October 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

Jurisdiction Over Battery’s Supplier Remanded by U.S. High Court
Upon granting a petition for certiorari by a Chinese manufacturer of a battery that was used in the manufacture of a motorized wheelchair (China Terminal & Electric Corp. v. Williamsen, Docket No. 10-1262, October 3, 2011), the U.S. Supreme Court vacated an unpublished decision by the Oregon Supreme Court upholding an Oregon trial court’s exercise of personal jurisdiction over the foreign component manufacturer and remanded the matter to the state high court for further consideration in light of J. McIntyre Machinery, Ltd. v. Nicastro (USSCt) [CCH Products Liability Reports18,653], in which the U.S. Supreme Court had held that New Jersey did not have personal jurisdiction in a products liability case brought by a worker whose hand was accidentally caught in the blades of a metal shearing machine. The current case arose out of fatal injuries sustained by a woman in a house fire allegedly caused by a defective battery/battery charger in the motorized wheel chair. The high court was asked whether the Due Process Clause of the Fourteenth Amendment permits a state to exercise in personam jurisdiction over a foreign component manufacturer pursuant to the stream-of-commerce theory solely because the manufacturer targeted the U. S. market for the sale of its product and the component is incorporated into a product purchased in the forum state by a forum state consumer. In J. McIntyre Machinery, although the accident took place in New Jersey, the machine was manufactured in England where the manufacturer was incorporated. Because the machine’s manufacturer never engaged in any activities in New Jersey that revealed an intent to invoke or benefit from the protection of the state’s laws, New Jersey was without power to adjudge the company’s rights and liabilities, and its exercise of jurisdiction would violate due process, according to the U.S. Supreme Court’s opinion.

U.S. Supreme Court Denies Review of Pesticide Case Jurisdiction
A petition by the mother of a child with neurological deficits (Junk v. Terminix Int’l Co., Dkt. No. 10-1238, October 3, 2011), which allegedly were caused by repeated exposure to the active ingredient, chlorpyrifos, in a pesticide that was used in the woman’s home during her pregnancy and after the child’s birth, to review an opinion by the U.S. Court of Appeals for the Eighth Circuit [CCH Products Liability Reports18,556] was denied by the U.S. Supreme Court on October 3, 2011. The mother’s action against the pesticide manufacturer, the entity that applied the pesticide in her home, and the employee who applied the product alleged breach of express and implied warranties, fraud, negligent misrepresentation, products liability, and negligence. Even though both the mother and the employee were Iowa citizens, the manufacturer removed the case to federal court, asserting diversity of citizenship as the basis for jurisdiction, and claimed that the employee was fraudulently joined, and, therefore, that the employee’s Iowa citizenship did not spoil complete diversity. A federal district court in Iowa denied the mother’s motion to remand and subsequently excluded causation testimony from certain of the mother’s expert witnesses. The Eighth Circuit affirmed the lower court’s ruling granting judgment as a matter of law in favor of the manufacturer. The mother had asked the high court whether in a diversity case removed from state court, after the district court improperly finds a nondiverse defendant fraudulently joined, denies a motion to remand for lack of subject matter jurisdiction, and erroneously orders the nondiverse defendant’s dismissal, does the district court have subject matter jurisdiction to judge the merits in favor of the diverse defendants.

U.S. High Court Review of Driver’s Standing to Appeal Sought
A driver who was severely injured in a rollover accident and who had asserted products liability claims against the manufacturer of her automobile based on alleged defects in the tempered glass used in the vehicle’s side windows has petitioned the U.S. Supreme Court (Raley v. Hyundai Motor Co., Ltd., Docket No. 11-432, October 5, 2011) to review a decision by the U.S. Court of Appeals for the Eighth Circuit dismissing the case for lack of jurisdiction. The driver was the named plaintiff, on behalf of herself and her three children, and was the real party in interest in the litigation. Before trial began, the driver asked the federal district court in Oklahoma overseeing the matter to substitute a bank in her place as the real party in interest and sole plaintiff in the case because a state probate court had appointed the bank to serve as guardian for her and her minor children. She had represented to the court that all ‘‘interest’’ in the lawsuit had been ‘‘transferred’’ to the bank. The court agreed and following a trial, judgment was rendered against the driver. The driver, not the bank, appealed, and the court of appeals concluded that the driver had no standing to appeal the judgment entered against her at trial.
In her petition to the U.S. Supreme Court, the driver asked whether Rule 60(a) of the Federal Rules of Civil Procedure can be used after the appeal has commenced to retroactively change the substance of a judgment and deny Article III jurisdiction to the named plaintiff and real party in interest in the litigation; and, if so, must an appeals court determine whether after the change, the named Appellant can retain non-party standing to prosecute the appeal before dismissing a pending appeal.

Illinois High Court Overturns $43 Million Fuel Tank Fire Award
Reversing a $43 million jury verdict, the Illinois Supreme Court held that the wife and the estate of a driver who was killed in a rear-end collision presented insufficient evidence from which a jury could conclude that the manufacturer of the driver’s vehicle breached its duty of reasonable care on three negligent design theories put forth by the wife and the estate. The wife, who was also in the car at the time of the accident, sustained severe burns and permanent disfigurement.
Upon the rear-end impact, a large pipe wrench in the trunk of the couple’s car penetrated the trunk and punctured the back of the vehicle’s fuel tank, whereupon the vehicle burst into flames. The negligent design claims asserted by the passenger-wife and the estate were that the automaker (1) failed to locate the fuel tank over the axle or forward of the rear axle; (2) failed to shield the fuel tank to prevent punctures by contents in the trunk; and (3) failed to warn of the risk of trunk contents puncturing the fuel tank. The Illinois high court ruled that the duty analysis in a negligent product design case encompassed a risk-utility balancing test, and that while compliance with industry standards was a relevant factor in that analysis, it was not dispositive. Similarly, the court stated that evidence of a violation of industry standards was considered probative of, but not conclusive on, the question of negligent design, and that the standard remained whether the conduct was reasonable under the circumstances. After balancing the foreseeable risks and utility factors, the court concluded that the passenger-wife and the estate failed to present sufficient evidence from which a jury could conclude that at the time of manufacture, the automaker’s conduct was unreasonable or that it had acted unreasonably in failing to warn about the risk of trunk contents puncturing the tank. The court determined that the manufacturer complied with the industry standard for fuel system integrity; that it exceeded that standard by its own heightened crash-testing standards; that other manufacturers in the industry continued to produce vehicles with aft-of-axle fuel tanks; and that despite the clear gravity of the injury, the risk was extremely remote. Additionally, the court found that there was no evidence of a feasible shield that would have prevented the injury in the case. As such, the court concluded that there was insufficient evidence to justify the submission the three negligence claims to the jury. Finally, the passenger-wife’s and the estate’s fourth theory, premised on a post-sale duty to warn, was not cognizable under Illinois law and, thus, was legally defective and improperly submitted to the jury for consideration, the court held. Further, the court declined to consider in this case whether Illinois should adopt a post-sale duty to warn. (Jablonski v. Ford Motor Co. (IllSCt) ¶18,702)

 

$1.5 Million Verdict for Worker Injured by Benchsaw Upheld
In an action by a construction worker, who was injured when his hand slid into the running saw blade of a portable benchsaw and who was awarded $1.5 million in damages by a jury, because there was no obligation to present a reasonable alternative design in Massachusetts, and because the worker did not assert an impermissible categorical theory of liability, the U.S. Court of Appeals for the First Circuit did not overturn the jury verdict in the matter. The worker’s claims against the saw manufacturer alleged negligence and breach of the implied warranty of merchantability. During trial, a significant portion of evidence revolved around the question of whether the “SawStop,” an optional safety addition on mechanical saws that helps to prevent accidental operator injury, was a feasible addition to the product. The manufacturer claimed that the “Saw-Stop” would unreasonably increase the weight, size and price of the saw. On appeal, the manufacturer argued that at trial the worker failed to offer a viable reasonable alternative to the allegedly defective saw, because the “SawStop” was not such a viable design, and, thus, the evidence was insufficient to find the manufacturer liable. The appeals court clarified the rule that, in Massachusetts, there is no requirement that a plaintiff present evidence supporting the existence of a feasible alternative design. When a jury, on its own, can determine that a design defect exists, the court said, expert testimony that a product is negligently designed is not required. In addition, the manufacturer argued that the worker’s claim was an impermissible “categorical liability” which created per se liability for an entire class of products. The appeals court disagreed, however, finding that the extensive discussions over the viability of the addition of the “SawStop” as an alternative design clearly indicated that the worker was not proposing a categorical liability. Therefore, the court of appeals affirmed the trial court’s ruling. (Osorio v. One World Technologies, Inc. (1stCir) ¶18,708)

Preemption of Warnings Claims in Reflux Drug Suit Affirmed
In an action by three patients who alleged that they developed tardive dyskinesia, a neurological disorder, as a result of their use of generic metoclopramide, a drug prescribed for the treatment of gastroesophageal reflux disease, the patients’ claims against the generic drug manufacturers for damages under Kentucky state law for failure to warn were preempted because of a conflict between the tort claims and the federal regulation of generic drugs, the U.S. Court of Appeals for the Sixth Circuit ruled, affirming a federal district court in Kentucky. The patients had alleged that the manufacturers of the generic drug failed to include adequate information on product labels concerning the risks of taking the drug long-term. However, the U.S. Supreme Court in Pliva, Inc. v. Mensing [CCH Products Liability Reports ¶18,642] held unequivocally that federal law preempted state laws which imposed on generic-drug manufacturers the duty to change a drug’s label, and, thus, barred state-law tort claims. The plain language of the Pliva decision compelled the same result in this case, according to the Sixth Circuit. The court of appeals also affirmed the lower court’s dismissal of the patients’ claims alleging fraud and tortuous misrepresentation against the manufacturers of the name-brand form of the drug. The appellate court ruled that the district court correctly applied the Kentucky Product Liability Act in finding that the patients’ claims could not succeed because they alleged that generic metoclopramide, not the name-brand product, caused their injuries. The patients’ argument—that the name-brand defendants’ liability stemmed from the fact that the regulatory structure governing name-brand and generic drugs made it foreseeable that patients and their physicians will rely on the name-brand labels to use and prescribe generic drugs—was one that had been rejected by a majority of courts, as well as by the Sixth Circuit, which stated that it rejected “the argument that a name-brand drug manufacturer owes a duty of care to individuals who have never taken the drug actually manufactured by that company.” Further, the appellate court stated that the patients did not convince it that the Kentucky state courts would adopt their vicarious liability argument under the Kentucky Products Liability Act. (Smith v. Wyeth, Inc. (6thCir) ¶18,701)

Proof of Brain Injury’s Cause Lacking in Lead-Based Paint Suit
Because two physician experts’ speculation that a brain-damaged twenty-year-old had been ingesting lead, via lead-based paint, throughout his entire residence in his childhood home was unreliable and, therefore, inadmissible; and because none of the experts testifying on behalf of the young man, in an action brought on his behalf by his guardian against the alleged manufacturer of the home’s interior and exterior paint, presented any scientific authority that an acute, asymptomatic ingestion of lead could lead to the young man’s alleged injuries, the guardian failed to offer sufficient proof that the lead paint was the cause of the young man’s brain injuries, the Mississippi Supreme Court held. Further, because of the lack of sufficient proof of causation in the products liability action against the paint manufacturer, the court ruled that the paint maker should have been granted judgment notwithstanding the verdict. The court’s decision reversed a jury award of $7 million for the young man. Expert testimony conclusively established that samples of remains at the house site, taken after the house was destroyed in a fire, contained lead-based paint. Two blood tests showed that the young man had elevated blood lead levels of 30 micrograms per deciliter and 19 micrograms per deciliter five days later. The young man had significant cognitive deficiencies which he claimed were a result of lead poisoning. However, the conclusions by the experts were speculative and unreliable. The court specifically stated that the reversal was rendered on the evidence of exposure and proximate cause and not on whether factwitness testimony sufficiently established product identity. One justice concurred in result only, stating that his agreement that judgment in favor of the paint maker was warranted was based on the guardian’s failure to provide proof of product identification. (The Sherwin-Williams Co. v. Gaines (MissSCt) ¶18,710)

Florida High Court: Asbestos Law Cannot Apply Retroactively
Retroactive application of the Asbestos and Silica Compensation Fairness Act (the Act) to claimants with accrued causes of action for damages but without permanent impairments was unconstitutional, the Florida Supreme Court determined. The Act, enacted by the Florida legislature in 2005, altered the requirements to successfully litigate a cause of action for damages resulting from an exposure to asbestos. Under the terms of the Act, a prospective plaintiff, seeking damages for an asbestos-related illness, is required to plead and prove an existing malignancy or actual physical impairment for which asbestos exposure was a substantial contributing factor. Florida’s Fourth District found that the Act could not be retroactively applied to eliminate the existing vested property rights in asbestos-related actions that were pending prior to the Act’s effective date. However, the Fourth District certified conflict with its decision by the Third District, and the Florida Supreme Court accepted certiorari. The Florida Supreme Court found that, in accordance with long-standing traditions of Florida common law, in asbestos litigation, a cause of action accrued upon the diagnosis of an asbestos-related disease. The accrual of the claim vested a prospective plaintiff’s interest in a cause of action as a protectable property interest. While the Act’s preamble explicitly stated that the Act did not impair vested rights and was remedial in nature, the court found that, as a matter of law, the opposite was true. The Act abrogated the preexisting property rights of those individuals who were diagnosed with asbestos-related diseases but did not yet show signs of physical impairment. Thus, the Florida Supreme Court held that the retroactive application of the Act to these claimants was a violation of due process under the Florida constitution, which protects private property from the claims of government. Judge Canady, in dissent, argued that the common law of Florida, as well as general principles of tort law, did not create a cause of action for asbestos exposure for a plaintiff unharmed by that exposure. (American Optical Corp. v. Spiewak (FlaSCt) ¶18,703)

Campers’ Damages, Post-Sale Warnings Claims for Jury
Punitive damages claims brought by the estates of two campers who died from carbon monoxide poisoning, allegedly as a result of defects in a propane radiant heater and propane lantern, which the campers used inside their tent to keep warm, should not have been pled as a separate cause of action, the federal district court in Utah determined. The court also determined that the manufacturer had a continuing duty to warn of defects in its products. According to the court, the punitive damages claims should have been pled in connection with the estates’ products liability and duty to warn claims, not as a separate cause of action. The Utah Supreme Court had held specifically that punitive damages could not be pled as a separate cause of action because, as a remedy, they must be requested in connection with a cognizable cause of action. The district court found that the estates’ punitive damages claims were based on factually sufficient allegations that the manufacturer of the camping equipment failed to warn of the deficiencies in the warning and instructions accompanying these products. The estates identified the manufacturer’s knowledge of its products based on allegations of prior similar deaths and Consumer Product Safety Commission notifications to the manufacturer apprizing it of these deficiencies. The estates also alleged that the manufacturer had taken no steps to warn customers whether at the time of sale or afterward. These allegations were sufficient to establish a cognizable cause of action against the manufacturer, the court concluded. Thus, the court dismissed the punitive damages claim but gave the estates time to amend their complaint to incorporate their punitive damages claims with the cause of action under which they were seeking this remedy. In addition, the court’s determination that the manufacturer had a post-sale duty to warn campers of the hazards associated its equipment was based on Utah’s imposition of a similar duty on successor corporations. The estates of the campers had alleged that the manufacturer’s heaters were defective because, unlike the heaters made by its competitors, the manufacturer’s heaters did not have a built-in safety shut-off device that would extinguish the heaters before they emitted deadly levels of carbon monoxide and that despite its knowledge of the safe design of its competitor’s heaters, the manufacturer failed to take steps to correct its design, warn of the hazards and deficiencies in its heaters, issue post-sale warnings, or conduct a product recall. The court opined that Utah’s reasons for imposing a post-sale duty to warn on successor corporations were the same as the reasons for imposing a continuing duty to warn on the original seller. Therefore, the federal court concluded that if the Utah Supreme Court were presented with this question, it would impose a post-sale duty to warn on the manufacturer in this case. Otherwise, the law of Utah would be “strangely inconsistent” if it imposed a greater post-sale duty on a successor entity than on the original seller. (Dowdy v. The Coleman Co. (DUtah) ¶18,709)

Most Claims Against Nerve Stimulator Device Maker Barred
The preemption doctrine barred product liability claims brought by a patient who allegedly had been injured by a device implanted to alleviate his epilepsy, the federal for the Northern District of Georgia ruled in dismissing the claims. The patient, after a serious accident, suffered from drug-resistant epileptic seizures. Upon recommendation of his doctor, the patient had a medical device implanted in his neck which produced occasional electrical shocks to his left vagus nerve, thereby helping to alleviate his epilepsy. The patient alleged that the device malfunctioned, causing him permanent neurological damage. The patient sued the device manufacturer on the basis of common law actions of strict liability, negligence, breach of warranty and loss of consortium; the consumer also requested punitive damages and attorney fees. The manufacturer argued that all claims were preempted by the federal Medical Devices Act (MDA). With respect to the strict liability claims, the court found that because a manufacturer could hypothetically comply with all FDA regulations, but nevertheless produce a product containing some unintended flaw in design or packaging, Georgia law would impose requirements “different from, or in addition to” those imposed by the MDA. Thus, the court ruled that the marketing and manufacturing strict liability claims, the negligent failure to warn claim, and both the breach of implied and express warranty claims were preempted. As an aside, the court noted that regardless of federal preemption, the consumer could not prove the existence of a manufacturing defect, which was an essential element of many of his claims. The patient’s negligent manufacturing defect claim, however, was dismissed on the merits: despite extensive discovery, the patient produced no evidence that the device was defective, nor was any expert testimony offered as to the causes of the patient’s injuries. At best, the consumer alleged a res ipsa locquitur argument, which Georgia law explicitly rejects. Finally, the patient’s requests for punitive damages, loss of consortium, and attorney’s fees were dismissed by the court as derivative of the previously-dismissed claims. (Haynes v. Cyberonics, Inc. (NDGa) ¶18,696)

Expert Testimony Against Off-Road Vehicle Maker Considered
In a products liability multi-district litigation involving an off-road vehicle, labeled the “Rhino,” testimony by a number of experts was excluded by a federal district court in Kentucky on the basis of the expert’s lack of qualifications, as well as on the lack of reliability and relevancy of the proffered testimony. The purchasers of the vehicle alleged that the off-road vehicle, as designed, rolled-over unexpectedly and, therefore, was defective. Both the purchasers and the manufacturer attempted to exclude testimony by certain expert witnesses on the basis of reliability, qualifications, and relevancy. As to the first expert, a mechanical engineer, the purchasers had challenged as unreliable that portion of the expert’s testimony that was based on “sled tip-up” tests; however, the court found that the mechanical engineer’s testimony was permissible because sled-testing is a well-accepted method of analyzing vehicle performance during an accident, and that the purchasers’ argument more appropriately attacked the second expert’s testimony. The purchasers had moved to strike certain portions of the second expert’s testimony because they were based solely on the allegedly unreliable “sled tip-up” tests. However, because the expert’s opinions were not yet fully formed, the court concluded that the transferor courts would be in a better position to determine the reliability of this testimony, and, thus, exclusion of the testimony was denied without prejudice. The purchasers challenged the methodology and reliability of the testimony of a third expert whose specialty area was off-road vehicle handling and operation. However, the court found that the expert had extensive experience in the off-road industry, and this, in addition to the expert’s study of rider behavior, formed a sufficiently reliable basis for his general testimony. However, the court excluded this expert’s testimony on warning labels for lack of reliability. The manufacturer challenged the testimony of the fourth expert, a “design-process” engineer, because he had no experience designing or evaluating offroad vehicles, and, thus, his testimony lacked any reliable foundation. The court concluded that the engineer had sufficient practical experience in related fields to render an expert opinion. The manufacturer also moved to exclude the testimony of a former compliance officer and deputy director for the Consumer Product Safety Commission (CPSC), who proposed to testify that the manufacturer had an obligation to under the Consumer Product Safety Act (CPSA) to report certain hazards associated with the Rhino. According to the court, the compliance officer’s testimony was irrelevant and unhelpful, because the manufacturer’s compliance with the CPSA was not at issue. Furthermore, the court found that her opinion was not supported by any reliable methodology. A sixth expert—a former legal advisor to the CPSC—had developed his principles based on well-regarded publications in the field and these principles simply expressed relatively generic quality-control statements, according to the court. However, any testimony relating to the CPSA by the former legal advisor was excluded by the court as inherently irrelevant and unreliable. Finally, the manufacturer challenged the reliability of a computer simulation that underlay the testimony of a seventh expert. In determining that the computer simulation was admissible, the court explained that when a computer simulation’s underlying data inputs are faulty or incomplete, the overall reliability of the computer program should be attacked on cross-examination, rather than excluded from presentation to the trier-of-fact. (In re: Yamaha Motor Corp. Rhino ATV Products Liability. Litigation (WDKy) ¶18,695)

Manufacturer in Role of Parts Seller Not Shielded by GARA
The 18-year statute of repose contained in the General Aviation Revitalization Act of 1994 did not bar an action against an aircraft manufacturer on behalf of an individual who had been killed in the crash of a general aviation aircraft that allegedly had been caused in part by the plane’s defective Actuator Control Unit (ACU), a Florida federal court determined. While the manufacturer had made and delivered the aircraft to its first owner more than 20 years before the crash, the repose period rolled over with respect to the allegedly defective part because, within two years of the crash, the owner had replaced the plane’s original ACU with a new model. Although designed and made by a third party, the new ACU had been sold by the aircraft manufacturer to the aircraft maintenance firm that had installed it on the subject aircraft two days later. In support of its argument for GARA protection, the aircraft manufacturer asserted that the statute was intended to shield manufacturers when they are sued in an incidental role and that its role as seller of the ACU created no additional risk. However, even if Congress had intended that GARA shield manufacturers when they are sued in an incidental role, it would not have intended to shield the manufacturer with regard to the new part, the court cautioned, asserting that the statutory text quoted by the manufacturer did not suggest that Congress intended to shield manufacturers facing liability for doing something other than making the aircraft or aircraft part at issue. Rather, it suggested the opposite, i.e., that the Act only protects manufacturers when they are sued in their role as manufacturers, the court held. In actions such as the case at bar, where an aircraft manufacturer was being sued in its capacity as the seller of a new part, the court found that GARA was no bar. Accordingly, the manufacturer’s motion for summary judgment was denied. (Smith v. Cessna Aircraft Co. (MDFla) ¶18,697)

Product Safety

CPSC Interpretation of “Unblockable Drain” Revoked
The Consumer Product Safety Commission (CPSC), in response to letters that requested it to reconsider its interpretative rule, has revoked its previous interpretation of the term “unblockable drain as used in the Virginia Graeme Baker Pool and Spa Safety Act (“VGB Act) [see CCH Consumer Product Safety Guide ¶42,031]. The VGB Act required each public pool or spa with a single main drain, other than an unblockable drain, to be equipped with a secondary anti-entrapment system. Under its previous interpretation, the Commission specified that when a drain cover meeting certain specifications was attached to a drain, the covered drain constituted an “unblockable drain, and did not require a secondary anti-entrapment system. With the revocation of this rule, a drain cover could no longer be used to convert a blockable drain into an unblockable drain. In revoking the previous interpretation, the Commission corrected the previous interpretation, which it now believes was in error and thwarted the intent of the law to require layers of protection in cases in which a drain cover, regardless of its size, could be removed, broken, or otherwise expose a blockable drain and present an entrapment hazard. The Commission also invited written comments, which are due by December 12, 2011, regarding the ability of those who have installed VGBA complaint unblockable drain covers as described at 16 CFR 1450.2(b). Sec. 1450.2 was revoked effective October 11, 2011; however, compliance has been delayed until May 28, 2012. (See CCH Consumer Product Safety Guide ¶42,072)

CPSC Proposes Safety Standard for Play Yards
CPSC proposed a safety standard for play yards in response to the direction under the Section 104(b) of the Consumer Product Safety Improvement Act of 2008 (CPSIA) requiring manufacturers of durable infant or toddler products to establish a consumer safety standard for play yards. The standard is primarily based on the ASTM International Standard for play yards (a.k.a. play pens), but also includes research and input from international standards for play yards from Europe, Australia, Canada and New Zealand. Following 49 fatalities and over 2,000 reported injuries associated with play yards between 2007 and 2011, the CSPC identified elevated risks associated with the play yards and has resolved to improve safety requirements in those key areas. The new standards will be articulated in section 1221 titled “Safety Standard for Play Yards” and will include three changes: (1) clarification of equipment required to perform a floor-strength test, (2) clarification of a floor strength method of testing, and (3) definition of the shape and area of the clamping surface for the “Top Rail to Corner Post Attachment Test.” CSPC intends the final rule to be effective six months after publication in the Federal Register to ensure sufficient time for manufacturers to comply. Written comments must be received by December 5, 2011. (See CCH Consumer Product Safety Guide40,249)

Flammability Standard for Mattresses Amended by CPSC
The Consumer Product Safety Commission has amended its regulations governing its standard for flammability of mattresses and mattress pads to revise the ignition source specification in that standard. The ignition source cigarette specified for use in the mattress standard’s performance tests was no longer produced. Under the amendment, the Commission will require a standard reference material cigarette, developed by the National Institute of Standards and Technology, as the ignition source for testing to the mattress standard. The Commission found that revising the ignition source was needed to adequately protect the public against the unreasonable risk of the occurrence of fire leading to death, injury, and significant property damage. The Commission also found that the amendment to the standard was appropriate and the amendment was limited to the fabrics, related materials, and products that present such unreasonable risks. The amendment was effective September 23, 2011. (See CCH Consumer Product Safety Guide42,070)

Henry Gordy to Pay $1,100,000 for Reporting Failure
CPSC has provisionally accepted a settlement agreement with Henry Gordy International, of Plainfield, New Jersey, pursuant to which the company agreed to pay a civil penalty of $1,100,000 to resolve CPSC staff allegations that it knowingly failed to report to CPSC immediately, as required by federal law, a defect involving “Auto Fire Target Set.” According to CPSC staff allegations, if a child placed the soft, pliable plastic toy dart in their mouth, the dart could be inhaled into the throat and it can prevent the child from breathing. The target sets were sold for $1.50 nationwide by Family Dollar Stores, Inc., exclusively during the period September 2005 through January 2009. By May 29, 2009, Henry Gordy was aware of three deaths involving the target sets after which, in May 17, 2010, CPSC and Family Dollar Stores announced the recall of 1.8 million target sets [CCH Consumer Product Safety Guide ¶57,645]. Again, on May 23, 2010, six days after the recall was announced, another 8-year-old boy died after he swallowed a dart and asphyxiated. In agreeing to the settlement, Henry Gordy denies the allegations as to the existence of a defect or hazard, or that it violated the law. (See CCH Consumer Product Safety Guide ¶58,320)

Bad Boy Agrees To Pay $715,000 for Reporting Violations
CPSC has provisionally accepted a settlement agreement with Bad Boy Enterprises, LLC of Natchez, Mississippi, pursuant to which the company has agreed to pay a civil penalty of $715,000 to resolve staff allegations that the company knowingly failed to report to CPSC immediately, as required by federal law, a defect involving Classic Buggies off-road utility vehicles with Series brand and SePex brand electric motors that resulted in sudden acceleration incidents and injuries to consumers. The off-road utility vehicles with Series motors were sold between 2003 and June 2007 and the off-road utility vehicles with a SePex motors were sold between 2007 and June 2010. Both the Series and SePex off-road utility vehicles could suddenly accelerate during use or while the ignition was in the idle position, creating a runaway vehicle situation. CPSC and Bad Boy Enterprises announced the first recall for sudden acceleration on October 21, 2009 [CCH Consumer Product Safety Guide57,356], and the second recall in December 2010 [CCH Consumer Product Safety Guide57,923]. By that time, there were over 50 reports of sudden acceleration incidents, resulting in injuries such as arm and leg fractures, a fractured toe, rotator cuff injury, and sore muscles. In agreeing to the settlement, Bad Boy Enterprises denies the allegations as to the existence of a defect or hazard, or that it violated the law.  (See CCH Consumer Product Safety Guide ¶58,296)

Nordica USA to Pay $214,000 for Reporting Failure
CPSC provisionally accepted a settlement agreement with Nordica USA, of West Lebanon, New Hampshire, pursuant to which the company has agreed to pay a civil penalty of $214,000 to resolve CPSC staff allegations that Nordica knowingly failed to report to CPSC immediately, as required by federal law, a defect involving “XBi ALU Skis” binding plates cracking and breaking, causing skiers to lose control or fall and suffer injuries to consumers. The ski retailers sold the XBi ALU Skis between August 2006 and December 2008, for between $800 and $1,000. In Fall 2008, Nordica USA discovered that it had about 200 reports of warranty claims related to the XBi ALU Skis’ binding plates cracking and breaking. CPSC and Nordica USA announced the recall about 4,500 pairs of skis for falls, crack or break on February 12, 2009 [CCH Consumer Product Safety Guide57,021]. By that time, there were about 200 reports of warranty claims related to the XBi ALU Skis’ binding plates cracking and breaking. Neither Nordica nor CPSC were aware of any injuries. In agreeing to the settlement, Nordica denies the allegations as to the existence of a defect or hazard, or that it violated the law. (See CCH Consumer Product Safety Guide58,316)