Product Liability

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Deposing your adversary’s liability expert is not only a chance to delve into the details of the expert’s opinions, but the deposition also presents a great opportunity for defense counsel to explore the sustainability of the expert’s opinions going forward. In the context of a products liability case, the plaintiff’s expert’s deposition, if used wisely, can set up an effective challenge to the expert’s proffered opinions under the Federal Rules and can result in the expert’s eventual disqualification. Perhaps nothing is more devastating to the Plaintiff’s case than the loss of his expert for all, or even part, of the case.
Continue Reading Asking the Right Questions at the Expert’s Deposition to lay the foundation for your client’s Daubert Challenge

After many years of debate, consideration and public input, California’s new regulations go into effect on August 30, 2018, under California’s Safe Drinking Water and Toxic Enforcement Act of 1986 − commonly known as Prop 65. This is the first major update to the Act in more than 30 years. The stated purpose is to provide “clear and reasonable” warnings and more detailed information to consumers. The new rules will be applicable to all products manufactured after August 30, 2018. Manufacturers may still use existing warning labels, but only for products that were manufactured before August 30, 2018. Although the new regulations become mandatory after August 30, 2018, they can be used now.
Continue Reading WARNING! Prop 65 regulations are a year away in California. Is Your Product’s Warning Label Compliant?

As tire manufacturers enter the age of the Internet of Things, some are making smart tires equipped with sensors that allow the consumer to view information regarding the tire on applications downloaded to their smart phones. These tires contain small sensors in their sidewalls that do not impact tire performance. The sensors can track the tire’s temperature, the tire’s inflation pressure, the tire’s mileage and even the tire’s load capacity. Not only the consumer can view this information, but so can service technicians maintaining the vehicle and tire.
Continue Reading Passenger Car Tires Drive into the Internet of Things

Fasolas v. Bobcat of New York Appellate Division (April 1, 2017)

A typical argument made by the plaintiffs and their experts in a design defect/ product liability case is that “Safety should never be an option.” Over the years, however, New York courts have recognized that optional safety features are perfectly appropriate under the right circumstances. If a safety feature is disadvantageous under certain conditions of use and the product can be safely used without it under those conditions, the courts have sometimes ruled that the purchaser is in a better position than the manufacturer to decide whether the safety feature is appropriate for the purchaser’s specific uses − even where the end user/injured party is not necessarily the purchaser. In cases where the purchaser is the end user’s employer, it has been held that the purchaser, as opposed to the manufacturer, was in a better position to decide whether the safety feature was appropriate for the employee’s uses. The leading example is Scarangella v. Thomas Built Buses, Inc., 717 N.E.2d 679 (NY 1999).
Continue Reading Equipment Manufacturers: Beware of the Rental Yard Customer When Safety Features Are Optional

The recent WannaCry ransomware cyberattack provided another chilling reminder of the potential disruptive power behind the Internet of Things. Even before the WannaCry attack in May 2017, a distributed-denial-of-service (DDoS) attack on a domain name server provider, Dyn, Inc., took place in October 2016, pushing many popular internet services offline for hours. The Dyn attack, which utilized the malware Mari as the supporting agent, was a sea-change event carried out by hundreds of thousands of internet-connected devices, such as routers, security cameras and DVRs, that rely on default factory user names and passwords coupled with weak or nonexistent security protections. It illustrated that hackers can now target vulnerable low-hanging fruit and turn it into a super botnet to carry out the DDoS attack. One takeaway from the Dyn attack is that the exponential growth of devices coming online, some 5.5 million per day according to Gartner, creates an unparalleled ecosystem for malevolent actors to find and weaponize the Internet of Things (IoT).
Continue Reading The Internet of Things: A Trifecta of Cyber and Physical Threat Risks