Articles Posted in Products Liability

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lightningTim Kerin, a homeowner in Florida, had an outdoor fire pit equipped with gas.  Gastite CSST is used in home and commercial structures throughout the country in order to provide gas.  Mr. Kerin brought suit against Titeflex Corporation for an alleged product defect in Gastite corrugated stainless steel tubing.  In essence, the complaint alleges that there is a severe risk of CSST being vulnerable to failure after lightning strikes.

The suit, which was originally filed in federal court in Massachusetts, was dismissed due to lack of standing.  As we previously discussed, the justiciability requirement of standing requires an individual to have a concrete injury prior to bringing a suit.  The court dismissed Mr. Kerin’s injury as being speculative.  Mr. Kerin, on appeal, argues that lightning strikes can cause an electrical arc that punctures CSST which can ignite the natural gas contained within it.  Additionally, he argued that the CSST’s risks are well established and that experts have recommended several possible remedies for the problem including outright removal.

Mr. Kerin alleged four caused of action predicated on Massachusetts law against the manufacturer- based on the notion of CSST’s susceptibility to lightning strikes:  “strict liability for design and manufacturing defects, negligence in design[ing] and failing to test the product, negligence in failure to warn, and strict liability in failure to warn.”  It should be noted that Mr. Kerin did not plead, nor did he claim, that the susceptibility of his own CSST to lightning strikes has manifested in any actual, tangible, harm.  However, in an effort to circumvent and prevent and future harm- he is seeking damages for the cost of remedying the issue.

The district court in dismissing the case believed that the standing requirement could not be met because it was currently subject to too much conjecture.  The court held that ‘injury’ was too attenuated as it would take a lightning strike and a puncturing of the CSST to result in the sort of harm that is necessary to maintain a suit.  Additionally, the court concluded that even if there was standing, Kerin failed to state a claim because he failed to allege an applicable standard of care “as required to claim economic injury from a defective product under Massachusetts law.” Continue reading →

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candleIn a case recently decided by a California trial court, it was determined that a candle manufacturer and distributor had no liability for the result of the deaths of twin boys that tragically lost their lives in a fire.  Parents of the two 15 year old boys claimed that the fire that took their lives was caused by a defective candle product, specifically, a candle surrounded by a glass container that was manufactured by Anchor Hocking LLC and Home Garden Party LLC (doing business as Celebrating Home).  Allegedly, the candle was lit and in the middle of the night, the fire escaped the confines of the candle and entrenched the boys’ room in flames.

After a thorough investigation by the fire department, it was determined that while the candle was probably the cause of the fire, there was no evidence of a candle or wax in the boys’ room.  Additionally, several electrical devices were present near an electrical outlet that was adjacent to the alleged candle- which would presumably have been a greater catalyst for any spark or flame that the candle may have initiated.  Parents brought suit against the manufacturer claiming wrongful death predicated on negligence for a defective product.

After suit was filed, the Defendant manufacturer filed a motion for summary judgment with the court.  In essence, the motion claimed that there were no facts in dispute that rose to a triable level and that they should be entitled to judgment as a matter of law.  In opposition, the parents of the deceased children filed a report by an expert witness that discussed his belief, to a reasonably degree of scientific certainty, that the defect in the candle and/or glass caused the deaths of the boys.  However, the Court was reluctant to accept this from the expert.  The assumption of facts that the expert witness based his opinion had no evidentiary support and rose to the level of speculation and mere conjecture. Continue reading →

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medicationsIn recent years there has been a lot of litigation concerning pharmaceutical drugs and the dangers associated with them.  In 2001, Gladys Mensing went to her physician and was prescribed Reglan to treat her diabetic gastroparesis.  The active ingredient in Reglan is metoclopramide, which is available in both branded and generic forms.  When Ms. Mensing went to her local pharmacy to get the prescription filled, she received generic metoclopramide.  This drug was manufactured by Pliva, Inc.  Ms. Mensing took the drug, as prescribed, for a period of four years.  As a result, she claimed that the long term use of metoclopramide caused her to sustain a tardive dyskinesia (a severe and irreversible neurological disorder characterized by grotesque involuntary movements of the mouth, tongue, lips, and extremities, involuntary chewing movements, and a general sense of agitation).

Ms. Mensing, the Plaintiff, sued the manufactuer of the metoclopramide claiming a state-law products liability claim for a failure to warn.  The case alleged that the Defendant provided inadequate warnings regarding the risk of tardive dyskinesia from long term metoclopramide use and that the absence of adequate warnings of that risk caused her injuries.  The Defendant moved to dismiss the case based on federal preemption.

Under Article VI, Clause 2 of the United States Constitution:

This Constitution, and the Laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the constitution or laws of any state to the contrary notwithstanding.

Put differently, federal law- including administrative rules and regulations are the supreme law of the land and will supersede and control when there is a conflict between state and federal laws.  In the Mensing case, the Plaintiff argued that state products liability law should control and that the Defendant manufacturer violated a duty to put adequate warnings on labels.  The Defendant argued that the state law is not controlling.  The Defendant argued that Federal drug regulations, as interpreted by the FDA, prevented the generic drug Manufacturers from independently changing their generic drugs safety labels. Continue reading →

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booksMany cases in Massachusetts rise and fall on the testimony of an expert who has been commissioned by either the Plaintiff or the Defendant to help prove (or defend) their position.  Often times an expert is most commonly used in either a medical malpractice or products liability case.  A medical expert (normally a physician or a nurse) is brought in to discuss the standard of care applicable in a given case and whether the potential Defendant met or failed to meet the standard.  In a products liability case, an expert is most likely retained to discuss the feasibility for an alternative design and whether the absence of such safe guards caused or contributed to an injured Plaintiff’s damages.

In a recent decision out of the Appeals Court in Massachusetts, Jessica Christian, a Plaintiff, brought suit against an anesthesiologist at the Beth Israel Deaconess Medical Center.   The Plaintiff, who received anesthetic care from the Defendant as part of her hysterectomy, claimed that she suffered from numbness in her hand and forearm after the surgery.  She consulted with a neurologist who causally related her injury to the anesthesia she received by the Defendant.  The Defendant filed a motion with the court claiming that there were no issues of material fact in dispute that rise to a triable level.  Put another way, the Defendant asked for the case to be dismissed based on the facts of the case.  The court looked at the information presented on both sides and ultimately dismissed the suit due to a failure of the Plaintiff to establish proof of negligence and causation.

Under the Massachusetts common-law of evidence, there are five foundational requirements for the admissibility of expert testimony. A party seeking to introduce expert testimony must show: Continue reading →

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brokenness-1-656297-mIn 2004, Jessica Bowers, a 16 year old girl from upstate New York, elected to help her father with some yard work at their family home.  Jessica was entrusted with assisting with a post-hole digger in order to erect a fence on the premises.  A post-hole digger is a tool used to dig narrow holes to install posts, such as for fences and signs.  While assisting her stepfather, Jessica’s jacket got caught on one of the gears of the machine which resulted in her arm being severed from below the elbow.  Jessica, and her mother, brought a products liability claim against the manufacturer of the equipment claiming negligence and defective design.  After a trial on the matter, Jessica won an $8.8 million jury verdict.  On appeal, the manufacturer sought to overturn the verdict, claiming there could be no liability based on an interesting twist.

The manufacturer argued that it could not be held liable for a products liability claim predicated on a defective design because it did not produce the machine in the condition it was in at the time of Jessica’s injury.  It should be noted that Jessica’s family did not own the piece of machinery.  When Jessica’s stepfather had borrowed the machinery from family friend (and grape farmer), he failed to mention that he removed a safety shield that covered the machine’s gearbox.  Had this shield been present, as it had been in the original design by the manufacturer, Jessica’s jacket would not have caught on the exposed bolt that pulled her into the tractor.  The New York State Court of Appeals rejected this argument. Continue reading →

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helmetA seventeen year old boy was gearing up for the fourth quarter of a football game when he ran to the field and got ready for the play that would change his life.  The quarterback snapped the ball and the seventeen year old boy was involved in a helmet to helmet collision that knocked him unconscious immediately.  The boy, now a 21 year old man, was left partially paralyzed and without his short term memory.  Even after extensive physical therapy and occupational rehab, he relies on the assistance of a cane and is susceptible to seizures in any given moment as a result.  A lawsuit was filed against the manufacturer of the helmet, alleging an unsafe and/or defective design of the helmet pad, which was the alleged cause of the heartbreaking tragedy suffered by the young football player.

Similar cases have been filed against manufacturers of helmets across the country with factual situations like the above referenced case in California.  In Massachusetts, a case was recently filed against Riddell, Inc., the same manufacturer alleged with creating a defective helmet in the California case above.  The complaint, filed in Massachusetts, alleges that Riddell, Inc.’s failure to design the helmets to design and manufacturing specifications resulted in the following: Continue reading →

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medicationsIn the past few years, more and more litigation has ensued concerning pharmaceutical drugs and the potential hazards associated with those medications.  In a typical situation, a consumer has been prescribed a certain medication and after taking the recommended dosage (by the prescribing physician), the consumer develops some side effect that was omitted from the warning.  As a result, the consumer brings suit against the drug’s manufacturer alleging a cause of action predicated on negligence.  The consumer must show that the potential Defendant had a drug that it put into the stream of commerce, that there was a negligent design due to the manufacturer’s omission of a meaningful warning, that had the consumer been made aware of the warning he or she would have avoided the product, and that the consumer has been harmed as a result.

With the growing cost of prescriptions, generic drug manufacturers have stepped up to offer alternatives to the high price of name brand drugs.  Name brand drugs carry a cachet associated with their usage due to the rigorous testing and studies their drugs go through in order to get approval from the Food and Drug Administration (FDA).  After this testing is complete, and the beneficial effects of the drugs are substantiated, the drugs are allowed to be placed on the market for direct buy or prescription.  Generic drug manufacturers can circumvent the costly testing process by showing the FDA that they have drugs that are the bio-equivalent of the already approved name brand drug.  In addition to showing bio-equivalence (meaning that the substance of the pills are identical), the generic drug manufacturer must agree to have the same label information- including the same warnings. Continue reading →

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1334367_53053749When we purchase consumer products, we expect them to be safe and free of any defects that have the potential to cause injury. This is particularly true when it comes to products intended for or children, such as strollers, cribs, toys, or clothing. Because children are often unable to appreciate risks that adults may find apparent, children’s products are subject to strict government regulation. Sometimes however, these regulations are insufficient, and innocent victims may be injured before a problem is even recognized. Continue reading →

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brokenness-1-656297-mUnder products liability law in Massachusetts, a consumer has the ability to pursue a variety of claims against a manufacturer, distributor, store owner, and/or any other organization that puts a defective product into the stream of commerce. Normally, a claim for products liability is also referred to as a “breach of warranty” claim under the Uniform Commercial Code. Warranties come in two flavors: express and implied.

An express warranty arises from any affirmation, fact, or promise made by the seller to the buyer that relates to the goods. Under the Uniform Commercial Code, express warranties by the seller are created as follows:

(a) Any affirmation of fact or promise made by the seller to the buyer which relates to the goods and becomes part of the basis of the bargain creates an express warranty that the goods shall conform to the affirmation or promise;

(b) Any description of the goods which is made part of the basis of the bargain creates an express warranty that the goods shall conform to the description.

(c) Any sample or model which is made part of the basis of the bargain creates an express warranty that the whole of the goods shall conform to the sample or model.

Continue reading →

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ambulance-1334534-mIn the past few months there have been lawsuits against the Mirena intrauterine device (IUD) which is used for contraception. Many women have been using this device for birth control as it was represented as being safer than oral contraceptives that were on the market. Today, approximately over 2 million women are using the IUD. However, not all women have been satisfied with the results of the device. There have been claims from around the country that the device has led to side effects including miscarriages, excessive bleeding, extreme stomach and abdominal pain, and even hysterectomies. Bayer Pharmaceuticals, the manufacturer of the Mirena IUD, is being sued on the ground that it failed to warn women of certain risks associated with the device; that the product was defective and inherently dangerous; and that the label of the device was unfair and/or deceptive as it listed certain risks as uncommon when in fact they were common.

While the cases around the country proceed, the question has been presented, what is the role of a medical device or drug manufacturer in relation to that a of prescribing physician? Generally speaking, a manufacturer is ultimately responsible for any and all products it puts into the stream of commerce to the hands of a consumer. However, in Massachusetts (along with states across the country) courts utilize the “learned intermediary doctrine.” Under this theory, a manufacturer or supplier of a prescription drug is relieved from any duty to warn patients of the dangerous qualities of the prescribed drug. 

The underlying theory behind the learned intermediary doctrine is that the physician acts as the “informed intermediary” between the patient and the manufacturer. As such, the physician is best suited to understand the complicated directions, warnings, risks, and implications of that drug. Once the physician is apprised of this small print, he or she informs the patient who makes the ultimate decision as to whether they want to use the drug or device. In the event that a manufacturer fails to include all relevant warnings and directives to the doctor, such as with the IUD case mentioned above, an injured patient may sue the manufacturer for breach of its duty to the physician.  Continue reading →