Product Liability Advocate

Product Liability Advocate

Using a Special Needs Trust in the Settlement of a Product Liability Lawsuit

Wheel chair in the hospital corridor. Wheel chair stands in the corridor of the hospital door.

Product liability cases frequently involve severe and even catastrophic injuries.  As a result, product liability defense counsel and insurance adjusters must be familiar with the prospects for use of a special needs trust as a potential tool in the settlement of severe injury cases. Special needs trusts are frequently proposed as a component of the settlement of severe injury cases.

The purposes of the special needs trust are to allow a severely injured plaintiff to continue to receive social security benefits and to be protected from lien holders. A special needs trust is a trust that is presented to a court for approval.  It is funded with settlement proceeds after costs and attorney fees.  If the special needs trust is approved by a court, then the plaintiff who is the beneficiary of the trust may be allowed to continue to receive social security benefits and the principal of the trust will be protected from creditors − most importantly, lien holders. Continue Reading

New Regulations on the Horizon for Commercial Drones

Currently, the use of drones or unmanned aircraft systems (UAS) for commercial purposes in general is not permitted in the United States, although there is one exception. The Federal Aviation Administration (FAA) allows preauthorized companies to use drones to collect aerial data. The conditions for this type of use are limited; however, that is about to change. The FAA is currently working on a framework for regulations governing the commercial use of drones that are expected to be implemented in 2017. Once these rules are put into place and the ban on the commercial use of drones is lifted, we expect the growth of this industry to explode. Continue Reading

The Internet of Things: The Cyber Vulnerability Landscape Emerges

iStock_000074015155_LargeThe phenomenal growth of the Internet of Things (IoT), widely hailed in 2015, has been greater than originally forecast. Gartner, Inc. estimates a 30 percent increase in IoT devices connected to the Internet in 2016, which equates to 6.4 billion devices, and forecasts that more than 20 billion devices will be connected to the Internet before 2020. On average, 5.5 million new devices are connected to the Internet each day. As the IoT becomes part of the everyday lexicon, there remains a need to examine the myriad risks associated with this explosive growth across multiple industry sectors to address the inevitable weaknesses with software and security that will be part of the foreseeable future of the IoT. In turn, these vulnerabilities can and will lead to property damage, bodily injuries and deaths. Internet attacks leading to physical damage date back to the 2010 cyberattack on the Iranian nuclear energy plant in Natanz that destroyed or disabled centrifuges. Later, in 2014, a German steel foundry was the target of a cyberattack leading to the destruction of a blast furnace. Continue Reading

Objections to Document Demands Under Amended Rule 34

The approach of objecting to document demands with boilerplate language containing half a dozen or more objections that have no actual nexus to the demands at issue has been used by litigators for decades. However, this approach is no longer acceptable in federal courts. December 1, 2015, marked the enactment of a substantial package of amendments to the Federal Rules of Civil Procedure that was driven in large part by concerns related to e-discovery and the production of electronically stored information (ESI). Although the amendments to Rule 26(b)(1) and Rule 37(e) have received greater attention, a major revision to Rule 34 will result in a more significant day-to-day change for litigators. Notably, objections to discovery requests must now (1) state with specificity the grounds for objecting and (2) state whether any responsive materials are being withheld on the basis of that objection. Additionally, producing parties must indicate when a document production will be completed. Continue Reading

The Rise of Driverless Cars

104113897Automotive industry experts claim that we will be sharing the road with totally autonomous cars within the next five years. The benefits of driverless cars are obvious. People on average spend about two hours per day in a car commuting to and from work. With ever-increasing demands on our time, allowing us to use that commute to be productive instead of focusing on the operation of the vehicle presents a huge advantage. More importantly, automation is expected to increase safety on the highways by eliminating the human error component from accidents. It’s no wonder that numerous automakers and start-up companies are developing driverless cars or aftermarket automation systems. However, the prospect of this huge step forward for the automotive industry does not come without concerns, especially with regard to product liability. Continue Reading

When Product Liability Meets the Uniform Commercial Code

Clients who are first introduced to the concept of strict liability in the context of a product liability lawsuit are often shocked to learn they can be held liable for a product defect simply because they sold the defective product. The first question we always hear in these situations is “How can I be held liable if I did not have any involvement in the decisions that went into how the product was designed or built?” Continue Reading

Hoverboards Under Attack

Multiple UK retailers have asked customers to throw out their hoverboards, the self-balancing scooters that have clambered onto holiday wish lists this season, due to suspected safety issues with the devices. The retailers and the UK’s Chartered Trading Standards Institute (CTSI) have said the UK hoverboards were deemed unsafe due to a noncompliant plug for electrical outlets and other parts. This comes at the same time that thousands of these items have been halted at the UK border due to the government’s safety concerns. Continue Reading

Some New Red Tape for Drones

On December 14, 2015, the Federal Aviation Administration (FAA) announced new federal rules that will require all present and future operators of small unmanned aerial systems (UAS) to register their drones beginning December 21, 2015. With hundreds of thousands of UAS, or drones, expected to find their way into homes across the United States this holiday season, the new rules are a clear response to recent accounts of drones losing control, flying in restricted airspace or obstructing emergency response teams. Continue Reading

Fixing America’s Surface Transportation (FAST) Act Could Spell Trouble for Tire Manufacturers, Distributors and Retailers

On December 4, 2015, President Obama signed into law a massive (1,300-page) five-year, $281 billion transportation bill that not only covers highway, transit and rail project funding but also includes the following important provisions regarding tires: Continue Reading

Florida Supreme Court Embraces “Consumer-Expectation” Test for Design Defect Claims

The Florida Supreme Court recently issued a significant decision that will affect all strict product liability/design defect cases litigated in Florida. In Aubin v. Union Carbide, decided October 29, 2015, the Court rejected the risk-utility test in favor of the consumer-expectation test. The consumer-expectation test examines whether a product is unreasonably dangerous because it failed to perform as safely as a reasonable consumer would expect when using it as intended or in a reasonably foreseeable manner. The risk-utility test, on the other hand, poses a higher burden of proof for plaintiffs. It focuses on whether the utility of a product outweighs any risk of using it. It also requires the plaintiff to prove that a reasonable alternative design existed. Conversely, under the consumer-expectation test, the plaintiff is not required to prove a reasonable alternative design existed. In sum, the Court’s decision in Aubin, made it easier for plaintiffs to claim that a defendant’s product is defectively designed.

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