November 2008

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

Should Candy Maker have Warned of “Underdeveloped” Peanut?
A consumer who claimed he sustained injury to his tooth and jaw after biting into a hard, "undeveloped" peanut in a candy bar raised a question as to whether the candy bar manufacturer should have warned of the potential risk, the U.S. District Court for the District of Nebraska ruled, applying Kansas law. The court held that a jury could decide whether the manufacturer's failure to warn was reasonable under the circumstances. The consumer brought several product liability claims against the candy bar manufacturer, alleging a hard, rock-like peanut in a candy bar split his tooth and caused him continuous jaw problems and loss of hearing. Depositions by two of the candy manufacturer's employees showed that the manufacturer had been aware of the candy bar's damage to consumers' teeth and jaws since the 1990s. In its defense, the candy bar manufacturer argued that it had met all regulatory standards, which under applicable Kansas product liability law deemed the product not defective absent a showing that the manufacturer had not followed a standard of care or that it should have taken additional precautions. The consumer raised a genuine issue of fact as to whether the candy bar manufacturer should have warned of the potential hazards, the court concluded. (Newton v. Standard Candy Co., Inc., D. Neb., CCH Products Liability Reporter ¶18,103 (ip access users))

Learned Intermediary Doctrine Barred Warning Defect Claim
Claims by a patient that a pharmaceutical manufacturer failed to warn of the potential risks of a prescription drug used to treat his diabetes were barred by the learned intermediary doctrine. Absent a sufficient showing that one of the few situations applied in which a duty to warn was owed to a patient, the manufacturer had no duty to warn the patient, the U.S. District Court for the District of Puerto Rico concluded. Under the learned intermediary doctrine, the pharmaceutical manufacturer had no duty to warn the patient of the potential risks and dangers of the diabetes drug. The manufacturer was only required to provide a warning to the patient's prescribing physician, which was unarguably adequate. Thus, the patient's claims were prohibited. (Mendez v. Adventis Pharma, D. P.R., CCH Products Liability Reporter ¶18,102 (ip access users))

Preemption Rejected by Georgia High Court in Vaccine Action . . .
Individual and representative design defect claims against several vaccine manufacturers by the parents of a child who allegedly suffered neurological damage caused by a vaccine made with the preservative thimerosal were not preempted by the National Childhood Vaccine Injury Compensation Act of 1986 (Vaccine Act), the Georgia Supreme Court ruled. The parents' claims under Georgia law included strict liability and negligence, specifically alleging that the vaccine manufacturers could and should have manufactured children's vaccines without thimerosal, which contains the toxic substance mercury, before the parents' son was vaccinated in 1998. (American Home Products Corp, et al., Ga. S.Ct., CCH Products Liability Reporter ¶18,116 (ip access users))

. . . But State Claims Against Tobacco Maker Not Preempted in Wisconsin or Ohio
A Wisconsin smoker's claim against a cigarette manufacturer alleging that his 30 years of smoking caused his emphysema was not preempted by the Federal Cigarette Labeling and Advertising Act (FCLAA), the U.S. District Court for the Eastern District of Wisconsin ruled. While the court noted that the smoker might have difficulty establishing his claim, the cigarette manufacturer could not overcome the presumption against preemption. According to the court, state common law afforded a remedy to individuals who could establish that tobacco products, rather than their own negligence or disregard of the inherent risks, caused them injury. Because the claimant's pro se suit did not interfere with the advertising or labeling of cigarettes, it was not preempted. (Richardson v. R.J. Reynolds, E.D. Wis., CCH Products Liability Reports ¶18,111 (ip access users))

The Ohio Products Liability Statute did not preempt a common law claim for breach of implied warranty by a worker who was injured in an accident involving an industrial laminating machine and who sued several companies in the machine's chain of ownership, the U.S. District Court for the Northern District of Ohio held. Although the Ohio legislature explicitly intended the state's products liability act as amended and effective in 2005 to abrogate all common law products liability causes of action, the applicable law governing preemption of the worker's claim was the state of the law prior to the legislature's amendment because the worker was injured in 2004 (even though he filed his complaint in 2006) and because the legislature did not make clear its intent that the courts apply the amended statute retrospectively. LeBeau v. Lembo Corp., N.D. Ohio, CCH Products Liability Reporter ¶18,114 (ip access users))

Product Safety and Liability Decisions

Seat Belt Standards Preempted State Products Liability Claims
State products liability claims based on negligence, strict liability, and failure to warn brought by the parents of a child who was killed in an automobile accident were preempted by Federal Motor Vehicle Safety Standard (FMVSS) 208, governing seat belt assemblies or automobiles, a Georgia appeals court determined. The parents alleged that the center rear passenger seat, in which their child was seated and wearing a seat belt at the time of the accident, had a defective seat belt system which did not properly restrain the child in the accident, causing or contributing to the child’s death. Specifically, the parents alleged that the seat belt assemble was defective because it used a lap-only seat belt design rather than a lap/shoulder seat belt. FMVSS 208 gave automakers the option to install either the lap-only belt or the lap/shoulder belt and the court noted that it was undisputed that the manufacturer complied with FMVSS 208’s requirements. To allow an action seeking to impose liability on the manufacturer for choosing to install a lap only seat belt as authorized by the standard would conflict with and frustrate the policy of the Motor Vehicle Safety Act and the safety regulations, the court explained, and therefore, the action was preempted. Similarly, the court found that evidence of the existence of alternative passenger restraint designs that the manufacturer could have used instead of the lap-only seat belt to make the vehicle safer was intended to advance a risk-utility analysis for a product liability design defect claim which was also preempted by the standard. (Parks v. Hyundai Motor America, Inc., Ga,Ct.App., CCH Products Liability Reporter ¶18,108 (ip access users) and CCH Consumer Product Safety Guide ¶75,771 (ip access users))

Product Safety -- CPSC

CPSC Establishes “Third-Party” Laboratory Testing Criteria
As directed by the Consumer Product Safety Act as amended by the Consumer Product Safety Improvement Act of 2008, the Consumer Product Safety Commission has published a notice of requirements for accreditation of third party conformity assessment bodies to test children's products for conformity with the Commission's regulations for full-size baby cribs, for non-full-size baby cribs, and/or for pacifiers. Each manufacturer, including the importer, or private labeler of cribs and/or pacifiers subject to the regulations must have products manufactured more than 90 days after the Federal Register publication date of this notice tested by a laboratory accredited to do so and must issue a certificate of compliance with the applicable regulations based on that testing. (CCH Consumer Product Safety Guide ¶56,858 (ip access users))

Truck Owners Action for Reporting Violations Dismissed
The Consumer Product Safety Act does not create a private right of action allowing consumers to assert alleged violations of its product hazard reporting requirements, the U.S. District Court for the District of Minnesota ruled. Therefore, an action brought by truck owners to recover for injuries which were allegedly caused by hazards that should have been reported to the Consumer Product Safety Commission in accordance with the Act's reporting requirements was dismissed. Consequently, state law claims for negligence, strict liability, breach of express and implied warranties, misrepresentation, and violation of Minnesota's false advertising statute and Consumer Fraud Act were removed to state court as no federal question remained. (Forbes v. General Motors Corp., D Minn., CCH Consumer Product Safety Guide ¶75,772 (ip access users))

CPSC Considers Crib Defect Rulemaking
The CPSC's Early Warning System identified concerns with the durability of cribs, especially those with drop sides that can disengage, prompting the Commission to urge parents and caregivers to closely inspect the hardware and stability of their cribs to ensure that all parts are in place and secure. Since the creation of the CPSC Early Warning System in the fall of 2007, the Commission has conducted five crib recalls where the hardware was broken, missing or otherwise failed to function. The CPSC noted that cribs with drop sides are the type most likely to experience hardware problems. (CPSC News Release, #09-018, October 21, 2008, CCH Consumer Product Safety Guide, Report 926, November 10, 2008)

Product Safety -- NHTSA

Changes to School Bus Safety Standard Adopted
A final rule issued by the National Highway Traffic Safety Administration (NHTSA) upgraded the school bus occupant protection requirements of the federal motor vehicle safety standards by amending FMVSS No. 222, “School bus passenger seating and crash protection,”; and also by amendments to FMVSS Nos. 207, 208, and 210 relating to the strength of the seating system and seat belt anchorages. Information was also provided to state and local jurisdictions to use when deciding whether to order seat belts on large school buses, school buses with a GVWR greater than 10,000 pounds. The final rule responded to comments on the agency's discussion in the NPRM of recommended “best practices” concerning the belts on the large buses. (CCH Consumer Product Safety Guide ¶41,990 (ip access users))