Product Liability Advocate

Product Liability Advocate

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

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