May 2011
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
Review of Reversal of $20.5M Jury Verdict for Welder Denied
A petition by a welder seeking review of a decision overturning a $20.5 million jury verdict in the welder’s favor because of unreliable expert testimony was denied by the U.S. Supreme Court on May 16. The U.S. Court of Appeals for the Sixth Circuit ruled (Tamraz v. Lincoln Electric Co. (6thCir) CCH Products Liability Reports ¶18,483 (ip access users (Intelliconnect) that a physician's expert testimony concluding that exposure to manganese in welding supplies produced by several manufacturers triggered “manganese-induced parkinsonism” in the welder who used them was unreliable, and, therefore, inadmissible. The welder worked as an independent contractor in California, and at age 41 to 44 began to suffer symptoms of Parkinsonism. The welder and his wife alleged that the fumes from the welding supplies had caused his condition and that labels on the manufacturers’ products failed to warn of the danger. The court of appeals found that the doctor's conclusion was, at best, a working hypothesis, not admissible scientific “knowledge,” as required under the federal rules of evidence. Because the “knowledge” requirement of Rule 702 required “more than subjective belief or unsupported speculation,” the testimony should have been excluded, the court concluded, and found that the rest of the physician's testimony confirmed the speculative nature of his opinion. Moreover, the court determined that the physician's testimony lacked foundation both for why manganese could cause Parkinson's disease and, more specifically, why manganese caused the welder's case of Parkinson's disease. The Sixth Circuit reversed the jury's $20.5 million verdict for the welder and his wife because the physician was the only expert who testified that the welder had the equivalent of Parkinson's disease caused by manganese. Without the testimony, the welder would have had to convince the jury that he suffered from manganism, not Parkinson's disease. Given the importance of the testimony, the court could not find, “with fair assurance,” that the result at trial would have been the same without it. The case was remanded for a new trial.
In his petition to the High Court, the welder had posed two questions. First, whether, under Daubert v. Merrell Dow Pharmaceuticals, Inc. [CCH Products Liability Reports ¶13,494 (ip access users) (Intelliconnect)] flexible standard of admissibility, an expert testifying about the cause of the petitioner's parkinsonism must prove every inference and assumption supporting his opinion. Second, where a majority of the court of appeals employs a de novo standard of review instead of an abuse of discretion standard to reverse the district judge’s admission of expert opinion about the cause of petitioner’s parkinsonism, does it usurp the district court’s “gatekeeping” function under Daubert and undermine Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999) and General Electric Co. v. Joiner, 522 U.S. 136 (1997). The petition for certiorari was filed March 9, 2011. (Tamraz v. Lincoln Electric Co., Dkt. No. 10-1122, May 16, 2011, CCH Products Liability Reports No. 1231, May 31, 2011)
$322M Awarded in Asbestos Case for Drilling Mud Design, Warning Defects
A Mississippi jury awarded an oil rig worker $322 million in damages for injuries allegedly resulting from his inhaling asbestos dust while mixing drilling mud sold by Chevron Phillips Chemical and manufactured by Union Carbide Corporation. The jury found the two companies equally liable for defectively designing the product and failing to provide an adequate warning. The worker worked in the Mississippi oil fields from 1979 to the mid 80's, mixing drilling mud on drilling rigs in the state and offshore in the Gulf of Mexico. He was diagnosed with asbestosis and is currently on oxygen 24 hours a day, according to a press release issued by his attorneys. The jury awarded $22 million in compensatory damages, $11 million of which was for future medical expenses while the remainder was for non-economic damages. The jury also assessed punitive damages awards of $150 million against each company. The press release stated that the award is the single largest plaintiff's asbestos verdict in United States history. (Brown v. Phillips 66 Co. (MissCirCt), Civil Action No. 2006-196, May 2, 2011, CCH Products Liability Reports No. 1230, May 16, 2011)
Contact Cement Label FHSA Compliant; No Warning Defect
The label of a manufacturer's contact cement, a construction adhesive and hazardous substance sold for household use, complied with labeling requirements under the Federal Hazardous Substances Act (FHSA), and, therefore, the manufacturer was not liable for failure to warn in a wrongful death action by the wife of a consumer who was severely burned, and subsequently died, when he attempted to clean up some spilled cement by wiping up the adhesive, the U.S. Court of Appeals for the Eighth Circuit held. The appellate court’s decision affirmed a federal district court in Missouri. The vapors emitted from the cement ignited and caused a flash fire. While the consumer’s wife could bring a failure-to-warn claim based on the theory that the product label failed to comply with the FHSA, she could not bring a failure-to-warn claim based on a state-law theory that the product’s label should have included particular warnings not required by the FHSA, according to the court. The FHSA preempted any state cause of action that would impose a labeling requirement “different from the requirements in the FHSA or the regulations promulgated thereunder.” While the consumer’s wife could bring a failure-to-warn claim based on the theory that the product label failed to comply with the FHSA, she could not bring a failure-to-warn claim based on a state-law theory that the product’s label should have included particular warnings not required by the FHSA, according to the court. The FHSA preempted any state cause of action that would impose a labeling requirement “different from the requirements in the FHSA or the regulations promulgated thereunder.”
The court found that the widow failed to create a question of fact that the cement label did not comply with the FHSA. The cement label instructed the consumer that in order to avoid the principal hazards of general flammability and flash fire, before the cement was used, handled, stored, or disposed of, any potential source of ignition had to be eliminated as a precautionary measure. However, the court determined that the risk of fire from an accidental spilling of the cement was not a “principal hazard” that the FHSA required the label to state affirmatively, and spreading the product after a spill was dangerous only if the consumer had not removed potential sources of ignition. While an additional warning instructing the consumer to avoid spreading the cement in the event of an accidental spill might bolster the precautionary measures already provided, the court said, the FHSA did not require the additional warning. Moreover, the label complied with the FHSA, because the principal hazard to be avoided was flammability, and the way to avoid that hazard was to remove all potential ignition sources. (Mwesigwa v. DAP, Inc., CCH Products Liability Reports ¶18,617 (ip access users)(Intelliconnect))
Computer Animated Accident Scene Not Admissible
A computer animation of an accident involving a tractor-trailer truck, in which one occupant was killed and another injured, was not admissible as evidence at trial, a federal court in Washington ruled, but could be used to illustrate the testimony of one of the manufacturer’s experts. The occupant who was killed was operating the tractor-trailer truck when he lost control of the vehicle, which then left the roadway, rolled, and came to rest at the bottom of an embankment. The driver’s surviving spouse and children brought negligence and strict products liability claims against the manufacturer alleging that neither the tractor nor its sleep compartment were crashworthy and that the sleep compartment lacked an adequate restraint system. The manufacturer sought to introduce a MADYMO (MAthematical DYnamic MOdels) modeling analysis to illustrate the occupants’ movements during the accident. The MADYMO was based on dynamics data supplied by two of the manufacturer’s experts. The spouse challenged the admissibility of the evidence arguing that the witness testifying about the MADYMO was not a designated expert. The manufacturer countered that the witness was merely a fact witness and would be explaining the use of the MADYMO software and authenticating the modeling analysis.
Upon reviewing the record, the court determined that there was no evidence for it to make a determination of how the program actually worked. Thus, there was no basis for the court to evaluate whether the modeling analysis was merely an illustration of the opinions of the experts or if it actually generated its own “opinions” regarding occupant movement during the accident. The court explained that expert testimony was necessary to establish the reliability of the MADYMO analysis and that the simulation presented had to be authenticated as an accurate result of a system or process. Because the witness had not been designated as an expert, the court ruled that he could not establish the scientific reliability of the MADYMO program. Therefore, the court concluded that the MADYMO modeling analysis could not be used as substantive evidence during trial. However, because an out-of-court experiment could be offered by an expert at trial to illustrate or demonstrate principles used to form that expert’s opinion, one of the manufacturer’s experts could show the MADYMO modeling analysis to the jury during the course of his testimony. The court cautioned that the expert could not, however, provide testimony that went to the reliability of the MADYMO program itself. (Bullock v. Daimler Trucks North America, CCH Products Liability Reports ¶18,612 (ip access users) (Intelliconnect))
State Law Did Not Bar Bystander Emotional Distress Claim
A claim for bystander emotional distress brought against the manufacturer of a Jet Ski in connection with an accident in which a rider’s left hand was severed from her arm was allowed to proceed because it was separate from product liability claims brought by the rider, the U.S. District Court for the District of Connecticut held. The rider was a passenger on the Jet Ski with her daughter and husband, who was operating the vehicle, while it was towing an inflatable tub in the water using a rope secured to a recessed hook on the Jet Ski when the rope broke off and caught the rider’s hand, resulting in its traumatic amputation. Alleging the Jet Ski was defective and unreasonably dangerous, the rider, her husband, and their daughter brought claims under the Connecticut Product Liability Act and state common law and sought punitive damages. The manufacture claimed that the bystander emotional distress claim and another claim for negligent infliction of emotional distress brought by the husband and the daughter should be dismissed due to the Act’s exclusivity provision. Under the Act, a product liability claim includes all claims brought for personal injury caused by the manufacture, design, or assembly of any product. A claim under the Act is in lieu of all other claims against product sellers for harm caused by a product. The court found that the Act did not bar the claim for bystander emotional distress claim because, while the Act barred separate causes of action for one plaintiff whose claims were subsumed within the Act, the bystander husband and daughter had their own personal claims which were not barred by the wife’s claims.
However, the court dismissed without prejudice the husband’s and daughter’s claim for negligent infliction of emotional distress pending further clarification because it was not clear to the court whether it was based on their own participation in the accident or upon their observation of the injury to the rider/wife. Unlike a claim for bystander emotional distress, a claim for negligent infliction of emotional distress required a direct duty of care to the plaintiff that must be pled by a plaintiff. A claim based upon witnessing the injury would be duplicative of a claim for bystander emotional distress claim, but a claim based upon their own participation in the accident would stand.
Finally, the claim for punitive damages was allowed to proceed. The Act permitted punitive damages when the harm suffered was the result of the product seller’s reckless disregard for the safety of product users, consumers, or others injured by the product. A complaint must set out a specific allegation setting out the conduct claimed to be reckless, the court said. The complaint’s allegation that the manufacturer knew or should have known about the risks associated with the Jet Ski’s recessed hooks but failed to address the issue was sufficient to state a claim for punitive damages, the court held. Lutes v. Kawasaki Motors Corp., U.S.A., CCH Products Liability Reports ¶18,622 (ip access users) (Intelliconnect)
Jury Finds for Tobacco Company in Lung Cancer Suit
A federal jury in New York rejected a longtime smoker’s state law claims against the manufacturer of the brand of cigarettes which she smoked and alleged caused her metastatic lung cancer. The smoker and her husband, who was substituted as the sole plaintiff following the smoker’s death from her cancer, asserted claims which included strict liability defective design and negligent failure to warn, and requested $330 million in compensatory and punitive damages in their complaint against the manufacturer. The jury’s deliberations ended upon their unanimous determination that the husband failed to prove by a preponderance of the evidence that the smoker’s cancer originated in the lung. (Grill v. Philip Morris USA, Inc. (SDNY) Case No. 7:05-cv-09174, May 16, 2011, CCH Products Liability Reports No. 1231, May 31, 2011)
Product Safety
Toddler Beds Safety Standards Issued
The Consumer Product Safety Commission (CPSC) issued a final rule setting standard for toddler beds. These safety standards will address entrapment in bed end structures, entrapment between the guardrail and side rail, entrapment in the mattress support system, component failures of the bed support system and guardrails, and the corner post extensions that can catch items worn by a child. The final rule, which is effective on October 20, 2011, is very similar to the proposed rule and aims to make most of the requirements of ASTM F1821–09 more stringent to further reduce the risk of injury posed by toddler beds by modifying or adding several provisions to the ASTM standard. CPSC outlined the changes it made in the ASTM requirement and the propose rule as follows: (a) the rule finalizes without changes part 1217 which establishes a consumer product safety standard for toddler beds manufactured or imported six months after the date of its publication; (b) it incorporates by reference the labeling provisions of the ASTM crib standard; (c) it changed the propose rule by removing provisions concerning mattress retention provisions; (d) it made several additions or modifications to ASTM F to strengthen the guardrail provisions by requiring that the upper edge of the guardrail be at least 5 inches above the manufacturer’s recommended sleeping surface, and modified the test methodology to make it more suitable for the geometry of a guardrail; (e) it added to the ASTM requirements for testing the spindles/slats on guardrails, side rails, and end rails, and revised the spindle/slat requirements so that these provisions are more consistent with the requirements for cribs; and (f) required separate warnings to address entrapment and strangulation. CCH Consumer Product Safety Guide ¶42,050 (ip access users) (Intelliconnect)
Requirements for Toddler Beds Testing Established by CPSC
In conjunction with the publication of final rules for toddler beds, CPSC issued a notice providing the criteria and process for Commission acceptance of accreditation of third party conformity assessment bodies for testing pursuant to CPSC regulations relating to toddler beds. Each manufacturer (including the importer) or private labeler of a product must have any product manufactured on or after October 20, 2011, tested by a third party conformity assessment body accredited to do so and to issue a certificate of compliance based on testing of sufficient samples of the product, or samples that are identical in all material respects to the product. For a third party conformity assessment body to be accredited to test children’s products for conformity with the test methods, it must be accredited by an ILAC–MRA signatory accrediting body, and the accreditation must be registered with, and accepted by, CPSC. [A listing of ILAC–MRA signatory accrediting bodies is available on the Internet at http://ilac.org/membersbycategory.html.] The accreditation must be to ISO Standard ISO/IEC 17025:2005, "General Requirements for the Competence of Testing and Calibration Laboratories," and the scope of the accreditation must include testing to the test method for toddler beds included in 16 CFR part 1217. A true copy, in English, of the accreditation and scope documents demonstrating compliance with these requirements must be registered with the Commission electronically. In addition to the baseline accreditation requirements, firewalled conformity assessment bodies seeking accredited status must submit to CPSC copies, in English, of their training documents showing how employees are trained to notify the Commission immediately and confidentially of any attempt by the manufacturer, private labeler, or other interested party to hide or exert undue influence over the third party conformity assessment body’s test results. This additional requirement applies to any third party conformity assessment body in which a manufacturer or private labeler of a children’s product to be tested by the third party conformity assessment body owns an interest of 10 percent or more. While the Commission is not addressing common parentage of a third party conformity assessment body and a children’s product manufacturer at this time, it will be vigilant to determine whether this issue needs to be addressed in the future. The CPSIA also permits accreditation of a third party conformity assessment body owned or controlled, in whole or in part, by a government if specific requirements are met. CCH Consumer Product Safety Guide ¶58,116 (ip access users) (Intelliconnect)
Retrospective Third Party Testing Terms Amended by CPSC
The Commission has amended the terms under which it will accept certifications for children’s products based on third party conformity assessment body (laboratory) testing to the flammability regulations in response to a request from the American Apparel and Footwear Association (AAFA) to reduce unnecessary retesting of clothing textiles that have been tested already and found to be in compliance with CPSC regulations. The revisions, which took effect on April 22, 2011, allow the Commission to accept children’s product certifications based on third party conformity assessment body testing, under the following criteria: (1) at the time of product testing, the product was tested by a third party conformity assessment body that is ISO/IEC 17025 accredited by an accreditation body that is a signatory to the ILAC–MRA; (2) the third party conformity assessment body’s application for testing using the test methods in 16 CFR part 1610 was accepted by the CPSC on or before November 16, 2010; (3) the product was tested under 16 CFR part 1610 on or after August 18, 2009; (4) the accreditation scope in effect for the third party conformity assessment body at the time of testing expressly included testing to 16 CFR part 1610; (5) the test results shows compliance with the applicable current standards and/or regulations; and (6) the third party conformity assessment body’s accreditation, including inclusion in its scope of 16 CFR part 1610, remains in effect through the effective date for mandatory third party testing and manufacturer certification for conformity with 16 CFR part 1610. CCH Consumer Product Safety Guide ¶58,117 (ip access users) (Intelliconnect)
NHTSA Revises Lamp Visibility Requirements
The National Highway Traffic Safety Administration has revised certain requirements of the standard pertaining to the visibility of lamps mounted on motorcycles to increase the compatibility of its visibility requirements with those of the United Nations Economic Commission for Europe (ECE R53). This decision is in response to and after careful review of the petitions for reconsideration submitted by the Motor and Equipment Manufacturers Association (MEMA), the Alliance of Automobile Manufacturers (AAM), General Motors (GM), Sierra Products, North American Lighting (NAL), Harley Davidson, and the Motorcycle Industry Council (MIC) regarding the agency’s August 2004 final rule that amended the federal motor vehicle safety standard No. 108 on lamps, reflective devices, and associated equipment. (CCH Consumer Product Safety Guide ¶41,882 (ip access users) (Intelliconnect)]. The petitions raised six issues in their requests for reconsideration of the final rule. They also included several requests for clarifications of the final rule that did not specifically request a rule change. Moreover, there were several general questions related to FMVSS No. 108 that were not directly related to the final rule. The final rule is effective May 27, 2011, except for the revision at instruction number 3, which is effective December 1, 2012. Petitions for reconsideration of the final rule must be received not later than June 13, 2011. (CCH Consumer Product Safety Guide ¶42,051 (ip access users) (Intelliconnect))
License Plate Holder Mounting Rules To Be Amended by NHTSA
NHTSA has granted the petition for rulemaking submitted by the Motorcycle Industry Council (MIC) for the amendment of the license plate holder requirements of FMVSS No. 108 to allow motorcycles to mount license plates at an upward angle of up to 30 degrees, in harmony with European requirements. However, the agency has denied, in part, the petitions for reconsideration from Harley-Davidson Motor Company and Ford Motor Company as they relate to subpart S6.6.3 (License Plate Holder) of the final rule, because the agency has decided to resolve this matter through rulemaking. The agency had published a final rule reorganizing FMVSS No. 108 [CCH Consumer Product Safety Guide ¶41,972 (ip access users) (Intelliconnect)] to provide a more logical presentation of regulatory requirements and to incorporate directly into the standard applicable provisions of third-party requirements that previously were incorporated only by reference. After the publication of a final rule, the agency received petitions for reconsideration from Harley-Davidson Motor Company and Ford Motor Company asking the agency to reconsider the license plate holder requirements in subpart S6.6.3 arguing that the license plate mounting requirements of 1981 SAE Standard J587 were never incorporated into FMVSS No. 108 and, thus, should not be included in an administrative rewrite of FMVSS No. 108 given that the agency had stated no intent to substantively change the standard. On March 19, 2009, the Motorcycle Industry Council (MIC) also requested a similar change to S6.6.3, but the MIC submission was not timely for the purposes of reconsidering this final rule and instead has been considered as a petition for rulemaking. MIC proposed in its petition that on a motorcycle where the upper edge of the license plate is not more than 1.2 m (47.25 in.) from the ground, the plate bearing the license numbers should face between 30 degrees upward and 15 degrees downward from the vertical plane, in harmony with European requirements. (CCH Consumer Product Safety Guide ¶58,133 (ip access users) (Intelliconnect). See also CCH Consumer Product Safety Guide ¶58,134 (ip access users) (Intelliconnect)).
Kentucky Court Finds That Cigarette Lighter with Disabled Child Safety Could Be Defective
A cigarette lighter manufacturer’s failure to comply with federal regulations requiring lighters to be equipped with a child safety mechanism that could not be easily overridden or deactivated was not negligence per se, thereby eliminating the need to introduce evidence of feasible design alternatives, a Kentucky federal district court ruled in an action brought by the child’s conservator to recover for burn injuries to the child. The court also determined that causation and defective design issues were questions for the jury. The court determined that Kentucky law limited the operation of the negligence per se doctrine to violation of state statutes and did not include federal statutes or regulations. (Cummins v. BIC USA. Inc., CCH Consumer Product Safety Guide ¶75,808 (ip access users) (Intelliconnect)
Federal Court Lacked Jurisdiction over Defective Crib Claims
A federal court lacked both federal diversity and federal question jurisdiction over product liability and negligence claims against a crib seller and manufacturer following the death of an infant whose head became wedged between the mattress and bed rail of his crib, a federal district court in New Mexico determined. The purchasers of the crib brought their claims in state court against the manager of the store where the crib was purchased and the crib manufacturer. The purchasers sought remand to the state court after the retailer moved the case to federal court. The court explained that federal court jurisdiction required, among others, a claim involving a question of federal law. In order for a claim to arise under federal law, the cause of action must be created by federal law or its resolution must necessarily turn on a substantial question of federal law, and the federal law must create a private cause of action. The purchasers of the crib claimed that the Consumer Product Safety Act did not create a private cause of action and the retailer did not meet its burden of proof to support its claim to the contrary. Thus, the court concluded that there was no federal question. With respect to the diversity issue, the seller’s argument that it was added to the action to defeat the diversity of citizenship requirement for federal jurisdiction was rejected. To prove fraudulent joinder, there had to be a showing that the crib purchasers could not establish a cause of action against the non-diverse retailer in state court. Although the purchasers had not cited any cases in the state finding a store manager liable for selling a defective product, the court found that the manufacturers had not shown that it was impossible for the purchasers to recover against the store manager under state law. Therefore, the store was not fraudulently joined, and the determination of liability should be left to the state courts. (Sakura v. Simplicity, Inc., CCH Consumer Product Safety Guide ¶75,807 (ip acces users) (Intelliconnect))