September 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

Two Third Circuit Petitions Seek Supreme Court Review
Parents of a child who developed a residual seizure disorder and encephalopathy after the child received three doses of a diphtheria-pertussis-tetanus (DPT) vaccine have petitioned the U.S. Supreme Court (Dkt. No. 09-152) to review a decision by the U.S. Court of Appeals for the Third Circuit (Bruesewitz v. Wyeth, Inc., CCH Products Liability Reporter ¶18,194 (ip access user)) which found that the parents' design defect claims were preempted by the National Childhood Vaccine Injury Act (Act). In addition, the manufacturer of a riding lawn tractor has asked the High Court (Simplicity Manufacturing, Inc. v. Berrier (Dkt. No. 09-201)) to review another decision by the Third Circuit Court of Appeals (sub nom Berrier v. Simplicity Manufacturing, Inc., CCH Products Liability Reporter ¶18,217 (ip access user)) reversing a district court's summary judgment in favor of the manufacturer in claims based on both strict liability 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 remanded the claims for determinations by the trier of fact. Specifically, the Third Circuit predicted that the Pennsylvania Supreme 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.

Without Crib Defect, Consumers' Claims Were Dismissed
Consumers who purchased a crib, which was later voluntarily recalled by the crib manufacturer and the Consumer Product Safety Commission (CPSC) because of a hardware defect that made it possible for the drop-side of the crib to detach, creating a dangerous gap in which a child could get caught, failed to state a claim upon which relief could be granted because the consumers did not allege that their particular crib actually exhibited the alleged defect, the U.S. Court of Appeals for the Eighth Circuit ruled. In affirming a lower court's dismissal of the action, the appellate court found it was not enough to allege that a product line contained a defect or that a product was at risk for manifesting the defect. (O'Neil v. Simplicity, Inc. (8thCir) CCH Products Liability Reporter ¶18,266 (ip access user))

Diet Drug Action Barred by Tennessee Repose Statute
A patient's claim against a diet drug manufacturer was barred by Tennessee's one-year statute of repose, the U.S. Court of Appeals for the Sixth Circuit ruled, affirming a decision by a federal district court in Chattanooga that granted the drug maker's motion for summary judgment. The patient alleged that she developed primary pulmonary hypertension (PPH) because she ingested the drug maker's diet drug. She argued that the district court erred in applying Tennessee law because relevant choice-of-law principles dictated that Georgia law, which limits claims only after ten years, should govern and would not bar her claim. Tennessee was the forum state, however, so its choice-of-law rules applied, the Sixth Circuit determined. Although Georgia had an interest, the court of appeals held that Tennessee had the most significant relationship to the parties and the occurrence. Moreover, because the undisputed evidence established that all the diet drug tablets had an expiration date of five or more years before the patient brought her suit, there was no genuine issue of material fact as to the expiration date for purposes of applying Tennessee’s statute of repose, the court held. (Montgomery v. Wyeth (6thCir) CCH Products Liability Reporter ¶18,278 (ip access user))

Getting the Lead Out Fatal to Design Claim
A minor, through his guardian, failed to state design defect claims in negligence and strict liability against the manufacturers of white lead carbonate pigment, a component of the paint in the apartment where the child lived, the Wisconsin Supreme Court held, affirming a lower court ruling. For the duration of his tenancy in the apartment, the child sustained lead poisoning, the source of which was the white lead carbonate pigment derived from painted surfaces in the apartment. The court found that a claim for defective design could not be maintained where the presence of lead was the alleged defect in design, and its very presence was a characteristic of the product itself. Without lead, there could be no white lead carbonate pigment --removing lead from white lead carbonate pigment would transform it into a different product. Thus, the court concluded, the complaint failed to allege a design feature that made the design of white lead carbonate pigment defective. (Godoy v. E.I. du Pont de Nemours and Co. (WisSCt) CCH Products Liability Reporter ¶18,268 (ip access user))

Jury Instructions Affirmed in Grader Injury Case
It was not an abuse of discretion to give a jury a "substantial change" instruction --i.e., that a motor grader's manufacturer could not be liable if the machine's condition had substantially changed before an accident in which a man suffered serious injuries while attempting to inflate the right-front tire on the motor grader, which was being used for road improvement near the man's home, the U.S. Court of Appeals for the Tenth Circuit held, affirming a lower court’s ruling. The man asserted negligence and strict liability claims against the motor grader’s manufacturer under theories of defective design and failure to warn. The district court instructed the jury that the manufacturer could not be held liable if the man's injury was caused by a condition of the motor grader which constituted a substantial change from the condition in which the manufacturer could reasonably have expected the grader to be used. The jury found that the manufacturer was not negligent and that the motor grader was not defective. The Tenth Circuit also held it was not an abuse of discretion for the lower court not to instruct the jury that the motor grader's manufacturer was required to give adequate directions for use of the machine. The appellate court found that the jury instruction on the manufacturer's alleged failure to warn "covered similar ground" as an instruction on directions for use would have covered. (Martinez v. Caterpillar, Inc. (10thCir) CCH Products Liability Reporter ¶18,267 (ip access user))

Product Safety

Consumer Product Safety Commission

CPSC Proposes Audit Requirements for Assessment Bodies
Regulations establishing requirements for the periodic audit of third party conformity assessment bodies as a condition for their continuing accreditation have been proposed by the CPSC. The proposed rule would implement the Consumer Product Safety Act (CPSA), as amended by the Consumer Product Safety Improvement Act of 2008 (CPSIA). Comments on the proposed rule must be submitted by October 13, 2009. (CCH Consumer Product Safety Guide ¶40,226 (ip access user))

CPSC Issues Statement of Policy for Marking Children’s Products . . .
A policy statement, “Statement of Policy: Interpretation and Enforcement of Section 103(a) of the Consumer Product Safety Improvement Act” has been issued by the CPSC. Section 103(a) of the Consumer Product Safety Improvement Act requires manufacturers of children's products to mark their products so that certain identifying information is ascertainable by the manufacturer and the consumer. The Statement of Policy clarifies the Commission's interpretation of certain aspects of the statutory requirement and provides guidance on how the Commission intends to enforce the requirement. (CCH Consumer Product Safety Guide ¶26,658 (ip access user))

. . . And for Phthalate Testing
A Statement of Policy, “Statement of Policy: Testing of Component Parts With Respect to Section 108 of the Consumer Product Safety Improvement Act” issued by the Consumer Product Safety Commission establishes the Commission's position with respect to testing products to determine whether they contain phthalates in excess of the statutory limits. Section 108 of the Consumer Product Safety Improvement Act of 2008 (CPSIA) prohibits the sale of certain products containing specified phthalates. These prohibitions became effective on February 10, 2009. Comments must be submitted by September 16, 2009. (CCH Consumer Product Safety Guide ¶26,657 (ip access user))

Companies to Pay $520,000 for Violation of Lead Paint Ban
Nine children’ product manufacturers, importers, and sellers have agreed to provisional settlements of $520,000 to settle allegations that they knowingly manufactured, imported, or sold toys and other children’s articles with paint or other surface coatings that contained lead levels in violation of federal law. The products were recalled in 2007 and 2008 and included toys, children’s metal jewelry, children’s pens, metal water bottles, pencil pouches, sunglasses, and children’s Halloween pails and baskets. A 1978 federal ban [CCH Consumer Product Safety Guide ¶24,120] prohibited toys and other children’s articles from having more than 0.06 percent lead by weight in paints or surface coatings. The firms entering into agreements included Cardinal Distributing Co. Inc., Dollar General Corp., Family Dollar Stores Inc., Hobby Lobby Stores Inc., First Learning Company Ltd., Michaels Stores Inc., A&A Global Industries Inc., Raymond Geddes & Co., and Downeast Concepts Inc. (CCH Consumer Product Safety Guide ¶57,256 (ip access user))

Haier America to Pay $587,500 Civil Penalty
Haier America Trading, LLC, of New York, New York, was fined $587,500 in civil penalties. Haier failed to inform the Consumer Product Safety Commission of a defect and fire hazard in its oscillating tower fan. From May 2004 to October 2004, Haier America received 14 reports of fan incidents, some of which involved fire and injuries. Haier America did not make any report to the Commission regarding the fans until December 22, 2004, after requested by CPSC staff. Under federal law, 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. Haier America and the CPSC announced a recall of the fans in November 2005, [CCH Consumer Product Safety Guide ¶55,564], and recommended that consumers stop using the product immediately. (CCH Consumer Product Safety Guide ¶57,257 (ip access user))

Ross Stores to Pay $500,000 for Failing to Report Use of Drawstrings
Ross Stores Inc., a corporation organized and existing under the laws of Delaware with its principal offices located in Pleasanton, California, was fined $500,000 in civil penalties for failing to timely notify the Consumer Product Safety Commission that children’s hooded sweatshirts it sold had drawstrings at the neck. Under federal law, 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, that presents an unreasonable risk of serious injury or death, or that violated a federal safety standard. Ross denied the allegations and stated that it entered into the agreement solely to avoid protracted litigation. (CCH Consumer Product Safety Guide ¶57,277 (ip access user))

Interpretive Rule Issued on Inaccessible Component Parts
Guidance as to what product components or classes of components would be considered “inaccessible” to a child through normal and reasonably foreseeable use and abuse has been provided by the Consumer Product Safety Commission in a final rule which was effective August 14, 2009. The Consumer Product Safety Improvement Act (CPSIA) specified that the lead limits shall not apply to any component part of a children's product that is not accessible and required the Commission to issue, by August 14, 2009, a rule providing guidance with respect to what product components, or classes of components, will be considered to be inaccessible. (CCH Consumer Product Safety Guide ¶42,008 (ip access user))

“Resale Round-up” Campaign Launched by CPSC
As part of its “Resale Round-up” campaign, the Consumer Product Safety Commission announced its top ten list of recalled children’s products. They include: Playskool Travelite play yards, Evenflo Happy Camper play yards, Baby Trend Home and Roam and Baby Express portable cribs and play yards, Magnetix magnetic building sets, Easy Bake ovens, Polly Pocket dolls with magnets, Simplicity drop-side cribs, Simplicity bassinets, Hill Sportswear hooded drawstring sweatshirts, and Evenflo Envision high chairs. The Commission said that its goal was to protect consumers by getting dangerous recalled products out of resale stores and off the internet, adding that reselling recalled products was a violation of federal law. (CPSC News Release, #09-299, August 6, 2009, CCH Consumer Product Safety Guide, Report No. 945, August 24, 2009)

New Children’s Safety Requirements Effective August 14th
On August 14, 2009, Consumer Product Safety Improvement Act (CPSIA) requirements aimed at making children’s products safer and increasing consumer confidence in the marketplace take effect. The Commission is educating domestic and overseas manufacturers, importers, and distributors of children’s products and other consumer goods of these important new safety requirements. (CPSC News Release, #09-306, August 13, 2009, CCH Consumer Product Safety Guide, Report No. 945, August 24, 2009)

National Highway Traffic Safety Administration

Think Receives Exemption from Air Bag Requirements
Think Technology AS (Think) was granted a temporary exemption from certain advanced air bag requirements of Federal Motor Vehicle Safety Standard (FMVSS) No. 208, “Occupant Crash Protection.” The exemption applies to the Think City EV vehicle line. NHTSA believes the exemption would make the development or field evaluation of a low-emission vehicle easier and would not unreasonably lower the safety or impact protection level of that vehicle. The exemption is effective from February 1, 2010 through January 31, 2012. (CCH Consumer Product Safety Guide ¶57,259 (ip access user))

NHTSA Amends Standard Regulating Motor Vehicle Controls
In response to a petition from the Alliance of Automobile Manufacturers (Alliance) regarding the color contrast requirement in Federal Motor Vehicle Safety Standard (FMVSS) No. 101, NHTSA amended the standard regulating motor vehicle controls, telltales and indicators to provide that an identifier is not required if the horn control is placed in the middle of the steering wheel. If the horn control is placed elsewhere in the motor vehicle, the control would be required to be identified by the specified horn symbol in a color that stands out clearly against the background. (CCH Consumer Product Safety Guide ¶42,009 (ip access user))

NHTSA Amends Delegations of Authority
In an amendment to its delegations of authority, the National Highway Traffic Safety Administration effectuated a change that would enable it to achieve its mission more effectively and efficiently. The final rule, which was effective August 14, 2009, amended the regulation on delegation of powers and duties within NHTSA and related solely to the placement of the delegation of authority for a function within the agency. It increased the authority of the Chief Counsel to compromise civil penalties and monetary settlements. Because there was no substantive effect, notice and the opportunity for comment were not required. (CCH Consumer Product Safety Guide ¶42,010 (ip access user))

List of Noncompliant Vehicles Eligible for Importation Updated
The list of vehicles that NHTSA has decided are eligible for importation, although not originally manufactured to conform to federal motor vehicle safety standards, was updated in a final rule issued by the agency. The list appears in an appendix to federal regulations that prescribe procedures for import eligibility decisions, and was revised to add all vehicles eligible for importation since October 1, 2008, and to remove all previously listed vehicles that are now more than 25 years old and that no longer need to comply with all applicable FMVSS to be lawfully imported. NHTSA is required by statute to publish this list annually in the Federal Register. The revised list of import eligible vehicles was effective on August 14, 2009. (CCH Consumer Product Safety Guide ¶42,011 (ip access user))

Brake Transmission Shift Interlock Requirement Proposed
An amendment to Federal Motor Vehicle Safety Standard No. 114, “Theft Protection” to require that certain motor vehicles with an automatic transmission that includes a “park” position, manufactured for sale after September 1, 2010, be equipped with a brake transmission shift interlock has been proposed by NHTSA. This interlock will require that the service brake pedal be depressed before the transmission can be shifted out of “park,” and will function in any starting system key position. The proposal is being made in response to a statutory mandate in the Cameron Gulbransen Kids Transportation Safety Act of 2007 (K.T. Safety Act of 2007). Comments must be received by September 24, 2009. (CCH Consumer Product Safety Guide ¶40,724 (ip access user))

Rulemaking Petition for Headlamp Patterns Denied
A petition for rulemaking regarding the federal motor vehicle safety standard for lighting by the Groupe de Travail “Bruxelles 1952” (GTB) and the Society of Automotive Engineers (SAE) Lighting Committee was denied by NHTSA. The petitioners requested that new specifications be added for optional lower beam and upper beam headlamp patterns on the basis that they would increase harmonization with European requirements. After completing a technical review of the petition, the agency denied the petition, noting that the petitioners did not provide data to demonstrate that the requested new optional specifications would provide safety benefits comparable to those of the existing standard or that cost savings would be realized without compromising safety. NHTSA added that it was pursuing a more comprehensive review of the lighting standard and was studying the feasibility of many issues and potential regulatory changes, some of which would address issues raised in this petition. (CCH Consumer Product Safety Guide ¶57,294 (ip access user))