Category Archives: Duty to Warn

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Lack of Federal Regulations May Place Heightened Burden on Drone Manufacturers to Warn Users About Dangers of Interfering with Aircraft

The Federal Aviation Administration (FAA) recently reported that pilot reports of unmanned aircraft, or “drones”, have increased from 238 sightings in 2014, to more than 650 as of August 9, 2015. According to the FAA, there have been over 250 reports of drones flying at altitudes of up to 10,000 feet in June and July alone. The FAA statement is part of a push by the FAA to increase awareness that operating drones around airplanes, helicopters, and airports, is dangerous and illegal. News reports regarding…

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Mixed Results for Bare Metal Defense in Asbestos Cases Around The Country

Over the past several years, there has been an increase in defendants’ raising the “bare metal defense” in asbestos cases across the country. As the name implies, this defense is generally used by manufacturers that made bare metal products, such as pipes, pumps and valves. Subsequently, aftermarket, the bare metal product is altered by a third-party with an asbestos-containing product — oftentimes thermal insulation, gaskets, or packing material. The manufacturers of the original bare metal product thus argue  that they should not be responsible for…

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California Court Extends Duty to Warn in “Take Home” Asbestos Case

Earlier this year, the California First Appellate District Court of Appeals widened the net of potential plaintiffs beyond spouses in “take home” asbestos cases. The plaintiff,  diagnosed with mesothelioma,  sued multiple defendants including companies where he had occupational exposure to asbestos, as well as a company at which his uncle worked. In naming this latter defendant, the plaintiff claimed that he was exposed to asbestos through his uncle’s work clothes. Typical take home asbestos exposure cases usually involve a spouse (most often a wife) that…

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What’s All the Uproar About Caramel Color?

Caramel color:  it sounds harmless – maybe even delicious – so why has it suddenly caused enough concern to draw Food and Drug Administration (FDA) attention? “Caramel color” is a common name for a type of artificial coloring regularly added to soft drinks and other foods to turn them brown. In fact, according to some studies and reports, caramel color is the single most used food coloring in the world. But some types of caramel color contain a potentially carcinogenic chemical called 4-methylimidazole (4-MeI). In…

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OSHA’s HazCom Rule and Personal Injury Suits

Last year, the Occupational Safety & Health Administration (OSHA) published a rule that modified its Hazard Communication (HazCom) requirements governing how chemical manufacturers, employers, and other organizations convey hazard information to employees. Previously, companies had some discretion over the appearance and wording of these labels. OSHA formulated these amendments to conform to the United Nation’s Globally Harmonized System of Classification and Labelling of Chemicals (GHS) and create a standardized approach regarding this issue because companies often operate in various countries with different laws. However, a…

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Internal Reporting Policies and Procedures Need To Be Enforced

Device manufacturers internal adverse event reporting and investigation policies, procedures and implementation came into the spotlight during a medical device trial recently.  In Kransky v. DePuy Inc. et al, pending in the Superior Court of the State of California, County of Los Angeles, the plaintiff accuses DePuy of negligent design and failure to warn leading to injuries stemming from the ASR XL hip implants.  The metal on metal implants are the subject of studies indicating elevated failure rates.  Studies suggest that metal on…

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Flawed Warnings and Effective Defenses: Learned Intermediary Doctrine Clears Up $12 Million Judgment against Accutane Manufacturer for Failure to Warn

On January 17th, the Supreme Court of New Jersey declined to review a decision from the Court of Appeals of Florida in Hoffmann-La Roche v. Mason, which held that a plaintiff could not recover against a pharmaceutical manufacturer for failure to warn of the side effects of the acne medication Accutane.  The plaintiff had developed severe acne which caused him to seek treatment from a dermatologist.  After the plaintiff failed to respond to topical agents and antibiotics, the dermatologist prescribed Accutane.  During…

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Toxic Workplace Revisited – State Law Variation in “Take Home” Exposure Claims Leaves Employers’ Immunity from Torts in Doubt

In recent years there has been a rise in tort claims against employers for illnesses caused by exposure to toxic chemicals.  Yet many of these plaintiffs have never even visited the employer’s premises.  Instead, these plaintiffs assert that they experienced “second-hand” or “take-home” exposure through a family member or relative.  The theory is that prolonged exposure to contaminated surfaces, such as employee’s work clothes and shoes, can cause debilitating diseases such as mesothelioma.      Most jurisdictions to consider take-home exposure claims have been hesitant to extend…

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You Can Say That Again – Single Language Warning Labels May Not Protect A Manufacturer From Liability

In determining whether a product is defective for failure to provide an adequate warning, courts focus on whether the warning describes the potential danger such that the group of consumers who are likely to use the product would be put on notice.  Thus, the warning must be appropriately tailored based on the particular understanding of the intended class of user. This principle has important implications given the growing number of Americans who do not speak English as their primary language.  Although courts have generally held…

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