Articles Posted in Products Liability

As predicted, New England Compounding Pharamcy, Inc., the owner of the New England Compounding Center (NECC), filed for bankruptcy last week.  NECC is the company that provided contaminated steriods that killed and hurt hundreds of people, including many in Tennessee and Kentucky.

Click the link to view NECC’s bankruptcy filing. Petition.pdf

The fungal meningitis outbreak will result in four different classes of those with claims for damages against those who are responsible for the harm:  (1)those who die; (2) those who contract the disease and are treated with no long-range effects; (3) those who contract the disease, are treated, but are left with long-range effects; and, (4) those who learn they were exposed to the contaminated product but never contracted the disease.  (Note:  I understand this is a simple breakdown and that in fact there will be several sub-groups within one or more of these groups.)

Do the people in the last grouping have a claim for damages under Tennessee law?  That is, if a person can prove that he or she was exposed to the contaminated product, knew of the exposure, experienced understandable emotional distress after he or she learned of the exposure, is there a claim for damages under Tennessee law?

I believe the answer to that question is "yes."  The case I turn to for support of this opinion is Carroll v. Sisters of St. Francis Health Services, Inc., 868 S.W.2d 585 (Tenn. 1993).  The issue in Carroll was whether a plaintiff may recover damages for negligent infliction of emotional distress, based on the fear of contracting the Acquired Immunodeficiency Syndrome (AIDS), without presenting evidence that he or she was actually exposed to the human immunodeficiency virus (HIV or the AIDS virus)  The Court answered this question "no" and dismissed the case.   

The fungal meningitis outbreak continues to grow.  Five patients have died and over 40 other patients have contracted fungal meningitis, reportedly after each of them received the steroid  methylprednisolone acetate compounded by the New England Compounding Center ("NECC").  Each of the patients received the steroid as treatment for chronic back pain.

Allegedly, the steroid injections were contaminated with a fungus that led to meningitis, an infection of the lining of the brain and spinal cord. Fungal meningitis is very rare and presents a real risk of death to the patients who contract it.

Who has legal responsibility for this outbreak?  There is a substantial amount of investigation that must be done to fully answer that question.  The Centers for Disease Control is coordinating the multi-state investigation into the fungal meningitis outbreak and will help get to the bottom of the matter from a scientific standpoint.  At this point, the CDC has not definitively demonstrated that the steroid is the source of the infection and, while that level of certainty is not necessary from a legal standpoint (in Tennessee, a victim or a victim’s family would only have to prove that more likely than not the steroid was the source of the infection) the CDC’s work will undoubtedly be of assistance in this matter.

The 7th Circuit Court of Appeals has upheld a plaintiff’s verdict in a products liability case notwithstanding the defendant’s assertion that the plaintiff’s expert should have been excluded under Daubert.

In Lapsley v. Xtech, Inc., No. 11-3313 (7th Cir. July 27, 2012) Industrial grease was propelled in a jet with enough energy to penetrate and pass through  the  human  body  like  a  bullet. That  jet hit and disabled plaintiff Leonard Lapsley.  The jury found that the accident occurred because defendant defectively designed the piece of equipment that propelled the grease.

Defendant challenged the admissibility of plaintiff’s expert witness, arguing that he lacked a scientific basis for his testimony.  The trial judge permitted the witness to testify, and the defendant challenged that ruling on appeal after a jury found it liable for Lapsley’s injuries.

I have a column that bears the same name as this blog that appears three times per year in the Tennessee Bar Journal. The January 2012 edition of the publication includes the column, this time titled “Retailers Escape Responsibility for Dangerous Foreign-Made Products.” 

The column addresses one provision of the poorly-named Tennessee Civil Justice Act of 2011 that limits the responsibility of those who sell unreasonably dangerous or defective products. The column is available at no charge by clicking on the link.

The Kentucky Court of Appeals has ordered in a trial in a products liability case against Nissan for failure to equip at 2002 vehicle to have a rear camera or back-up sensors.  

Sandra and Curtis Messerly  alleged that the failure of their 2002 Xterra to have either device caused the death of their 19-month old son, who was killed when his mother backed-up the vehicle.

Plaintiffs sued Nissan alleging that the 2002 Xterra was defective and negligently designed because it was not equipped with a rearview camera or back-up sensors.  Nissan moved for summary judgment on the ground that the 2002 Xterra was not defective or unreasonably dangerous as a matter of law.  Nissan argued that the risk of striking children while backing a vehicle is an obvious, well-understood risk of operating any passenger vehicle and

Two plaintiffs lost products liability cases against Louisville Ladder.  

In Bielskis v. Louisville Ladder, Inc.,  No 10-1194 (7th Cir. Nov. 18, 2011) the appellate court upheld the disqualification of plaintiff’s liability expert, Neil J. Mizen.   Bielskis was injured while using Louisville Ladder mini-scaffold (model number SM 1404) and alleged a defect to a rolling castor on the device.

The trial judge refused to permit Mizen to testify after a Daubert challenge from the defense and granted summary judgment for the defendant.  The Seventh Circuit affirmed, and said that without expert testimony, Plaintiff, who

A Sacramento, California jury has awarded a substantial jury verdict against Ford Motor Company.

The vehicle involved was a 15-passenger Ford E-350 Econoline van.  According to the Sacramento Bee, "The van skidded off northbound Interstate 5 in Kern County after the tread separated on its rear right tire. Evidence at trial showed that  Ford officials had been contacted by the Goodyear Tire and Rubber Company and knew the product was defective but did not make an effort to contact its dealers or customers."

Jurors did find that one of the two men killed in the rollover, Tony Mauro, who was 41, was not wearing a seat belt when he was killed. But the panel also found that it would not have mattered in a crash in which the van rolled over four times while traveling at 70 miles per hour.

Table saws are dangerous – but they don’t have to be.  Stephen Gass developed technology called "Saw Stop" that prevents cuts and amputations when using table saws and other types of saws.

Read this white paper to see how the Saw Stop system works.  This video describes the system and shows a demonstration using Gass’ hand.  This video shows how the saw works using a hot dog rather than a human finger.

Interesting stuff, if you do woodworking.  But why would I mention this subject on a torts blog?

 The Nevada Supreme Court has affirmed a trial judge order that struck a defendant’s ability to argue liability, limiting it to contesting compensatory damages.


In Bahena v. Goodyear,  the trial judge struck the defendant’s answer as to liability after it failed to follow prior court orders concerning several discovery matters, including the failure to produce a witness for a deposition. The court agreed with the trial judge that "repeated discovery delays attributed to Goodyear were such that continuing the trial date to allow discovery was not the appropriate remedy for Bahena since the prejudice was extreme and inappropriate."  The Supreme Court explained that the trial judge "noted that the Bahena plaintiffs included a 14-year old who had been in a persistent vegetative state for the past two years together will the estates of three dead plaintiffs"  and that "since the trial was scheduled to commence [shortly after the discovery deadline] Goodyear knew full well that not responding to discovery in good faith would require the trial date to be vacated"  because "there could have been open questions as to the authenticity of approximately 74,000 documents that were the subject" of a prior court order.

 In affirming the trial judge’s decision, the Nevada Supreme Court noted that the trial judge had prepared nine pages of carefully written findings of fact an conclusions of law analyzing the relevant factors, concluding that the degree of willfulness by Goodyear was "extreme" and "totally untenable and unjustified" and that the "responses to [p]laintiff’s’ interrogatories are nothing short of appalling."