Articles Posted in Product Liability

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The Seventh Circuit Court of Appeals in Chicago has reversed a federal judge’s dismissal of a Illinois product defect case. Donald Malen slipped while getting off his reconditioned riding lawn mower injuring his foot by the rotating blades of the mower. He and his wife filed a lawsuit alleging that the manufacturer, MTD Products, Inc. and the seller of the product, Home Depot USA, Inc. were responsible for the injury. The case,
Malen v, MTD Products, Inc. and Home Depot USA, Inc., No. 08-3855 (Nov. 19, 2010)., was originally filed the Circuit Court of Cook County, but was removed to federal court because of diversity of citizenship of the parties.

Before the plaintiff’s injury, he had been using riding mowers for more than 40 years. In 2001 Mr. Malen purchased a Yard-Man riding mower at Home Depot that was manufactured by MTD in 1998. The mower was advertised as a reconditioned model, with a full manufacturer’s warranty.

The mower was designed with a safety interlock system. One component of the safety system was the “operator presence control”, which would shut off the engine if the operator rose from the seat without first disengaging the cutting blade and setting the parking brake.

The mower also came equipped with a device that cut off the blades movement if the mower were put in reverse gear.

Plaintiff acknowledged that before the incident he had read and understood the admonishments found in the instruction manual and that over three years he had operated the mower 30-50 times without a problem. But in 2004, while Malen was mulching leaves with the mower, the right front tire became wedged over a curb. As he rose from the seat and stepped off the mower, his left foot slipped under the cutting deck where it was struck by the cutting blade.

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The National Highway Traffic Safety Administration (NHTSA) has issued a warning to users of 15-passenger vans to take specific safety steps in keeping its occupants safe. There had been two recently reported fatal truck crashes, one in New York and one in Georgia involving 15-passenger vans that have rolled over and resulted in ten deaths.

NHTSA has warned that tire maintenance is essential in preventing rollover crashes. Users of 15-passenger vans are cautioned to make sure that the vehicles have appropriately-sized tires that are inflated to the correct level before each trip. NHTSA has also recommended that spare tires not be used as replacements for worn tires. Fifteen-passenger vans have a history of tire wear that necessitates rotation of tires and/or replacement on a regular basis. Many tire manufacturers recommend that tires older than ten years old not be used at all.

Many of these vans are used for church groups, non-profit organizations, colleges and public schools.

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An Illinois Appellate Court recently ruled on spoliation issues in an Illinois product liability lawsuit. A spoliation claim can be brought if an entity, in this case Enterprise Leasing Company of Chicago, destroys or loses evidence that would be an important component of a potential lawsuit. Generally the court preserves an entity’s duty to preserve evidence; however, the trial court in Esther Brobbey, et al. v. Enterprise Leasing Company of Chicago, No. 1-08-3474, dismissed a spoliation claim against the car rental company.

When renting a 2003 Chevrolet Astro van from Enterprise, John Brobbey noted that the vehicle jerked and wobbled upon application of the brakes. He advised the agent of his findings before driving off with the vehicle and was told that the brakes were fine. However, two days later the brakes failed while Brobbey’s wife was driving the van, causing her to lose control. The vehicle rolled over several times and ended up landing in a ditch.

A little over a year after the Illinois auto accident, General Motors had issued a recall of its 2003 Chevrolet Astro vans regarding a suspension defect that could result in loss of control of the vehicle. Typically in an Illinois product liability case when a product defect is the potential cause of a party’s injuries the plaintiff needs to demonstrate that the specific product in question is defective. This is typically done by performing a thorough inspection of the product, which in this instance would be the Astro van. However, by the time the plaintiffs were aware of the recall the Astro van they were driving had already been destroyed, thus giving rise to the spoliation claim against Enterprise.

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A recent Illinois Appellate court decision on a product liability claim reviewed the elements needed to prove strict liability in an Illinois product liability claim. In Charles Salerno v. Innovative Surveillance Technology, Inc., No. 1-09-1402, the plaintiff appealed the trial court’s decision to grant the defendant’s motion for summary judgment. The Appellate Court affirmed the trial court’s decision, but for different reasons.

The basis of the product liability claims in Salerno are centered around an injury the plaintiff sustained while working in a surveillance cargo van manufactured by the defendant. The van contained a video periscope system. The plaintiff’s injury occurred when he tried to stand inside the cargo van and struck his head on the metal periscope. According to the plaintiff’s product liability complaint, his severe head trauma and resulting seizures could have been avoided if the defendant’s product had not been unreasonably dangerous and defective.

The trial court granted the defendant manufacturer’s motion for summary judgment on the grounds that the risk of being harmed by the periscope was open and obvious and that the defendant had no duty to protect the plaintiff from any resulting injuries.

Upon review, the Appellate Court was critical of the trial court’s reason for dismissing the Illinois product defect lawsuit. In a prior decision the Illinois Supreme Court decided that a product’s open and obvious risk of harm does not constitute an absolute defense in a strict liability count. While this defense may be considered as part of the risk-utility analysis it can not constitute the only factor.

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A Cook County personal injury lawsuit involving an Illinois auto accident that left a 19 year-old girl a quadriplegic recently received a $6.05 million settlement. The bulk of the settlement in Perez v. Baeza, et al., No. 09 L 3958 came from Sparco, a distributor of race car seats that was involved in the case under product liability claims. Sparco contributed $6 million, which was the full extent of its insurance policy.

The events leading to the case began in 2005 when Perez’s boyfriend, Baeza, was driving them home from a quinceañera, i.e. a coming of age celebration for a 15 year-old girl. Baeza had been drinking and was speeding along when his car left the roadway and struck a tree. He was later charged with an aggravated DUI.

At the time of the Illinois car crash Perez was a passenger in the front seat. Baeza had modified the front seats of his car, replacing the factory-installed seats with race car seats distributed by the California-based Sparco Motor Sports, Inc. Perez was left a quadriplegic as a result of the auto accident.

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An Illinois worker sued his employer for negligent spoliation of evidence, claiming that it had breached its duty to preserve evidence from a work site forklift accident in Gerard v. ConAgra Foods, Inc., No. 06 C 6163 (April 28, 2010). The plaintiff’s lawsuit was based on his claim that his employer’s negligence in preserving evidence from the accident prevented him from winning an Illinois product defect lawsuit against the forklift manufacturer. Based on its review of the case facts and relevant case law, the court held that plaintiff did not demonstrate that ConAgra Foods had breached its supposed duty to preserve evidence.

While working at one of ConAgra’s warehouses a forklift hit the plaintiff from behind. The force of the impact knocked the plaintiff to the ground, where the forklift ran over his right leg. The forklift in question was one of four machines that ConAgra had rented for use at its St. Charles, Illinois warehouse.

In order to make a viable Illinois product defect case against the forklift manufacturer the plaintiff needed to know which of the four forklifts had hit him. Without being sure which forklift was involved in the accident it would be difficult for the plaintiff to claim that the accident was caused by the forklift’s malfunction as a result of a product defect.

However, while ConAgra did make an investigation into the accident it never document which forklift was responsible. Furthermore, ConAgra had already returned at least on of the forklifts to the leasing company by the time the plaintiff began to investigate the workplace accident on his own. Therefore, the plaintiff was never able to discover which forklift ran him over and consequently was unable to prove his product defect case against the forklift manufacturer.

The plaintiff sought restitution from his employer on spoliation of evidence claims. In response, the defendant ConAgra filed a motion for summary judgment stating that given the relevant facts that it owed no duty the plaintiff on the spoliation issue.

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The U.S. Consumer Product Safety Commission (CPSC) has issued a recall on over 2 million drop-side cribs. Drop-side cribs are baby cribs whose sides raise and lower in order to make it easier for parents to lift their baby out of the crib. However, numerous reports injury or deaths resulting from repeated malfunctions of these movable sides has led to the widespread recall of drop-side cribs.

According to reports, these cribs’ product defect seems to result from a product design defect that allows the baby to slip into the gap that opens up when the movable sides separate from the crib. There have been reports of over 30 babies in the U.S. alone who have died as a result of the malfunctioning cribs and over 250 consumer reports of defective sides during the span of 2000 to 2009. The inherent dangers in these types of cribs has prompted a spokesperson from Kids in Danger, a Chicago-based advocacy group, to warn parents not to use a drop-sided crib.

A 2007 expose by the Chicago Tribune can be credited with first exposing the dangers that can result from the crib’s product defect. To date there have been approximately 9 million cribs recalled. For more information on the specific cribs included in the recall, visit the U.S. Consumer Product Safety Commission’s website.

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The Illinois Supreme Court will hear an Illinois product defect case to determine whether to affirm or remand a $43 million jury verdict against Ford Motor Co. in Jablonski et al., etc. v. Ford Motor Company, No. 11096. The Illinois product liability lawsuit included claims that the auto manufacturer negligently installed a rear axle fuel tank, which caused injuries to the plaintiffs following a high-speed, rear-collision auto accident.

The Illinois Appellate Court has already affirmed the lower court’s ruling, but Ford Motor Co. brings its arguments before the Illinois Supreme Court in an attempt to reverse the trial court’s rulings and resulting product defect jury verdict. Jablonski was filed after the plaintiffs were involved in a rear-end auto accident where their 1993 Lincoln Town Car was struck by a Chevrolet Lumina at 60 mph. The force of the collision propelled a pipe wrench laying in plaintiffs’ trunk through the trunk’s walls and into the fuel tank, which resulted in a fire that left the husband dead and the wife severely burned.

The 1993 Lincoln Town car was one of the four vehicles, including one designed for police, that was built with a fuel tank behind the rear axle. Plaintiffs allege that Ford was not only negligent in locating the fuel tank in that position, but it also failed to guard against and warn of the dangers of locating the fuel tank behind the rear axle.

Rather than filing a strict liability lawsuit, the plaintiffs’ brought a negligent design claim against the car manufacturer. While strict liability and negligence claims both require the plaintiff to prove that there was a design defect, the negligence claim also requires that the manufacturer knowingly failed to exercise reasonable care. Because there is an additional burden of proof under manufacturer negligence claims most product liability lawsuits include strict liability, not negligence claims.

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The first Avandia case set for trial against drug manufacturer GlaxoSmithKline (GSK) settled for an undisclosed amount. The pharmaceutical litigation case was brought against GSK after new studies of Avandia revealed that using the drug could increase the risk of heart attacks and strokes.

No details of the settlement or the terms were announced except a statement indicating that the details of the settlement were to remain confidential. And while GSK would not indicate how many plaintiffs were involved in the recent settlement, according to reports by Deutsche Bank, as many as 5,000 claims for damages were reportedly consolidated in this Philadelphia case.

If the alleged number of settled claims is correct, then this could mean that GSK has settled almost half of the pending Avandia claims. Analysts have been evaluating the progress of GSK’s Avandia lawsuits and had originally estimated there to be around 13,000 claims against GSK that would take around $6 billion in total to settle. While GSK has yet to confirm the actual numbers in any of the Avandia cases, according to a recent Reuters’s article by Ben Hirschler, the recent developments indicate that GSK’s final payout would be considerably less. New estimates indicated that the final payout might be close to $1.1 billion instead of the $6.6 billion originally anticipated.

It will be interesting to see whether GSK plans to settle the next set of claims, which is scheduled for an October 2010 trial in Philadelphia. To date it has not settled any of its multi-district litigation claims that are pending in federal court.

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Yesterday the House Committee on Oversight and Government Reform Johnson & Johnson’s Recall of Children’s Tylenol and Other Pediatric Medicines” in order to further investigate McNeil Consumer Healthcare/Johnson & Johnson’s recall of numerous children’s medicines.

Since its April 10, 2010 voluntary recall, Johnson & Johnson has recalled around 136 million bottles of more than 40 different types of popular medicines. A complete list of all the recalled children’s Tylenol products can be found at the company’s website. The list of drugs recalled by McNeil include Infants’ Tylenol, Children’s Tylenol, and Children’s Benadryl, and Children’s Motrin.

The massive recall of children’s Tylenol products was the result of manufacturing defects and poor quality control at McNeil’s manufacturing plants that caused the medications to contain either too much of the active ingredients, inactive ingredients that failed to meet testing standards, or metal specks within the medications.

The House committee’s investigation was set into motion by Chairman Towns and Darrell Issa (R-CA) earlier this month due to the large number of medicines included in the Tylenol recall. McNeil Consumer Healthcare could face a number of repercussions from the Food and Drug Administration (FDA), including seizures of its current products, criminal penalties, and/or additional sanctions.

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