Category Archives: Litigation Strategies

How Long is Long Enough: A National Review of Statutes of Repose Part II

In this series of articles, we will examine the jurisdictional differences among statutes of repose throughout the United States, their relationship to products liability litigation, and what manufacturers need to know to maximize risk avoidance Statutes of repose provide an absolute bar to claims against manufacturers, usually after a statutorily determined period of time elapses from the point that a product is delivered or installed, regardless of when an accident occurs.  The majority of states which have statutes of repose in place hold that period…

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Dangerous Diesel – Engine Exhaust Determined to be Carcinogenic

Recently, the International Agency for Research on Cancer (IARC) classified diesel engine exhaust as carcinogenic to humans.  The IARC which is part of the World Health Organization (WHO) determined that there was sufficient evidence that exposure to diesel fumes causes lung cancer.  A positive association between diesel fumes and an increased risk of bladder cancer was also found.  This finding does not come as a great shock since the IARC classified diesel exhaust as “probably carcinogenic to humans” about 24 years ago.  Since then increasing…

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How Long is Long Enough: A National Review of Statutes of Repose, Part I

In this series of articles,  we will examine the jurisdictional differences among  statutes of repose throughout the United States, their relationship to products liability litigation, and what manufacturers need to know to maximize risk avoidance Statutes of repose provide an absolute bar to claims against manufacturers, usually after a statutorily determined period of time elapses from the point that a product is delivered or installed, regardless of when an accident occurs.  This is distinctly different from a statute of limitation, where the “clock begins ticking”…

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Out Of Sight, Out Of Mind: Manufacturers Have No Post-Sale Duty To Warn In Illinois

The highest court in Illinois has recently handed a significant victory to product manufacturers on the issue of manufacturers’ duty to warn consumers of product defects discovered after the product has left the their control. In Jablonski v. Ford Motor Co., 955 N.E.2d 1138, the Illinois Supreme Court reversed a $43 million jury verdict against Ford Motor Company stemming from a fatal motor vehicle accident.  John and Dora Jablonski were stopped at a stop sign in a 1993 Lincoln Town Car when it was…

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Service Provider Escapes Strict Liability, Plaintiff Escapes Spoliation

A New York Appellate Court recently dismissed claims of strict product liability and breach of implied and express warranty against a vehicle repair facility, finding that such claims must fail where the facility did not design, manufacture, distribute or sell the product.   Reeps v BMW of N. Am., LLC., et. al, 2012 NY Slip Op 02584 (1st Dept 2012). The case involved the Reeps family, who had their 1989 BMW serviced at Hassell Motors (a licensed BMW dealer) for an exhaust odor inside of…

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Punitive Damages Restricted in AZ

Arizona’s legislature recently passed a bill that will negate punitive damage claims on products or services that received regulatory approval or otherwise comply with state and/or federal law. If Gov. Jan Brewer signs the bill plaintiffs would be prohibited from obtaining punitive damages with limited exceptions. Plaintiffs could still seek punitive damages when: the injury occurred after regulators ordered a company to remove a product from the market or its terms of approval were substantially altered; the company withheld relevant information from the government during…

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Class Action Lawsuit Against Discount Tire Dismissed

A California federal judge recently dismissed a class action lawsuit against Discount Tire alleging that it failed to disclose certain information to their customers.  Specifically, the plaintiff, who was representing the putative class, asserted that Discount Tire failed to properly disclose the fact that he was being charged a fee for disposing of his old tires.  This disposal fee was included as a line item on the receipt that was handed to the plaintiff in an envelope.  However, the clerk who spoke with the plaintiff…

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Australian Court Awards $8 Million Against KFC

Samaan v Kentucky Fried Chicken Pty Ltd., (case number 2012 NSWSC 381), in the New South Wales Supreme Court. On April 27, 2012, the New South Wales Supreme Court awarded $8 million to the family of a girl who suffered brain damage after allegedly contracting salmonella from a KFC chicken product. The plaintiff alleged that KFC sold the chicken product under circumstances where it knew or should have known that the chicken product was likely to be contaminated or unsafe, and failed to take…

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New York Adopts Stringent Rules Regarding Litigation Hold Requirements

Recently, the New York Supreme Court, Appellate Division, First Department, unanimously adopted a rule promulgated by the U.S. District Court for the Southern District of New York which requires a party to cease destruction of potentially relevant evidence by issuing a litigation hold letter when the party reasonably anticipates litigation—the failure to do so resulting in a high risk of sanctions.  This case marks the first adoption of Zubulake by a New York appellate court. The Zubulake standard has been increasingly adopted in jurisdictions throughout…

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