Author Archives: Product Liability Playbook

Pennsylvania Supreme Court Overrules Azzarello But Declines Opportunity To Adopt Restatement Third of Torts

On November 19, 2014, the Pennsylvania Supreme Court issued its much-anticipated decision in  Tincher v. Omega Flex, Inc. Having originally granted allowance of appeal to decide whether to replace the strict liability analysis of Section 402A of the Restatement Second, Pennsylvania’s highest court declined the opportunity and instead overruled  its 1978 ruling in Azzarello vs. Black Brothers, 391 A.2d 1020 (Pa. 1978). The four justice majority opinion (available here), written by Chief Justice Ronald D. Castille, held that Pennsylvania will continue to apply the…

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Defending Your Client In A Workplace Accident? Don’t Forget Your Workers’ Compensation Colleagues!

Accidents or injuries involving alleged dangerous products often occur in the workplace. It is basic tort law that an employee on duty is barred from bringing suit against his employer by operation of the Workers’ Compensation Law, provided the employer maintained Workers’ Compensation coverage. Occasionally, plaintiffs choose not to file for Workers’ Compensation benefits and attempt to sue the employer for damages in a common-law tort action instead. While Workers’ Compensation benefits cover economic losses, they do not cover “pain and suffering,” which is only…

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Taking the Air Out of Overbroad Airbag Recalls

Supply and demand is an age-old economic issue, but the issue could have broad liability implications due to Takata Corp.’s potential recall of about 11 million airbags in the US, and over 14 million worldwide, which are used by ten different automakers. With four deaths, over 100 other related injuries, and massive economic losses looming, the litigation will surely be costly and prolonged. The airbag-related injuries have reportedly occurred from an unwanted propellant eruption that has sent shrapnel from the airbag’s components into the…

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Unsure What “Natural” Means? That’s Natural…

As anyone who has entered a grocery store in recent years has noticed, there has been a proliferation of foods and beverages claiming to be “natural.” This is not surprising, as according to market research, there is a large percentage of Americans who seek out and buy these types of products. Unfortunately, the FDA has not provided a clear statutory definition of what “natural” means. However, despite this regulatory uncertainty, manufacturers, suppliers, marketers, and retailers of such “natural” foods and beverages can glean some guidance…

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Evolution of Sustainable Values in New York Increases Risk for Defendants

The size of jury verdicts is a recurrent concern of corporate defendants. In New York there are many media reports of large jury awards totaling seven and even eight figures in products liability personal injury and wrongful death cases. Itemized verdicts are rendered with separate lines for various categories of economic loss and non-economic loss (representing the fact finders’ award for past and future pain and suffering together with loss of enjoyment of life). The jury also renders a verdict on the number of years…

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New York’s Bar on Personal Injury Settlement Liens Upheld

Plaintiffs in New York products liability cases which settle – a category encompassing most such cases – need not reimburse their private health insurer for health care costs, under a 2009 New York statute, General Obligations Law sec. 5-335. The statute created a presumption that a personal injury settlement does not include any compensation for the cost of health care services paid by the injured person’s health benefit provider.  For years prior to the enactment, private health insurers asserted liens or “rights of recovery” against…

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FDA Issues Guidance on Gluten–Free Labeling Requirements

As American consumers become increasingly more heath conscious, many more of them now read the labels on food packages to determine the overall fat content, percent of calories from carbohydrates, the presence of trans fats, and generally to ascertain the ingredients in prepared foods. One of the growing concerns is the presence of gluten in many prepared foods. Gluten is a protein found in wheat, barley, and rye. Gluten also shows up in many whole grain foods related to wheat, including bulgur, farro, kamut, spelt,…

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It’s Time To Start Reporting!

The Consumer Product Safety Commission (CPSC) continues to exercise its enforcement authority, this time with a company that manufactured mahogany fold away two and three step ladders which were designed for use in walk in closets. The company sold the ladders nationwide from 2005-2010. During this time they received notice of at least two dozen incidents which resulted in injuries and had over 1200 consumer returns in which the most cited reason for the return was breakage.   Under the current federal laws, the company would…

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The Consumer Product Safety Commission Continues to Exercise Enforcement

The Consumer Product Safety Commission (CPSC) initiated a law suit against a well-known appliance manufacturer alleging the company failed to immediately report safety hazards associated with certain wall ovens being sold to the public. Last month, the CPSC and the manufacturer reached an agreement by which the company would pay a $750,000 civil penalty. In addition, the company must establish and maintain a compliance program consisting of internal recordkeeping and monitoring systems to track all products for any potential safety hazards. The complaint specifically alleged…

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Consumer Product Safety Commission: Protecting Consumers At Our Ports

You may be shocked to hear that four out of five recalls in the United States involve imported products.  The Consumer Product Safety Commission (CPSC) has been screening products entering U.S. ports since its inception in 1973 in an effort to prevent products that fail to comply with federal safety standards from entering the U.S. stream of commerce.  The problem is that there are approximately 327 different ports in which billions of dollars of product enter the United States each year and it is impossible…

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