Product Liability Advocate

Product Liability Advocate

CSST Found to Be Ordinary Building Material under Virginia’s Statute of Repose – For a Second Time

In a recent decision, the Circuit Court for Spotsylvania County, Virginia, found that OmegaFlex, a manufacturer of corrugated stainless steel tubing (CSST), which is used in residential gas supply systems, was entitled to the protection of Virginia’s statute of repose in a product liability lawsuit. The decision is significant because it is the second decision secured on behalf of OmegaFlex in Virginia proving that CSST gas piping is not within the meaning of the “equipment and machinery” exception to Virginia’s statute of repose. OmegaFlex secured its first dismissal on this issue in 2013 when the Circuit Court for the City of Richmond dismissed a product liability action filed against OmegaFlex − more than five years after its product was installed. In both actions, the courts have held that CSST gas piping is afforded the protection of Virginia’s statute of repose, thereby limiting the product liability exposure of manufacturers of CSST gas piping within the state of Virginia. Continue Reading

Revisiting the Post-Sale Duty to Warn

A Czech warning sign for general dangers.

A federal district court judge in New York City’s Southern District, applying Virginia law, recently invoked the concept of a manufacturer’s “post-sale duty to warn” to hold an automobile company potentially liable for failing to warn about an alleged defect in a car that it technically did not even manufacture. The ruling came in the context of the General Motors Ignition Switch multidistrict litigation (14-MD-2543).

Manufacturer versus Post-bankruptcy Successor
The plaintiff’s compact car went off the road, but its airbags failed to deploy because of an alleged defect in the car’s ignition switch that caused the airbags to move to the “off” position. Judge Jesse Furman denied a motion for summary judgment brought by the “new” GM, the post-bankruptcy successor to the “old” GM (OGM), the car’s actual manufacturer, noting, for example, that “new GM” (NGM) had assumed OGM’s warranty obligations to its customers when NGM entered into the 2009 sales agreement with OGM. The Court further noted the contacts between the plaintiff and NGM under Virginia state law might indeed recognize a post-sale duty to warn about OGM’s allegedly defective ignition switches. Additionally, he stated, “there is evidence that new GM had ‘actual knowledge’ of the ignition switch defect when it acquired the assets of old GM.” Continue Reading

Lithium-Ion Batteries: Small Products, Big Exposures


They are everywhere: in your pocket, in your car, in your hands, in your lap and even “in your face.” Lithium-ion batteries are in nearly every product that has become a staple of modern life, such as smartphones, tablets/notebook computers, digital cameras and headphones. They are in our transportation systems – trains, planes and automobiles. They are involved in our hobbies and recreation, including radio-controlled vehicles, hoverboards and e-bikes. They also show up in some of our vices, such as vaping and smoking e-cigarettes. Though we typically view the batteries and the products they power as innocuous, if something goes wrong it can go catastrophically wrong.

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Using the Affordable Care Act in Defense of Catastrophic Personal Injury Cases

Courts across the country are beginning to consider the argument that the Affordable Care Act (ACA) serves as a vehicle to limit a plaintiff’s claim for future medical damages. Plaintiffs often use exaggerated life care plans with significant damage calculations to support their future medical damages in catastrophic injury cases. In general, life care plans do not fairly consider a plaintiff’s entitlement to health insurance coverage, and assume that the alleged future medical care expenses are to be paid out-of-pocket by the plaintiff. Continue Reading

The Impact of the Smart Home Revolution on Product Liability and Fire Cause Determinations


When the failure of a smart product leads to a fire, the challenge of how smart home applications should be evaluated and examined as a potential cause becomes a more complex undertaking than the failure of a similar but dumb product.
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U.S. CPSC Oversees Recall of Hoverboards Citing Risks Associated with Lithium-ion Battery Packs

Not surprisingly, following on the heels of various accounts and reports of fires caused by hoverboards, ten manufacturers, distributors and retailers have issued an official recall of 501,000 hoverboards in the United States coordinated by the U.S. Consumer Product Safety Commission (CPSC).

The recall impacts nearly all of the major brands of hoverboards currently sold on the market, and some online retailers are recalling the hoverboards sold on their websites, which amount to approximately 5,000 units. Continue Reading

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