South Carolina Court Finds Employees Were Users under Product Liability Statute

December 13, 2015

Thumbnail image for dangerous-goods-labels-1245644.jpgMany states have codified at least part of the state law regarding product liability, often based on a version of the Restatement of Torts. These statutes set forth who may recover and who is liable for a defective product. The South Carolina statute is based on the Second Restatement and provides for liability for injuries to the "ultimate user or consumer." S.C. Code Ann. ยง 15-73-10. In Lawing v. Univar USA, Inc., the South Carolina Supreme Court recently considered when an employee qualifies as a "user" for the purposes of the state's product liability statute and whether the sophisticated user defense is available in a case based on the inadequate labeling of a product.

Three employees of a manufacturing plant were severely injured in a fire that occurred while the plant was shut down for maintenance. The employees were using an oxyacetylene torch to cut some pipe when a piece of hot slag landed on or near a pallet of sodium bromate. The pallet erupted into a ball of fire. The three employees, along with the wife of one of them, filed suit against Univar USA, Inc., Trinity Manufacturing, Inc., and Matrix Outsourcing, LLC, all of whom were in the distribution chain for the sodium bromate purchased by the employer. The employer bought the sodium bromate from Univar, which sourced it through Trinity, which obtained it through Matrix from a Chinese manufacturer. The product was shipped from the manufacturer to the employer, and none of the defendants ever had it in its possession.

The lawsuits included claims for strict liability, negligence, and breach of the implied warranty of merchantability. One employee and his wife also had a breach of express warranty claim against Univar, as well as a loss of consortium claim for the wife against all of the defendants.

Continue reading "South Carolina Court Finds Employees Were Users under Product Liability Statute" »

South Carolina Supreme Court Allows Nisi Additur in Auto Product Liability Case

December 3, 2015

car-door-handle-1428910.jpgIn some states, trial courts have the power to increase an inadequate jury verdict or reduce an excessive verdict. The law varies somewhat by state, but generally the court may not change the jury's verdict without a strong reason to do so.

The South Carolina Supreme Court recently reviewed a product liability case in which the trial judge had added $600,000 to the amount awarded by the jury. In Riley v. Ford Motor Company, a county sheriff was killed in an automobile accident when a 16-year-old driver pulled out in front of him. The sheriff swerved the Ford F-150 in an effort to avoid hitting the other vehicle but was unable to avoid a collision. The Ford's door swung open, and the sheriff was ejected from the truck. He died from his injuries.

The sheriff's widow filed suit against both the other driver and Ford. She alleged a design defect in the door-latch system. She settled with the other driver, agreeing to allocate $5,000 to the wrongful death claim and $20,000 to the survival claim. The court approved the settlement, and the claims against the driver were dismissed.

Continue reading "South Carolina Supreme Court Allows Nisi Additur in Auto Product Liability Case" »

IVC Blood Clot Filter Safety Doubted After Deaths, Injuries

September 17, 2015

heartdoctor.jpgA product intended to prevent blood clots for those at high risk may in fact be extremely dangerous, and questions are being raised about manufacturers' knowledge of those risks. We're talking about IVC filters - short for inferior vena cava blood clot filters.

A recent report by NBC News has shed light on problems with the devices, which have reportedly been connected to 27 deaths and more than 300 adverse effects, some of which were life-threatening.

That's according to government data on just one of these devices, known as the "Recovery" model, sold by C.R. Bard, a medical products firm.

Continue reading "IVC Blood Clot Filter Safety Doubted After Deaths, Injuries" »

Bradley v. Ameristep, Inc. - Treestand Hunting Injury Case to Proceed

September 3, 2015

hunting1.jpgAs we approach deer hunting season, many hunters are preparing by setting up tree stands. These are elevated platforms - usually 10 to 30 feet - that give hunters a greater vantage point and make it tougher for deer to pick up on human scent.

But these stands are known to be dangerous. In 2010, a decade-long study by trauma centers in Ohio, published in The American Surgeon medical journal, revealed tree stand falls were a bigger problem for hunters than gun shots, element exposure or animal encounters. These falls, which accounted for 60 percent of all hunting accidents, resulted in severe injuries, often broken bones and sometimes paralysis, quadriplegia, and traumatic brain damage.

The stands were first commercialized in the 1970s, and within 20 years there were more than 100 manufacturers. It wasn't until 2004 the stands came standard with harnesses, but emergency room doctors are finding many hunters aren't using them - or aren't using them correctly. In the case of Bradley v. Ameristep, Inc., however, it was alleged the ratchet straps were used properly by the hunter. The problem was they had degraded significantly from element exposure, rendering them unsafe.

Continue reading "Bradley v. Ameristep, Inc. - Treestand Hunting Injury Case to Proceed" »

Radio Hack Prompts 1.4M Vehicle Recall, Expanded Investigation

August 4, 2015

steeringwheel.jpgA reporter for agreed to be the guinea pig for an experiment by two hackers who keyed in to the "infotainment" dashboard on his Jeep Cherokee.

The reporter was not told what the hackers would do once they gained access, but he was told not to panic and to know they would do nothing to endanger his life or the lives of others on the road. They didn't exactly keep that promise.

At first, they tampered with the windshield wipers. Then, they blasted the radio. As the reporter cruised down the highway, his air conditioning went on full blast. He hadn't once taken his hands off the steering wheel. But then they killed the transmission while the reporter was on the highway. The accelerator stopped immediately. He frantically stepped on the pedal, but there was nothing. He was stopped on the highway with no shoulder, cars backing up behind him. A semi-truck approached as a line of cars piled up behind him, horns honking. He called and begged them to turn the transmission back on immediately.

Continue reading "Radio Hack Prompts 1.4M Vehicle Recall, Expanded Investigation" »

Jury Awards $150 Million for Auto Defect That Killed Child

July 17, 2015

atthewheel.jpgThe death of a four-year-old child in 2012 was caused by a vehicle defectively designed with a rear fuel tank, a jury in Georgia recently decided. For this, the manufacturer was ordered to pay $150 million in damages to the boy's family.

At the conclusion of a two-week trial, jurors determined Chrysler Group LLC was liable for the child's death and had failed in its duty to warn customers of the fire danger they faced in a rear-end collision as a result of the Jeep Grand Cherokee's fuel tank being located at the back.

The company has recalled some 1.6 million Jeep vehicles specifically for the rear tank issue. However, the model involved in this case - the 1999 version - was not on that list. Jurors, finding the auto company had acted with reckless and wanton disregard for the well-being of consumers, apportioned 99 percent of damages to the firm. The remaining 1 percent is the responsibility of the driver who rear-ended the vehicle.

Continue reading "Jury Awards $150 Million for Auto Defect That Killed Child" »

Firework Injury May be Caused by Negligence, Defect

July 1, 2015

fireworks.jpgThe Fourth of July is closely associated with celebratory explosions, also known as fireworks. Generally, those attending large-scale, public displays are safe from injury.

However, when individuals purchase these devices, there is a higher potential for danger. These is the possibility of misuse and failure to follow safe procedures. But beyond that, there is the risk of a product defect.

Defective fireworks are actually a bigger problem than many people realize. A 2009 report from the U.S. Consumer Product Safety Commission indicated half the imported fireworks shipments its workers had screened contained faulty fireworks.

Continue reading "Firework Injury May be Caused by Negligence, Defect" »

Crash, Injury Risk Prompt Bicycle Recalls

June 12, 2015

bicycle.jpgFlorida is the leading state for bicycle injuries and fatalities. Most of those incidents can be attributed to collisions with motor vehicles. But in some cases, injured cyclists should not overlook the possibility that defective design or manufacturing of the bicycle itself may be partially or solely to blame.

Recently, the Consumer Product Safety Commission issued a recall notice of hundreds of bicycles manufactured early this year by GT. The down hill mountain bicycle is a risk to riders because the front wheel hub has the potential to break and cause the disc brake system to fail. In turn, this poses a major crash and injury risk to riders. The recall involves all 2015 model year GT Fury Elite and GT Fury Expert downhill mountain bikes.

No injuries have thus far been reported in relation to the defect, but the Connecticut-based importer has received reports of two broken hubs. These bicycles, which were made in Taiwan, retail for between $3,200 and $4,400.

Continue reading "Crash, Injury Risk Prompt Bicycle Recalls" »

Coba v. Tricam Indus., Inc. - Florida Supreme Court Weighs Defective Ladder Case

May 31, 2015

ladder6.jpgFalls are a leading cause of death, according to research from the Centers for Disease Control and Prevention, and nearly half of those fatal falls occur from ladders.

Such was the case for a man whose family later sued the ladder manufacturer for designing a defective product. The case, Coba v. Tricam Indus., Inc., asserted strict liability for the allegedly defective 13-foot ladder.

Jurors at trial sided with the plaintiffs, awarding $1.5 million in their product liability wrongful death case. But the jury's verdict was technically inconsistent. They found there was not a design defect in the ladder, but they still found the defendant was negligent and that negligence resulted in the decedent's death. They found the decedent 80 percent liable and the defendant 20 percent liable, thus awarding the estate $350,000.

Continue reading "Coba v. Tricam Indus., Inc. - Florida Supreme Court Weighs Defective Ladder Case" »

Failure to Report Defective Lawnmowers Results in $1.6 Million Civil Penalty

May 12, 2015

lawnmower11.jpgMany homeowners have either gas- or electric-powered lawn mowers. They are relatively easy to use, and often adolescents and even children are tasked with the chore of mowing.

But these are powerful machines, and they have the potential to cause serious and potentially fatal injuries. To put it into perspective, the blades on a mower produce three times the kinetic energy of a .357 handgun. The U.S. Consumer Product Safety Commission reports 235,000 adults and 17,000 children are injured annually by lawn mowers. Most of those injured are boys. The most common injuries include cuts, burns, fractures, and amputations.

Given the potential dangers, one would think designers and manufacturers of lawn mowers would be especially careful to ensure their products are safe when used as intended, or that when issues arise, the public would be warned immediately.

Continue reading "Failure to Report Defective Lawnmowers Results in $1.6 Million Civil Penalty " »

Reckis v. Johnson & Johnson - Child Cold Medicine Company Pays $63M

April 28, 2015

coughmedicine.jpgMost parents think nothing of giving their child a dose of Tylenol or Motrin for a fever. Plaintiffs in Reckis v. Johnson & Johnson didn't either, although the child's father was careful to say he'd read the warning on the back of the bottle. Nothing on that label indicated that his child might run the risk of developing a severe, life-threatening skin reaction to the medication.

Had he seen that, he later told jurors, he would never have given his daughter the medication for a persistent fever. But there was no such warning on the label, and the child did develop just such an infection. As a result, she almost died. Her recovery has been slow and painful. In fact, she will never fully recover. She will likely be dependent on someone for basic daily tasks for the rest of her life.

The drug company knew such a reaction was a risk, but it argued any labeling lawsuits were preempted by federal law. Jurors who heard the case within a Massachusetts trial court disagreed, as did the panel of justices for the Massachusetts Supreme Judicial Court, which recently affirmed the $63 million judgment favoring the child and her parents.

Continue reading "Reckis v. Johnson & Johnson - Child Cold Medicine Company Pays $63M" »

CPSC: New Federal Standard for Child Carrier Safety

April 10, 2015

babytoes.jpgWith dozens of children injured as a result of falls or other mishaps associated with frame child carriers, the U.S. Consumer Product Safety Commission has issued new safety standards for these popular products.

These are carriers made mostly of fabric as well as tubular metal, and they are designed much like a backpack. They are designed primarily for children who weigh between 16 and 50 pounds and can at least sit upright on their own. The child faces either front or back, and the frame is worn on the caregiver's back, often for use in outdoor activities like hiking. Generally, they cost anywhere from $100 to $300. The 16 identified manufacturers that produce these carriers either focus their efforts on child nursery products or camping and hiking gear.

The new safety standards, which were approved in February, don't go into effect until August 2016. The updates address a number of injury-causing issues identified with these child products, including:

  • Pinching

  • Exposed coil springs

  • Small parts

  • Lead paint

  • Structural integrity and stability

  • Leg openings (preventing smaller children from falling through a single leg opening)

  • Weight limits (ensuring product can hold three times the listed weight limit)

  • Proper restraints

  • Unintentional folding

  • Flammability

  • Sharp points

Continue reading "CPSC: New Federal Standard for Child Carrier Safety" »

Florida Supreme Court Clarifies Product Liability Jury Instructions

April 1, 2015

gavel21.jpgThe Florida Supreme Court last month issued an opinion that adopts a new set of jury instructions for product liability cases.

The move, as set forth in In Re: Standard Jury Instructions in Civil Cases - Report No. 13-01 (Products Liability), is the ending of a transition that started nine years ago when the Committee on Standard Jury Instructions in Civil Cases first initiated an overhaul of the model instructions for all civil cases.

The first round of changes, approved in 2010, excluded product liability. In 2012, some preliminary revisions were to product liability jury instructions, but the court was clear: more work was necessary. Now, three years later, the court has reached a conclusion.

Continue reading "Florida Supreme Court Clarifies Product Liability Jury Instructions" »

Book v. Voma Tire Corp. - Dangerous Tire Lawsuit to Proceed

March 17, 2015

tire2.jpgA defective tire that fails while a vehicle is in motion can result in a serious accident and potentially catastrophic injuries.

The recent case of Book v. Voma Tire Corp. involves an allegedly defective tire that resulted in serious injury. However, the case differs a bit in that the vehicle wasn't in motion at the time of injury. Rather, it reportedly blew up on a teenager who was attempting to inflate it.

The issue before the Iowa Supreme Court in this case was whether a large, multi-national defendant had the right to have the case dismissed in state district court for lack of personal jurisdiction. That is, the defendant didn't operate in the state of Iowa. It's a Chinese company. Thus, it argued the district court didn't have the right to hear the case.

However, the Iowa Supreme Court disagreed, allowing this defective tire product liability claim to move forward in state court.

According to court records, the victim was 17 at the time of the incident, son of an owner/operator of an auto repair shop. He worked part-time for his father through an apprentice program at his high school.

Continue reading "Book v. Voma Tire Corp. - Dangerous Tire Lawsuit to Proceed" »

Safety of Dietary Supplements Challenged Amid Investigation

February 26, 2015

gelcaps.jpgAn investigation into the efficacy of over-the-counter dietary supplements revealed the products did not even contain the herbs that were listed on the labels. This prompted the New York state attorney general's office to order four major retailers - Walgreens, Target, GNC and Wal-Mart - to yank their store-branded supplements from shelves.

The good news is most of what those products did contain was reportedly "filler," which is mostly to say the substances were generally harmless (beans, carrots, powdered rice, peas,etc.), though there were some that contained possible allergens not listed on the labels (peanuts and soybeans).

The bad news is, there is a strong potential that many other supplements from other brands remain on shelves without clear accountability of what is contained therein. Plus, these brands use carefully-worded promotional ads to tout uses that are unproven and unapproved. In some cases, they can be very harmful.

Continue reading "Safety of Dietary Supplements Challenged Amid Investigation" »