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Articles Posted in Products Liability

 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."

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.

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.

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.

Oral arguments were heard two months ago in Williamson v. Mazda Motors of America, and when the United States Supreme Court decides the case we will have a better understanding of the law of preemption.

At issue is whether a National Highway Traffic Safety Administration rule permitting the use of Type1 seat belts (lap belt only) in the middle seat of passenger vehicles preempts a claim by an injured passenger that the manufacturer should have installed a Type 2 belt (includes a shoulder harness) in the vehicle.

The California Court of Appeals held that the claim was preempted.  The California Supreme Court refused to hear the case.  The US Supreme Court heard oral arguments on the case on November 3.

Bill Marler has shared this summary of the new food safety legislation with us.  Bill actively worked to get this bill passed.

· S. 510 is intended to respond to several food safety outbreaks in recent years by strengthening the authority of the Food and Drug Administration (FDA) and redoubling its efforts to prevent and respond to food safety concerns.

· The legislation expands current registration and inspection authority for FDA, and re-focuses FDA’s inspection regime based on risk assessments, such that high-risk facilities will be inspected more frequently. The bill also requires food processors to conduct a hazard analysis of their facilities and implement a plan to minimize those hazards.

On Tuesday the 26th I posted about a NHTSA report on traffic safety.   I saved for today a reference to what the organization believes is a major cause of the decrease in deaths and injuries in motor vehicle cases:   safety regulations and programs imposed by state and federal governments.

Here is a summary of the findings on this point:

The long-term declining trend observed in fatalities since reaching a high in the early 1970s has occurred while significant vehicle and occupant safety regulations and programs were being enacted by NHTSA and the States. NHTSA-administered behavioral and vehicle safety programs, both in the crashworthiness and crash avoidance areas, and through the issuing of Federal Motor Vehicle Safety Standards has contributed tremendously to the long-term downward trend seen in motor vehicle traffic crash fatalities. In 2008, an estimated 244 lives were saved by the use of child restraints, 13,250 lives of people 5 and older were saved by seat belts, 2,546 lives of people 13 and older were saved by air bags, 1,829 lives were saved by the use of motorcycle helmets, and 714 lives were saved by minimum-drinking-age laws (NHTSA, 2009). Significant life-saving vehicle technologies like electronic stability control (ESC) have begun to penetrate the vehicle fleet. NHTSA estimates ESC would save 5,300 to 9,600 lives and prevent 156,000 to 238,000 injuries in all types of crashes annually once all light vehicles on the road are equipped with ESC (NHTSA, 2007).

Hat tip to Abnormal Use:  The Unreasonably Dangerous Products Liability Blog for advising me about this Utah lawsuit.

Apparently, a  woman followed Google Maps walking directions on her Blackberry, walking  across  a four-lane highway where she was struck by an approaching vehicle. She  sued Google; here is a copy of the suit.

Her lawyer says that  the plaintiff f was walking in an area she had never been before, at a time when it was very dark, and that Google failed to warn the Plaintiff that walking routes may be missing sidewalks or pedestrian paths.  Here is an image of the scene from Google. Google says that every software version for mobile devices has had a disclaimer that advises walkers to use caution since Google Maps was launched in 2008.

The United States Supreme Court has agreed to consider whether the family of a woman killed in a car accident should be permitted to bring suit against Mazda Motor Corp. alleging that the death was caused by the failure of Mazda to install three-point seatbelts in its 1993 MPV minivan.

Here are the questions presented in the case:

1.  Where Congress has provided that compliance with a federal motor vehicle safety standard “does not exempt a person from liability at common law,” 49 U.S.C. § 30103(e), does a federal minimum safety standard allowing vehicle manufacturers to install either lap-only or lap/shoulder seatbelts in certain seating positions preempt a state common-law claim alleging that the manufacturer should have installed a lap/shoulder belt in one of those seating positions?

The good news is that a division of Johnson and Johnson  appears to be acting promptly to solve a problem.  The bad news is that the consumers who use the 43 recalled products for children and infants are going to be wondering if their children have suffered any harm from them..

Federal regulators have identified what they called deficiencies at a Johnson and Johnson manufacturing facility.  The products include  liquid versions of Tylenol, Motrin, Zyrtec and Benadryl.  The FDA called the potential for health problems "remote."

This is from the J & J subsidiary’s press release on the subject:

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