November 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.

Products Liability

High Court Lets Stand Adoption of Bystander Rule
The U.S. Supreme Court denied a request [Simplicity Manufacturing, Inc. v. Berrier, Dkt. No. 09-201, November 9, 2009] by a manufacturer of a riding lawn tractor to review a decision by the Third Circuit Court of Appeals [sub nom. Berrier v. Simplicity Manufacturing, Inc., CCH Products Liability Reporter ¶18,217 (ip access users) (IntelliConnect)] that reversed a district court's summary judgment in favor of the manufacturer in claims of strict liability based on defective design and negligent design brought by the parents of a child who lost her left foot to amputation after the mower, which her grandfather was operating, backed-over her left leg. The court of appeals ruled that both claims should have been allowed to proceed to the trier of fact, and were remanded. Specifically, the Third Circuit found that the district court was in error in relying on the ''intended user'' doctrine on the strict liability claim. While the Pennsylvania Supreme Court had never expressly determined if one who is merely a bystander and not a user of a product can bring a products liability claim against a manufacturer to recover for injuries that occurred while an intended user was using the manufacturer's product, the Third Circuit predicted that the state high court would adopt the Restatement (Third) of Torts, §§1 and 2, thus affording the child as a bystander a cause of action in strict liability.

Review of Aircraft Crash Jurisdiction Sought
Representatives of six victims of a single-engine aircraft crash have petitioned the U.S, Supreme Court (Dkt. No. 09-489) to review a decision by the U.S. Court of Appeals for the Third Circuit [D'Jamoos v. Pilatus Aircraft Ltd., CCH Products Liability Reporter ¶18,227 (ip access users) (IntelliConnect)], which found that the representatives failed to establish that the aircraft's manufacturer had the required minimum contacts within the Commonwealth of Pennsylvania, where the accident occurred, to support a federal district court's personal jurisdiction over the aircraft maker. The Pennsylvania long-arm statute required contacts that amounted to a deliberate reaching into the forum state in order to target the forum's citizens. The Third Circuit found that although the aircraft had entered into Pennsylvania airspace and had crashed in the Commonwealth, those events could not be linked to the Swiss aircraft manufacturer's deliberate activities aimed at Pennsylvania, and that the manufacturer's efforts to exploit a national market necessarily included Pennsylvania as a target, but those efforts did not constitute the type of deliberate contacts within Pennsylvania that could amount to purposeful availment of the privilege of conducting activities there. The court held that any connection of the manufacturer to Pennsylvania was merely a derivative benefit of its successful attempt to exploit the United States as a national market. Therefore, the representatives asked the Supreme Court whether purposeful availment of the market of the United States as a whole, which creates general jurisdiction over federal claims, also creates specific jurisdiction as a result of purposeful availment of the national market.

Child Airbag Injury Warnings Action Remanded
A failure to warn claim by the parents of a child who suffered serious brain injuries when the airbag in the parents' pickup truck deployed and struck her head while she was sitting in the front passenger seat was not preempted by federal regulation, the Indiana Court of Appeals held, reversing a grant of summary judgment by the trial court in favor of the manufacturer. The court of appeals also ruled that a genuine issue of material fact existed as to whether the manufacturer breached its duty to warn the parents of the dangers associated with the truck's airbags, and, therefore, remanded the case for further proceedings. The parents alleged that their 8 year-old daughter's injuries were caused in part by the pickup truck manufacturer's defective instruction and warnings with respect to the front passenger seat airbag and airbag deactivation switch. The parents’ complained that the instruction in the vehicle's owner's manual stating that the passenger side air bag should be turned on "unless there is a rear-facing infant seat installed in the front seat" was inadequate. The court rejected the manufacturer’s argument that a National Highway Traffic Safety Administration's (NHTSA) safety standard governing airbag warnings preempted the parents' claim. The Indiana Court of Appeals found that while the safety standard required an airbag warning to be included in the owner's manual, it described only generally the content that should be covered by the warning. The parents’ differently worded warning did not conflict with the safety standard nor obstruct its purposes. The court also concluded that even if the parents read all the warnings in the owner's manual, the permissive nature of the warnings would not have changed their conduct. Thus, while the safety standard governing airbags allowed the manufacturer discretion in crafting a warning, there was at least a question of fact as to whether the manufacturer exercised that discretion in crafting a warning that was strong and specific enough to warn of the danger from the airbag. (Cook v. Ford Moter Co., CCH Products Liability Reporter ¶18,313 (ip access users) (IntelliConnect))

Rifle Maker Not Liable for “Out-of-Battery” Injury
A manufacturer of a bolt-action rifle was not liable for a user’s injury when the user fired the rifle and the bolt was ejected into his eye and head, the U.S. District Court for the Western District of Louisiana ruled. The user and his wife (plaintiffs) alleged that the manufacturer was liable under the Louisiana Products Liability Act (LPLA) for their damages because the rifle was unreasonably dangerous in construction and design and lacked an adequate warning. At the time of the accident, the bolt assembly pin was not installed, so that the bolt head was not locked into position and the rifle was considered “out-of-battery.” In an out-of-battery position, when the trigger is pulled either a misfire or an uncontained explosion results. Although the user’s use of the rifle was not obviously dangerous, his use of the rifle in an out-of-battery condition was not reasonably anticipated, according to the court. The manufacturer anticipated that a user would disassemble the rifle bolt assembly for cleaning and remove the bolt assembly pin, but the plaintiffs failed to present persuasive evidence that the rifle maker also should have anticipated that users would fail to reinstall the bolt assembly pin, the court held. The court concluded that the manufacturer was entitled to expect that an ordinary user would reassemble the rifle with all its parts. (Matthews v. Remington Arms Co., Inc. CCH Products Liability Reporter ¶18,315 (ip access users) (IntelliConnect))

Computer Cabinet Injury To Proceed on Design Defect Claim
An employee, who was injured when a door on a computer server cabinet fell off its hinges and struck him, provided sufficient evidence to raise a jury question as to whether the computer server cabinet and the cabinet’s hinge assembly were unreasonably dangerous for their intended use, the U.S. District Court for the District of Minnesota ruled. The employee brought a products liability action against the manufacturers of the cabinet and the hinge assembly alleging that the products were defectively designed. Expert testimony that lateral forces on the hinge were foreseeable and that two alternative, safer designs for the cabinet could have prevented the employee’s injuries supported the employee’s claims. However, the court also held that the employee failed to provide evidence supporting failure to warn claims under strict liability and negligence theories against the manufacturers. The employee’s claims for negligent design defect, negligent failure to warn, and strict liability in design and warning defects against the computer server manufacturer were also unsuccessful. (Hammond v. Compaq Computer Corp., CCH Products Liability Reporter ¶18,301 (ip access user) (IntelliConnect))

Defect Claims in Wheelchair Action Go Forward
A wheelchair manufacturer failed to present affirmative proof that an electric wheelchair that tipped over and injured its occupant was free of any defect when it left the manufacturer’s control and failed to establish that a manufacturing defect in the wheelchair did not cause the accident, a federal district court in New York held. The wheelchair maker did not offer any evidence concerning the manufacturing process for the wheelchair, nor did an affidavit by the engineering director of the technical team that developed the wheelchair provide information regarding inspection/testing methods that the wheelchair underwent prior to shipment. Moreover, the wheelchair maker did not address the accident and failed to argue that the accident was caused by something other than a manufacturing defect in the product. The wheelchair manufacturer’s reliance on the absence of proof presented by the injured wheelchair occupant was insufficient to support summary judgment on the issue, according to the court. In addition, the court found the manufacturer’s one sentence assertion that it had demonstrated that the design of the wheelchair and the wheelchair’s associated warnings and labelings satisfied the requirements of standards organizations for power wheelchairs, and that the wheelchair, as designed, tested, and manufactured was reasonably safe and fit for the purpose intended for that type of wheelchair was insufficient to establish that the manufacturer’s warnings and safety precautions were adequate as a matter of law. The court ruled that the question of the adequacy of the warnings provided by the wheelchair manufacturer was one for a jury. On the other hand, the court found that the wheelchair occupant failed to meet her burden of establishing a genuine issue with respect to her design defect claim, and that the manufacturer’s limited disclaimer effectively defeated the wheelchair occupant’s breach of implied warranty claims. (Hare v. Hoveround Corp., CCH Products Liability Reporter ¶18,306 (ip access users) (IntelliConnect))

Product Safety

CPSC Warns of In-home Drowning Dangers
The Consumer Product Safety Commission has warned that, after pools, more children drown in bathtubs than in any other product in and around the home and has provided the following safety tips when children are around bathtubs, bath seats, buckets, spas, or decorative ponds or fountains:

• Young children should never be left alone near any water.
• Young children can drown quickly in even small amounts of water.
• A young child should always be kept within arm's reach in a bathtub. If one must leave, the child should be taken with.
• A baby or toddler in a bathtub should never be left under the care of another young child.
• A bucket containing even a small amount of liquid should never be left unattended as toddlers can fall headfirst into buckets and drown.
• Buckets should be emptied and stored where young children cannot reach them.
• Learning CPR (cardiopulmonary resuscitation) can save lives when seconds count.
  (CPSC News Release, #10-008, October 7, 2009, CCH Consumer Product Safety Guide, Report No. 949, October 19, 2009)

Changes Proposed to Hybrid III Six-Year-Old Child Dummy
Two changes have been proposed by the National Highway Traffic Safety Administration to its specifications for the Hybrid III six-year-old child dummy (HIII-6C). In order to improve the durability of the dummy's femurs, the agency has proposed changes to the design of and material used for the femur assembly. The primary modifications include the addition of a 1/4-inch (6.35 millimeter) fillet between the femur clamp and the connecting segment of the machined femur, removal of material from the connecting segment, and a material change from aluminum bronze to 4340 steel. These changes would be made by changing the drawings for the femur in the drawing package specified in the regulations, the parts list, and the “Procedures for Assembly, Disassembly, and Inspection” (PADI) document of the Hybrid III 6-year-old child crash test dummy incorporated by reference into the regulations. In Part 2 of the proposal, the drawing for the HIII-6C abdomen insert would be corrected so that the abdominal insert dimensions on the drawing reflect the actual part. The agency also has proposed conforming changes to the specifications and drawings of the HIII-6CW weighted child test dummy. Comments should be submitted by December 21, 2009. (CCH Consumer Product Safety Guide ¶40,726 (ip access users) (IntelliConnect))

Caution Urged on Product Safety Database
By: Sarah Borchersen-Keto, CCH News Bureau Staff Writer
Representatives of the business community urged the Consumer Product Safety Commission (CPSC) to proceed cautiously as it moves toward creating a new product safety incident database, which is required under the Consumer Product Safety Improvement Act of 2008, and due to come online by March 2011. (CCH Consumer Product Safety Guide, Report No. 951, November 16, 2009)

ANPR Issued for Recreational Off-Highway Vehicles
An advance notice of proposed rulemaking has been issued by the Consumer Product Safety Commission to consider whether there may be unreasonable risks of injury and death associated with recreational off-highway vehicles (ROVs). Comments should be submitted by December 28, 2009. (CCH Consumer Product Safety Guide ¶40,230 (ip access users) (IntelliConnect))

Lead Content Policy Statement Issued by CPSC
The CPSC has announced the availability of a document titled, “Statement of Policy: Testing and Certification of Lead Content in Children's Products” which provides guidance on complying with the Consumer Product Safety Improvement Act (CPSIA). The CPSIA provides that products designed or intended primarily for children 12 years old and younger and contain more than 600 ppm of lead (as of February 10, 2009), 300 ppm of lead (as of August 14, 2009); or 100 ppm after three years (as of August 14, 2011), unless the Commission determines that it is not technologically feasible to have this lower limit, are considered to be banned hazardous substances under the Federal Hazardous Substances Act (FHSA). Unless granted a specific exclusion or determination, products and materials used to make children's products are subject to the lead limits and also to the testing and certification requirements of section 14(a) of the Consumer Product Safety Act (CPSA), as amended by the CPSIA. The Statement of Policy is available on the Commission's web site at http://www.cpsc.gov/about/cpsia/leadpolicy.pdf and from the Commission's Office of the Secretary. (CCH Consumer Product Safety Guide ¶26,659 (ip access users) (IntelliConnect))

Accreditation Requirements for Third-Party Labs Issued
A notice of requirements providing the criteria and process for Commission acceptance of accreditation of third party conformity assessment bodies for testing in accordance with the limits on total lead in children's products has been issued and was effective October 29, 2009. Comments in response to the notice of requirements should be submitted by November 30, 2009. (CCH Consumer Product Safety Guide ¶57,364 (ip access users) (IntelliConnect))

Test Pressure Change for T-Type Tires Proposed
In response to a petition for rulemaking from the Tire & Rim Association, NHTSA has proposed amendments to Federal Motor Vehicle Safety Standard (FMVSS) No. 109, “New pneumatic and certain specialty tires,” to change the test pressure for the physical dimensions test for T-type tires from 52 pounds per square inch (psi) to 60 psi. A T-type spare tire refers to a type of spare tire that is manufactured to be used as a temporary substitute by the consumer for a conventional tire that failed. NHTSA stated that a 60-psi test pressure for the physical dimensions test would marginally increase the stringency of the test while harmonizing FMVSS No. 109 with international and voluntary consensus standards. Comments must be received by December 29, 2009. (CCH Consumer Product Safety Guide ¶40,727 (ip access users) (IntelliConnect))