Category Archives: Product Liability

FDA Using Authority Under Food Safety Modernization Act To Control Dietary Supplements

On Wednesday, November 20, 2013, the Food and Drug Administration (FDA) issued a notice advising consumers that the product Slim Max should not be purchased or used. Slim Max, a weight loss product, was found to contain Sibutramine and Phenolphthalein, according to FDA laboratory analysis. Due to safety concerns, Sibutramine was removed from the market in October 2010. Sibutramine can substantially increase blood pressure and/or pulse rate in some users which may present a significant risk for patients with some medical conditions. Phenolphthalein is classified…

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Court Rejects Federal Preemption Defense in Surgery Advice Lawsuit

On October 11, a unanimous panel of the Indiana Court of Appeals held in Medtronic, Inc. v. Malander, 2013 Ind. App. LEXIS 499 (Ind. App. Oct. 11, 2013) that federal law does not preempt a state negligence action against a medical device maker for allegedly giving a doctor bad advice during surgery. The plaintiffs filed an action on behalf of a family member who had a medical device known as a ventricular “lead” implanted after he was diagnosed with a heart condition.  The patient later…

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No Reimbursement for “Dress Rehearsal” for Trial

Recently, U.S. District Judge Joseph Rodriguez affirmed an order of U.S. Magistrate Judge Ann Marie Donio and held that a defendant dismissed from a product liability suit cannot recover the costs of preparing an expert witness for deposition. The action, captioned Durkin v. Wabash International, stems from a 2008 accident in which a truck driver was killed when the load of steel sheet pilings he was carrying shifted forward and pinned him inside the truck. Wabash, the manufacturer of the trailer and bulkhead at issue,…

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“Natural” Label Continues To Be Problematic

Recently, there has been a nationwide push by consumer advocates to litigate consumer fraud claims against companies selling products labeled as ‘natural,’ as discussed in previous blog posts here.  Typically, plaintiffs seek damages for violations of consumer protection legislation and allege false advertising or mis-labeling of the products. This week, a New Jersey District Court judge allowed a case to proceed, in part, against Church & Dwight Co. for deodorant sold under the Arm & Hammer Essentials Natural brand. The plaintiffs argued in Trewin,

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Pennsylvania’s Battle Over the Application of the Second Versus Third Restatement to Product Liability Law

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. Negligence principles are not supposed to apply because the risk of loss should be placed upon the supplier of the defective product without regard to fault. However, Pennsylvania courts in…

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Lifting Of Running Snowmobile Held To Be Foreseeable Misuse

The Appellate Division recently affirmed a $2.5 million judgment in favor of a snowmobile operator who suffered the loss of his right leg after he lifted up the back of his friend’s 1995 Yamaha snowmobile in an effort to clear what he believed to be a fouled spark plug.  The track of the snowmobile broke while the plaintiff was lifting the machine from behind while it was running.  The track struck and partially severed the plaintiff’s right leg.  The plaintiff’s injury ultimately resulted in the…

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Not a Pass-Through Retailer? Indemnification Unlikely

The question of indemnification often arises in product liability suits, when a retailer that sells a product that is the subject of a product liability claim may look to the manufacturer of that product to indemnify it.  While some retailers and manufacturers have contractual relationships that provide for such indemnification, some other manufacturers may elect to make the business decision to indemnify their retailers even in the absence of a contractual obligation to do so. But what happens when there is no contractual indemnification agreement…

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New Jersey’s Centralized Litigation Program: Not Just for Pharmaceuticals

As we have discussed previously, New Jersey has an active and established system for handling related lawsuits under its centralized litigation management program.  Most, but not all, of the litigations under this program generally have been and continue to be personal injury lawsuits involving pharmaceuticals or medical devices. Recently, a new application was submitted for centralization of a number of property-damage subrogation claims involving DuraPro brand toilet supply lines.  Comments with regard to the application are due by July 12, 2013, after which the New…

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Energy Drink Manufacturers Trend Towards Product Reclassification

Over the past several years the energy drink industry has proven to be wildly popular with consumers, boasting massive gains and a strong foothold in the marketplace.  According to a recent report from Packaged Facts, in 2012, the total U.S. sales for the energy drinks/shots market totaled more than $12.5 billion and are anticipated to swell to $21.5 billion by the year 2017.  Although energy drink manufacturers have had little trouble establishing their product’s popularity, the industry as a whole has also faced increased legal…

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A Ticket Seller Is Not a “Product Seller”

An amusement park is not a viable defendant under New Jersey’s Products Liability Act, N.J.S.A. 2A:58C-1, et. seq. That was the holding in a recent unpublished opinion by New Jersey’s Appellate Division in Morgan v. Six Flags Great Adventure,2013 N.J. Super Unpub. LEXIS 1274; 2013 WL 2300979. Manufacturers and sellers are strictly liable under the act for harm caused by a defective product. “Product seller” is a defined term and, this court clarified, it does not include an entity that “merely sold licenses for…

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