Products Liability

November 30, 2009

Defendant’s Discovery Abuse Results in Default Judgment of $8,000,000, Plus Fees

What do you do when a party to a lawsuit intentionally refuses to follow the rules? One judge in Washington State knew what to do: the judge struck the defendant’s answer, entered judgment for $8,000,000, and awarded attorneys’ fees. Last week the Washington Supreme Court had upheld the award.

The facts are almost impossible to summarize and readers are urged to review the opinion to learn the details. The bottom line:

The court found (1) there was no agreement between the parties to limit discovery, (2) Hyundai falsely responded to Magaña’s request for production and interrogatories, (3) Magaña was substantially prejudiced in preparing for trial, and (4) evidence was spoiled and forever lost. The trial court considered lesser sanctions but found that the only suitable remedy under the circumstances was a default judgment. Hyundai then appealed.

November 8, 2009

Precise Fix for Defect in Toyotas Still Unknown

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

Toyota has a problem with some of the vehicles it has manufactured and a little over 40 days ago issued a recall of 3.8 million of them. According to Toyota, "[r]ecent events have prompted [the company] to take a closer look at the potential for an accelerator pedal to get stuck in the full open position due to an unsecured or incompatible driver’s floor mat. A stuck open accelerator pedal may result in very high vehicle speeds and make it difficult to stop the vehicle, which could cause a crash, serious injury or death." Read more here.

Something else is going on. Read this statement released by the National Highway Traffic Safety Administration (NHTSA) on November 4:

A press release put out by Toyota earlier this week about their recall of 3.8 million Toyota and Lexus vehicles inaccurately stated NHTSA had reached a conclusion "that no defect exists in vehicles in which the driver’s floor mat is compatible with the vehicle and properly secured." NHTSA has told Toyota and consumers that removing the recalled floor mats is the most immediate way to address the safety risk and avoid the possibility of the accelerator becoming stuck. But it is simply an interim measure. This remedy does not correct the underlying defect in the vehicles involving the potential for entrapment of the accelerator by floor mats, which is related to accelerator and floor pan design. Safety is the number one priority for NHTSA and this is why officials are working with Toyota to find the right way to fix this very dangerous problem. This matter is not closed until Toyota has effectively addressed the defect by providing a suitable vehicle based solution.

October 26, 2009

Handling a Products Liability Case on the Fly

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

I must confess I have never spent a lot of time thinking about men’s underwear. Thus, it never crossed my mind that a products liability case could arise from men’s underwear of any type.

Women’s underwear are different. I am not saying I spend much time thinking about that subject either, but I know of at least one products case that arose because of claimed defect in a thong intended to worn by a woman.

But Albert Freed had a problem with his underwear. He thought that his Hanes underware was defectively designed or manufactured because it "gaped open and acted like a sandbelt on [his] privates." Apparently, this was not a pleasant sensation and allegedly caused an injury.

October 8, 2009

Another Preemption Case Nears SCOTUS Review

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

On October 22, 2008 the Court of Appeals of California, Fourth Appellate District, Division Three, held that FMVSS 208 preempted the plaintiffs claim that a vehicle with a lap-only seat belt in the rear inboard passenger seat was sold in a defective and unreasonably dangerous condition. Specifically, the court held that

to the extent plaintiffs contend defendants are liable for failing to install a lap/shoulder seat belt in the minivan’s middle row inboard seat, their claim is barred by the version of FMVSS 208 in effect when defendants manufactured the minivan.

The case is Williamson v. Mazda Motor of America, Inc., Case No. G038845 and the opinion is published at 167 Cal. App. 4th 905. The California Supreme Court denied review on February 11, 2009, and plaintiff filed writ of certiorari on April 22, 2009. The case number before the Supreme Court is No. 08-1314. Here is the current version of FMVSS 208.

October 1, 2009

Toyota Recall: Floor Mats Increase Risk of Injury and Death

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

The Toyota Motor Corp. has announced that it will recall 3.8 million vehicles in the United States. The recall affects Toyota models from 2004 – 2010. Specific models affected include 2007-2010 Toyota Camry, 2005-2010 Toyota Avalon, 2004-2009 Toyota Prius, 2005-2010 Tacoma, 2007-2010 Toyota Tundra, 2007-2010 Lexus ES350 and 2006-2010 Lexus IS250 and IS350.

The problem? Toyota says that "[r]ecent events have prompted [it] to take a closer look at the potential for an accelerator pedal to get stuck in the full open position due to an unsecured or incompatible driver’s floor mat. A stuck open accelerator pedal may result in very high vehicle speeds and make it difficult to stop the vehicle, which could cause a crash, serious injury or death."

What should you do if you have one of these vehicles? Remove the floor mat and do not replace it with any other type of floor mat. Owners can also contact Toyota at 1-800-331-4331 and Lexus at 1-800-255-3987 for more information.

October 1, 2009

Juror Research on Google Results in New Trial

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

A post from the Mass Tort Defense blog highlights a real problem: jurors conducting independent research during trials. Indeed, in the case featured in the post, the juror conducted the research before the trial (after he received his summons to serve as a juror) but shared what he knew during deliberations. The result? A reversal of a defense verdict.

The blog post does a nice job summarizing Russo v. Takata Corp., 2009 WL 2963065 (S.D. 9/16/09). You can read the entire opinion here.

Here is an excerpt from Sean Wajert’s summary:

September 16, 2009

Food Safety News

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

Food Safety News is a new publication sponsored by food safety expert Bill Marler and his firm Marler Clark. It contains information on the food safety issues of the day, whether they pertain to foodborne illness outbreaks, recalled products, or food politics.

The online newspaper has bureaus in Seattle, Denver, and Washington, DC and has invited contributors from government, industry, academia, and consumer groups to share their viewpoints on food safety-related issues.

September 15, 2009

Fosamax Products Liability Case Ends in Mistrial

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

Florida AP reports that a federal judge declared a mistrial last Friday in a trial over whether Merck & Co.’s former blockbuster osteoporosis drug, Fosamax, causes painful jaw bone destruction. The trial, which is the first of many concerning Fosamax, started Aug. 11 in U.S. District Court for the Southern District of New York in Manhattan.

The article summarizes the case this way:

Merck faces lawsuits by roughly 1,500 plaintiffs who allege Fosamax caused the same painful jaw condition that Boles now has – osteonecrosis of the jaw, in which bone tissue dies and detaches from the gum. That causes difficulty with chewing or wearing dentures, among other problems.

September 14, 2009

Products Liability Case Settled

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

A settlement has been reached in Mohr v. Daimler Chrysler Corp., a products liability case which alleged defects in a 2000 Dodge Caravan.

The Court of Appeals affirmed almost $5,000,000 in compensatory damage awards for the death of the driver and front-seat passenger in the case. The court also affirmed a finding of no liability for injuries suffered by two passengers. The court reduced the punitive damage award from almost $49,000,000 to $13,800,000. A Rule 11 Application was pending before the Tennessee Supreme Court.

With interest, the judgment was over $26,000,000.

August 31, 2009

“New” Chrysler Steps Up to the Plate

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

New Chrysler (Chrysler Group LLC) has announced that it will be accepting product liability claims on vehicles manufactured by its predecessor, now known as Old Carco, but only for accidents occurring after June 10, 2009. Chrysler yielded to pressure from consumer groups that aggressively lobbied for a law requiring warning stickers on used Chrysler vehicles, an effort which would have reduced the value of the vehicles.

From the New Chrysler Press Release:

"We know a lot more about the viability of our business today than when we purchased Old Carco’s assets in its bankruptcy proceedings several months ago," said John Bozzella, Senior Vice President, External Affairs & Public Policy, Chrysler Group LLC. "While Chrysler Group still faces challenges, we are confident that the future viability of the company will not be threatened if we accept these claims."