) traction and treadwear ratings requirements. This information would be used by consumers of replacement passenger car tires to compare tire fuel efficiency across different tires and examine any tradeoffs between fuel efficiency, safety, and durability when making their purchase decisions. Comments on this proposal must be received on or before August 21, 2009. (CCH Consumer Product Safety Guide ¶40,723 (ip access user))

Modifications Made to Female Test Dummy Specifications
In a final rule, effective August 24, 2009, the National Highway Traffic Safety Administration (NHTSA) responded to petitions for reconsideration of a December 14, 2006 final rule [CCH Consumer Product Safety Guide ¶41,954] that added specifications and qualification requirements for a 5th percentile adult female side impact test dummy, called the “SID-IIs.” The SID-IIs is used by NHTSA and other testing organizations in side impact test programs. The use of the SID-IIs test dummy in NHTSA's enforcement program assessing vehicles' compliance with Federal Motor Vehicle Safety Standard (FMVSS) No. 214, Side impact protection, was discussed in and made part of a final rule upgrading FMVSS No. 214 published on September 11, 2007 [CCH Consumer Product Safety Guide ¶41,965]. In the upgrade, NHTSA added a dynamic pole test to FMVSS No. 214 to supplement the moving deformable barrier (MDB) test currently in the standard. In the dynamic pole test, a vehicle is propelled sideways into a rigid pole at an angle of 75 degrees, at any speed up to 32 km/h (20 mph). Compliance with the pole test will be determined in two test configurations, one using the SID-IIs test dummy representing small adult females and the other using an “ES-2re” test dummy representing mid-size adult males. The final rule required vehicles to protect against head, thoracic and other injuries as measured by the two test dummies. Additionally, the rule specified using the dummies in FMVSS No. 214's MDB test, which simulates a vehicle-to-vehicle, “T-bone” type intersection crash. (CCH Consumer Product Safety Guide ¶42,005 (ip access user))

Registration Requirements Proposed for Infant Products
As required by the Consumer Product Safety Improvement Act of 2008 (CPSIA) the Consumer Product Safety Commission has promulgated a consumer product safety rule requiring each manufacturer of a durable infant or toddler product to provide with each product a postage-paid consumer registration form, to keep records of consumers who register such products with the manufacturer, and to place permanently the manufacturer name and contact information, the model name and number, and the date of manufacture on each such product. The Commission has proposed requirements that would fulfill the statutory requirements. Written comments must be received by September 14, 2009. (CCH Consumer Product Safety Guide ¶40,225)

Commission Stays Enforcement of Lead Levels for Bicycles
The Consumer Product Safety Commission has issued a stay of enforcement of section 101(a) of the Consumer Product Safety Improvement Act of 2008 (CPSIA) with regard to certain parts of bicycles, jogger strollers, and bicycle trailers designed or intended primarily for children 12 years of age or younger. The Commission is staying enforcement of the specified lead level as it pertains to certain parts of these products, specifically components made with metal alloys, including steel containing up to 0.35 percent lead, aluminum with up to 0.4 percent lead, and copper with up to 4.0 percent lead. The stay of enforcement was effective on June 30, 2009 and will remain in effect until July 1, 2011. The Commission may, based on evidence submitted, decide to continue the stay for an additional period of time. (CCH Consumer Product Safety Guide ¶57,192 (ip access user))