Tag Archives: Product Liability

Daubert Analysis in Recent Federal Circuit Court Cases.

29 Thursday Jun 2017

Posted by in Authentication, Daubert Motion, Evidence, Litigation, Product Liability

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Daubert In Product Liability Cases: Mid-2017 Update, by Max Kennerly, Litigation & Trial

http://bit.ly/2s7ZL96

An excellent analysis of Daubert in 4 product liability cases from the federal circuit courts. -CCE

Today we’re going to review the state of the art, as it were, of Daubert in product liability cases by examining the four most recent published Court of Appeals opinions. Those opinions are:

  • Adams v. Toyota Motor Corp., No. 15-2507, 2017 WL 2485204 (8th Cir. June 9, 2017)
  • In re Zoloft (Sertraline Hydrochloride) Prod. Liab. Litig., 16-2247, 2017 WL 2385279 (3d Cir. June 2, 2017)
  • Wendell v. GlaxoSmithKline LLC, No. 14-16321, 2017 WL 2381122 (9th Cir. June 2, 2017)
  • Nease v. Ford Motor Co., 848 F.3d 219 (4th Cir. 2017)

Plaintiffs lost Zoloft and Nease, and won Adams and Wendell. But it would be foolish to look at these cases simply as a scorecard: the real issue here for future cases is how the courts decided the cases.

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FDA Finally Issues Stronger Requirements for Transvaginal Mesh.

05 Tuesday Jan 2016

Posted by in Government, Litigation, Product Liability

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The FDA Is Doing Too Little, Too Late About Transvaginal Mesh, by Max Kennerly, Esq.,  Litigation and Law Blog

http://bit.ly/1TBQ4qN

I’ve written about transvaginal mesh so many times I feel like a broken record. But it’s still an issue affecting tens of thousands of families and will continue to be an issue as long as that infernal implant keeps being sold and the manufacturers keep refusing to do right by the families that have already been hurt by them. . . .

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Seventh Circuit Rules On The Weight Of Scientific Evidence.

02 Monday Nov 2015

Posted by in 7th Circuit Court of Appeals, Evidence, Insurance Defense, Litigation, Personal Injury, Product Liability, Torts

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Seventh Circuit Ruling On Scientific Evidence Closes Some Doors But Opens Others, by Robert H. Riley, Neil Loyd, and Brian O’Connor Watson, Product Liability & Mass Torts Blog

http://tinyurl.com/nmjffed

Exposure to potentially harmful substances at some level is a fact of modern life. These substances are everywhere — in the air we breathe, in the food we eat, and in the water we drink — and many of these substances are naturally occurring. It is impossible to have zero exposure to all of them.

For both science and law, however, the issue is not whether someone has some detectable exposure. Rather, it is whether the dose was sufficient (in quantity and duration) to cause harm.

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Seat Belt Use Evidence Now Admissible In Texas.

19 Thursday Feb 2015

Posted by in Admissibility, Authentication, Damages, Discovery, Evidence, Motor Vehicle, Negligence, Personal Injury, Product Liability, Relevance, Torts, Wrongful Death

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TX: Evidence of Seat Belt Non-Use is Admissible to Apportion Responsibility, by Christopher J. Robinette, Torts Prof Blog (with hat tip to Jill Lens (Baylor)!)

http://tinyurl.com/kmbeph9

For years, evidence of seat belt use was prohibited at trial. The Texas Supreme Court changed that rule of law with this case. This ruling will have a major impact on this area of the law. -CCE

The Texas Supreme Court case, which was announced on Friday, is Nabors Wells Services, Ltd. v. Romero. The case (pdf) is here:  Download TX Sup Ct = Seat Belt Admiss  From the opinion:

We hold relevant evidence of use or nonuse of seat belts, and relevant evidence of a plaintiff’s pre-occurrence, injury-causing conduct generally, is admissible for the purpose of apportioning responsibility under our proportionate-responsibility statute, provided that the plaintiff’s conduct caused or was a cause of his damages.

Failure-To-Warn Case – Can Your Expert Beat The Warning Label?

15 Sunday Feb 2015

Posted by in Daubert Motion, Evidence, Litigation, Product Liability

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WARNING! If You Assume Your Case Will Survive Because You Have a “Creative” Warnings Expert, You Do So At Your Own Risk, by Ernie Goodwin, Product Liability Advocate

http://tinyurl.com/plkxj4t

Those of us in the business of defending products look at the world in a slightly different way. When I come across a warning label, I actually study it because in a failure to warn case, the language of the warning, the color of the label and its location on the product are relevant to the effectiveness of the warning. In my experience defending manufacturers of various types of products, I have seen plaintiffs make speculative failure to warn claims. Less-experienced plaintiffs’ attorneys assume that a creative theory developed by a well-credentialed “warnings expert” will be enough to leverage a settlement in an otherwise weak case on liability. That is a dangerous assumption to make.

The case law in all jurisdictions is clear when it comes to the burden of proof for a warnings claim; there has to be a direct link between the failure of the manufacturer to warn about the hazard and the cause of the incident. Moreover, the plaintiff’s expert must consider, among many other things, all of the available accident data and not rely only on select facts from the record to support his findings. A manufacturer who is facing a speculative warnings claim has a few options for dealing with these types of claims. The most effective and frequently used tool is the Daubert motion to exclude the expert from testifying at trial. . . .

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Pennsylvania’s New Standards for Strict Liability Claims.

10 Tuesday Feb 2015

Posted by in Damages, Litigation, Negligence, Product Liability, Torts

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Pennsylvania Supreme Court Adopts New Standards for Strict Liability Claims, by Duane Morris LLP & Affiliates®

http://tinyurl.com/q49j9jx

While the Tincher decision clarifies some issues regarding strict liability cases, there are many issues left to be determined by future case law.

On November 19, 2014, the Pennsylvania Supreme Court issued its much-anticipated decision in Tincher v. Omega Flex, Inc. (No. 17 MAP 2013), in which it addresses the proper standard under Pennsylvania law for strict liability claims relating to allegedly defective products. Although the court declined to adopt the Restatement (Third) of Torts, it overruled its prior holding in Azzarello v. Black Brothers Company, 391 A.2d 1020 (Pa. 1978), which created roadblocks to the introduction by defendants of the reasonableness of their actions in designing products.

Strict liability for defective products developed from the social policy determination that the cost of injuries resulting from defective products should be borne by the manufacturers of the products rather than by the injured persons.[1] For almost 50 years, strict liability under Pennsylvania law has been governed by Section 402A of the Second Restatement of Torts, which provides that ‘one who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability [for the harm caused] . . . .’

The term ‘unreasonably dangerous’ naturally involves a balancing between what is reasonable and what is not, which is similar to the fault-based notions encompassed by negligence claims. However, in Azzarello, the Pennsylvania Supreme Court drew a bright line between strict liability and negligence causes of action. . . .

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The Achilles Heel Of A Plaintiff’s Product Liability Lawsuit.

26 Friday Dec 2014

Posted by in Litigation, Product Liability, Trial Tips and Techniques, Verdict

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Address the Most Dangerous Feature of Your Product: Dishonesty, by Dr. Ken Broda-Bahm, Persuasive Litigator Blog

http://tinyurl.com/lkl6jfw

One stereotype of the litigious American society suggests that jurors are willing to hold manufacturers and sellers responsible for even the most obvious product dangers:  a ladder that allows its user to fall, or a cup of coffee that turns out to be hot. While anecdotes abound — some true, and some false — our experience is that product danger alone rarely drives a verdict. Instead, jurors need to see something else in order to generate sufficient anger to deliver any sizeable verdict against the company. That ‘something else’ can be boiled down to one word:  dishonesty. Jurors know that products are dangerous. They have no trouble placing personal responsibility on adults who knowingly use dangerous products. What they are less able to abide is incomplete information. Whether the company is failing to investigate, providing inadequate or false warnings, working around regulations, or simply withholding information, the jury is less willing to say ‘buyer and user beware’ and more willing to put responsibility on manufacturers and sellers.

With 10 of the top 50 verdicts of last year coming from defective product suits, we do know that jurors are willing to hold manufacturers responsible. At the same time, the important ingredients that drive those damages are often found in the company’s behavior rather than in the product itself. A good example can be found in attitudes and behaviors surrounding tobacco use. Based on the results of a pair of studies, the public is more likely to reject a ‘deceptive’ product than it is to reject a merely ‘dangerous’ product. . . .

Are Cars Safer Now? Unfortunately, Not So Much.

31 Friday Oct 2014

Posted by in Class Actions, Damages, Litigation, Motor Vehicle, Personal Injury, Product Liability, Torts

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The Latest Innovations in Auto Safety: Shrapnel and Harpoons, The Pop Tort.com

http://tinyurl.com/qglxdom

Since when did cars become war zones?

Of course they used to be. Back in the 1950s and 1960s when, during car crashes, ‘Drivers were impaled on rigid steering wheel columns.… Unpadded dashboards and the sharp edges and ashtrays gouged out eyes’ and cars ‘crumpled like a Japanese lantern’ in rollover accidents.  But all that changed when eventually, the auto industry decided that safety ‘sold’ and cars became safer.

But if we’ve learned one thing over the last few years, it’s that with every new safety innovation comes a new opportunity to cut corners.

First to today’s lead story in the New York Times, a tabloid-sounding article called ‘It Looked Like a Stabbing, but Takata Air Bag Was the Killer.’

Hien Tran lay dying in intensive care this month after a car accident, as detectives searched for clues about the apparent stab wounds in her neck.…

When Ms. Tran crashed her car, the air bag, instead of protecting her, appeared to have exploded and sent shrapnel flying into her neck, the Orange County sheriff’s office said. On Monday, in an unusual warning, federal safety regulators urged the owners of more than five million vehicles to ‘act immediately’ to get the air bags fixed.…

But the urgent request was bound to create confusion among owners. Honda said it did not have enough parts to fix the cars immediately. Toyota said it would in some cases disable the air bags, leaving a note not to ride in the front passenger seat.

They’re kidding, right? . . .

How To – Investigating Traffic Accidents.

22 Saturday Mar 2014

Posted by in Damages, Evidence, Forensic Evidence, Litigation, Motor Vehicle, Personal Injury, Product Liability, Uninsured Motorist

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Evidence Collection in a Traffic Investigation, by Dick Warrington, Forensic Magazine

http://tinyurl.com/nko5m2s

This post is an excerpt from Mr. Warrington’s post, Investigating the Fender Bender (http://tinyurl.com/o979zk5). I recommend it, and the links to more information on this subject that you will find at the end of the post. -CCE

Most of the time traffic accidents are fairly standard—the typical fender bender where one person runs into another. The officer on duty responds, assesses the situation, and completes the proper paperwork. But sometimes officers deal with much more serious, complex situations. Dealing with a hundred car pile-up, for example, is quite challenging, since it’s like carrying out multiple investigations simultaneously. When responding to multiple car accidents, hit and runs, fatalities, and high speed chases, officers can benefit by calling in Crime Scene Officers to assist with the investigation.

Because this type of case usually involves extensive damage to property, serious injuries, and/or fatalities, lawsuits will likely result. Questions of liability, product failure, etc. will also come up. Given these facts, it’s important to work together to conduct a thorough investigation. Since the CSO’s responsibilities include documentation, evidence identification, and evidence collection, we’ll look at each of those areas. . . .

More On Why Lawsuits Are So Expensive.

22 Saturday Feb 2014

Posted by in Cross-Examination, Damages, Exhibits, Experts, Litigation, Motor Vehicle, Personal Injury, Plaintiff's Counsel, Product Liability, Trial Tips and Techniques, Video Deposition, Witnesses

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Why Lawsuits Are So Expensive, Pt. II, by Gregory H. Haubrich, Foshee & Yafee, Butter’s Blog

http://greghaubrich.com/2014/02/13/why-lawsuits-are-so-expensive-pt-ii/

In my previous edition of Butter’s Blog, Part I explored why lawsuits are so expensive. In Part II, we are going to break down the costs of getting your case to trial. To get a rough estimate of what your law firm may spend handling the case,  we must first look at what kind of case it is.

Second Restatement of Torts vs. Third in Product Liability Cases

18 Friday Oct 2013

Posted by in Research

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Update on Products Liability Restatement (Second) vs. (Third) Dispute, by Daniel E. Cummins, Tort Talk
http://www.torttalk.com/2013/10/update-on-products-liability.html