September 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

$373 Million Award Reduced to $82.6 Million
A jury's original award of approximately $373 million, which the trial judge reduced to approximately $150 million, was further reduced on appeal to $82.6 million by a California appeals court. The damages were awarded to a driver who was rendered a paraplegic after her vehicle rolled over, crushing the vehicle's roof. The jury determined that there were design defects in both the vehicle's general stability and roof strength and that the manufacturer and dealer failed to warn of those defects. (Buell-Wilson v. Ford Motor Co., Cal. Ct. App., CCH Products Liability Reporter ¶17,495)

New Study Looks at Issue of AED Safety Alerts, Recalls
Despite frequent recalls and safety alerts by the Food and Drug Administration (FDA) for portable defibrillators and accessories, the number of actual device malfunctions appeared to be relatively small, according to a study in the August 9 issue of the Journal of the American Medical Association (JAMA). Automated external defibrillators (AEDs), which are used to restore regular heart beat in patients with cardiac arrest, have been widely distributed in public places in an effort to improve cardiac arrest survival rates. The study found that although the rate of AED advisories did not increase, the number of products affected by those advisories had increased. (CCH Products Liability Reporter, No. 1117, August 23, 2006)

Lactose Intolerance Warning Claim Preempted by FDCA
A failure-to-warn claim concerning a lactose intolerance warning on dairy products was preempted by federal law, according to the U.S. District Court for the District of Columbia. A class action was brought by a group of plaintiffs who, not knowing they were lactose intolerant, suffered the effects of the condition after consuming the defendant's milk products. The class argued that the milk producers should be required to include a warning label on their milk products warning of the potential adverse reactions caused by lactose intolerance. (Milton Mills v. Giant of Maryland, LLC, D. DC, CCH Products Liability Reporter ¶17,510)

Consumer Product Safety

CPSC Proposes Ban on 3-Wheel ATVs, Other Standards
Based on reports of 6,494 ATV-related deaths between 1982 and 2004, the Consumer Product Safety Commission has concluded that three-wheeled ATVs present an unreasonable risk of injury because they are inherently less stable than four-wheeled models, and result in three times the risk of injury. The Commission, therefore, proposed rules that would ban three-wheeled all terrain vehicles (ATVs) and establish performance and design standards for four-wheeled models (CCH Consumer Product Safety Guide ¶40,208).

CPSC Proposes Portable Generator Labeling Requirements
The Consumer Product Safety Commission proposed a rule to reduce the rising death toll from carbon monoxide poisoning associated with the use of portable generators. The proposed rule would require manufacturers to provide consumers with notification of the carbon monoxide poisoning hazard associated with the use of portable generators by placing a new warning label on the generators. The proposed warning label would include pictograms and provide technical data relating to the presence of carbon monoxide in the portable generator exhaust. The labels also would include statements connecting that technical data with safety concerns, such as "Using a generator indoors WILL KILL YOU IN MINUTES," and warning consumers that a generator should never be used inside the home or in partially enclosed areas such as garages (CCH Consumer Product Safety Guide ¶40,209).

Motor Vehicle Safety

NHTSA Amends Crash Protection Safety Standards
In an effort to increase frontal crash protection for occupants of different sizes, the National Highway Traffic Safety Administration issued a final rule that increased the maximum test speed for the belted rigid barrier crash tests using the fifth percentile adult female test dummies from 30 mph to 35 mph—the same speed used in tests that involve the 50th percentile adult male test dummies. Beyond reducing injury and fatality rates for small-statured occupants, the agency believes that this rule would extend improved belted crash protection to occupants of different sizes (CCH Consumer Product Safety Guide ¶41,947).

Standards Set for Event Data Recorders
Responding to a growing practice in the automotive industry of voluntarily installing event data recorders (EDRs) in an increasing number of vehicles, the National Highway Traffic Safety Administration issued a final rule to standardize the data obtained from EDRs. NHTSA intends the rule to enable development of an EDR infrastructure that will speed emergency medical services by creating a platform for automatic crash notification. NHTSA also hopes that standardized EDR data will contribute to a greater understanding of crash events, which could result in safer vehicle designs and more effective safety regulations (CCH Consumer Product Safety Guide ¶14,420).