Category Archives: Product Liability

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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Proposed Bill to Ban Use of Plastic Microbeads

Cosmetic companies should take notice of a law passed in Illinois earlier this year to ban the manufacture of personal care products containing microbeads. Microbeads are made of polyethylene, which is the same plastic used in garbage cans, plastic bags, and bulletproof vests. These plastic particles are often used as an artificial replacement for natural exfoliates in beauty products such as soap and face cream. A study performed on Lake Michigan reportedly found 17,000 bits of these tiny plastic items per square kilometer. Environmentalists have…

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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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Pennsylvania Supreme Court Refuses to Hear Appeal on Exclusion of Expert Testimony in Brain Cancer Case

Under Pennsylvania law, an expert’s testimony is admitted if the methodology that underlies his or her conclusions has been generally accepted in the scientific community.  A court must determine whether an expert’s proposed testimony, through the application of scientific, technical, or specialized expertise, will assist the trier of fact in understanding the evidence. Hence, there must be a sufficient factual basis for an expert’s conclusions.  Expert testimony does not become scientific knowledge merely because it was offered by a scientist. The Superior Court of Pennsylvania…

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Pain Pump Manufacturer Prevails on Summary Judgment

In Mack v. Stryker Corp., the plaintiff instituted a product liability action that alleged a pain pump was defective and caused her to develop a painful shoulder condition. The defendant-manufacturer filed a motion for summary judgment, which argued the case should be dismissed because it was not foreseeable that the use of the pump would lead to joint damage. A federal court in Minnesota agreed and dismissed the plaintiff’s claim.  The Eighth Circuit affirmed even though the plaintiff provided expert testimony from an orthopedic surgeon…

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Federal Courts in Pennsylvania Continue to Apply the Third Restatement of Torts to Product Liability Cases

Over the past fifty years Pennsylvania Courts have applied the Restatement (Second) to strict liability claims, which indicates a product is defective if it left the supplier’s control either 1) lacking any element necessary to make it safe for its intended use, or 2) possessing any feature that renders it unsafe for its intended use. Under the Second Restatement, negligence principles are not supposed to apply. However, in recent years courts have begun to distance themselves from this principle. In 2011, the Third Circuit in…

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Did Spoliation Contribute To $9 Billion Punitive Damages Award?

After a 12 week trial in a federal product liability case involving a prescription medication, the jury awarded the injured plaintiff $1.5 million in compensatory damages and $9 billion in punitive damages. The punitive damage verdict is reported by Austin Kirk to be the seventh largest in U.S. history. While the verdict is very likely to be appealed and similarly likely to be reduced, it does raise questions about what conduct caused the jury to react so strongly against the defendants. During the trial, U.S.…

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E-Cigarette Manufacturer’s Health Claims Spark New Litigation

With traditional cigarettes becoming increasingly restricted, and the health dangers of smoking now widely known, many Americans are turning to newly popularized electronic smoking alternatives as a source of nicotine. Electronic cigarettes, or e-cigarettes, are devices that emit doses of vaporized nicotine which are inhaled by the user. E-cigarettes are intended to simulate the sensation of smoking, but because there is no actual combustion, users supposedly avoid many of the dangerous chemicals normally associated with tobacco products.  Given that e-cigarettes do not produce actual smoke,…

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Uber Mobile Application Involved in Products Liability Action

Recently, a products liability lawsuit was filed in San Francisco Superior Court that very well could have implications here in New Jersey. The family of a six-year old girl killed in an automobile accident has filed a products liability action against Uber Technologies, Inc., alleging that at the time of the accident, the driver, Syed Muzzafar, was logged in as a driver in Uber’s mobile application. Uber makes a mobile application that connects passengers with drivers of vehicles for hire and ridesharing services. The company…

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The Consumer Product Safety Commission Issues a Final Rule for Infant Bedside Sleepers

The ASTM defines bedside sleepers as “a rigid frame assembly that may be combined with a fabric or mesh assembly, or both, used to function as sides, ends, or floor or a combination thereof, and that is intended to provide a sleeping environment for infants and is secured to an adult bed.”  They are designed to allow newborns to sleep close to their parents without having to be in the parents bed. The Consumer Product Safety Commission (CPSC) voted unanimously on January 8, 2014 to…

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