October 2008

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

Warning/Design Claims Against Tobacco Company Upheld
Sufficient evidence was presented to support a failure to warn claim brought by survivors of a deceased, long-time cigarette smoker against a tobacco company for a jury to have concluded that the decedent would have quit smoking had she been warned by the tobacco company prior to 1969 that smoking one of the company's brands of cigarettes was dangerous, the Missouri Court of Appeals ruled, affirming a circuit court decision that found the company's cigarettes were also negligently designed and unreasonably dangerous under strict products liability. The decedent's daughter testified that her mother immediately quit smoking in 1990 upon the advice of her doctor. The appellate court concluded that the jury could have determined that the decedent would have done likewise had she been warned by the tobacco company prior to 1969, when the cigarette warning labels were modified to cite a warning by the Surgeon General. (Smith v. Brown & Williamson Tobacco Corp., Mo. Ct. App., CCH Products Liability Reports ¶18,082 (ip access users))

Retroactive Application of Ohio Asbestos Law Constitutional
The Ohio statute governing asbestos-related personal injury litigation was compatible with the Retroactivity Clause of the Ohio Constitution, the Ohio Court of Appeals held, overruling the findings of an Ohio trial court. In a special docket for the management of all pending asbestos-related personal injury cases against a number of companies, claimants alleged that their nonmalignant lung diseases were proximately caused by exposure to asbestos products associated with the companies. The statute required that plaintiffs in those cases present a prima facie showing that an exposed person had a physical impairment resulting from a medical condition, and that the person's exposure to asbestos was a substantial contributing factor to the medical condition. Failure to make such a showing would require the trial court to administratively dismiss the action, without prejudice, until the claimant satisfied the statute's prima facie requirements. (In re Special Docket No. 73958, Ohio Ct.App., CCH Products Liability Reports ¶18,092 (ip access users))

RI High Court : Forum Non Conveniens Bars Asbestos Cases
An action arising out of 39 cases alleging personal injury and wrongful death caused by workplace exposure to products containing asbestos, and in which all of the plaintiffs were Canadian residents and their employment, exposure, injuries, and treatment occurred in Canada, was dismissed based on forum non conveniens by the Rhode Island Supreme Court after it formally recognized that the doctrine of forum non conveniens existed in Rhode Island as an inherent judicial power. The principle of forum non conveniens allows a court to decline to exercise jurisdiction when a plaintiff's chosen forum is significantly inconvenient and the ends of justice would be better served if the action were brought and tried in another forum. The court acknowledged that the lower cour correctly found that the 39 underlying cases met both the jurisdictional requirements and venue provisions of state law. (Kedy v. A.W. Chesterton Co. et al. (In re: Asbestos Litigation, R.I. S.Ct., CCH Products Liability Reports ¶18,095 (ip access users))

$8.5 Million Award Against Polio Vaccine Make Upheld
A patient who alleged that an oral polio vaccine caused him to develop partial polio induced paralysis provided sufficient evidence to support his claim that the vaccine was in a defective condition under both a negligent manufacturing and products liability claim and to establish causation, the Missouri Court of Appeals ruled, upholding the jury’s award of $8.5 million in past and future economic damages and future non-economic damages. The patient took the vaccine as part of routine immunization and, a short time after taking his second dose, he experienced paralysis in his left arm and later developed problems with his hands. The patient alleged that the polio vaccine was negligently manufactured and was a defective product because the manufacturer failed to perform neurovirulence testing at each stage of the vaccine manufacturing process and this failure resulted in his being exposed to a live virus strain. The court ruled that noncompliance with FDA regulations could be used to establish a both that the vaccine was defective and negligently manufactured independent from a claim of negligence per se, that the patient’s expert was qualified to testify and that CDC documents were properly admitted. (Strong v. American Cynamid Co., Mo. Ct. App., CCH Products Liability Reports ¶18,096 (ip access users))

Attorney Not Liable as Seller for Defective Office Chair
An attorney was not subject to a products liability claim involving an allegedly defective chair in the attorney's office because the attorney never put the chair into the stream of commerce and, thus, did not fall within the definition of a nonmanufacturing seller, the Alaska Supreme Court held. A man who was participating in a meeting conducted at the attorney's office was injured when the chair collapsed. The man argued that duties under products liability law should extend to business owners who provide furniture for the use of visitors. However, the court rejected the man's arguments because the main case used to support his argument came from a jurisdiction that had a separate statute placing a duty on owners of items provided for use by others and Alaska had no such statute. Additionally, the public policy arguments that the man put forth in support of his argument were not applicable to products liability law because "[t]he focus in a strict products liability case is on the product, not on the conduct of the defendant." (Burnett v. Covell , Alaska S.Ct., CCH Products Liability Reports ¶18,084 (ip access users))

Maker Owed No Duty to Occupants of Vehicle Struck by Truck
Explaining that it was bound by the state's authoritative rulings when sitting in diversity, the U.S. Court of Appeals for the Seventh Circuit dismissed an action by an Illinois driver who was injured and whose wife was killed in a rear-end collision when his minivan slipped under a trailer pulled by a large truck. Unlike nine other states, Illinois did not recognize a vehicle manufacturer's duty to protect those with whom its vehicle collided; a vehicle manufacturer was required only to protect the occupants of its own vehicle from harm. Thus, the driver failed to state a cause of action under Illinois law. (Rennert v. Great Dane Ltd. Partnership, 7thCir., CCH Products Liability Reports ¶18,090 (ip access users))

Product Safety

Consumer Product Safety Improvement Act of 2008
The Consumer Product Safety Improvement Act of 2008 (CPSIA), which was signed into law by President Bush on August 14, 2008, is now reflected in the CCH Consumer Product Safety Guide. The CPSIA reauthorized the Consumer Product Safety Commission for Fiscal Years 2010 to 2014. The law also grants the CPSC new resources and authority, establishes mandatory testing on all children’s products, bans lead in children’s toys, and provides the public with faster information when potential problems emerge. (CCH Consumer Product Safety Guide, No. 924, October 13, 2008)

Final Rule Amends “Designated Seating Position”
A final rule issued by the National Highway Traffic Safety Administration amended the definition of the term, “designated seating position” as used in the federal motor vehicle safety standards (FMVSS), to indicate more clearly which areas within the interior of a vehicle meet that definition. The final rule also established a calculation procedure for determining the number of designated seating positions at a seat location for trucks and multipurpose passenger vehicles with a gross vehicle weight rating less than 10,000 pounds, passenger cars, and buses. (CCH Consumer Product Safety Guide ¶41,989 (ip access users))

Amendments to Motorcycle Helmet Standards Proposed
Amendments to several aspects of Federal Motor Vehicle Safety Standard (FMVSS) No. 218, Motorcycle Helmets, have been proposed by the National Highway Traffic Safety Administration. The agency explained that some of the amendments would help realize the full potential of compliant helmets by aiding state and local law enforcement officials in enforcing state helmet use laws, thereby increasing the percentage of motorcycle riders wearing helmets compliant with FMVSS No. 218. The amendments would do this by adopting additional requirements and revising existing requirements to reduce misleading labeling of novelty helmets that creates the impression that uncertified, noncompliant helmets have been properly certified as compliant. (CCH Consumer Product Safety Guide ¶40,718 (ip access users))