Articles Posted in Product Liability

Two years ago, in the first bellwether case against medical device manufacturer C.R. Bard for production of its transvaginal mesh products, jurors awarded plaintiff $2 million in damages. Of that, $250,000 was for compensatory damages (intended to compensate for actual losses) and $1.75 million was for punitive damages (intended to punish defendant). woman1

In Cisson v. C.R. Bard, both sides had appealed the final order, but for very different reasons.

Defendant appealed on the grounds certain evidence should have been kept from the jury and that the court should have allowed the defense to propose a special jury instruction. Also, defense argued the damage award was excessive. Plaintiff, meanwhile, appealed the split-recovery ruling, pursuant to Georgia law, that grants 75 percent of punitive damages to the state.  Continue reading

The manufacturer of an off-road vehicle was able to convince justices with the Tenth Circuit Court of Appeals that a trial judge was right to dismiss a wrongful death/ product liability lawsuit against it for plaintiff’s failure to amend the complaint prior to deadline. sanddune

In Birch v. Polaris Industries, Inc., plaintiff had asked trial court to amend the original complaint to add new legal theories and also request additional discovery. However, they did so after the deadlines for amending pleadings and for discovery had passed. Trial court rejected the motion and decided that, based on the unamended complaint, plaintiff’s case was weak. It granted defendant’s motion for summary judgment.

On appeal, the 10th Circuit found no judicial error.  Continue reading

At best, a defective toy can be a disappointment to a little one looking forward to some entertainment. At worst, a defective product can be dangerous, and in some cases, pose a risk of life-threatening injuries. toys

The latest report on Toy-Related Deaths and Injuries for calendar year 2014 (released by the U.S. Consumer Product Safety Commission in October) indicates there were at least 252,000 toy-related injuries and 11 deaths last year. These incidents do not count the incidents wherein a toy may have been associated with death or injury, but was not necessarily the cause of it.

The CPSC reports that within fiscal year 2015, there were a total of 25 toy-related recalls. That’s a fairly significant drop from 2008, when there were 172 toy recalls. It might be easy to take a leap of logic to assume manufacturers are getting better about protecting young consumers. However, the agency notes it continues to turn away batches of toys at U.S. ports that violate a range of standards, including parts that are too small, flammability risks and excess levels of phthalates and lead. Continue reading

Consumers in the U.S. are protected by a number of provisions of both state and federal laws with regard to promises or “warranties” made by companies about their products.
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Some of these warranties are in written or spoken form. These are called “express warranties.” However, there are also certain unwritten, unspoken expectations to which consumers are entitled. These are called “implied warranties.”

Essentially, consumers almost always have some recourse when products don’t meet their basic expectations – especially when the result is someone is injured. The most common that we see in product liability law is implied warranty of merchantability. That means the product is guaranteed to work and be reasonably safe when used for its intended purpose.
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When Mal Moore, the former athletic director for the University of Alabama, died two years ago, he was in the advanced stages of pulmonary fibrosis. It was the ailment that caused him to step down. He was soon after hospitalized and died in March 2013.
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Now, his daughter alleges that the condition was caused by a drug he was prescribed in 2008 for treatment of an irregular heartbeat.

In its generic form, the drug is called amiodarone, and it’s used to treat life-threatening heart rhythm problems (known as arrhythmias) in individuals who have already taken other similar forms of medication. Moore only took the medication for three months to treat his condition, but his daughter alleges this exposure to the drug caused him to develop the pulmonary fibrosis.

Her federal lawsuit, Cook v. Wyeth Pharmaceuticals, Inc., was filed in the U.S. District Court, Northern District of Alabama, Southern Division.
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Two large, heavy-duty truck manufacturers are being slapped with a $44 million fine from the National Highway Traffic Safety Administration for failure to timely recall defective vehicles that posed injury risk to the public.
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Spartan Motors, Inc., based in Michigan, and Forest River Inc., based in Indiana, conceded they did not initiate timely recalls on defective vehicles, as required by federal law. They also did not report important information, such as Early Warning Report data and technical service bulletins.

Most of that penalty will be deferred if the firms agree to bring their respective companies into compliance with federal regulations. For example, Forest River was given a $35 million civil penalty, but $30 million can be deferred. Meanwhile, Spartan has been given a $9 million penalty, but it will only have to pay $1 million if it complies with the consent order. It will, however, have to spend $3 million bringing the company into compliance.

Forest River first grabbed the attention of federal safety officials following a church bus crash six years ago. The crash, which occurred in Louisiana, resulted in two deaths and 21 injuries.
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The Massachusetts Supreme Judicial Court has affirmed judgement for a family awarded a total of $63 million in damages – including $13 million for loss of consortium — following a child’s severe reaction to multiple doses of Children’s Motrin.
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Contrary to points asserted by drug manufacturer/defendant, the Supreme Judicial Court found the failure to warn claim was not preempted by the Federal Food, Drug and Cosmetic Act, that a pharmacologist who testified as to causation evidence was qualified to do so, and that damages awarded to the child and each of her parents were not grossly excessive or unsupported by the record.

This is a tragic tale of what can happen when medical labels we trust don’t contain the information we need. It’s also an important case in that it reaffirms that just because a company has deep pockets and extensive resources doesn’t mean it will prevail in civil court. The civil court system is one of the few places victims can expect an even playing field, and where large companies can be held accountable for failing to uphold its duties to consumers.
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The injury at the center of the recently-decided Stuhlmacher v. Home Depot U.S.A., Inc. didn’t occur around the holidays. However, it is relevant because it involves an allegedly defective ladder. The fact is, both before and for weeks after the holiday season, people climb ladders to decorate and then “un-decorate” their homes. ladder1.jpg

It’s a fact that ladders can tip regardless of their condition if they aren’t used properly. However, when a ladder collapses or otherwise fails when being used properly as intended or anticipated, this may be grounds for a product liability lawsuit.

This was the case in Stuhlmacher.

Generally in order to succeed in a product liability lawsuit, one must prove not only he or she suffered injuries, but that those injuries were proximately caused by a product that was either defective or lacked proper instructions or warnings. One must also show the product was being used more or less in the manner intended.

Here, according to court records, the issue before the U.S. Court of Appeals for the Seventh Circuit was that of causation, as posited by a plaintiff expert witness, whose testimony was stricken from the record by the trial judge. Without that testimony, causation could not be proven. The federal appellate court reversed, finding the testimony qualified as relevant under Civil Rule 702, so long as it helps the jury in determining any fact at issue in the case. Specifically, expert witnesses are allowed to put forth alternative models to explain their conclusions, the court ruled.
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Amid a host of recalls for faulty airbags used by nearly a dozen auto manufacturers, the Alabama Supreme Court recently weighed another product liability case involving allegedly defective airbags.airbag1.jpg

In Robert Bosch LLC v. Smith et al., justices were asked whether a trial court erred in requiring defendant air bag manufacturer to submit a series of internal records deemed trade secrets as part of discovery.

Defendant appealed that decision, arguing it should not be forced to turn over information that could be damaging to the company. Plaintiff argued trial court did not err in its ruling and the need to prevent disclosure does not outweigh the benefit of disclosing what should be considered relevant evidence.
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The product liability lawsuit brought in Massachusetts by a man whose hand was mangled by lawn machinery failed after a jury apportioned him 73 percent fault for his own injury. In that state, plaintiffs who hold 50 percent of the fault or more for their own injury are barred from collecting on a claim.
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In Alabama, our Montgomery injury lawyers know our courts follow a much stricter standard. In fact, we are one of just five states following the pure contributory negligence model, which holds a plaintiff who holds any percentage of fault for his own injuries will be barred from bringing a claim.

Per the 2002 Alabama Supreme Court ruling in H.R.H. Metals, Inc. v. Miller, a defendant proves contributory negligence by showing the plaintiff failed to exercise reasonable care.
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