Products Liability

August 21, 2012

7th Circuit Finds Expert Testimony for Plaintiff Admissible in Products Liability Claims

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.

March 4, 2012

Retailers Escape Responsibility for Injuries and Deaths From Dangerous Foreign-Made Products

by The Law Offices of John Day, P.C.

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.

December 8, 2011

Products Liability Case Alleging Failure of Vehicle to Have Rear Camera or Back-Up Sensors To Proceed

by The Law Offices of John Day, P.C.

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

November 28, 2011

Plaintiffs Fall Down Hard in Two Cases Against Louisville Ladder

by The Law Offices of John Day, P.C.

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

November 24, 2011

Ford Found Liable for Rollover Crash

by The Law Offices of John Day, P.C.

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.

November 1, 2011

Verdict Affirmed in Table Saw Injury Case – Saw Lacked “Saw Stop” Technology

by The Law Offices of John Day, P.C.

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?

July 7, 2011

Nevada Supreme Court Affirms Sanction of Striking Liability Defense Because of Discovery Abuse

by The Law Offices of John Day, P.C.

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."

May 23, 2011

Smoking Gun Memo Shows Up in Asbestos Trial

by The Law Offices of John Day, P.C.

The Asbestos Law Journal has this great post on a huge asbestos verdict in Mississippi a short time ago. The blog notes that "part of why the jury did so may be because of a handwritten note that indicates one of the defendants engaged in a cost-benefit analysis that concluded it was OK to give people cancer as long as the profit exceeded the cost of the ensuing lawsuits."

Here is the a PDF of the hand-written document at issue. The operative language is about one-third of the way down the page.

February 23, 2011

SCOTUS Allows Lawsuits Over Seat Belts

by The Law Offices of John Day, P.C.

From Reuters:

The U.S. Supreme Court ruled that federal regulations setting vehicle safety standards do not bar lawsuits seeking damages from automakers for installing lap-only seat belts.

The unanimous ruling held that a California lawsuit against Mazda Motor Corp. over a fatal 2002 collision involving a 1993 Mazda minivan could proceed. A passenger sitting in a rear seat and wearing a lap-only seat belt was killed.

January 24, 2011

Judgment Affirmed in Land Rover Rollover Case

by The Law Offices of John Day, P.C.

Mr. Pannu was seriously injured when his Land Rover Discovery (Series 1) sport utility vehicle rolled over following a chain of collisions. Pannu alleged a design defect in the SUV and was awarded a judgment of $21,654,000.

The Court of Appeal of the State of California, Second Appellate District, affirmed the judgment last week. Read the opinion in Pannu v. Land Rover North America, Inc., B218173 (Cal. Ct. App. 1/19/11) here.

The opinion is of interest to Tennessee lawyers who are interested in products liability cases because (a) it identifies several experts for the plaintiff who offer opinion testimony in rollover cases; (b) identifies the issues one confronts in a "typical" rollover case, (c) has some interesting comments on the opinions of Lee Carr, a frequent expert for the defense in motor vehicle products cases; (d) identifies and discusses the opinions of several other defense experts one is likely to see in these cases; (e) discusses the application of the consumer expectation test (which we also have in Tennessee) to auto defect cases; and (f) discusses the application of the risk-benefit test (which we also have in Tennessee) to the facts.