May 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

U.S. Supreme Court Denies Review of Ohio Products Retroactivity Rule
A request by the estate of a steel mill employee who was exposed to asbestos insulation products to review the Ohio Supreme Court's decision in DiCenzo v. A-Best Products Co., Inc., CCH Products Liability Reporter ¶18,162 (ip access user), was denied by the U.S. Supreme Court (Dkt. No. 08-932). The Ohio high court held that its 1977 decision [CCH Products Liability Reporter ¶8280] that imposed strict liability on nonmanufacturing sellers of defective products did not apply retroactively to products sold before the state high court's earlier decision was rendered, and applied prospectively only so that a supplier to the steel mill of insulation products containing asbestos was not liable under a theory of strict products liability for the death of the employee who was exposed to the products during his employment at the mill. The question presented asked whether the selectively prospective application of a new state common law rule violated the Equal Protection clause of the United States Constitution.

Review of FMVSS Preemption Sought in Light of Wyeth
In light of the U.S. Supreme Court's recent ruling in Wyeth v. Levine [CCH Products Liability Reporter ¶18,176 (ip access user)], the parents of a child who died as a result of injuries sustained in a front-end motor vehicle collision have asked the High Court to review the decision by a California appellate court in Williamson v. Mazda Motor of America, Inc. [CCH Products Liability Reporter ¶18,206 (ip access user)], which determined that the parents' products liability action against the manufacturer of the minivan in which they were riding was preempted because it conflicted with Federal Motor Vehicle Safety Standard (FMVSS) 208 (49 C.F.R. §571.208). To the extent that the parents’ complaint sought to hold the manufacturer liable for choosing the lap-only seatbelt option for the rear inboard seat position, the California court said that a successful outcome in the parents’ case would bar automobile manufacturers from employing one of the passenger restraint options authorized by FMVSS 208 and effectively require them to install only lap/shoulder seatbelts to avoid liability under California law. Such an outcome was an obstacle to the implementation of the comprehensive safety scheme promulgated in FMVSS 208 and was, therefore, preempted, the court concluded. The court also ruled that the parents' failure to warn claim was preempted because it was based on their defective design claims. In their petition for certiorari (Docket No. 08-1314), the parents asked the Supreme Court to determine whether, in those instances in which Congress has provided that compliance with a federal motor vehicle safety standard does not exempt a person from common law liability, a federal minimum safety standard allowing vehicle manufacturers to install either lap-only or lap/shoulder seatbelts in certain seating positions impliedly preempts a state common-law claim alleging that the manufacturer should have installed a lap-shoulder belt in one of those seating positions. The parents also asked whether under the High Court's ruling in Wyeth, a federal motor vehicle safety standard allowing automakers to choose a seat belt option impliedly preempted a state tort claim alleging that the automaker should have warned consumers of the known dangers of a lap-only seatbelt installed in one of its vehicles.

Questions Certified to Determine Smoker's Injury Date
The questions of (1) when, under California law, may two separate physical injuries arising out of the same wrongdoing be conceived of as invading two different primary rights, and (2) whether, under California law, may two separate physical injuries—both caused by a plaintiff's use of tobacco—be considered "qualitatively different" for the purposes of determining when the applicable statute of limitations begins to run were certified to the California Supreme Court by the U.S. Court of Appeals for the Ninth Circuit. A smoker filed a number of claims against tobacco companies—including negligence, product liability, and pre-1969 failure to warn—for injuries allegedly resulting from her smoking tobacco products from 1953 until 1991. In 1989, the smoker was diagnosed with chronic obstructive pulmonary disease (COPD), and then in 1990, she was diagnosed with periodontal disease, both of which she believed were caused by smoking. She did not bring suit against the tobacco companies for these ailments. In January 2003, however, the smoker was diagnosed with lung cancer, and under a year later she filed suit against the tobacco companies seeking relief for the lung cancer only. The district court held that the smoker's claims were time-barred because her "awareness by the early 1990s that she suffered from serious smoking-related illnesses started the statute of limitations running as to her personal injury claim." The Ninth Circuit said that the California Supreme Court's resolution of the certified questions will determine the outcome of the smoker's pending appeal: if the state high court decides that, under California law, either the smoker's 1989 diagnosis of COPD or her 1990 diagnosis of periodontal disease started the limitations period for all tobacco-related physical injuries, then her current suit for damages caused by her terminal lung cancer will be time-barred and the district court's dismissal of her complaint will be confirmed; conversely, if the California court concludes that the limitations period did not begin with either of the smoker's prior diagnoses, then the district court's dismissal will be reversed and remanded for further proceedings consistent with the California Supreme Court's decision. (Pooshs v. Phillip Morris, Inc. (9th Cir.) CCH Products Liability Reporter ¶18,201 (ip access user))

Purchaser of Baby Seat Lacked Standing to Represent Class
A class action lawsuit asserting causes of action related to products liability brought against the maker of a baby seat was dismissed by a federal district court in California because the purported class representative did not allege that she, or a child on whose behalf she brought the action, sustained any injury or property damage from use of the seat and, therefore, the court determined that she lacked standing to maintain the action. The purchaser also failed to allege that the seat she purchased contained any of the alleged defects. The baby seat was designed to seat babies from as young as 3 months up to an age of approximately 14 months independently in an upright sitting position. In 2007, after the purchase of the seat in question, lawsuits were filed in various jurisdictions alleging damages from severe physical injuries to babies who had fallen out of the seats. In October 2007, the Consumer Products Safety Commission (CPSC) issued a recall noting that out of about one million units sold, it had received 28 reports of young children falling out of the seat. Injuries included three skull fractures which occurred when the seat was placed on a table. CPSC advised consumers never to use a seat on an elevated surface or to leave a child unattended, and to contact the manufacturer to obtain a warning label to affix to the seat. According to the court, the purchaser's failure to allege any injury, including the cost of a replacement product, and her failure to show that the seat she purchased was defective negated standing and, thus, the court did not have jurisdiction over the claim. (Whitson v. Bumbo (N.D. Cal.) CCH Products Liability Reporter ¶18,211 (ip access user))

Design Defect Claim Against Vaccine Maker Preempted
The National Childhood Vaccine Injury Act (Act) preempted design defect claims against a manufacturer of a diphtheria-pertussis-tetanus (DPT) vaccine by the parents of a child who developed a residual seizure disorder and encephalopathy after receiving three doses of the DPT vaccine, the U.S. Court of Appeals for the Third Circuit ruled. The Act contained an express preemption provision that the vaccine manufacturer argued preempted all claims arising from allegations of design defect. The court found that the structure and purpose of the provision made clear that Congress intended to preempt some design defect claims, and that the legislative history identified the scope of the preemption to encompass both strict liability and negligent design defect claims. In addition, the court ruled that the child's parents failed to produce sufficient evidence upon which a jury could conclude that the vaccine the child received came from a "hot lot"—i.e., a lot of the vaccine associated with two or more deaths, in some cases—to support their failure-to-warn claim against the vaccine's manufacturer. Although the Act expressly preempted failure-to-warn claims based on "the manufacturer's failure to provide direct warnings to the injured party (or the injured party's legal representative)," nothing in the Act expressly barred claims based on failure to warn "doctors and other medical intermediaries." The parents alleged that the manufacturer was liable for failing to warn their child's doctor that the vaccine their child was administered came from a lot with at least two deaths and more than thirty injuries. Under the Act, proper directions and warnings are presumed when a manufacturer has complied with requirements under the Federal Food, Drug, and Cosmetic Act. Once the burden shifted to the parents to rebut the presumption, however, the court determined that they failed to produce evidence sufficient for a reasonable jury to find in their favor. Finally, the parents' manufacturing defect claim based on a strict liability theory also failed due to insufficient evidence, the court held. The parents alleged that the vaccine manufacturer's "manufacturing process and inadequate quality control resulted in recurrent problems with maintaining the appropriate balance between neuron-toxins and endo-toxins" in the vaccine. Although the parents asserted that the vaccine lot used on their injured child was tainted in that it was associated with two deaths and more than 66 injuries, their evidence was insufficient for a jury to conclude that their child was administered a vaccine from a "hot lot." (Bruesewitz v. Wyeth, Inc. (3rd Cir.) CCH Products Liability Reporter ¶18,194 (ip access user))

No Express Preemption for State Claims Against Trailer Maker
Products liability claims by occupants (and their representatives) of an automobile involved in a collision with a tractor trailer against the manufacturer of the tractor trailer under the Connecticut Product Liability Act were not expressly preempted by Federal Motor Vehicle Safety Standard 108, promulgated by the National Highway Traffic and Safety Administration (NHTSA), even though the tractor trailer manufacturer fully complied with the safety standard which governed lighting requirements, the U.S. District Court for the District of Connecticut held. The occupants' complaint contended that the tractor trailer was unreasonably dangerous for its normal and intended use. The court held that because the language of the Federal Motor Vehicle Safety Act and Standard 108 were supportive of allowing the states to set safety standards stricter than those Congress had set, there was no express preemption in the case. Further, the court also found that without more evidence concerning suggested safety modifications as part of the occupants' design defect claims, the occupants' motion for judgment on the pleadings was premature as to the affirmative defenses of implied preemption and conformity with federal statutes and standards. (Bradley v. Fontaine Trailer Co., Inc. (D. Conn.) CCH Products Liability Reporter ¶18,200 (ip access user))

Preemption of Warning Claims for Generic Drugs Upheld
Federal law preempted state failure-to-warn claims involving generic drugs approved under the Food and Drug Administration's (FDA) Abbreviated New Drug Approval (ANDA) procedure, the U.S. District Court in the Western District of Kentucky held. In two separate cases, the patients alleged that when they took the prescription drug, metoclopramide, to treat gastric reflux symptoms, the use of the drug caused them to develop severe and persistent Tardive Dyskinesia, a neurological disease. The patients' complaints against the drug's manufacturer asserted that the manufacturer failed to adequately warn the patients of the long-term negative effects of ingesting metoclopramide. The patients' assertion that there was no conflict between state and federal generic drug labeling requirements was rejected by the court, and there were no compelling public policy reasons for the court to reconsider its prior decisions. (Wilson v. PLIVA, Inc. (W.D. Ky.) CCH Products Liability Reporter ¶18,195 (ip access user); Morris v. Wyeth, Inc. (W.D. Ky.) CCH Products Liability Reporter ¶18,196 (ip access user))

Holster Maker Subject to Express Warranty Claim
Proof of causation was sufficient in an express warranty action by a former police officer against the manufacturer of a pistol holster to raise a question of fact for the jury as to the manufacturer's liability for the officer's injuries, a federal district court in Mississippi held. The officer alleged that the pistol holster which he purchased did not conform to warranties made by the manufacturer, specifically to representations made in advertisements claiming a high difficulty that a potential suspect would encounter if attempting to remove a pistol from the holster. However, the officer encountered a DUI suspect who managed to remove the pistol from the holster and fired a round in the officer's back, paralyzing him from the waist down. The officer alleged that during the struggle between the suspect and himself, it took the suspect "less than five seconds" to retrieve the pistol from the holster, a time frame the officer alleged to be unreasonably short. Under the Mississippi Products Liability Act, the officer, as an express warranty plaintiff, was required to prove that he "justifiably relied" upon an express warranty in "electing to use the product." Also, a previous Mississippi Supreme Court decision established a forgiving causation standard for express warranty plaintiffs. Although there was no evidence that the officer heard or read any representation from the holster manufacturer, the officer testified that he heard of the holster's weapon retention qualities from fellow police officers, and provided a 2002 advertisement for the holster in which the manufacturer praised the weapon retention qualities of the holster with the language, "Hard to Grab, Easy to Draw." Thus, the court determined, it was apparent that the manufacturer's advertisement included specific representations that it would be "extremely difficult" to grab a weapon from the holster. Finally, even though the officer did not offer expert testimony, there was a videotape of the shooting incident that would be available for showing to the jurors. (Johnson v. Michaels of Oregon Co. (N.D. Miss.) CCH Products Liability Reporter ¶18,207 (ip access user))

Product Safety

President Expands CPSC; Nominates Tenenbaum New Chair
Inez Moore Tenenbaum has been nominated by President Obama as Chair of the Consumer Product Safety Commission and Robert S. Adler has been nominated as a new Commissioner. President Obama will expand the CPSC from three Commissioners, with which it has operated for fifteen years, to five. If confirmed, Robert Adler would fill one of these positions. In addition, the President's budget calls for the CPSC to receive $107 million, a 71 percent increase in resources since FY 2007. (White House Press Release, May 5, 2009)

Firms to Pay More Than $1 Million in Outerwear Settlement
Fourteen firms have agreed to pay $1,055,000 in civil penalties to provisionally settle allegations that they failed to report to the CPSC, as required by federal law, that their children's hooded sweatshirts, jackets, or sweaters were sold with drawstrings at the hood and neck. The firms are Bob’s Stores Corp., The Bon-Ton Stores, Inc., Brents-Riordan Co., LLC, Concord Buying Group, Inc., Coolibar, Inc., Forman Mills, Inc., Kidz World, Inc., Marshalls of MA, Inc., Orioxi International Corp., Outfitter Trading Company LLC, Retco, Inc., Seventy Two, Inc., The TJX Companies, Inc., and Urgent Gear, Inc. The products, which pose strangulation hazards, have been recalled. (CCH Consumer Product Safety Guide ¶57,093 (ip access user))

Mega Brands to Pay $1.1 Million Penalty for Violations
In a provisionally accepted settlement agreement, Mega Brands America, Inc., f/k/a Rose Art Industries, Inc., was fined $1,100,000 in civil penalties for failing to provide timely information about dangers to children posed by Magnetix magnetic building sets, as required under federal law. Mega Brands America, Inc. is a New Jersey corporation located in Livingston, NJ. Rose Art was wholly owned by Jeffrey Rosen, Lawrence Rosen, and Sydney Rosen until purchased by Mega Bloks, Inc. on July 26, 2005. Mega Brands, Inc. f/k/a Mega Bloks, Inc. is a Canadian corporation located in Montreal, Quebec, Canada. Mega Brands is the parent company of Mega Brands America. Rose Art designed and manufactured the Magnetix magnet toys subject to the settlement agreement and order. (CCH Consumer Product Safety Guide ¶57,099 (ip access user))

Information Collection Approved for Lead-Containing Products
In conjunction with a final rule [CCH Consumer Product Safety Guide ¶42,002] establishing procedures and requirements for determinations that a commodity or class of materials does not exceed specific lead limits, the CPSC submitted an information collection which has been approved by the Office of Management and Budget. Because the rule required manufacturers to provide certain information along with any request for a Commission determination or exclusion, the rule contained “collection of information requirements.” The approval expires on March 31, 2012. (CCH Consumer Product Safety Guide ¶57,098 (ip access user))

Safety Standard on Roof Crush Resistance Upgraded
As part of a comprehensive plan for reducing the risk of rollover crashes and the risk of death and serious injury in those crashes, the National Highway Traffic Safety Administration has issued a final rule upgrading the agency’s safety standard on roof crush resistance. First, the rule doubles the amount of force the vehicle’s roof structure must withstand in the specified test, from 1.5 times the vehicle’s unloaded weight to 3.0 times the vehicle’s unloaded weight for vehicles currently subject to the standard, passenger cars and multipurpose vehicles, trucks and buses with a gross vehicle weight rating (GVWR) of 2,722 kilograms (6,000 pounds) or less. Second, the rule extends the applicability of the standard so that it will also apply to vehicles with a GVWR greater than 2,722 kilograms (6,000 pounds), but not greater than 4,536 kilograms (10,000 pounds). The rule establishes a force requirement of 1.5 times the vehicle’s unloaded weight for newly included vehicles. Third, the rule requires all of the above vehicles to meet the specified force requirements in a two-sided test, instead of a single-sided test, i.e., the same vehicle must meet the force requirements when tested first on one side and then on the other side of the vehicle. Fourth, the rule establishes a new requirement for maintenance of headroom, i.e., survival space, during testing in addition to the existing limit on the amount of roof crush. The rule also includes a number of special provisions, including ones related to leadtime, to address the needs of multi-stage manufacturers, alterers, and small volume manufacturers.

New Consumer Program for Child Safety Seats Announced
As a result of a comprehensive review to improve child passenger safety and federal child seat standards, the U.S. Department of Transportation announced the creation of a new consumer program to help parents and caregivers find a child seat that fits in their vehicles. Secretary LaHood also ordered the National Highway Traffic Safety Administration to develop a new side impact safety standard for car seats. (DOT News Release, #57-09, April 24, 2009, CCH Consumer Product Safety Guide, Report No. 938, May 11, 2009)

Motorcoach Safety Review Ordered by DOT
A full departmental review of motorcoach safety, ordered by U.S. Transportation Secretary Ray LaHood, will be used to create a Motorcoach Safety Action Plan. The plan will outline the steps needed to improve motorcoach safety. The National Highway Traffic Safety Administration, the Federal Motor Carrier Safety Administration, the Federal Highway Administration, and the Pipeline and Hazardous Materials Safety Administration will participate in the creation of the action plan. (DOT News Release, #59-09, April 30, 2009, CCH Consumer Product Safety Guide, Report No. 938, May 11, 2009)

Request to Amend List of Child Restraints Denied
A petition for rulemaking submitted by the Alliance of Automobile Manufacturers requesting that NHTSA amend the provisions of FMVSS No. 208, “Occupant crash protection,” that apply to the selection of child restraint systems for testing advanced air bag systems was denied. Among other things, the Alliance requested that the agency commit to amending the list of child restraints in Appendix A of FMVSS No. 208 every three years and allow manufacturers the option of certifying vehicles to any edition of Appendix A for five model years after the edition first became effective. The agency stated that the requests were not conducive to maintaining the appendix, did not ensure child restraints were representative of the current fleet for testing with advanced air bag systems, and were unnecessarily restrictive. (CCH Consumer Product Safety Guide ¶57,124 (ip access user))

Satisfying Testing Requirements for the CPSIA By Susan Kavanagh, CCH Washington Writer
The Consumer Product Safety Improvement Act of 2008 (CPSIA) imposes numerous testing and certification requirements while providing very little guidance on how to comply with the requirements, according to Peter L. Winik of Latham & Watkins LLP. Winik spoke about satisfying testing requirements while managing costs in a presentation at the American Conference Institute’s National Forum on Imported Product Safety Compliance held in Washington, DC on April 22, 2009. (CCH Consumer Product Safety Guide, Report No. 938, May 11, 2009)