Product Liability Advocate

Product Liability Advocate

Government Contractor Defense May Apply to Commercially Available Products

Columns in the courtyard of the Palace of the Legion of Honor.

The California Court of Appeal has confirmed that the “government contractor” defense may apply to products made available to both the federal government and commercial markets, even where the defendant did not design or produce the product at issue.

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The Cannabis Industry: Burning Batteries, Tasty Treats and Budding Product Liability Litigation

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Pot smokers are not the only ones lining up outside the local dispensaries; plaintiff personal injury attorneys are as well. Watching, lurking, waiting with dollar signs in their eyes for the chance to seek punitive damages, as many states allow damages beyond compensatory for intoxication-related injuries to others.

Using cannabis is not just a matter of rolling a joint or packing a bong anymore. Marijuana-related technology has evolved, resulting in multiple areas for the products liability legal community to watch. One of the most substantial areas of note is vaporizing. Vaporizing is generally considered to be the healthiest way to consume marijuana as the user is – supposedly – only inhaling the vapor of the THC, with some estimates saying the process eliminates as much of 95 percent of the smoke inhaled, which generally is easier on the lungs. The process involves heating the cannabinoids, often with mass-produced, pen-size batteries that boil the THC or CBD. Generally, the boiling point of CBD is 320°F – 356°F / 160°C -180°C. The boiling point of THC is 315°F / 157°C. However, these batteries have not been through extensive quality control and testing, and vaporizers come in all shapes and sizes – some can take up a whole coffee table while others look like a writing utensil.

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New York Appellate Courts Now Unified on Hague’s “Send versus Serve” Issue

New York’s appellate departments are now unified with respect to their interpretation of Article 10(a) of the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters (Hague Service Convention). The issue of whether Article 10(a) of the Hague Convention permits service of process by mail to a foreign country in the absence of an objection from the state of destination has now been resolved in New York. The First Department in Mutual Benefits Offshore Fund v. Zeltser, 2016 N.Y. Slip Op. 04344, earlier this year reversed itself and joined the state’s three other appellate departments in holding that service of process by mail under those circumstances was indeed permissible.

Background
For those unfamiliar with the workings of the Hague Service Convention, it is a multilateral international treaty first adopted in 1965 that allows for the service of process of legal documents from one signatory state to another without the use of more formal consular or diplomatic channels. The treaty sets up a simplified means for accomplishing service of process by requiring each signatory nation to designate a “Central Authority” to receive the documents and arrange for actual service on the targeted entity in a manner permitted under local law. Once service is completed, the Central Authority sends proof of service to the requesting party. The advantages of this system lie in its speed, its standardized forms and its relatively low costs as compared with the pre−Hague Convention methods in place to serve foreign entities. Seventy countries are now parties to the agreement. Continue Reading

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

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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

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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