November 2006

From the editors of Wolters Kluwer Law & Business, this update describes important developments from CCH products liability and safety publications.

If you have any comments or suggestions concerning the information provided or the format used, we'd like to hear from you. Please send your comments to pamela.maloney@wolterskluwer.

Products Liability

U.S. Supreme Court Asked to Review West Virginia Forum Shopping Statute
The U.S. Supreme Court has been asked to review two rulings of the West Virginia Supreme Court of Appeals involving a 2003 amendment to the state's venue statute that sought to limit access to West Virginia courts to claims in which “all or a substantial part of the acts or omissions giving rise to the claim asserted occurred in [the] state,” or unless the plaintiff could not obtain jurisdiction against the defendant in the state where the claim arose. The West Virginia court ruled that the 2003 amendment violated the Privileges and Immunities Clause of the U.S. Constitution, Art. IV Sec. 2, because it operated as a bar to nonresidents who wish to sue in West Virginia, and immunized resident defendants against suits by nonresidents. (Crown Equip. Corp. v. Morris, Dkt. No. 06-503 and Jefferds Corp. v. Morris, Dkt. No. 06-487).

New Trial Not Required in Motor Vehicle Defect Suit
Although a lower court committed error when it failed to grant summary judgment on one of the two design defect claims brought by an injured driver, the error was harmless. The driver, a U.S. Army Major, was left a quadriplegic after his vehicle flipped over after hitting a highway barrier in Riyadh, Saudi Arabia. The injured driver alleged that the vehicle contained defects in both its rollover/roof crush protection and its restraint system, successfully winning a $9 million judgment. Although the court found that the manufacturer was improperly denied summary judgment on the driver’s restraint system theory, it held that a new trial was not necessary because the evidence presented to the jury was minimal and the theory was not mentioned in closing arguments (Muth v. Ford Motor Co.,5th Cir., CCH Products Liability Reporter ¶17,557).

Italian, French Vioxx Claims Dismissed From U.S. Courts
U.S. Courts were not the most convenient forum for two classes of Italian and French plaintiffs who were allegedly injured by taking the drug Vioxx, a pain reliever belonging to a class of drugs known as non-steroidal anti-inflammatory drugs (NSAIDs). Although the manufacturer's corporate headquarters was located in New Jersey, it argued that the majority of the events relevant to the litigation occurred abroad, including the regulation and approval by foreign governments, the prescription of the drug, the place of purchase, and the location where the injuries were suffered. While the court acknowledged that many decisions regarding the development and marketing of the drug occurred at the manufacturer's headquarters in the U.S., it found that the plethora of localized individual issues made foreign courts a much more convenient option for the parties involved. (In re Vioxx Prod. Liab. Litig., E.D. La., CCH Products Liability Reporter ¶17,567).

Product Safety

CONFIDENTIALITY PROPOSED FOR CERTAIN EWR DATA
Certain categories of Early Warning Reporting (EWR) information would be treated as confidential under a NHTSA proposal. The agency proposed the creation of class determinations to provide confidential treatment for such categories as production numbers, consumer complaints, paid warranty claims, and field reports. An additional class determination would be created to keep the last six digits of a vehicle identification number confidential for ERW reports on vehicles involved in incidents that resulted in death or injury. According to the NHTSA, because the TREAD Act requires manufactures to produce only information they already collect, disclosure of information in the categories contemplated in the proposal is likely to cause manufacturers to reduce their collection efforts. The agency first addressed the confidentiality issue with respect to EWR data in its final rule on Confidential Business Information. (CCH Consumer Product Safety Guide, No. 878, Nov. 3, 2006.)

SUDDEN ACCELERATION REPORT PROPERLY ADMITTED
Evidence regarding the National Highway Traffic Safety Administration's conclusion that the apparent cause of many sudden acceleration accidents was the inadvertent and unknowing driver application of the accelerator pedal was admissible in a suit alleging that the cruise control system in a Lincoln Towncar malfunctioned and caused a single-vehicle accident that resulted in the driver's paralysis. The agency's conclusion was published in a report that was commissioned in response to an increasing number of complaints of sudden acceleration in the 1980s and revealed that the only plausible explanation for sudden acceleration absent residual physical effects of vehicle malfunction was that such events were caused by the drivers' mistaken pedal applications. The plaintiff was driving the car in reverse at a gas station when the vehicle suddenly accelerated and knocked over a light post, causing her injuries. The manufacturer offered the NHTSA report to rebut plaintiff's expert's theory of causation. The manufacture's experts testified that the report was one factor in support of their conclusions that plaintiff's accident did not result from a defect in the cruise control system. On appeal, the plaintiff claimed that the NHTSA report was unreliable and not relevant, and thus improperly admitted at trial. The court found that, for the manufacturer's purposes at trial, the report met the relevancy standard. The court also found that public reports, such as the NHTSA report at issue, are presumed admissible because of the reliability of the public agencies, the lack of improper motive in conducting studies for the benefit of the public, and the assumption the public officials will perform their duties properly. The court noted that this presumption of admissibility can be overcome, but that the plaintiff failed to present sufficient evidence to carry that burden. The plaintiff also argued that the trial court erred by prohibiting as evidence a collection of consumer complaints of vehicle malfunctions contained in a database catalogued and maintained by the manufacturer. The incidents described in the database were not substantially similar to the plaintiff's complaint to satisfy the relevance requirement. The district court's decision to admit the NHTSA report and exclude the collection of unsworn consumer complaints was affirmed. (CCH Consumer Product Safety Guide, No. 879, Nov. 17, 2006.)

CPSC SEEKS TO EXTEND PRODUCTS-RELATED INFORMATION COLLECTION
The CPSC has requested an extension of the existing approval of collections of information conducted during follow-up activities for product-related injuries. On August 4, 2006, the Commission announced its intention to seek approval of a collection of information from persons who have been involved in, have witnessed, or otherwise have knowledge of consumer products-related incidents. The agency received two comments. One commenter requested that the agency post reports of problems it found and take action on the information acquired. The other request, from the Association of Trial Lawyers of America, supported the proposed extension and requested that the agency broaden the scope of its investigation to include a wider variety of product-related incidents, and to make the incident reports available in unredacted form to counsel for plaintiffs and defendants. The agency noted, however, that the Consumer Product Safety Act precludes the disclosure of such information. The information collected relates to the cause and prevention of death, injury, diseases, other health impairments, and economic losses that result from accidents involving consumer products, and is used to support rulemaking proceedings, development and improvement of voluntary standards, information and education programs, and administrative and judicial proceedings to remove unsafe products from the marketplace and consumers' homes. The information is gathered through face-to-face or telephone interviews with persons involved in or who have witnessed incidents associated with consumer products. (CCH Consumer Product Safety Guide, No. 879, Nov. 17, 2006.)