Product Liability Advocate

Product Liability Advocate

Pokémon GO: An Indicator of Product Liability in the App Economy

As a big law firm involved in the defense of Product Liability cases, of course we are interested in how Product Liability law will evolve to address the App Economy.

Mobile apps (apps) are software applications designed to work on smart phones or tablets. The consumer’s first introduction to apps were the “native apps” that increased the user’s productivity or provided general information retrieval from the internet. Those native apps were features such as a web browser, email, calendar or stock ticker that typically come pre-bundled in the device. Shortly after the introduction of the smart phone, software designers started building apps that could be downloaded to mobile devices that provided the user with more capability than the pre-bundled native apps offered by the manufacturer of the device. Continue Reading

How Far Is Too Far? New York Clarifies Potential Warnings Liability for Third-Party Products

It’s probably common knowledge to even a novice product liability practitioner that a manufacturer can be held liable for a defect in a component part supplied by another company that is integrated into the manufacturer’s end product.  After all, under most commonly held notions of product liability law, the product manufacturer is subject to liability for a defect even when the defect arises solely from a flaw in a component part manufactured or supplied by another company.  By accepting the component from the supplier and integrating it into the manufacturer’s product, the manufacturer effectively “buys” any liability for a defect that may come with the component. Public policy requires the product manufacturer to make sure that it uses components supplied by reputable companies that are designed with safety in mind. The manufacturer is in the superior position to ferret out defective components and to avoid their use.  Since the manufacturer realizes the benefits (i.e., profits) from marketing the product, it should also be held to answer for any product defects, even those from a component part it did not manufacture. Continue Reading

Mobile Apps − Has the Marketplace Downloaded Potential Product Liability Risk?

For many consumers, it is hard to remember performing a daily routine without using a mobile application. App usage starts almost immediately − with a morning alarm that wakes you up slowly or with a coffee waiting for you at your favorite coffee shop. Consumers are making purchases, reading the news, transferring money, diagnosing a migraine and playing interactive videogames, all without lifting their heads from their smartphones.

The app economy has grown from $1.9 billion in 2008 to $143 billion in 2016. (The App Association, State of the App Economy, 4th Edition) Product liability exposures have increased proportionately. Related liability concerns have become a critical issue for software designers, hardware manufacturers and their insurers. Continue Reading

New Drone Operational Rules Finalized by the FAA

On June 21, 2016, the Federal Aviation Administration (FAA) finalized the first operational rules for routine commercial use of small unmanned aircraft systems (UAS), also known as drones. The new rules will take effect in late August and affect drones weighing less than 55 pounds that are being used for purposes other than hobbyist operations. The new regulations are a result of the various comments the FAA received on the proposed rules submitted in February 2015 and based on the reports and suggestions provided by the task force set up in October 2015, with members consisting of representatives from various aviation and drone organizations, drone manufacturing companies, and other various companies looking to add drones to their services and products. Commercial drone operators will need to be cognizant of the new regulations to avoid unnecessary legal action. Continue Reading

Tire Pressure Monitoring Systems: When the Bubble Bursts

Since 2008, tire pressure monitoring systems (TPMSs) have been mandatory in passenger cars, which include SUVs. As early as 2006, however, 30 percent of new passenger cars were already equipped with TPMSs. A TPMS alerts the driver if a tire is underinflated. A “telltale” or “lantern” activates on the vehicle’s dashboard display indicating that one of the tires is underinflated.

Underinflation is bad for the tire and can lead to a potentially dangerous situation. It can stress a tire beyond what it was designed to withstand, which can negatively impact the tire’s performance and lead to tire failure. Continue Reading

Expert’s Failure to Test Theory No “Silver Bullet” for Defense

Two medical engineers examining a piece of equipment.

The United States Court of Appeals for the First Circuit recently held that an expert offering opinions on a proposed safer alternative design in a product liability matter does not need to perform any testing of the alternative design to ensure his testimony is sufficiently reliable. In Berardo A. Quilez-Velar v. Ox Bodies, Inc., the plaintiff brought a claim for strict product liability against a dump bed manufacturer, OX Bodies, and claimed the underride guard on the back of its dump bed was negligently designed and manufactured. Continue Reading

Defending against Product Liability Down Under

In this second collaborative blog post with the Australia-based law firm DibbsBarker, we take a look at the litigation process for product liability claims in Australia and how in some ways it differs from the process in the United States.

As detailed in the previous blog post, “Dealing with Product Liability Down Under,” there are a number of product liability causes of actions that arise in Australian product liability lawsuits. Those are negligence, breach of contract and failure to comply with the Australian Consumer Law legislation.

Civil litigation in Australia for personal injury cases can be conducted as pre-litigation (e.g., pre-court proceedings), which can result in litigation if the claim is not resolved during the pre-court process. In other jurisdictions, cases only originate by way a of litigated claim. Continue Reading

UL Issues First Safety Certification for Hoverboards

On May 10, 2016, Underwriter’s Laboratories (UL), the global safety science organization, announced that it issued the first safety certification to the UL 2272 safety requirements for electrical systems of self-balancing scooters (aka hoverboards), which was launched in February 2016. After completing a construction evaluation, safety testing and complying with UL 2272’s marking, labeling and user instruction requirements, a hoverboard manufactured by Ninebot (parent company of Segway) has been found to meet all the requirements. UL reminds consumers that the UL 2272 certification does not address riding safety and that proper safety precautions should be taken when using self-balancing scooters. Continue Reading

California Appeals Court Rules Industry Custom & Practice May Be Admissible in Strict Products Liability Cases

In most product liability lawsuits, the plaintiff will sue under theories of negligence and strict liability. In such cases, the plaintiff may allege that the product’s manufacturer was negligent or that the product was “defective” for failure to include available safety devices that would have prevented the accident. Because negligence claims focus on whether the manufacturer acted “reasonably” when it designed the product at issue in the case, the manufacturer is allowed to present evidence comparing the product with those of competitors. For example, the manufacturer can introduce evidence showing that the industry custom & practice was not to include such safety devices. To preclude such evidence of industry custom & practice, plaintiffs typically drop negligence claims on the eve of trial and, instead, only try the case on a theory of strict liability – design defect (under either the “consumer expectations test” or “risk/benefit test”). Continue Reading

New York Reaffirms General Acceptance Standard in Frye for Scientific and Technical Issues

In a recent opinion handed down by New York’s highest state court – the Court of Appeals –Sean R. v. BMW of N. Am., LLC, 2016 N.Y. Slip. Op. 01000 (Feb. 2016) reaffirmed New York’s continued adherence to Frye’s “general acceptance” standard.

Factually, the Sean R. case involved a toxic tort claim related to an alleged product defect in BMW’s gasoline feeder fuel hoses. It was claimed that these hoses had a propensity to split, potentially permitting gasoline fumes to enter the vehicle. The fuel hoses were the subject of a recall campaign. The claim was brought by a woman who asserted to have been personally exposed to the fumes while pregnant. She further claimed that her baby’s derivative exposure in utero resulted in severe mental and physical disabilities. As one might imagine, the opposing experts disputed whether the in utero baby’s injuries were causally connected to the plaintiff mother’s ingestion of gasoline fumes. Continue Reading