September 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

Motorcycle Kickstand Not Defective Under Pennsylvania’s Risk-Utility Test
A 1995 motorcycle that did not incorporate a Side Stand Interlock System (SSIS), which would have shut off the motorcycle’s engine if the kickstand was not fully retracted during operation, was not unreasonably dangerous under a risk-utility analysis, but could have been negligently designed, a federal district court in Pennsylvania ruled. The court thoroughly analyzed the seven factors used by Pennsylvania courts to determine whether a product was unreasonably dangerous. The factors weigh the product’s risk of harm against its social utility. Six of the seven factors weighed in favor of a finding that the condition of the 1995 motorcycle at the time it was marketed was not, as a matter of law, unreasonably dangerous. However, it was for the jury to determine whether the manufacturer’s failure to include an SSIS breached a duty of care in that the motorcycle would have been safer with that feature. (Kagen v. Harley Davidson, Inc., E.D. Pa., CCH Products Liability Reporter ¶18,067 (ip access users))

Lack of Warning Gives Rise to Presumption of Liability for Child’s Overdose Death
The Indiana Court of Appeals found that the failure to warn that a graduated medicine cup should not be used to dispense precise medicinal dosages to children created a presumption of causation in the death of a 9-year-old. The child succumbed from an overdose of the opiate Codeine, which was administered using a medicine cup, after an adenoidectomy. The absent warning involved the very risk--an overdose--that caused the child's death and an adequate warning not to use the medicine cup to measure precise medication dosages to children would have been heeded. Thus, the lower court's summary judgment for the medicine cup's manufacturers/sellers on product liability and implied warranty-of-merchantability claims brought by the child's parents was error and the cup manufacturers' cross-claim to exclude the testimony of the parents' expert was rejected. However, the parents’ claim for breach of implied fitness for a particular purpose failed, as they were unable to show the requisite vertical privity with the manufacturers/sellers of the medicine cup. (Kovach v. Alpharma, Inc., Ind.Ct.App., CCH Products Liability Reporter ¶18,071 (ip access users))

State Failure-to-Warn Claim Not Preempted by FDA Advisory Letter
A Federal Drug Administration advisory letter to consumers regarding the risks posed by mercury in fish products did not create a federal standard or regulatory action that preempted a consumer’s failure-to-warn claim against a tuna products producer and distributor, the U.S. Court of Appeals for the Third Circuit held. Finding no reason to deviate from the U.S. Supreme Court’s traditional presumption against preemption, the 3rd Circuit found no conflict between the consumer’s state failure-to-warn claim and any federal law. According to the court, the tuna producer could have complied with both federal law and state law warning requirements. (Fellner v. Tri-Union Seafoods, CCH Products Liability Reporter ¶18,059 (ip access users))

Failure-to-Warn Claim Against Skydiving Harness Maker Preempted, Not Design Defect Claim
A state law failure-to-warn claim against a skydiving harness manufacturer on behalf of an individual who fell to her death after slipping out of a tandem harness during a skydiving instruction session was preempted by the Federal Aviation Act of 1958, but a design-defect claim was not, an Ohio federal court determined. With respect to the failure-to-warn claim, the court articulated that federal law establishes the applicable standard of care in the field of air safety generally, thus preempting the entire field from state and territorial regulation. As for the design defect claim, the court remarked that although the Act's preemptive effect is broad, it is not the type of complete preemption asserted by the manufacturer. While the harness is subject to certification procedures imposed by the Federal Aviation Administration, nothing suggests that the process is anything more than general, nor was there any suggestion that the design submitted is subject to any type of specific review beyond general certification procedures. (McWilliams v. S.E., Inc., N.D. Ohio, CCH Products Liability Reporter ¶18,078 (ip access users))

Removal of Sausage Machine’s Guard Altered Product
Removal of the guard from a co-extrusion sausage processing system was a substantial modification of the machine that made it more dangers, a federal district court in Wisconsin ruled in dismissing strict products liability claims against the machine’s manufacturer. A worker was attempting to remove sausages that became stuck in the machine when the tips of his glove became caught in the spinning blade and his hand was pulled into the machine. There was no evidence that the machine was designed to be operated without the guard; rather four bolts held the guard in place and a wrench or pliers was required to remove it. Rejecting the worker’s contention that removal of the guard was a foreseeable use, not an alteration, the court reiterated that foreseeability is not an element to be considered in strict products liability claims in Wisconsin. (Bush v. Townsend Vision, Inc., E.D. Wis. CCH Products Liability Reports ¶18,060 (ip access users))

Product Safety

Effective Date Delayed for Lights, Reflective Devices Standard
The effective date of an amendment that reorganized and improved the structure and clarity of the federal motor vehicle safety standard on lamps, reflective devices, and associated equipment, has been delayed from September 1, 2008 to December 1, 2009 according to a final rule issued by NHTSA. The final rule reorganizing the lighting standard was published on December 4, 2007 [CCH Consumer Product Safety Guide ¶41,972 (ip access user)]. NHTSA received fifteen petitions for reconsideration of the final rule, including two that requested a delay in the effective date of the rule, and others which raised concerns that the reorganization of FMVSS No. 108 imposed new requirements. The agency is delaying the effective date until December 1, 2009, to allow for more time to analyze the petitions prior to the rule taking effect. (CCH Consumer Product Safety Guide ¶56,794 (ip access user))

CPSC Proposes to Exempt Nursing Pillows from Ban
After reviewing comments, incident reports and other available information, the CPSC has determined there was insufficient data or product information on infant cushions/pillows or pillow-like products, other than the Boston Billow Nursing Pillow and substantially similar nursing pillows, to proceed with the advance notice of proposed rulemaking issued on September 27, 2006. The Commission terminated the infant cushion/pillow rulemaking other than with respect to the Boston Billow Nursing Pillow and substantially similar nursing pillows. The partial termination of the advance notice of proposed rulemaking was effective September 3, 2008. (CCH Consumer Product Safety Guide ¶40,217 (ip access user))

NHTSA Proposes to Extend Child Restraint System Standard
NHTSA is proposing to remove the sunset of a requirement in Federal Motor Vehicle Safety Standard (FMVSS) No. 208, “Occupant crash protection,” that a vehicle's lap belt must be lockable to tightly secure a child restraint system. Under FMVSS No. 208, the requirement ceases to apply to designated seating positions that are equipped with a child restraint anchorage system on vehicles manufactured on or after September 1, 2012. The NPRM proposes to amend the standard so that the requirement will continue to apply after September 1, 2012, even when a child restraint anchorage system is present. Data indicated that some motorists were still using vehicle belts to attach child restraint systems, so the agency is seeking to ensure that lap belts continue to be lockable in vehicles manufactured on or after September 1, 2012. Comments should be submitted by November 12, 2008. (CCH Consumer Product Safety Guide ¶40,716 (ip access user))

Motorcycle Brake Systems Standards Amendments Proposed
Amendments to the federal motor vehicle safety standard on motorcycle brake systems have been proposed by NHTSA in order to add and update requirements and test procedures and to harmonize NHTSA requirements with a global technical regulation for motorcycle brakes. If adopted, the proposal would specify an additional dry brake test procedure to test each service brake control individually and would establish new tests to be conducted with the motorcycle in the fully loaded condition. Comments must be received not later than November 17, 2008. (CCH Consumer Product Safety Guide ¶40,717 (ip access user))