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					Product Liability—Case Law Update 2010

             Michael L. Reitzell
             Duane Morris LLP
             11149 Brockway Road, Suite 100
             Truckee, CA 96161-2213
             (530) 550-2054
             (530) 452-2927 [fax]
             mlreitzell@duanemorris.com

             K. Kristann Carey
             McDonald’s Corporation
             2915 Jorie Blvd.
             Oak Brook, Ill 60523
             (630) 623-4881
             (630) 623-3374
             kris.carey@us.mcd.com




                              Return to course materials table of contents
Michael L. Reitzell is a senior associate in the Duane Morris LLP Lake Tahoe
office. He represents clients in tort, product liability, contract and environmental mat-
ters at both the trial and appellate levels, with a focus on the recreation industry. An
active DRI member, he currently serves as chair of the Annual Meeting Subcommittee
for the Young Lawyers Committee. He is a frequent speaker at DRI seminars and has
authored several articles.
K. Kristann Carey is senior counsel at McDonald’s Corporation in Oak Brook, Illi-
nois. She is responsible for overseeing tort litigation on behalf of McDonald’s Corpo-
ration and its subsidiaries in the central United States. Ms. Carey also advises senior
management and international business units regarding branded consumer products
and Happy Meal toys. She is on the steering committee of DRI’s Corporate Counsel
Committee. Prior to joining McDonald’s Corporation, Ms. Carey was an attorney in
the litigation practice group of a large law firm, where she concentrated her practice in
product liability, mass toxic tort and complex commercial litigation.
Product Liability—Case Law Update 2010


Table of Contents
Presentation ....................................................................................................................................................... 231




                                                Product Liability—Case Law Update 2010                              v Reitzell and Carey                   v      229
Presentation
         Introduction and Acknowledgement
           This compilation would not have been possible without the help of our many authors, named below.
A great many young lawyer members of DRI assisted in assembling this exhaustive year in review of product
liability cases. We suggested a number of topics for the authors to address, and they selected the most pertinent
cases within their jurisdictions. A huge thank you to all of them—we could not have done this without you!




                                Product Liability—Case Law Update 2010        v Reitzell and Carey      v    231
   I. First Circuit
            Michael J. Cahalane                                   Gregory Gentry
             Cetrulo & Capone                                       Foley Hoag
           2 Seaport Lane 10th Fl                            155 Seaport Blvd Ste 1600
            Boston, MA 02210                                    Boston, MA 02210
              (617) 217-5500                                      (617) 832-1226
           mcahalane@cetcap.com                               greg.gentry@gmail.com

Tort Reform

       No significant cases to report.

Preemption

Feeney v. Dell, Inc., 454 Mass. 192 (2009)

        Plaintiffs filed a putative class action claiming defendant computer manufacturer had
violated Mass. Gen. L. ch 93A, the Massachusetts unfair and deceptive practices statute by
collecting sales tax on plaintiffs’ purchase of service contracts when no such tax was actually
due. Defendant successfully moved to compel arbitration of the named plaintiff’s individual
claims pursuant to a provision of the terms and conditions of sale mandating arbitration on an
individual basis for any claim against defendant arising from the sale. After the arbitrator ruled
for defendant on the merits, the trial court denied plaintiffs’ motion to vacate the arbitration
award and to reconsider the initial order granting defendant’s motion to compel arbitration.

        Plaintiffs appealed and the Supreme Judicial Court granted their application for direct
appellate review. Plaintiffs argued that the mandatory individual arbitration provision was
against public policy. The court accepted this argument, reasoning that the legislative history of
93A, particularly the 1969 amendments that created a private remedy for unfair and deceptive
acts and practices, demonstrated a purpose to provide a class remedy for small-value consumer
claims that would be unecomonical to litigate on an individual basis.

        The court rejected defendant’s argument that the attorney’s fees and multiple damages
provisions of ch. 93A were sufficient to vindicate a consumer’s right to seek relief for an
individual small-value claim, reasoning that those provisions would not guarantee that the
consumer would be able to attract counsel willing to prosecute the claim without the ability also
to aggregate any relevant class of claims. The court added that the mandatory individual
arbitration provision also violated public policy by undermining the public interest in preventing
wrongdoing and negatively affecting not only the rights of the consumer who is compelled to
arbitrate, but also those of the “unnamed class members” whose rights the consumer seeks to
vindicate. The court made clear that it was the individualized nature of the mandatory arbitration,
not the fact of mandatory arbitration itself, that violated public policy.

       After determining that the arbitration provision violated Massachusetts public policy, the
court next refused to enforce the terms and conditions’ choice-of-law provision requiring the
application of Texas law, the state where defendant was headquartered. While the mandatory



                                                4
individual arbitration provision would likely be upheld under Texas law, but held that
Massachusetts’ interest in vindicating its “fundamental policy” favoring class actions for small-
value consumer protection claims under ch. 93A was materially greater than Texas’ interest in
minimizing corporations legal expenses, thus mandating application of Massachusetts law.

       The court concluded that its application of a public policy defense did not contravene the
Federal Arbitration Act’s guarantee that agreements to arbitrate are “valid, irrevocable, and
enforceable, save upon such grounds that exist at law or in equity for the revocation of any
contract,” because a public policy defense is a generally applicable tenet of contract law.

       While the court held the individual arbitration agreement was invalid, it held that the
taxes collected were not unfair or deceptive under ch. 93A because the collection of the taxes
was motivated by a perceived legislative mandate.

Holdren v. Buffalo Pumps, Inc., 614 F.Supp. 2d 129 (D. Mass. 2009)

        Plaintiffs sued numerous manufacturers in Massachusetts Superior Court claiming a
failure to warn of the dangers associated with asbestos. Defendants removed the case to federal
court under 28 U.S.C. § 1442(a)(1) which allows removal of civil actions against persons acting
under a federal officer, asserting a federal contractor defense of immunity from having followed
United States Navy specifications. Plaintiffs moved to remand for lack of jurisdiction. The court
remanded the case. In order to assert the federal contractor defense, one must show: (1) a
colorable federal defense; (2) that the defendant acted under a federal officer; and (3) a “causal
connection” between the acts taken under color of office and the conduct for which the plaintiff
was sued. A “colorable” federal contractor defense to a failure-to-warn claim is established by
showing that: (1) the government issued reasonably precise specifications governing warnings;
(2) the contractor provided the warnings required by the government; and (3) the contractor
warned the government about the dangers in the equipment’s use that were know to the
contractor but not to the government.

         Defendants failed to prove that the Navy exercised control over the accompanying labels,
manuals and warnings despite their control over the design of the ships and products themselves.
The court rejected defendants’ argument that any attempt to warn the Navy would have been
futile, concluding, instead that the Navy’s silence about asbestos suggested that it was unaware
of the risk rather than that it knew of such hazards and exercised its discretion not to issue a
warning. Therefore, there was no underlying Navy policy that would have prevented the
defendants from satisfying their state law duty to warn of the risks of asbestos.

In re Pharm Industry Av. Wholesale Price, 582 F.3d 136 (1st Cir. 2009).

         Consumers filed a class action against pharmaceutical manufacturer, AstraZeneca,
claiming that they had overpaid Medicare co-payments because the manufacturer had inflated the
price of the drug, Zoladex. AstraZeneca appealed the judgment, entered after a lengthy bench
trial of liability for unfair and deceptive business practices in violation of Mass. Gen. L. ch. 93A.
AstraZeneca argued that the court’s finding of liability conflicts with and is preempted by federal
law. While they argued four different bases for preemption, the court identified a single thrust for
the arguments – the choices made by Congress in enacting the complex set of Medicare statutes



                                                 5
and in choosing the metrics by which Medicare Part B would compute and reimburse claims
leave no room for additional state law regulation addressing the facts at issue here. The court
rejected this argument. The court finds no implied preemption on the part of Congress in
enacting the Medicare statutes. Congress was concerned about Medicare overpayments, so it
strains credulity to believe that they intended manufacturers to be able to manipulate prices by
being able to be reimbursed at any rate they saw fit to publish as the average wholesale price
(“AWP”) in industry publications. Further, it is telling that Congress has never enacted an
express preemption provision in the Medicare statutes. Further, the statutes reserve a regulatory
role for states that undermines the notion that Congress intended to occupy the field. Far from
proving that Congress intended to preempt state laws, the evidence suggests the opposite: that
Congress relied on the existence of state consumer protection and fraud statutes to combat
severely manipulative pricing schemes resulting in overpayments by Medicare and its
beneficiaries.

White v. Raytheon Co., 2008 WL 5273290 (D.Mass. Dec. 17, 2008)

        The estate and minor children of a Navy pilot shot down over Iraq by an errant “friendly”
missile sued the manufacturer of the missile alleging negligent design and manufacture, breach
of warranty, gross negligence and violation of Mass. Gen. L. ch. 93A, the Massachusetts unfair
and deceptive practices statute. After the parties propounded discovery to the United States
Army, the United States intervened as an interested party and the Secretary of the Army filed a
declaration asserting state secrets privilege over technical information regarding the design and
performance of the missile and the rules of engagement for the missile battery that fired the
missile that shot down the plaintiff’s plane. Defendant then moved to dismiss. The court noted its
limited ability to review a declaration of state secrets – it may only look to determine whether
there is a reasonable danger that releasing the information would expose military matters which,
in the interest of national security, should not be released. The court credited the Army’s
declaration and so barred discovery of the information at issue. The plaintiff argued that its case
could still continue without the barred information. The defendant countered that it would not be
able to put on a government contractor defense if it was unable to access this information.
Defendant also argued that plaintiff would be unable to make out its negligent design case or to
prove the necessary causation without the barred information. The court believed that the
plaintiffs could make out a prima facie case, but dismissed the case as there was no fair way to
defend the case without revealing state secrets.

Environmental of “Green” Products Litigation

       No significant cases to report.

Market Share or Other New Theories of Liability

Rule v. Fort Dodge Animal Health, Inc., 604 F.Supp.2d 288 (D.Mass. 2009)

       Plaintiff twice had her dog injected with a heartworm medication that was later recalled
due to reported adverse reactions among injected dogs, including death. Plaintiff’s dog suffered
no adverse consequences, did not develop heartworm, and plaintiff was unaware of any
increased risk of injury. Despite this, plaintiff filed a putative class action against the



                                                6
manufacturer, alleging claims of negligence, breach of the implied warranty of merchantability,
breach of the implied warranty of fitness for a particular purpose, breach of contract, and
violation of Massachusetts consumer protection statute (Mass. Gen. L. ch 93A). Plaintiff sought,
as damages, the difference between the actual value of the medication and what its value would
have been had it not been defective.

        The court rejected the negligence claim because purely economic losses are not
compensable in a tort action absent personal injury or property damage. The warranty claims
were rejected because they failed to allege a cognizable injury. The heartworm medication was
designed to protect the dog for six months, so it had exhausted its useful life without causing any
harm to plaintiff’s dog. The breach of contract claim was rejected because, although defendant
had guaranteed it would pay expenses for any dog that contracted heartworm, this dog did not
contract heartworm. Finally, the 93A claim was dismissed because the plaintiff had failed to
allege a compensable loss because she had received the benefit of the bargain – the medication
had protected her dog for the entire six months it was supposed to.

Tobacco

Donovan v. Philip Morris USA, Inc., 455 Mass. 215 (2009).

        A putative class of Massachusetts residents with a history of smoking Marlboro cigarettes
brought an action against cigarette manufacturer, Philip Morris, in federal court asserting
negligent design and seeking future expenses of medical monitoring to detect lung cancer. Philip
Morris moved for dismissal and summary judgment. The United States District Court for the
District of Massachusetts certified questions of state law to the Supreme Judicial Court of
Massachusetts, including whether “the plaintiffs’ suit for medical monitoring based on
subclinical effects of exposure to cigarette smoke and increased risk of lung cancer, state a
cognizable claim and/or permit a remedy under Massachusetts state law.” The SJC answered in
the affirmative.

        In concluding that plaintiffs have stated a claim under Massachusetts law for future
medical expenses that may be satisfied by an adequate remedy at law, the court rejected
defendant’s contention that the “plaintiffs have not established the essential element of a
manifest injury, that is, physical harm manifested by objective symptomology.” The court held
that plaintiffs produced sufficient proof of impact to safeguard against false claims by proffering
evidence of physiological changes caused by smoking and expert medical testimony that,
because of these physiological changes, they are at a substantially greater risk of cancer due to
the negligence of Philip Morris.

        The SJC answered the second certified question, whether the applicable statutes of
limitations governing plaintiffs’ claims have expired, in the negative – noting that this issue must
be resolved on a motion for summary judgment or by a jury. The court held that if plaintiffs can
establish that no remedy existed before the diagnostic testing was accepted in the medical
community and the standard of care of the reasonable physician did not call for monitoring of
precancerous conditions prior to the statute of limitations period, the plaintiffs’ claims are timely.

Aspinall v. Philip Morris, Inc., 453 Mass. 431 (2009).



                                                  7
       A class of Marlboro Light cigarette smokers alleged that defendant cigarette
manufacturer engaged in unfair or deceptive practices in violation of Mass. Gen. L. ch. 93A, by
claiming that its cigarettes delivered lower tar and nicotine than regular cigarettes. On cross
motions for summary judgment, the defendants argued that the plaintiffs’ claim was preempted
by the Federal Cigarette Labeling and Advertising Act or, alternatively, barred by Mass. Gen. L.
ch. 93A, § 3. The trial court denied defendants motion and granted plaintiffs’ cross motion for
summary judgment on the same issues. The Supreme Judicial Court granted plaintiffs’
application for direct appellate review.

        The SJC rejected defendants’ first argument, citing the United States Supreme Court’s
decision in Altria Group, Inc. v. Good, 128 S. Ct. 1119 (2008) that the Federal Cigarette
Labeling and Advertising Act’s prohibition of state requirements based on smoking and health
does not encompass the more general duty not to make fraudulent statements. As to defendants’
second argument, that plaintiffs’ claims were barred by Mass. Gen. L. ch. 93A, § 3’s exemption
for actions otherwise permitted “by any regulatory board or officer acting under statutory
authority of the commonwealth or of the United States,” the court held that defendants did not
meet their burden of showing that the Federal Trade Commission affirmatively permits the use of
descriptors such as “light” and “lower tar and nicotine” on cigarette packages. Accordingly, the
court affirmed summary judgment for the plaintiffs.

Automobiles

Ortiz-Martinez v. Hyundai Motor Company, 602 F.Supp.2d 311 (D.P.R.2009).

        Plaintiffs filed an action against automobile manufacturer, Hyundai Motor Company, for
products liability and civil code negligence claims alleging an unsafe defect in an automobile’s
air bag system. Hyundai moved for summary judgment on the grounds that plaintiffs could not
establish a viable products liability claim without an expert witness. The court affirmed the
magistrate judge’s denial of defendant’s motion for summary judgment, holding that under
Puerto Rico law, a plaintiff in a products liability action can demonstrate unsafe defect in an
automobile’s air bag system without aid of expert testimony. The court noted that “[w]hether
plaintiffs have lay testimony sufficiently credible to support the conclusion that a product defect
caused the airbag’s deployment is clearly something for the jury to decide; if no lay evidence
exists to support that conclusion, then Hyundai will prevail.”

Drug Litigation

In re Pharmaceutical Industry Average Wholesale Price Litigation, 588 F.3d 24 (1st Cir.2009).

        Consumers filed a class action against pharmaceutical manufacturer, AstraZeneca,
claiming that they had overpaid Medicare co-payments because the manufacturer had inflated the
price of the drug, Zoladex. The parties agreed to settlement of $24 million – to pay treble
damages to all class members and the remainder (up to $10 million) to a charity funding cancer
research or patient care through a cy pres distribution. One of the representatives of the plaintiff
class appealed the order approving settlement arguing, inter alia, that settlement must be rejected
because it created a cy pres fund of up to $10 million rather than distributing all recovery to class




                                                 8
members and that the settlement was not fair, reasonable, and adequate because its method for
calculating and distributing class members’ damages was flawed.

         The issue of cy pres distribution of settlement awards was an issue of first impression for
the First Circuit. After citing other courts’ approval of cy pres settlement funds for charitable
purposes related to the class plaintiffs’ injury, it affirmed the lower court’s approval of the
settlement. The court held that the lower court did not abuse its discretion by approving
settlement because the cy pres fund did not take damages away from class members (each
member was paid treble their damages before cy pres distribution) and the cy pres fund served
the goals of civil damages (by ensuring that AstraZeneca fairly paid for the class’s alleged
losses).

In re Neurontin Marketing, Sales Practices, and Products Liability Litigation, 612 F.Supp.2d
116 (D.Mass.2009).

       In an action against the manufacturers of an anti-epilepsy drug alleging that consumers
suffered suicide-related injuries as a result of the drug, defendants moved to exclude plaintiffs’
expert testimony on the issue of general causation. The court denied defendants’ motion,
concluding that plaintiffs’ expert testimony that the defendants’ drug has the capacity to cause
suicide-related events was admissible under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509
U.S. 579 (1993).

        In reaching its decision, the court, relying on the Bradford Hill criteria for establishing
causation, found that an FDA study cited by plaintiffs provided evidence of an association (albeit
not statistically significant) between the drug and an increased risk of suicidality. The court also
based its decision on plaintiffs demonstration of a “biological plausibility” that a relationship
exists between suicidality and GABA, a chemical in the brain that’s levels are undisputedly
increased by the drug.

In re Neurontin Marketing, Sales Practices, and Products Liability Litigation, 257 F.R.D. 315
(D.Mass.2009).

        In an action by consumer purchasers and third-party payers against the manufacturers of
an anti-epilepsy drug alleging that defendants engaged in a fraudulent scheme to promote and
sell a drug for “off-label” conditions, the court denied plaintiffs’ motion for class certification.
While the court found that the commonality, numerosity, and typicality requirements to class
certification were satisfied, the requirement that questions of law or fact common to class
members predominate over any questions affecting only individual members was not. The court
rejected plaintiffs’ statistical report intended to demonstrate that defendants’ fraudulent
marketing of the drug caused financial injury to all plaintiff consumers because the statistical
analysis could not prove that defendants’ conduct was the proximate cause of plaintiffs’ alleged
injury. Without reliance on statistical proof to support a presumption of causation, the court
held that plaintiffs could not meet Rule 23(b)(3)’s predominance requirement, and plaintiffs’
motion for class certification was denied.

In re Neurontin Marketing, Sales Practices, and Products Liability Litigation, 618 F.Supp.2d 96
(D.Mass.2009).



                                                 9
        In an action against the manufacturers of an anti-epilepsy drug, defendants moved to
dismiss plaintiffs’ fraud claims that alleged that defendants’ employees and sales representatives
fraudulently misrepresented the drug’s safety and effectiveness for off-label usage and failed to
disclose studies indicating that the drug could cause behavioral disturbances, depression, and
suicidal actions. As grounds for their motion to dismiss, defendants argued that plaintiffs failed
to allege that prescribing physicians actually received and relied on any fraudulent
misrepresentations or omissions made during the course of improper off-label marketing.

       The court held that a pharmaceutical manufacturer has a duty to disclose to physicians
and patients material facts about the risks of the drug, particularly when it is engaged in off-label
marketing for uses not approved by the FDA, if it knows that the plaintiff and/or his prescriber
does not know or cannot reasonably discover the undisclosed facts. The court, however,
ultimately allowed defendants’ motion to dismiss all fraud claims alleging affirmative
misrepresentations or a suppression of information as part of a national advertising campaign
because plaintiffs failed to allege reliance on specific statements or misrepresentations.

Class Action Fairness Act (CAFA)

Amoche v. Guarantee Trust Life Insurance Company, 556 F.3d 41 (1st Cir.2009).

        In a class action brought in New Hampshire state court involving the refunding of
premiums for credit insurance policies purchased in conjunction with loans to automobile
buyers, defendant insurance company removed the case to federal court, claiming federal
jurisdiction under the Class Action Fairness Act. Plaintiffs filed a motion to remand the case to
state court. The district court granted plaintiffs’ motion and defendants appealed to the First
Circuit.

        Noting that this case marks the first time the court has addressed the burden on a
removing defendant to establish the amount in controversy under CAFA, the court held that, at
least where the complaint does not contain specific damage allegations, the removing defendant
must show a reasonable probability that the amount in controversy exceeds $5 million. The
court concluded that, based on the record, the likelihood that the amount in controversy exceeded
$5 million was, at best, a draw, and therefore affirmed the district court’s decision to remand.

College of Dental Surgeons of Puerto Rico v. Connecticut General Life Insurance Company, 585
F.3d 33 (1st Cir.2009).

        A professional association of dentists brought an action against insurance companies in
Puerto Rico state court alleging defendants engaged in fraudulent practices in claims processing.
Defendants removed the action to federal court claiming federal jurisdiction under the Class
Action Fairness Act and plaintiffs moved to remand. The district court granted plaintiffs motion
to remand based on the failure of the complaint to sufficiently define the plaintiff class and
defendants appealed. The First Circuit vacated the district court’s remand order concluding that
the district court’s ruling on inadequacy of the class definition was premature, holding that
“reviewing the complaint is not normally a suitable occasion for determining whether the
plaintiff has sufficiently defined a cognizable class.”




                                                 10
In re Hannaford Bros. Co. Customer Data Security Breach Litigation, 564 F.3d 75 (1st
Cir.2009).

        A putative class of Florida citizens sued a Florida corporation in Florida state court
alleging that defendant grocery store had failed to adopt adequate security measures to protect its
customers’ credit card information. Defendant removed the action to federal court under the
Class Action Fairness Act and plaintiffs moved to remand arguing that CAFA’s “home state”
exception applied. The district court granted plaintiffs’ motion to remand and defendant
appealed.

        The home state exception provides that a district court shall decline to exercise
jurisdiction under CAFA where two thirds or more of the members of all proposed plaintiff
classes in the aggregate, and the primary defendants, are citizens of the state in which the action
was filed. Noting that application of the home state exception to federal jurisdiction under
CAFA is an issue of first impression for the First Circuit, the court held, as a threshold matter,
that plaintiffs bear the burden of showing that the home state exception applies.

        In affirming the district court’s remand order, the court rejected defendant’s argument
that the plain meaning of “all proposed plaintiff classes in the aggregate” requires reference
outside the four corners of the complaint to all previously filed class actions which arise from a
core nucleus of operative facts. The court held that application of the home state exception does
not depend on a broader assessment of the claims brought by others who do not fall within the
complaint’s class definition or of the claims available to the class against other possible
defendants.

Blumer v. Acu-Gen Biolabs, Inc., 638, 564 F.3d 75 (D.Mass.2009).

        Plaintiff buyers of fetal gender detection product moved to amend the complaint against
defendant seller, manufacturer, and distributor in an action alleging that defendants intentionally
misrepresented the product’s scientific accuracy. Defendants opposed the motion to amend
arguing that amendment of the complaint was futile since the amendment would not cure the
jurisdictional deficiencies under the Class Action Fairness Act. Specifically, the defendants
argued that the total amount of monetary damages alleged by the plaintiffs would be less than the
statutorily required amount of $5 million. The court agreed with this analysis, but found that
plaintiffs also alleged consequential out-of-pocket damages, supported by an affidavit of
plaintiffs’ counsel, that alone totaled more than the $5 million required under CAFA. The court
held that plaintiffs’ motion to amend was not futile and granted it without prejudice to
defendants challenging a class certification in the future.

Other

Taylor v. American Chemistry Council, 576 F.3d 16 (1st Cir.2009).

        The surviving wife and sons of a worker who died of liver cancer allegedly caused by
workplace exposure to vinyl chloride filed a products liability action against manufacturers of
polyvinyl chloride. The district court granted defendants’ motion for summary judgment as to
plaintiffs’ failure to warn claim and plaintiffs appealed. The First Circuit affirmed the grant of



                                                11
summary judgment, but concluded that the district court erred in its application of the
sophisticated user defense.

        The court stated that, according to the sophisticated use defense, there is no duty to warn
an “end user” of a product’s latent characteristics or dangers when the user knows or reasonably
should know of the dangers. The court held that, under Massachusetts law, the sophisticated user
defense does not incorporate a reasonable reliance determination, even in cases where an
intermediate party exists between the supplier and the plaintiff. Instead, the existence of the
defense turns on whether the end user (or intermediate party) knows, or reasonably should know,
of the particular danger to be guarded against in using the supplier’s product. Because the
decedent’s employer’s medical department was fully equipped to understand and act on
information regarding the risk of cancer from exposure to vinyl chloride, the court concluded
that the employer knew, or reasonably should have known of such risks and any warning by the
defendants would have been superfluous.

Dahl v. Bain Capital Partners, LLC, 2009 WL 1748526 (D. Mass. Jun. 22, 2009).

        Plaintiffs initiated an antitrust action against multiple private equity firms and investment
banks regarding certain leveraged buyouts. After the parties failed to agree on aspects of
electronic discovery sought by plaintiffs, plaintiffs sought an order governing the discovery’s
format. The court dealt with the costs of electronic production and the requirement of producing
documents in “native” format. First, while generally, a party bears its own discovery costs, those
costs may be shifted if it would be unreasonably burdensome or costly to produce the documents
requested. The court found there was no accessibility issue here, but did allow that the plaintiffs
would have to bear the costs of optical character recognition (“OCR”) scanning of responsive
paper documents or electronic documents that lacked text searching capability. Federal Rules of
Civil Procedure required only that defendants produce responsive documents as they are kept in
the usual course of business. In dicta, the court suggested that parties should “translate”
electronic documents where necessary to make them “reasonably usable” and should, if they
choose to modify the format of electronic documents in preparation for litigation, offer the other
party access to the altered documents.

        The court rejected the request for the production of all metadata associated with e-mails
and word processing documents, noting that several courts have expressed concern about the
expense and burden of producing metadata. Spreadsheets must be produced in “native” format in
order to assure that integral elements of the spreadsheet, such as formulae, remain undisturbed.

Rodriguez v. Suzuki Motor Corporation, 570 F.3d 403 (1st Cir. 2009)

        Plaintiff sought to overturn the summary judgment granted to defendant. Defendant had
moved for summary judgment alleging the suit violated Puerto Rico’s statute of limitations.
Plaintiff had been injured in June 2001. His first suit was filed in June 2002 against the seller of
the motorcycle. In October 2002, he amended his complaint to add the distributor of the
motorcycle. His 2002 complaint did not name Suzuki. In March 2003, the seller moved to file a
third-party complaint against Suzuki. In November 2003, plaintiff moved to voluntarily dismiss
the 2002 action without prejudice. On May 2004, plaintiff commenced a new action in federal
court against Suzuki. In February 2005, the complaint was dismissed without prejudice for



                                                 12
failure to complete service against Suzuki. On February 6, 2006, plaintiff filed a new action
against Suzuki. Suzuki filed a motion for summary judgment on the ground that plaintiff had
failed to file his suit within the one-year statute of limitations under Puerto Rico law.

        Puerto Rico has a one-year statute of limitations for the filing of new tort claims. Article
1873 of Puerto Rico’s Civil Code provides three mechanisms for tolling the statute of
limitations: (1) by action before the court; (2) by an extrajudicial claim of the creditor; (3) by any
act of acknowledgment of the debt by the debtor. It is the mere filing of a claim that tolls the
statute, not an effective service of summons. The statute is tolled even if the plaintiff voluntarily
dismisses the action without prejudice before the defendants have been summonsed. The statute
of limitations runs anew from the date at which the previous action came to a definite end.

        Tolling the statute of limitations is not effective for all claims arising out of the same
facts, but only tolls the statute with respect to “identical” subsequent actions. To be “identical,”
the claims asserted in the subsequent action (1) must seek the same form of relief as the first
action; (2) must be based on the same substantive claims; and (3) provided other Puerto Rico
tolling statutes do not rescue the claims on other grounds must be asserted against the same
defendants in the same capacities – new defendants should not be added.

        Despite requiring the same defendants, the interruption of the statute of limitations
against one defendant also interrupts the statute against any other defendants who are “solidarily
liable with the first.” This solidarity doctrine is rooted in Article 1874 of the Puerto Rico Civil
Code and “is based on the theory that there is one obligation, shared by several debtors.” The
court found solidarity between Suzuki and the distributor and seller of the motorcycle because
Suzuki was the manufacturer and this was a complaint that alleged, among other things,
negligent design, testing, assembly, packaging, marketing and advertising.

Esposito v. Home Depot U.S.A., No. 08-2115 (12/30/2009)

         Plaintiff filed a product liability case against defendants for injuries sustained while
operating an allegedly defective saw. The complaint was initially filed in state court. Two of the
defendants filed a notice of removal. The third defendant filed its answer in federal court.
Plaintiff moved to remand the case back to state court on the grounds that the third defendant had
not consented to removal within 30 days. The district court decided that filing an answer in
federal court is an implied consent to the removal. The district court then set discovery and
disclosure deadlines, including the deadline for written disclosure of experts. These deadlines
were pushed back twice, first by defendants, then by plaintiff. Experts were to be disclosed by
plaintiff by June 21, 2007. An expert inspected the saw on plaintiff’s behalf on April 20. Before
the inspection, plaintiff faxed his resume to the defendants. June 21 came and went, however,
without a written declaration by plaintiff of his experts. Instead, on August 1, plaintiff moved the
court to further extend the deadlines by 90 days. The magistrate denied the motion and the
district court reluctantly endorsed the decision. Summary judgment was granted soon after for
the lack of an expert.

       The First Circuit agreed that the removal was proper but found that the exclusion of the
expert was too harsh a penalty for a single missed deadline. Consent to removal need not be in
the signature of a motion to remove, conduct less explicit will suffice. The courts are split on



                                                 13
whether an answer filed in federal court is sufficient to signal consent to removal, and the First
Circuit does not, here, make a rule that it would be sufficient in all cases. Instead, it suggests a
case-by-case approach. Here, defendant’s answer and its subsequent opposition to the motion to
remand are sufficient to signal consent.

        Since all parties acknowledged that the sanction contemplated by the district court would
lead to summary judgment, the imposition of such a sanction for a single missed deadline is
over-harsh and an abuse of discretion. The court compares this case with other cases with a
similar sanction. The court distinguishes those cases as describing parties who repeatedly
violated scheduling orders. Justice Woodcock dissented from this part of the decision, noting that
the court did not dismiss the case for failure to identify the expert, it excluded the expert.
Witness preclusion is not held to the high standard that dismissal of the case would be. Normally,
a witness should be precluded unless there is evidence that the failure to comply with deadlines
was “substantially justified,” or “harmless.” Fed. R. Civ. P. 37(c)(1). Here, neither exception
applied. Justice Woodcock also credited the district court’s concern that a plaintiff might delay
disclosure of its expert in order to gain a strategic advantage, or might be emboldened to violate
discovery deadlines – viewing fines as “a price worth paying.”

Brokaw v. Davol Inc., C.A. No. 07-5058 (R.I. Super., 2009)

       This litigation involves products liability cases related to alleged defects in the Composix
Kugel Mesh Patch, a device designed, manufactured and distributed by Defendants for use in the
repair of hernias. There are over 1000 such cases pending before the court. Two significant
decisions on discovery came out of this litigation:

May 15, 2009 – Work Product Decision

        Plaintiffs sought to compel production of a consultant’s report and related documents
(“Quintiles documents”) over which defendants had asserted the work product privilege. The
disputed documents consisted of an audit report and supporting documentation prepared by
Quintiles Consulting (“Quintiles”), an independent consulting firm retained by the defendant
(C.R. Bard) following defendant’s decision to voluntarily recall its hernia patches. The first
recall was followed by an FDA inspection of defendant’s facilities in Rhode Island. The FDA
issued a Form 483 letter and an Establishment Inspection Report, which made critical
observations relative to defendant’s compliance with federal regulation.

       Defendant hired Quintiles shortly after the FDA inspection, and began their work in May.
Their reports were addressed to then-Vice President and General Counsel and bear the label
“subject to attorney work product doctrine.” There were three reports, a major one in June 2006
and two others in September and October 2006. In August 2006, the first lawsuit related to the
hernia patches was filed against defendants.

       The court noted that Rhode Island follows the “because of” test for work product. A
document is covered by the work product protection if “in light of the nature of the document or
intangible material and the facts of the case the document can be said to have been prepared or
obtained because of the prospect of litigation….” Documents which serve a dual purpose, that is,
documents which are created in part because of the prospect of litigation but also due to business



                                                14
or regulatory purposes are protected by the privilege. The presence of a business or regulatory
purpose does not defeat work-product protection. Rather, the court looks to see whether the
material in question would have been prepared at all or in its present form but for the anticipation
of litigation.

        The court found that the anticipation of litigation was reasonable. The court found it
significant that the recalls were a direct response to reports that defendants’ products were
harming patients. By the time Quintiles was hired, potential liability claims had already accrued.
The fact that the first lawsuits weren’t filed until after Quintiles was hired is irrelevant – the
work product rule was meant to be applied to materials gathered when litigation is merely a
contingency. Because of the seriousness of the injuries reported and the observations made by
the FDA in their inspection, the defendants were certainly on notice of imminent claims.
Plaintiffs argued that the documents would still have been created in substantially the same form
regardless of any anticipation of litigation. The court was not convinced. The reports, which
appear designed to further defendant’s understanding of its compliance with FDA regulations,
were, in the court’s opinion, without question a useful “aid to litigation.” The issue of whether a
company complied or did not comply with FDA requirements is relevant to many aspects of the
product liability lawsuit the court stated. Reports about compliance with FDA regulations,
therefore, may often be useful to litigation.

         Plaintiffs also argued that since defendants and all medical device manufacturers are
required to comply with FDA regulations, the documents here were regulatory requirements and
therefore not protected. However, the court notes that a regulatory purpose does not defeat a
litigation purpose, if one exists. Here, there was little question, to the court, that at least one
purpose of the documents was to help defendants comply with the FDA regulations, however,
the documents also clearly had a purpose of helping the defendants in litigation. Because of that,
and that the documents would not have been prepared “but for” the prospect of litigation, the
documents are protected.

June 21, 2009 – Confidentiality decision

        In August, 2007, the court entered a Protective Order which allowed any information
“reasonably and in good faith believed to be suitable for protection under applicable law…” to
be marked “Confidential Material.” The Order limited the use of the “confidential” designation
to those materials which is subject to a legal privilege under Rhode Island law.

        On January 29, 2008, plaintiffs objected that defendants were over-designating
documents – that they were designating material “confidential” as a matter of course. Plaintiffs
requested that defendants withdraw the confidential designation given to every document
produced and re-designate only those documents that defendants “reasonably believed in good
faith” were protected by Rhode Island law. On February 4, 2008, defendants responded by re-
designating a small number of documents, while maintaining the designation on the vast majority
of their production. On October 14, 2008, plaintiffs filed a motion to require compliance with the
Protective Order. In its motion, plaintiffs identified ten (10) categories of documents labeled
confidential by defendants.




                                                15
        The court accepts that identifying categories of documents is appropriate in a complex
case like this, as having the court consider on an individual basis each document would be an
astronomic burden. Similarly, the party claiming protection need not show a particular document
is confidential, but need only have a “good faith” belief that the documents are entitled to
protection. All the documents in question were claimed to be protected by the Rhode Island case
law allowing for the protection of trade secrets.

        The court addressed each of the 10 categories in turn. Of interest, the court took issue
with the statement of defendants that they had given instructions to their vendor to “code every
document as confidential unless a reviewer had marked it non-confidential.” The instructions
should have been the exact opposite – code everything non-confidential unless an attorney marks
it confidential. Product Inserts, Technique Guides, Instructions for Use, and Labeling, as well as
marketing documents and advertisements are not confidential unless they are drafts of such
which have not been released to the public. Correspondence and communications to non-parties
or to government agencies may be confidential. Simply because material is obtainable through
FOIA from the FDA does not mean that information that is submitted to the FDA is not
confidential. However, the court required defendants to de-designate any information it
submitted to the FDA that would be obtainable through FOIA. If a single document contains
information that could be obtained through FOIA and information that could not be so obtained,
it may retain its confidential designation.

Genereux v. American Beryllia Corp., 577 F.3d 350 (1st Cir. 2009)

       Plaintiff allegedly contracted chronic beryllium disease (“CBD”) from workplace
exposure to beryllium dust. She and her family sued firms that had supplied beryllium-containing
products to her former employer. Defendants obtained a summary judgment against plaintiff’s
common law claims based on the three-year statute of limitations and on her statutory claims
based on the sophisticated user doctrine, which permits a supplier to avoid liability for failing to
warn a sophisticated end-user of a risk of a product when the user would have appreciated the
danger to the same extent as a warning would have provided.

        The First Circuit overturned the summary judgment. Plaintiff was misdiagnosed with
asthma before later deciding to take a blood test for CBD. While, arguably, abnormal results
from that test could have put her on notice, those results are dated within the three year period. A
reasonable juror could conclude that the plaintiff learned that beryllium was the likely cause of
her injury at some point during the limitations period, so summary judgment was improper. The
court also rejected the sophisticated end-user argument. Massachusetts law requires the end-user
to know of the risks that form the basis of plaintiff’s claims. And simply stating that the
employer knew generally of the risks of beryllium is not enough, defendant would have to show
that the employer knew of the specific risks and precautions asserted (the need to periodically
sample the air; use local exhaust ventilation; the risk of second-hand exposure through clothing;
the possibility of exposure through polishing operations; that the risk existed at concentrations of
2 micrograms per cubic meter). Reviewing the record, the court held that issues of fact existed
whether the plaintiff’s former employer was aware of some of these aspects and risks of
exposure.




                                                16
   II. Second Circuit
              James F. Murdica                                     James J. Becker
    Patterson Belknap Webb & Tyler LLP                              Seipp & Flick
          1133 Ave of the Americas                            Two Alhambra Plz Ste 800
         New York, NY 10036-6710                                Miami, FL 33134-5214
               (212) 336-2921                                      (305) 995-6084
            jfmurdica@pbwt.com                                 jbecker@seippflick.com



Tort Reform

       a. New York

           Nothing of significance to report.

       b. Connecticut

Dias v. Grady, 292 Conn. 350, 972 A.D.2d 715 (Conn. 2009)

       Medical malpractice Defendants moved to dismiss Plaintiff’s claims pursuant to a
provision the Tort Reform Act of 1986. In 2005, the legislature amended the Act to require a
medical malpractice Plaintiff to obtain and file with any complaint a written opinion of a
healthcare provided that “there appears to be evidence of medical negligence.” Plaintiff filed a
medical opinion stating that the doctor deviated from the accepted standard of care. The
Defendants argued that the Tort Reform Act requires that the medical opinion also state that the
breach of the standard of care caused Plaintiff’s alleged injuries. The trial court denied
Defendants’ motion and the Supreme Court affirmed, holding that “medical negligence” in the
Tort Reform Act only means a breach of the standard of care and did not intend to encompass all
elements of a cause of action for negligence.

       c. Vermont

           Nothing of significance to report.

Preemption

       a. New York

Horowitz v. Stryker Corp., 613 F.Supp.2d 271 (E.D.N.Y. 2009)

        Plaintiff, an artificial hip implant device recipient, filed the instant complaint against the
manufacturer, marketer, and distributor under New York state law alleging failure to warn,
defective manufacturing, defective design, negligence and recklessness, breach of express
warranty, breach of implied warranties of fitness and merchantability, and violations of state
General Business Law. Defendants moved to dismiss on the basis that Plaintiff’s claims were



                                                 17
preempted by Medical Device Amendments (MDA) to the Food, Drug and Cosmetic Act
(FDCA), and because Plaintiff’s allegations failed to state violations of state General Business
Law.
         Plaintiff, in large part, predicated her claims on the basis of several FDA violations and
warning letters which Defendant’s received in relation to their manufacturing plants in Ireland
and New Jersey. Defendants argued that the Supreme Court decision in Riegel v. Medtronic,
Inc., --- U.S. ----, 128 S.Ct. 999, 169 L.Ed.2d 892 (2008), mandated that all of Plaintiff’s claims
with the exception of her claim for defective manufacturing, were preempted. As to Plaintiff’s
remaining claims regarding defective manufacturing and violations of state General Business
Law, the Defendants argued that they were each improperly pled.
         In analyzing whether the MDA to the FDCA the Court followed the three prong test set
forth in Riegel: (1) it must find that federal requirements are imposed on the particular medical
device; if so, then the court must determine (2) whether the Plaintiff’s claims are based on a state
requirement that relates to the safety or effectiveness of the device or to any other matter
included in a requirement applicable to the device; and if so, (3) such claims will be preempted
where they impose requirements that are either different from, or in addition to, the federal
regulations.
         In granting the Defendant’s motion to dismiss, the Court ruled that: (1) federal
requirements (i.e. the instant device was approved through the FDA’s Pre-Market Approval
Process [PMA]) were imposed on the instant hip implant device, (2) Plaintiff’s claims for strict
liability, negligence and recklessness, and breach of express and implied warranties all
concerned violations of state requirements relating “to the safety or effectiveness of the device or
to any other matter included in a requirement applicable to the device,” making them subject to
preemption, and (3) Plaintiff’s generalized allegations cannot withstand preemption because they
failed to establish the necessary link between Defendants’ federal violations and her alleged
causes of action.
         Additionally, the Court explained that in order to survive preemption under the MDA a
Plaintiff must demonstrate a cognizable link between the Defendant’s federal violations and
Plaintiff’s injury.
         Plaintiff’s remaining claim was predicated upon alleged violations of state General
Business Law Section 349 which provides that “[d]eceptive acts or practices in the conduct of
any business, trade or commerce or in the furnishing of any service in this state are hereby
declared unlawful.” The Plaintiff generally alleged that “Defendants’ acts, representations
and/or omissions constitute unconscionable commercial practices in connection with the sale of
merchandise and false advertising and were deceptive and misleading practices.” The Court
ruled that the Plaintiff made no reference to the specific “acts, representations and/or omissions”
that she claims are deceptive nor does she allege why these acts were deceptive and accordingly
Plaintiff’s claims under New York General Business Law were also dismissed.

Clinton v. Brown and Williamson Holdings, Inc. 2009 WL 2877617 (S.D.N.Y. 2009)

       Estate and wife of smoker who died from lung cancer brought action against cigarette
manufacturers. The Plaintiff alleged that Philip Morris gave to the public the false impression
that Marlboro Light cigarettes were safer than regular Marlboro or other filtered cigarettes
because they delivered a lower amount of nicotine and tar. The Defendant manufacturer moved
for summary judgment on the basis that the Plaintiff’s claims were preempted by Federal



                                                18
Cigarette Labeling and Advertising Act. The District Court granted the Defendant’s motion and
the Plaintiff then moved to vacate or modify the order granting summary judgment.
        The Court ruled that Plaintiff’s common law fraud claim was based on a general duty not
to deceive, rather than on any requirement or prohibition based on smoking and health and as
such, the Plaintiff’s claim was not expressly preempted by the Federal Cigarette Labeling and
Advertising Act. Additionally, the Court ruled that Plaintiff’s common law fraud claim was not
impliedly preempted because it did not conflict with any longstanding FTC policies regarding
the measurement, disclosure and marketing of tar and nicotine yields.

Grill v. Philip Morris USA, Inc., 2009 WL 2877607 (S.D.N.Y. 2009)

         Consumer’s husband brought action against cigarette manufacturer, alleging that
consumer died of lung cancer resulting from smoking cigarettes, asserting state law claims for
fraudulent concealment, negligence in failing to warn outside of advertising or promotion,
wrongful death, and loss of consortium. Specifically, Plaintiff alleges that Defendant
intentionally and fraudulently failed to disclose to decedent, during her teenage years, the deadly
hazards and addictiveness of smoking. Manufacturer Defendant moved for summary judgment
on the basis of, among other things, the Plaintiff’s claims for fraudulent concealment and
negligence in failing to warn were preempted by the Federal Cigarette Labeling and Advertising
Act (“Labeling Act”).
         Defendant argued that Plaintiff’s fraudulent concealment and negligent failure to warn
claims were expressly preempted by Section 5(b) of the Labeling Act, which provides that “[n]o
requirement or prohibition based on smoking and health shall be imposed under State law with
respect to the advertising or promotion of any cigarettes the packages of which are labeled in
conformity with the provisions of this Act.”
         In rejecting Defendant’s arguments, the Court ruled that: (1) Section 5(b) does not
preempt Plaintiff’s fraudulent concealment claim because it is directed at Philip Morris’ failure
to disclose material facts outside of advertising and promotion (i.e. information regarding the
addictiveness and dangerousness of smoking through channels of communication other than
advertising or promotion - for example, that Philip Morris had a duty not to conceal from the
medical and scientific community the results of scientific research which contradicted its other
public statements); and (2) Plaintiff’s fraudulent concealment claim was not preempted because
it was not predicated on a duty based on smoking and health, but rather on the more general duty
not to deceive, which under New York law is not limited to the advertising and promotion of a
product.
         Additionally, the Court ruled that: (1) Plaintiff’s negligent failure to warn claim was not
preempted because it is based on Philip Morris’ failure to warn outside of advertising and
promotion; and (2) Plaintiff’s negligent failure to warn claim was not preempted to the extent
that it was based on a duty that Defendant voluntarily assumed, as opposed to a duty imposed by
state law.

Tuosto v. Philip Morris USA Inc., 2009 WL 4016169 (S.D.N.Y. 2009)

       Plaintiff, as proposed administrator of his wife’s estate, brought action against tobacco
manufacturer, alleging fraud and misrepresentation, strict liability for design defect, negligence,
loss of consortium, and wrongful death relating to wife’s use of manufacturer’s cigarettes.



                                                19
Manufacturer moved to dismiss for failure to state a claim. The District Court granted motion
and granted husband leave to replead some, but not all, of his original claim. After husband filed
second amended complaint, manufacturer again moved to dismiss for failure to state a claim and
on basis that the Plaintiff’s claims for fraudulent misrepresentations were preempted by the
Federal Cigarette Labeling and Advertising Act (“Labeling Act”).
        Specifically, the Plaintiff alleged that Defendant made fraudulent advertising and
promotion “relating to the issue of smoking and health” and “relating to the industry’s false
promises to conduct and disclose objective research” and that these statements were made
through multiple parties and channels, allegedly negating causal connections between smoking
and health. Plaintiff alleged that his claim was founded squarely upon a duty based on smoking
and health in its advertising and that Defendant failed to disclose material facts concerning the
risks of smoking. The Plaintiff also alleged that Defendant fraudulently concealed material facts
relating to the issue of smoking and health.
        In accepting the Defendant’s argument, the Court ruled that: the Labeling Act explicitly
pre-empts the Plaintiff’s claim insofar as it relates to the Defendant’s advertising or promotion
because the allegation was predicated on the Plaintiff’s belief that Defendant had a duty to
advertise and label cigarettes in a specific manner, and because it was presented as a duty based
on ‘smoking and health.’
        Regarding Plaintiff’s remaining fraud claims, the Labeling Act did not pre-empt
Plaintiff’s claim related to Defendant’s allegedly fraudulent promises to conduct and disclose
objective research. As a result, the Court ruled that Plaintiff’s claim was not confined to the
specific channels covered by the Labeling Act (i.e., advertising and promotion). Moreover,
Plaintiff’s claim was predicated on the duty not to deceive, rather than a duty “based on smoking
and health ... with respect to ... advertising or promotion.” Similarly, Plaintiff’s claim of
fraudulent concealment was not pre-empted by the Labeling Act because that claim did not relate
to advertising and promotion, but instead to Defendant’s failure to disclose material facts through
other channels.

Ilarraza v. Medtronic, Inc., No. CV 09-3264, slip op. (E.D.N.Y. Dec. 28, 2009)

        Plaintiff alleged injuries resulting from the implant of an intrathecal drug delivery device
which he claims was defectively manufactured. Plaintiff used the medication pump for over five
years without incident until 2008 when he claims he began to suffer from withdrawal symptoms.
A CT scan revealed that the delivery catheter attached to the medication pump had fractured.
Plaintiff initial filed his complaint which generally pled state law causes of action sounding in
breach of warranty and strict product liability. Plaintiff then filed an amended complaint which
contained a single cause of action referred to as “negligence per se” which Plaintiff claims was a
parallel action. This cause of action alleged that the manufacturer failed to manufacturer the
medication pump in a reasonable and prudent manner and in accord with federally prescribed
Current Good Manufacturing Processes (CGMP). The amended complaint than lists eleven
federal regulations which Plaintiff alleges were violated by the Defendant manufacturer.

        Defendant moved to dismiss Plaintiff’s amended complaint on the basis that Plaintiff
failed to raise a plausible claim as required by Twombly and because Plaintiff’s claims are
preempted under the Medical Device Amendments to the Food and Drug Cosmetics Act
(FDCA). Additionally, Defendant argues that Plaintiff’s claims are also preempted pursuant to



                                                20
21 U.S.C. 337(a) of the FDCA which provides that all actions to enforce the FDCA are to be
only “in the name of the United States.”
        In granting Defendant’s motion to dismiss, the Court ruled that Plaintiff failed to raise a
parallel claim due to the fact that Plaintiff merely recited unsupported violations of general
regulations and thus failed to tie such allegations to his injuries. Additionally, the Court ruled
that Plaintiff’s reliance on nothing more than the CGMP in support of a parallel cause of action
was preempted.

Mitaro v. Medtronic, Inc., 23 Misc.3d 1122(A), 2009 WL 1272398 (Sup. Ct. Apr. 9, 2009)

         Plaintiff was implanted with an implantable cardiac defibrillator (“ICD”) that included a
Medtronic wire lead. The ICD lead allegedly fractured. Plaintiff filed a fifteen count complaint
against Medtronic which included the following claims: (1) strict liability for failure to warn; (2)
strict liability for manufacturing defect; (3) strict liability for defective design; (4) negligence in
design, testing inspection, manufacture, marketing, distribution and advertising; (5) negligence
per se; (6) breach of implied warranty; (7) breach of express warranty; (8) negligent
misrepresentation; (9) intentional misrepresentation; (10) fraud; (11) constructive fraud; (12)
negligent infliction of emotional distress; (13) unjust enrichment; (14) violation of NY business
law; and (15) damages pursuant to Medicare’s Secondary Payer Statute. Medtronic moved to
dismiss all claims. The Court dismissed all claims except for Plaintiff’s strict liability claim
based on a manufacturing defect and the breach of express warranty claim as preempted by
§360k of the Medical Device Amendments and Riegel. Plaintiff’s warranty claim could survive
preemption to the extent it is not premised on FDA-approved representations, and Plaintiff’s
manufacturing defect claim could survive to the extent it is premised on allegations that
Medtronic used a welding technique to manufacture the device that is not approved by FDA and
damages the device. The Court also held that Buckman forecloses Plaintiff’s ability to plead a
negligence per se claim based on alleged violations of FDA regulations. The Court noted that a
recall of the ICD lead did not change the preemption defense.

Colombini v. Westchester County Health Care Corp., 2009 WL 2170230 (Sup. Ct. July 6, 2009)

        Plaintiff’s child was injured during an MRI when a steel oxygen canister allegedly was
magnetically attracted to the MRI machine and struck the child fatally on its way to the machine.
Plaintiff alleged causes of action against General Electric, the manufacturer of the MRI machine,
for negligence, strict liability, manufacturing defect and breach of express warranty. GE moved
for summary judgment, and the Court ruled that Plaintiff’s claims are preempted by §360k of the
Medical Device Amendments and Riegel. That the MRI machine later was reclassified as a
Class II device did not change the preemption afforded the device because it was approved
originally by the Premarket Approval process. Moreover, Plaintiff’s FDA violation claim was
rejected because the guidelines GE allegedly violated were not specifically mandated by FDA.




                                                  21
       b. Connecticut

Bradley v. Fontaine Trailer Company, Inc., F.Supp.2d, 2009 WL 763548 (D.Conn. 2009)

        Plaintiffs and Plaintiffs’ decedents were traveling and a flatbed truck owned by
Defendant when they were involved in a motor vehicle collision between an automobile and the
truck that they occupied. Plaintiffs each asserted a claim under the Connecticut Product Liability
Act (CPLA). Defendant timely filed an answer and affirmative defenses therein raising three
defenses concerning preemption of Plaintiff’s claims. Plaintiffs moved for partial judgment on
the pleadings under Fed.R.Civ.P. 12(c) as to three of Defendant’s affirmative defenses pleaded in
the answer.
        Specifically, Defendant asserted that: (1) Plaintiff’s claims were impliedly preempted
because Defendant fully with Federal Motor Vehicle Safety Standard 108; (2) Plaintiffs’ claims
were expressly preempted by federal law, including Federal Motor Vehicle Safety Standard 108
because Defendant had fully complied with that standard; and (3) the injuries and damages as
alleged are not the result of Defendant’s actions or omissions because Defendant conformed to
applicable federal statutes, regulations or standards and/or industry standards existing at the time
of the design and/or manufacture of its flatbed trailer.
        In granting in part and denying in part Plaintiff’s motion, the court ruled that under the
National Traffic and Motor Vehicle Safety Act of 1966 and Standard 108, Congress has not
banned states from creating stricter standards than what it has set like it has in other contexts (as
had Connecticut with its Product Liability Act). Accordingly, the Court ruled that there was no
express preemption in this case and grant Plaintiffs’ motion as to the Affirmative Defense
alleging express preemption.
        However, in denying in part Plaintiff’s motion, the court ruled that Standard 108 is a
floor. Therefore, it was possible for Defendant to proffer evidence that Plaintiffs’ claims under
the CPLA that the tractor trailer was lacking additional lighting or other modifications to
increase its visibility are implicitly preempted by the Safety Act and Standard 108. The court
ruled that conflict preemption could still apply if the Defendant could not meet both the federal
requirements and remedy whatever defect Plaintiffs suggest the tractor trailer had.

Mullin v. Guidant Corp., 970 A.2d 733, 114 Conn. App. 279 (Conn. App. 2009)

        Plaintiff received the Defendant’s implantable cardiac defibrillator (“ICD”) following
successful resuscitation after suffering a heart attack. The ICD was explanted and replaced with
a different model two years later due to a device malfunction. Plaintiff filed two causes of action
against ICD manufacturer: a claim pursuant to the Connecticut Product Liability and a
consortium claim. The trial court granted the manufacturer’s summary judgment motion (which
it considered as a motion to dismiss for lack of subject matter jurisdiction) and dismissed the
claims as preempted pursuant to §360k of the Medical Device Amendments and Riegel. On
appeal, the Court affirmed that both causes of action are preempted. Plaintiff’s argument that
she stated a viable ‘parallel claim’ was unavailing because the complaint did not request relief
for violation of FDA regulations. The Court also noted that the trial court’s form of judgment
was incorrect because federal preemption does not necessarily implicate the court’s subject
matter jurisdiction.




                                                 22
       c. Vermont

           Nothing of significance to report.

Environmental or “Green” Products Litigation

       a. New York

In re New York City Asbestos Litigation, 22 Misc.3d 1109(A), 2009 WL 104628 (Sup. Ct. Jan. 9.
2009).

        Plaintiffs moved to consolidate eight asbestos cases for trial on the basis that common
issues predominate because all Plaintiffs allegedly have the same disease (lung cancer) and all
were exposed to asbestos in the same decade. Defendants opposed consolidation on the basis
that the Plaintiffs had different work sites, different occupations, different types of exposure and
exposure at different times. The Court held that because Plaintiffs share the same counsel and
the same disease, there was sufficient commonality to consolidate six of the eight cases for trial.
The Court declined to consolidate two of the cases because one was a wrongful death action and
the other involved a Plaintiff that was a non-smoker. The Court reasoned that consolidating the
wrongful death action could be prejudicial to Defendants because the other Plaintiffs were alive,
and consolidating the non-smoker Plaintiff would be prejudicial to that Plaintiff because of
Defendants’ alternate causation theories.

       b. Connecticut

           Nothing of significance to report.

       c. Vermont

           Nothing of significance to report.

Market Share or Other New Theories of Liability

       a. New York

In re: Methyl Tertiary Butyl Ether (“MTBE”) Products Liability Litigation, 643 F.Supp.2d 461
(S.D.N.Y. 2009)

        This matter original arose in City of New York, et al. v. Exxon Mobil Corporation, Nos.
00 MDL 1898(SAS), 04 Civ. 3417(SAS). In the consolidated multi-district litigation, numerous
municipalities and other water providers sought relief from contamination or threatened
contamination of groundwater from various gasoline producers’ use of gasoline additive methyl
tertiary butyl ether (MTBE). The Court was asked to determine whether the Defendants were
liable under the commingled product theory.
        In an earlier decision, the Court ruled that a Defendant’s liability resulting from its
contribution to a defective commingled product is merely several, as opposed to joint and
several. Plaintiff moved, in limine, for a ‘ruling that producers bore burden of proof of


                                                23
apportionment of liability for punitive damages, and that Defendants should be held jointly and
severally liable for the city’s damages. In doing so, the Plaintiff asked the Court to reconsider its
decision to assign several liability to a Defendant found liable under the commingled product
theory.
        In reaffirming its earlier decision, the Court ruled that liability is several only, and that
the Defendant bears the burden of establishing a reasonable basis for apportioning liability. In
making this ruling, the Court determined that under the commingled product theory, liability is
“apportioned by proof of a Defendant’s share of the market at the time of the injury.’ In order to
avoid liability “[a] Defendant must be able to exculpate itself by proving that its product was not
present at the relevant time or in the relevant place, and therefore could not be part of the
commingled or blended product. Additionally, the Court reasoned that “[A]pportionment should
be based, as near as possible, on each Defendant’s share of the actual market that supplied
gasoline to the commingled product that contaminated the City’s wells.”
        Ultimately, the Court granted in part and denied in part the Plaintiff’s motion in limine.
The Court ruled that Defendant’s liability is several on those claims brought under the
commingled product theory and that the burden of production and persuasion concerning
apportionment rests on the Defendant, which must establish a reasonable basis for such
apportionment.

       b. Connecticut

           Nothing of significance to report.

       c. Vermont

           Nothing of significance to report.

Tobacco

       a. New York

Clinton v. Brown and Williamson Holdings, Inc. 2009 WL 2877617 (S.D.N.Y. 2009)

       Estate and wife of smoker who died from lung cancer brought action against cigarette
manufacturers. Decedent smoked Lucky Strike cigarettes, manufactured by the predecessor of
Brown & Williamson Holdings, Inc., from the early 1960s to 1976, then Marlboro cigarettes,
manufactured by Philip Morris, from 1976 to 1986, and finally Marlboro Lights cigarettes, also
manufactured by Philip Morris, from 1986 to 2003. In November 2004, Champagne was
diagnosed with lung cancer, which caused his death on June 25, 2004, at the age of fifty-three.
Based on these facts, Plaintiff Eileen Clinton, the widow of Champagne, asserts against
Defendants Philip Morris and B & W a number of state law causes of action, including: failure to
warn up to July 1, 1969, fraudulent concealment up to September 11, 1968, design defect, fraud
in marketing Marlboro Lights, and a claim for punitive damages.
       The Plaintiff alleged that Philip Morris gave to the public the false impression that
Marlboro Light cigarettes were safer than regular Marlboro or other filtered cigarettes because
they delivered a lower amount of nicotine and tar. The Defendant manufacturer moved for



                                                 24
summary judgment on the basis that the Plaintiff’s claims were preempted by Federal Cigarette
Labeling and Advertising Act. The District Court granted the Defendant’s motion and the
Plaintiff then moved to vacate or modify the order granting summary judgment.
        The Court ruled that Plaintiff’s common law fraud claim was based on a general duty not
to deceive, rather than on any requirement or prohibition based on smoking and health and as
such, the Plaintiff’s claim was not expressly preempted by the Federal Cigarette Labeling and
Advertising Act. Additionally, the Court ruled that Plaintiff’s common law fraud claim was not
impliedly preempted because it did not conflict with any longstanding FTC policies regarding
the measurement, disclosure and marketing of tar and nicotine yields.

Grill v. Philip Morris USA, Inc., 2009 WL 2877607 (S.D.N.Y. 2009)

         Consumer’s husband brought action against cigarette manufacturer, alleging that
consumer died of lung cancer resulting from smoking cigarettes, asserting state law claims for
fraudulent concealment, negligence in failing to warn outside of advertising or promotion,
wrongful death, and loss of consortium. Specifically, Plaintiff alleges that Defendant
intentionally and fraudulently failed to disclose to decedent, during her teenage years, the deadly
hazards and addictiveness of smoking. Manufacturer Defendant moved for summary judgment
on the basis of, among other things, the Plaintiff’s claims for fraudulent concealment and
negligence in failing to warn were preempted by the Federal Cigarette Labeling and Advertising
Act (“Labeling Act”).
         Defendant argued that Plaintiff’s fraudulent concealment and negligent failure to warn
claims were expressly preempted by Section 5(b) of the Labeling Act, which provides that “[n]o
requirement or prohibition based on smoking and health shall be imposed under State law with
respect to the advertising or promotion of any cigarettes the packages of which are labeled in
conformity with the provisions of this Act.”
         In rejecting Defendant’s arguments, the Court ruled that: (1) Section 5(b) does not
preempt Plaintiff’s fraudulent concealment claim because it is directed at Philip Morris’ failure
to disclose material facts outside of advertising and promotion (i.e. information regarding the
addictiveness and dangerousness of smoking through channels of communication other than
advertising or promotion - for example, that Philip Morris had a duty not to conceal from the
medical and scientific community the results of scientific research which contradicted its other
public statements); and (2) Plaintiff’s fraudulent concealment claim was not preempted because
it was not predicated on a duty based on smoking and health, but rather on the more general duty
not to deceive, which under New York law is not limited to the advertising and promotion of a
product.
         Additionally, the Court ruled that: (1) Plaintiff’s negligent failure to warn claim was not
preempted because it was based on Philip Morris’ failure to warn outside of advertising and
promotion; and (2) Plaintiff’s negligent failure to warn claim was not preempted to the extent
that it was based on a duty that Defendant voluntarily assumed, as opposed to a duty imposed by
state law.

Tuosto v. Philip Morris USA Inc., 2009 WL 4016169 (S.D.N.Y. 2009)

      Husband, as proposed administrator of his wife’s estate, brought action against tobacco
manufacturer, alleging fraud and misrepresentation, strict liability for design defect, negligence,



                                                25
loss of consortium, and wrongful death relating to wife’s use of manufacturer’s cigarettes.
Manufacturer moved to dismiss for failure to state a claim. The District Court granted motion
and granted husband leave to replead some, but not all, of his original claim. After husband filed
second amended complaint, manufacturer again moved to dismiss for failure to state a claim and
on basis that the Plaintiff’s claims for fraudulent misrepresentations were preempted by the
Federal Cigarette Labeling and Advertising Act (“Labeling Act”).
        Specifically, the Plaintiff alleged that Defendant made fraudulent advertising and
promotion “relating to the issue of smoking and health” and “relating to the industry’s false
promises to conduct and disclose objective research” and that these statements were made
through multiple parties and channels, allegedly negating causal connections between smoking
and health. Plaintiff alleged that his claim was founded squarely upon a duty based on smoking
and health in its advertising and that Defendant failed to disclose material facts concerning the
risks of smoking. The Plaintiff also alleged that Defendant fraudulently concealed material facts
relating to the issue of smoking and health.
        In accepting the Defendant’s argument, the Court ruled that: the Labeling Act explicitly
pre-empts the Plaintiff’s claim insofar as it relates to the Defendant’s advertising or promotion
because the allegation was predicated on the Plaintiff’s belief that Defendant had a duty to
advertise and label cigarettes in a specific manner, and because it was presented as a duty based
on ‘smoking and health’.
        Regarding Plaintiff’s remaining fraud claims, the Labeling Act did not pre-empt
Plaintiff’s claim related to Defendant’s allegedly fraudulent promises to conduct and disclose
objective research. As a result, the Court ruled that Plaintiff’s claim was not confined to the
specific channels covered by the Labeling Act (i.e., advertising and promotion). Moreover,
Plaintiff’s claim was predicated on the duty not to deceive, rather than a duty “based on smoking
and health ... with respect to ... advertising or promotion.” Similarly, Plaintiff’s claim of
fraudulent concealment was not pre-empted by the Labeling Act because that claim did not relate
to advertising and promotion, but instead to Defendant’s failure to disclose material facts through
other channels.

Frankson v. Brown & Williamson Tobacco Corp., 67 A.D.3d 213, 886 N.Y.S.2d 714 (2d Dep’t
2009)

         The wife of a life-long heavy smoker sued the manufacturer of Lucky Strike cigarettes
for damages due to her husband’s death from lung cancer. Plaintiff’s claims were based on
fraudulent concealment and design defect theories. At trial, the jury returned a verdict of
$175,000 in compensatory damages and $20 million dollars in punitive damages. The punitive
damages award was reduced to $5 million as a result of post-trial motions. Defendant appealed
the punitive damages award on several bases, one of which was that the jury was not instructed
that it could not award damages for harm done to smokers other than the Plaintiff. The appellate
court set aside the punitive award because Plaintiff’s counsel made repeated references in front
of the jury to thousands of other people dying from a tobacco-related lung cancer epidemic and
because the trial court rejected Defendant’s request to charge that would have instructed the jury
that damages must be limited to injuries alleged by this Plaintiff only.




                                                26
State v. Philip Morris, Inc., 61 A.D.3d 575, 877 N.Y.S.2d 291 (1st Dep’t 2009)

        New York state brought a declaratory judgment action seeking a determination that its
“qualifying statute” enacted pursuant to the tobacco Master Settlement Agreement complies with
the requirements of the MSA, notwithstanding the fact that it is not enforced against
manufacturers not participating in the MSA that sell on tribal lands. Cigarette manufacturers
participating in the MSA compelled the state to arbitration regarding the declaratory judgment
action. Manufacturers not participating in the MSA appealed the decision compelling the state to
arbitration. The appeal of the manufacturers not participating in the MSA was dismissed
because they are not parties to the arbitration, are not bound by determinations of the arbitration
panel and therefore have no direct interest in the arbitration proceeding.

       b. Connecticut

           Nothing of significance to report.

       c. Vermont

           Nothing of significance to report.

Automobiles

       a. New York

Borsack v. Ford Motor Co., 2009 WL 1357951 (S.D.N.Y. 2009)

        Plaintiff, individually and on behalf of the estate of his deceased wife, claimed that a
defectively designed door latch and seat-belt system in Plaintiff’s 1998 Ford Expedition were the
proximate cause of Plaintiff’s ejection and subsequent death in a one-car rollover accident. On
March 5, 2009, following a nine-day trial, a jury found in favor of Ford. Plaintiff then moved for
a new trial pursuant to Fed.R.Civ.P 59 on the grounds that : (1) the jury’s verdict for Defendant
was based on an incorrect interpretation of the evidence; (2) the Court erred in allowing
Defendant to present statistical evidence about the rate of accidents across comparison vehicles;
(3) during summation defense’s counsel misstated the speed that Plaintiff’s vehicle was traveling
when it began to roll; and (4) the Court erred by preventing Plaintiff from presenting his claim of
a seat-belt defect to the jury.
        In support of his claims, Plaintiff suggests that the jury’s verdict is unsupported by the
evidence presented at trial. The Plaintiff attempted to impeach the verdict by claiming that
“[c]onversations with jurors subsequent to the verdict confirmed Plaintiff’s suspicion that the
jury found that latch overload caused the door opening in this case.” Additionally, Plaintiff
asserts that a defense expert’s opinion was irrelevant because even though the expert determined
that the statistical odds of the Expedition having a defect in the door latch were low, it does not
necessarily follow that the event did not happen. Accordingly, Plaintiff argues that the expert’s
conclusion should have been withheld from the jury.
        In denying Plaintiff’s motion for a new trial, the Court ruled that informal, off-the-record,
post-verdict conversations with jurors cannot be the basis for overturning a verdict under
Fed.R.Civ.P. 59. Additionally, the Court ruled that by returning a verdict for the Defendant, the


                                                 27
jury explicitly found that Plaintiff had failed to prove that the latch system was designed in a
defective manner. The Court also ruled that once qualified under Daubert, an expert is allowed
to offer a conclusion based on his or her statistical research and accordingly there was no error in
admitting the defense expert’s opinion. Lastly, the Court ruled that Plaintiff could not offer a
new theory-indeterminate design defect-which would allow Plaintiff to claim a seat-belt
malfunction without explaining or identifying how and why.

Wade v. Tiffin Motorhomes, Inc., 2009 WL 3629674 (N.D.N.Y. 2009)

       Plaintiffs brought products liability action against manufacturer of recreational vehicle
(RV) that caught fire and damaged both the RV and its contents. Defendant manufacturer moved
for summary judgment on the basis of the economic loss doctrine, spoliation of the evidence,
lack of privity between Plaintiffs and Defendant manufacturer, and Plaintiff’s failure to file a
memorandum of law in opposition to Defendant’s motion for summary judgment.

         In granting in part and denying in part Defendant’s motion, the Court ruled that the
motion was granted with regard to Plaintiffs’ claim for recovery of the $81,777.32 for the loss of
the RV itself under (1) a strict liability theory of liability and/or negligence theory of liability,
because of the economic loss doctrine, and (2) a breach of express warranty theory. However, the
Court denied the motion with regard to (1) Plaintiffs’ claim for recovery of the $81,777.32 for
the loss of the RV itself under a breach of express warranty theory, and (2) Plaintiffs’ claim for
recovery of the $23,436.69 for the loss of the RV’s contents under a strict liability theory of
liability and/or negligence theory of liability. Additionally, as a result of removal and spoliation
of critical evidence related to the causation of the fire, the Court ruled that the appropriate
sanction to be imposed on Plaintiffs was the exclusion of all testimony of their expert that is in
any way based on his personal observation of the gas lines before their removal.

Doomes v. Best Transit Corp., 2009 WL 4672163 (1st Dep’t Dec. 10, 2009)

        Bus passengers sued a bus manufacturer for injuries they sustained during a rollover
accident. The passengers alleged negligence, strict liability and breach of warranty causes of
action based on the lack of seat belts in the bus and the design of the chassis, which was
lengthened from the original design to become suitable for use in a bus. Plaintiffs prevailed at
trial and judgment was entered against the Defendant manufacturers. On appeal, the judgment
was reversed. Plaintiff’s claim that the bus should have had seat belts was preempted by the
National Traffic and Motor Vehicle Safety Act of 1966, which required a seatbelt only in the
driver’s seat. Plaintiff’s claim that the lengthened chassis rendered the bus design defective was
not supported by any credible, non-speculative evidence.

Bruno v. Thermo King Corp., 66 A.D.3d 727, 888 N.Y.S.2d 523 (2d Dep’t 2009)

       A bus mechanic filed product liability claims against a bus manufacturer and the
manufacturer of an air conditioning system used in the bus to recover for personal injuries
sustained while working on the air conditioning system. The manufacturers moved for summary
judgment in part because Plaintiff’s injuries were caused by his own negligence. The trial court
granted summary judgment and the appeals court confirmed that a prima facie showing that a




                                                 28
Plaintiff’s negligence is the sole proximate cause of alleged injuries negates any potential
manufacturer liability.

Stalker v. Goodyear Tire & Rubber Co., 60 A.D.3d 1173, 874 N.Y.S.2d 632 (3d Dep’t 2009)

        Plaintiff’s decedent was killed by a tire rupture that occurred while he was inflating a
truck tire. Plaintiff alleged that the tire was defectively designed and that the manufacturer failed
to warn of the potential of tire rupture. Defendant moved for summary judgment. The lower
court granted the Defendant’s motion and the appellate court affirmed dismissal because
Plaintiff’s design defect theory was based on a conclusory expert affidavit and there was no
triable issue regarding the warning claim because the decedent had over twenty years of
experience repairing tires.

       b. Connecticut

Bradley v. Fontaine Trailer Co., Inc., F.Supp.2d, 2009 WL 763548 (D.Conn. 2009)

        Plaintiffs and Plaintiffs’ decedents were traveling and a flatbed truck owned by
Defendant when they were involved in a motor vehicle collision between an automobile and the
truck that they occupied. Plaintiffs each asserted a claim under the Connecticut Product Liability
Act (CPLA). Defendant timely filed an answer and affirmative defenses therein raising three
defenses concerning preemption of Plaintiff’s claims. Plaintiffs moved for partial judgment on
the pleadings under Fed.R.Civ.P. 12(c) as to three of Defendant’s affirmative defenses pleaded in
the answer.
        Specifically, Defendant asserted that: (1) Plaintiff’s claims were impliedly preempted
because Defendant fully with Federal Motor Vehicle Safety Standard 108; (2) Plaintiffs’ claims
were expressly preempted by federal law, including Federal Motor Vehicle Safety Standard 108
because Defendant had fully complied with that standard; and (3) the injuries and damages as
alleged are not the result of Defendant’s actions or omissions because Defendant conformed to
applicable federal statutes, regulations or standards and/or industry standards existing at the time
of the design and/or manufacture of its flatbed trailer.
        In granting in part and denying in part Plaintiff’s motion, the court ruled that under the
National Traffic and Motor Vehicle Safety Act of 1966 and Standard 108, Congress has not
banned states from creating stricter standards than what it has set like it has in other contexts (as
had Connecticut with its Product Liability Act). Accordingly, the Court ruled that there was no
express preemption in this case and grant Plaintiffs’ motion as to the Affirmative Defense
alleging express preemption.
        However, in denying in part Plaintiff’s motion, the court ruled that Standard 108 is a
floor. Therefore, it was possible for Defendant to proffer evidence that Plaintiffs’ claims under
the CPLA that the tractor trailer was lacking additional lighting or other modifications to
increase its visibility are implicitly preempted by the Safety Act and Standard 108. The court
ruled that conflict preemption could still apply if the Defendant could not meet both the federal
requirements and remedy whatever defect Plaintiffs suggest the tractor trailer had.




                                                 29
Davis v. Daimler Chrysler Corp., 2009 WL 323428 (Conn. Super. Jan. 12, 2009)

         Plaintiff allegedly suffered a traumatic brain injury as a result of a car crash in which her
vehicle’s air bag did not deploy. Plaintiff moved for summary judgment on liability and on
Defendant’s defense of comparative negligence. The Court denied the motion with respect to
liability, holding that whether the alleged defect rendered the vehicle unreasonably dangerous
was a question for the jury. The Court further held that Plaintiff would be subject to a
comparative negligence defense to the extent she is culpable for the car crash leading to the
alleged air bag injury.

Fischer v. General Motors Corp., 2009 WL 865361 (Conn. Super. Mar. 10, 2009)

        Plaintiff alleged that his Chevrolet Tahoe was defective because the axle snapped while
towing another vehicle on a trailer. Defendant’s expert testified that the axle snapped because it
was overloaded due to towing an overweight load. The Plaintiff’s expert testified that the axle
snapped due to hydrogen embrittlement from the manufacturing process. The jury returned a
defense verdict and Plaintiff moved to set aside the verdict. The Court affirmed the verdict,
ruling that there was an evidentiary basis to believe the axle was not defective.

       c. Vermont

           Nothing of significance to report.

Drug Litigation

       a. New York

Alston v. Caraco Pharmaceutical, Inc., 2009 WL 4030728 (S.D.N.Y. 2009)

        State prison inmate brought action against manufacturers of prescription pain medicine,
alleging that manufacturer’s failure to warn state Department of Corrections (DOC) regarding
drug’s risks and side effects caused inmate to become physically and psychologically addicted to
drug and to engage in drug-seeking activities which caused inmate to be exposed to hepatitis B.
Defendants moved for summary judgment.
        In granting Defendant’s motion, the Court ruled that the Defendant manufacturer
discharged its duty to warn, that inadequate warnings were not the proximate cause of inmate’s
injuries, and that the Plaintiff had illegally procured and used the medicine to which he became
allegedly addicted. In doing so, the Court ruled that when a Plaintiff claims to be injured by a
prescription medicine in a manner that is addressed by warnings provided to his physician by the
manufacturer, summary judgment should be granted on failure to warn claims against the
manufacturer. Additionally, the Court ruled that Plaintiff’s illegal procurement of the
prescription pain medicine precluded recovery against the Defendant manufacturers.

Alaimo v. 3M Company, et al., 306 Fed.Appx. 704 (2d Cir. 2009)

      Plaintiff, a user of asthma inhalers brought products liability action against product
manufacturer and pharmacy. Plaintiffs sued manufacturer Defendant on the under New York


                                                 30
state law. Under New York’s substantive law, a Plaintiff may prevail on a claim of negligent
design or strict products liability only if she can establish that the alleged defect was a
“substantial factor” in causing her injuries. Manufacturer Defendant moved for summary
judgment on the grounds that Plaintiff’s experts were not qualified to render expert opinions
concerning the asthma inhaler and that the expert testimony did not establish a causal link
between the allegedly defective inhaler and Plaintiff’s injuries. The U.S.D.C. for the Southern
District of New York granted summary judgment for Defendants. User appealed.
        In denying Plaintiff’s appeal, the court ruled that the Plaintiff failed to establish the
required causal link and thus the district court properly granted the Defendant’s motion.

Abdullahi v. Pfizer, 562 F.3d 163 (2d Cir. 2009)

         Plaintiffs, Nigerian children and their guardians, sued drug company under the Alien Tort
Statute, alleging that the drug company violated a customary international law norm prohibiting
involuntary medical experimentation on humans when it tested an experimental antibiotic on
children in Nigeria, without their consent or knowledge. Additionally, Plaintiffs’ claim that the
Defendant, working in partnership with the Nigerian government, failed to secure the informed
consent of either the children or their guardians and specifically failed to disclose or explain the
experimental nature of the study or the serious risks involved. The manufacturer Defendants filed
a motion to dismiss. The U.S.D.C. for the Southern District of New York dismissed the
complaints for lack of subject matter jurisdiction and on the ground of forum non conveniens,
and Plaintiffs appealed.
         In granting Plaintiffs’ appeal, the court ruled that: (1) that the district court incorrectly
determined that the prohibition in customary international law against nonconsensual human
medical experimentation cannot be enforced through the ATS; (2) that changed circumstances in
Nigeria since the filing of the appeal required re-examination of the appropriate forum, albeit on
the basis of a legal analysis different from that employed by the district court; and (3) that the
district court incorrectly applied Connecticut’s choice of law rules in the Adamu action.

Lewis v. Abbott Laboratories, et al., 2009 WL 2231701 (S.D.N.Y. 2009)

        Plaintiff commenced this lawsuit against Defendants asserting claims under New York
products liability laws. Defendants moved to dismiss, pursuant to Fed.R.Civ.P 12(b)(6), for
failure to state a claim. Defendant’s motion was referred to a magistrate who recommend that the
Defendants’ motion be granted on the grounds that Plaintiff did not demonstrate that drug was
not reasonably safe, and therefore Plaintiff’s design defect claim against Defendant manufacturer
should be dismissed. Additionally, Plaintiff’s allegations were conclusory, and Plaintiff did not
allege that it was feasible for Defendant manufacturer to design the drug in a safer manner.

In re Zyprexa Products Liability Litigation, 2009 WL 5125636 (E.D.N.Y. 2009)

        Plaintiff filed suit which was essentially a negligence claim, based on a failure to warn,
seeking money damages for injuries, and alleging that: (1) Zyprexa, an antipsychotic drug
produced by Eli Lilly, caused Plaintiff’s weight gain and diabetes; (2) Defendant failed to warn
of the dangers of Zyprexa; and (3) Zyprexa would not have been prescribed, and adverse effects
would not have been suffered, if proper warnings had been given. Defendant manufacturer



                                                 31
moved for summary judgment on the basis that the statute of limitations had run. The instant
action was originally commenced in the United States District Court for the District of
Minnesota and that state’s choice of law principles applied.

       In denying Defendant’s motion, the Court agreed with Plaintiff’s interpretation of
Minnesota law concerning when the statute of limitations should have ran from, and in doing so
declined to apply the statute of limitations as a bar to Plaintiff’s claim. Additionally, the Court
ruled that a material factual dispute exists concerning whether a different warning by the
Defendant would have changed Plaintiff’s doctor’s treatment decisions concerning the Plaintiff.

In re Oxycontin II, 23 Misc.3d 974, 881 N.Y.S. 812 (Sup. Ct. 2009)

        Plaintiffs filed 277 actions against Defendant manufacturer of the prescription medication
OxyContin. Of the 277 Plaintiffs, 29 were New York residents. Defendant moved to dismiss the
248 out-of-state Plaintiffs based on forum non-conveniens. The Court denied the motion and
chose to retain jurisdiction of all cases on the basis of judicial economy and a “mass tort” theory.
The Court reasoned that it would be more efficient to try all the cases in one court rather than a
few cases in the courts of every state, notwithstanding that the JPML rejected Plaintiffs’ attempt
to create a federal MDL. The Court also noted that the Defendant was once incorporated in New
York and its lawyers are located in New York. The Court distinguished New York precedent
favoring dismissal based on the large number of Plaintiffs here.

In re Neurontin product Liability Litigation, 24 Misc.3d 1215(A), 2009 WL 1979936 (N.Y. Sup.
May 15, 2009)

        Plaintiffs alleged suicide-related events and injuries sustained as a result of off-label
marketing and use of the prescription medication Neurontin. The Defendants moved to preclude
Plaintiffs’ general causation expert testimony. Applying Frye and relying on Daubert as
“instructive” on methodology analysis, the Court concluded that the issue of general causation
should be submitted to the jury because scientific literature linking the medicine to suicide-
related events is sufficient to raise an issue of fact. The Court explained that the experts’
disagreements regarding the validity and interpretations of the scientific literature is a question
for the jury to decide.

Fathi v. Pfizer, Inc., 24 Misc.3d 1249(A), 2009 WL 2950876 (Sup. Ct. Aug. 31, 2009)

        Plaintiff filed product liability and fraud causes of action against Pfizer for injuries
allegedly caused by the prescription medication Lipitor. Pfizer moved for summary judgment on
the basis that Plaintiff’s claims were time-barred. The Court applied New York’s three year
statute of limitations applicable to product liability claims along with the New York discovery
rule to dismiss some of Plaintiff’s claims as untimely. The Court noted that the date of discovery
for purposes of the rule is not dependent on the date of discovery of the cause of the injury, but
rather discovery of the injury itself. The Court also held that a fraud claim, although usually
subject to a six year statute of limitations, must also be dismissed as untimely because the claim
is incidental to the dismissed products claims and the longer limitations period only applies to
fraud claims in which there would be no injury but for the fraud.




                                                32
Avery v. Pfizer, Inc., 2009 WL 4911113 (1st Dep’t Dec. 22, 2009)

        Pfizer moved to dismiss lawsuits involving the medication Lipitor filed by out-of-state
Plaintiffs on the ground of forum non-conveniens. The trial court granted Pfizer’s motion, and
one of the Plaintiffs appealed. The appellate court affirmed the dismissal and held that Plaintiff’s
assertions of fraud allegedly committed at Pfizer’s New York headquarters was insufficient to
create a nexus to New York that could outweigh the facts that Plaintiff and his physician are
residents of Georgia, Plaintiff took the medication in Georgia pursuant to his Georgia physician’s
recommendation and prescription, and Plaintiff allegedly was injured in Georgia. The Court
noted that it “decline[d] to disregard the traditional forum non-conveniens factors in favor of a
‘mass tort litigation’ approach,” citing In re Oxycontin II (above) with disapproval.

       b. Connecticut

           Nothing of significance to report.

       c. Vermont

           Nothing of significance to report.

Class Action Fairness Act (CAFA)

       a. New York

In re American Express Merchants’ Litigation, 554 F.3d 300 (2nd Cir. 2009)

        Plaintiff merchants filed class action antitrust suit against charge card issuer. The
U.S.D.C. for Southern District of New York dismissed the underlying claims, and ordered
arbitration, and Plaintiffs appealed. In dismissing the Plaintiffs’ claims, the District Court
specifically held that “[t]he enforceability of the collective action waivers is a claim for the
arbitrator to resolve. Issues relating to the enforceability of the contract and its specific
provisions are for the arbitrator, once arbitrability is established.” Thus, the district court
concluded that all of the Plaintiffs’ substantive antitrust claims, as well the question of whether
or not the class action waivers were enforceable, were subject to arbitration.

        On appeal, the Court was asked to consider the enforcement of a mandatory arbitration
clause in a commercial contract that also contains a “class action waiver,” also referred to as a
“collective action waiver,” which forbid the parties to the contract from pursuing anything other
than individual claims in the arbitral forum as well as precluding a merchant from bring a class
action lawsuit.

        In overturning the District Court, the 2nd Circuit ruled that the mandatory class action
waiver provision contained in the arbitration clause in the card acceptance agreement was not
enforceable because to do so would grant the Defendant card issuer de facto immunity from
federal antitrust liability by removing Plaintiff merchants’ only reasonably feasible means of
recovery. The 2nd Circuit determined that the district court erred in ruling that the Plaintiffs had



                                                33
failed to bear the burden of showing the likelihood of incurring prohibitive expensive if they
were to proceed to arbitration.

County of Nassau v. Hotels.com, 577 F.3d 89, (2d Cir. 2009)

        Nassau County, New York filed a class action lawsuit in the E.D.N.Y. against
Hotels.com and other online hotel room resellers, on behalf of New York local governments that
impose taxes on occupants of hotel rooms, alleging that the Defendants had been underpaying
local hotel taxes. While in the E.D.N.Y. the parties stipulated that the requirements of the Class
Action Fairness Act were met. The Defendants subsequently filed a motion to dismiss the class
action complaint on grounds that the district court lacked jurisdiction over the action because
Nassau County failed to allege that it exhausted its administrative remedies by complying with
administrative processes for assessing and collecting taxes.

        On appeal, the Second Circuit declined to address the exhaustion issue. Instead, sua
sponte, the court raised the question of whether the complaint met the Rule 23 requirements for
class certification, regardless of the fact that the parties had stipulated to jurisdiction under
CAFA. The court explained there were substantial questions as to whether class certification
would be appropriate in the action, because each class member’s cause of action was “unique,”
considering that each local government imposed hotel taxes under its own tax laws. Given the
“distinct possibility that questions common to the members of the class do not predominate over
those affecting only individual members,” the Second Circuit remanded the case to the district
court for determination of whether class certification was appropriate in the first instance.

        b. Connecticut

        Nothing of significance to report.

        c. Vermont

        Nothing of significance to report.

Other

        a. New York

Viscusi v. P & G-Clairol, Inc., 2009 WL 3028314 (2nd Cir. 2009)

         Plaintiff brought action against manufacturer of hair dye, asserting claims for strict
products liability, negligence, and breach of warranty as a result of an alleged allergic reaction
she sustained from use of the dye. Manufacturer Defendant moved for summary judgment on
the basis that no evidence of a defect in hair dye, as required to support claim for strict products
liability under New York law. Additionally, the U.S.D.C. for the Eastern District of New York
excluded Plaintiff’s causation expert on the grounds that he was unqualified to render an expert
opinion concerning Plaintiff’s injuries and because his testimony was insufficiently reliable.
Accordingly, the district court granted Defendant’s motion for summary judgment and Plaintiff
appealed.


                                                34
        The Court of Appeals affirmed the district court’s ruling on the grounds that the Plaintiff
failed to present any evidence of a product defect. Additionally, the Court ruled that the district
court did not err when it excluded Plaintiff’s expert’s testimony.

Synman v. W.A. Baum Co., Inc., 2009 WL 306505 (S.D.N.Y. 2009)

        Plaintiffs asserted four causes of action - for negligence, breach of implied warranty of
merchantability, products liability and for loss of spousal services. Defendant, a medical supply
manufacturer, moved for summary judgment. The Court granted Defendant’s motion for
summary judgment as to all of Plaintiffs’ claims other than the negligence, strict product liability
and loss of spousal services claims which related to Plaintiff’s alleged multiple chemical
sensitivity (“MCS”) condition. Plaintiff then filed a motion to vacate the Court’s earlier order
granting Defendant’s motion for summary judgment.

        The Summary Judgment Order stated that “[t]he Court will ... issue an order to show
cause directing Plaintiffs to demonstrate why their newly-asserted MCS-related claims ought not
to be dismissed in light of the arguments raised in Defendant’s reply brief.” In an Order to Show
Cause dated November 3, 2008, the Court directed Plaintiffs to file a response on or before
December 5, 2008, demonstrating why their MCS-related claims ought not to be dismissed as
incapable of proper proof. Plaintiff failed to timely file a response.

        However, the Court concluded that, even if it were to consider Plaintiff’s memorandum
of law as properly before the Court, Plaintiff failed to meet his burden of demonstrating the
scientific validity of a MCS or “chemical cross-sensitivity” claim. The Order to Show Cause
required Plaintiff to demonstrate why his MCS-related claims should not be dismissed as
incapable of proper proof. Plaintiff’s submission merely asserted that his injury is for “chemical
cross-sensitivity” rather than “multiple chemical sensitivity,” and that therefore the MCS
precedents are inapposite. However, Plaintiff did not provide any explanation as to any
distinction between the conditions purportedly denoted by the two labels. This suggested that
Plaintiff’s use of the term “chemical cross-sensitivity” reflects artful pleading rather than genuine
scientific differentiation. Additionally, Plaintiff’s memorandum of law identify any legal
authority concerning scientific recognition of “chemical cross-sensitivity” or MCS as a condition
separate from the effects of an underlying chemical exposure.

       Accordingly, Plaintiff’s motion to vacate was denied.

In re “Agent Orange” Product Liability Litigation, 2009 WL 3242305 (E.D.N.Y. 2009)

        These were actions for pollution caused by leaking barrels of herbicides known as “Agent
Orange” delivered by Defendants, manufacturers of Agent Orange, to the government pursuant
to government war contracts more than a third of a century ago. The barrels have been stored on
government land and tended to by agents of the government since delivery to the government.
Pursuant to government orders during the Vietnam War, Agent Orange was produced by the
Defendants, delivered to the government at the plant after inspection by the government, stored
in barrels by the government, and transferred by the government to a government storage area,
where they have been subject to corrosion by salt in sea-air, and possibly by their contents.



                                                 35
Nearby residents in the lead case, Hansen, 08-cv-2266, claimed that the barrels have leaked,
leaching into the water supply, causing injuries to them.

       The manufacturer Defendants move for summary judgment based on the government
contractor defense. The government supports this defense. The government contractor defense
“protects government contractors from ... liability ... when they provide defective products to the
government.” In re “Agent Orange” Prod. Liab. Litig., 517 F.3d 76, 82 (2d Cir.2008). The
defense bars a suit if: 1) the government approved reasonably precise specifications for the
product alleged to have caused injury; 2) the product conformed to those specifications; and 3)
the manufacturer warned the government about dangers in the use of the product that were
known to the manufacturer but not to the government.

        The Court ruled that all elements of the government contractor defense had been
satisfied, then granted Defendant manufacturers’ motion, and the case was dismissed against
each of the Defendants on sovereign immunity grounds.

Jaramillo v. Weyerhauser Co., 12 N.Y.3d 181, 906 N.E.2d 387, 878 N.Y.S.2d 659 (N.Y. 2009)

         Plaintiff was injured when his hand was caught in a box folder/gluer machine. The
machine was purchased by Plaintiff’s employer in a sale of obsolete equipment from
Weyerhauser, a paper company that also makes cardboard boxes. Weyerhauser originally
purchased the machine from General Foods, which in turn bought the machine from the original
manufacturer many years earlier. The Plaintiff sued Weyerhauser for products liability, claiming
that it should be liable as more than a casual seller because of its regular sales of obsolete and
unneeded surplus equipment. Weyerhauser moved for and was granted summary judgment as a
casual seller that could not be liable for secondhand equipment it did not manufacture. Plaintiff
appealed to the Second Circuit and the question was certified to the Court of Appeals. The Court
of Appeals agreed with the District Court that it is the law of New York that Weyerhauser is a
casual seller that cannot be liable for strict products liability.

In re Bausch & Lomb Contact Lens Solution Product Liability Litigation, 25 Misc.3d 1244 (A),
2009 WL 4893926 (Sup. Ct. July 14, 2009)

        Defendant in the Renu and Moisturloc contact lens solution litigation sought to exclude
the general causation opinions of Plaintiffs’ experts regarding any alleged infection other than
fusarium keratitis (the bacteria that contaminated some contact solution, resulted in a recall of
some contact solution and drew national media attention). The Court applied New York’s Frye
test and concluded that the experts’ general causation theories were unreliable because they
could not cite a case report or other study or medical literature concluding that the contact
solution was capable of causing non-fusarium infections. The Court also noted that the experts
conducted no tests on the solution to evaluate their hypotheses. The Court rejected the experts’
attempt to extrapolate data regarding fusarium infections to make conclusions about other types
of infections.

Kniery v. Cottrell, Inc., 59 A.D.3d 1060, 873 N.Y.S.2d 803 (4th Dep’t 2009)




                                                36
        Plaintiff sued trailer manufacturer for her son’s death, which occurred from injuries
sustained during a fall from the trailer. The accident occurred in Ohio, the decedent was a New
York resident and the manufacturer is a Georgia corporation. The manufacturer moved to
dismiss based on Ohio’s 10 year statute of repose for products liability actions (the trailer was
sold by the manufacturer more than ten years before the accident). The trial court denied the
motion. On appeal, the court ruled that because a statute of repose is substantive, choice of law
principles govern the decision of whether to apply Ohio’s statute. Because the locus of the tort
occurred in Ohio, the statute of repose applied and the claims were dismissed.

Carmona v. Mathisson, 22 Misc.3d 1138(A), 880 N.Y.S.2d 871 (Sup. Ct. Mar. 23, 2009)

        Plaintiffs filed a medical malpractice and products liability action against an eye surgeon
and Alcon, the manufacturer of a device used during the surgery. Alcon was granted summary
judgment prior to trial because Plaintiffs failed to exclude alternative causes of the injury. The
Plaintiffs moved in limine for an order preventing the malpractice Defendants from presenting
evidence at trial of device malfunction and preventing inclusion of Alcon on the verdict sheet for
apportionment of damages. The Court held that because Alcon’s dismissal was based on
Plaintiffs’ failure to meet their burden of proof and did not decide substantively the issue of
Alcon’s negligence, the malpractice Defendants could present evidence of device malfunction
and allow the jury to apportion damages to Alcon.

Passante v. Agway Consumer Products, Inc., 12 N.Y.3d 372, 909 N.E.2d 563, 881 N.Y.S.2d 641
(N.Y. 2009)

        Plaintiff sued the manufacturer of a loading dock leveling system for injuries sustained
from a fall when a tractor trailer pulled away from the loading dock. The loading dock
manufacturer moved for summary judgment on the basis that a dock locking system was
available to prevent injury from this type of fall but Plaintiff’s employer chose not to use it. The
trial court denied the motion but the appellate division reversed and dismissed the complaint.
The Court of Appeals again reversed, finding that the manufacturer had not established that
circumstances of normal use exist when the dock leveler could be used and not be unreasonably
dangerous without the locking system. The Court reasoned that the leveling system could be
defectively designed because it lacked the locking device if there are no circumstances of normal
use that do not require the locking device for safe use.

       b. Connecticut

Koger v. Synthes North America, Inc., 2009 WL 5110780 (D.Conn. 2009)

        Plaintiff alleges that orthopedic screws manufactured and sold by Defendant Synthes
North America, Inc., that had been implanted in her pelvis, were defective and thereby caused
her injury. Plaintiff’s products liability action was brought under the Connecticut Products
Liability Act which provided for a statutory action in damages grounded in strict liability for a
product defect. Defendant moved for summary judgment.

        Connecticut courts have adopted the consumer expectation test for strict liability as
articulated by the Restatement (Second) of Torts. Thus, a manufacturer is strictly liable for



                                                37
injuries suffered if the product has a defective “condition not contemplated by the ultimate
consumer that will be unreasonably dangerous to the consumer.” However, the Connecticut
Supreme Court has provided that a “modified consumer expectation test” should be applied
where the product involves complex designs, in which case an ordinary consumer may not be
able to form expectations of safety. Under the modified consumer expectation test, the fact-
finder must consider the usefulness of the product, the likelihood and severity of the danger
posted by the design, the feasibility of alternative designs, the cost of improvements, the ability
to alter the design without harming the product’s usefulness or price, and the possibility of
spreading potential loss by increasing the product’s price. In this instance, the implanted medical
screws are medical devices that are outside of the ordinary consumer’s common knowledge;
thus, the modified consumer expectation test applies.

        In granting Defendant’s motion, the Court ruled that the Plaintiff had provided no
evidence, expert or otherwise, relevant to an assessment of whether the screw presented an
unreasonably dangerous condition and that even if Plaintiff could establish that the screw was
defective, Plaintiff’s lack of expert testimony was fatal to her proof of causation.

Walters v. Howmedica Osteonics Corp., 2009 WL 5110678 (D.Conn. 2009)

       Plaintiff asserted a breach of warranty, negligence, product liability, and a claim for
punitive damages under the Connecticut Product Liability Act (“CPLA”), for injuries allegedly
sustained after lifting a surgical instrument tray allegedly made by the Defendant while working
in the operating room of Waterbury Hospital on July 1, 2005. Defendant then moved for
summary judgment on Walters’ claims pursuant to Fed.R.Civ.P. 56.

         In granting Defendant’s motion, the Court ruled that: (1) Plaintiff was unable to identify
the specific instrument tray that allegedly caused her injury, did not seek to set that tray aside
after it caused her injury, and cannot recall the types of instruments contained on the tray; (2) did
not provide any evidence of her own to establish that the tray in question was “unreasonably
dangerous.”; (3) Plaintiff failed to identify any genuine issues of material fact as to her strict
liability claim as required by Local Rule 56(a; (4) Plaintiff did not sufficiently demonstrate the
proper standard of care related to her negligence claim; (5) Plaintiff failed to provide necessary
expert testimony on what constitutes the proper standard of care for a surgical tray designer and
manufacturer; and (7) Plaintiff failed to demonstrate that the surgical trays delivered to
Waterbury Hospital were unfit for either their known or ordinary purposes.

Shemitz v. Newark Corp., 291 Conn. 224, 967 A.2d 1188 (Conn. 2009)

        A light fixture manufacturer alleged causes of action against a lighting component
manufacturer for strict liability pursuant to the Product Liability Act and breach of implied
warranty pursuant to the UCC due to allegedly defective components. The trial court granted the
component manufacturer’s motion to dismiss the Product Liability Act claim because it sought
damages for commercial loss that are not recoverable under the Act. The trial Court also
dismissed the UCC claim for lack on privity. On appeal, the Supreme Court ruled that the
fixture manufacturer’s cost of replacing defective components was damage recoverable under the
Act. The Court also held that because the Act is an exclusive remedy, the UCC claim was not
viable.


                                                 38
Fortier v. A.O. Smith Corp., 2009 WL 1689086 (Conn. Super. Mar. 21, 2009)

        The Court held that off-setting collateral sources include not only bills paid directly by a
health insurer, but also “insurance adjustments” or credits allowed the insurer by the healthcare
provider. The Court reduced an asbestos Plaintiff’s jury award by the health insurer’s payments
and adjustments.

Robinson v. Smith & Wesson Corp., 2009 WL 3839296 (Conn. Super. Oct. 22, 2009)

        A handgun manufactured by the Defendant allegedly discharged while holstered and
without pulling the trigger, firing one round into Plaintiff’s hip. Plaintiff filed a claim pursuant
to the Connecticut Product Liability Act and sought punitive damages. Defendant moved to
strike the plea for punitive damages and the Court granted Defendant’s motion, ruling that
Plaintiff failed to allege that the Defendant knew the handgun had a propensity to fire without
pulling the trigger.

       c.   Vermont

            Nothing of significance to report.




                                                 39
   III.    Third Circuit
                    James M. Kron                                    Jodi Dyan Oley
               Potter Anderson Corroon                           Eckert Seamans Cherin
               1313 N Market St 6th Fl                            50 S 16th St 22nd Fl
                Wilmington, DE 19801                            Philadelphia, PA 19102
                    (302) 984-6115                                   (215) 851-8473
              jkron@potteranderson.com                         joley@eckertseamans.com


Tort Reform:

Berrier v. Simplicity Mfg., Inc., 563 F.3d 38 (3d Cir. 2009)

Plaintiffs sued manufacturer of riding lawnmower after plaintiffs’ minor daughter suffered
severe injuries when the child’s grandfather backed over her leg while using defendant
manufacturer’s riding lawnmower. Plaintiffs asserted a strict product liability claim based on
Section 402A of the Restatement (Second) of Torts, and a negligence claim against the
manufacturer. Plaintiffs alleged that the riding lawnmower was defectively designed because it
lacked back-over protection. Defendant manufacturer filed a third-party complaint against
child’s parents, alleging claims of negligent supervision and failure to follow instructions.

Plaintiffs and manufacturer both sought summary judgment on their respective claims. The
district court granted manufacturer’s motion to dismiss plaintiffs’ strict liability claim on grounds
that Pennsylvania has adopted Section 402A of the Restatement (Second) of Torts, which does
not permit recovery for injuries to anyone other than the intended user. It held that, because the
child was a bystander and not an intended user, she could not assert a strict liability claim against
the manufacturer. The district court also granted summary judgment on manufacturer’s
negligence claim on grounds that manufacturer did not owe a duty to bystanders.

The Third Circuit Court of Appeals reversed. The court observed that the Pennsylvania Supreme
Court had neither recognized nor rejected a bystander’s right to recover under products liability
law. In the absence of controlling decisions from the Pennsylvania Supreme Court, the Third
Circuit held that, if addressing this issue, a majority of the Pennsylvania Supreme Court would
adopt Sections 1 and 2 of the Restatement (Third) of Torts. Section 1 of the Third Restatement
does not limit a strict liability cause of action to the “user or consumer”, and broadly permits any
person harmed by a defective product to recover in strict liability. Thus, under the Third
Circuit’s interpretation, the bystander child could assert a strict liability claim against the
manufacturer. The Third Circuit also reversed the grant of summary judgment on plaintiffs’
negligence claim on grounds that the district court failed to consider the factors set forth in
Phillips v. Cricket Lighters, 576 Pa. 644, 841 A.2d 1000 (2003).

Note: Other courts have reached different conclusions regarding Pennsylvania’s adoption of the
Restatement (Third) of Torts. The following cases also examined application of the Restatement
(Third) of Torts under Pennsylvania law and are discussed further below; Richetta v. Stanley
Fastening Sys., L.P., 2009 U.S. Dist. LEXIS 75230, No. 07-cv-3814 (E.D. Pa., Aug. 25, 2009)
(following Berrier v. Simplicity Mfg, Inc., and applying Restatement (Third) of Torts); Durkot v.


                                                 40
Tesco Equip., LLC, 2009 U.S. Dist. LEXIS 82387, No. 08-4538 (E.D. Pa., Sept. 9, 2009)
(holding that Pennsylvania would not adopt the Restatement (Third) of Torts); Bugosh v. I.U. N.
Am., Inc., 971 A.2d 1228 (Pa. 2009)(declining an opportunity to adopt the Restatement (Third)
of Torts); French v. Commonwealth Assocs., Inc., 980 A.2d 623 (Pa. Super. Ct. 2009) (declining
to adopt Restatement (Third) of Torts).

Preemption:

Bruesewitz v. Wyeth Inc., 561 F.3d 233 (3d Cir. 2009)

Plaintiffs brought product liability claims of against manufacturer of diphtheria-pertussis-tetanus
(“DPT”) vaccine after plaintiffs’ daughter suffered injuries allegedly caused by the vaccine. The
district court granted vaccine manufacturer’s motion for summary judgment on grounds that
Section 22(b)(1) of the Vaccine Act, 42 U.S.C. § 300aa-22(b)(1), preempts all design defect
claims arising from a vaccine-related injury or death, and on grounds that plaintiffs had failed to
produce sufficient evidence that the vaccine lot that allegedly caused the child’s injuries was
defective.

In a thorough examination of the policy rationale and legislative history underlying the Vaccine
Act, and the various forms that federal preemption may take, the Third Circuit affirmed the grant
of summary judgment. The Third Circuit also affirmed the district court’s finding that the
vaccine manufacturer was entitled to a statutory presumption of proper warning that plaintiffs
had failed to rebut. The Third Circuit also rejected plaintiffs’ argument that the sheer number of
adverse reactions to the vaccine was sufficient to establish “some evidence” of a problem with
the vaccine batch. The Court held that “the plaintiffs’ burden is not to produce ‘some evidence’
– a mere scintilla – but evidence sufficient for a reasonable jury to find in their favor. In the
absence of evidence of the total number of doses administered, the mere number of adverse
reactions was insufficient to create an issue of fact for the jury.

Environmental or “Green” Products Litigation:

No cases reported in this area.

Market Share or Other New Theories of Liability:

Am. Int’l Ins. Co. of Puerto Rico v. Lampe GMBH, 307 Fed. Appx. 645 (3d Cir. 2009)

Plaintiff insurer sought contribution and indemnification from the manufacturer of a sewer plug
that injured an employee of the insurer’s insured. A settlement agreement between the insurer
and the employee released all of the employee’s claims against the defendants, but expressly
reserved and assigned to the insurer all claims that the employee might have against the
manufacturers or distributors of the equipment that caused his injury. The district court granted
defendant manufacturers’ motion for summary judgment on grounds that the settlement
agreement did not discharge all of the manufacturer’s liability as to the employee. The insurer
argued that it could recover because the employee’s claims had been assigned to it, and it had
allowed the statute of limitations to run on the assigned claims against the manufacturer, thus
extinguishing all claims against the manufacturer.


                                                41
On appeal, the Third Circuit applied Sections 22, 23 and 24 of the Restatement (Third) of Torts,
which the court held unambiguously required a “discharge by settlement or judgment.” The
court rejected plaintiff insurer’s argument that expiration of the statute of limitations on the
employee’s claims discharged the employee’s claims against the manufacturer defendants. The
court reasoned that reliance upon the expiration of the statute of limitations was not recognized
under the applicable sections of the Restatement, and would lead to additional litigation between
tortfeasors over which extinguishments or cessations of liability are sufficient to qualify a
tortfeasor for indemnity or contribution.

Tobacco:

No cases reported in this area.

Automobiles:

No cases reported in this area.

Drug Litigation:

Bruesewitz v. Wyeth Inc., 561 F.3d 233 (3d Cir. 2009)

See Preemption above.

Class Action Fairness Act (CAFA):

No cases reported in this area.

Other:

Clevenger v. CNH Am., LLC, 2009 U.S. App. LEXIS 18011, No. 08-2872 (3d Cir. Aug. 13,
2009)

The Third Circuit affirmed a jury verdict, denying the plaintiff’s motion for a new trial, holding
that failure to follow a product’s instructions and warnings constitutes unintended use. Such
non-intended use, even if foreseeable, is a bar to strict liability claims in Pennsylvania. Id. at *4-
5.

The Court found no error in allowing evidence of the plaintiff’s conduct at the time of the
alleged misuse. Evidence of misuse is allowed to be introduced in Pennsylvania in a strict
products liability law case in order to defeat causation. Id. at *6. Further it was not erroneous
for the trial court to prohibit questioning of the defendant’s corporate representative as to his
knowledge of consumer use of the product because “foreseeability considerations have no place
in [Pennsylvania strict liability design defect law]”. Id. at *6-7.

D’Jamoos v. Pilatus Aircraft Ltd., 566 F.3d 94 (3d Cir. 2009)




                                                 42
The failure of systems designed to prevent stalling caused a Swiss-designed PC-12 to crash in
Pennsylvania with five passengers and the pilot on board. The particular plane had changed
hands multiple times; from the Swiss manufacturer, to a French buyer, who then resold it to a
different Swiss owner. A Massachusetts buyer then brought the plane to the United States and
sold it to a Rhode Island company. The Swiss manufacturer was not involved in any of the re-
sales, but it did profit substantially through its wholly-owned, Colorado-based subsidiary. Id. at
99.

The Third Circuit found that there was no personal jurisdiction over the Swiss manufacturer in
Pennsylvania as its contacts with the Commonwealth were found to be de minimus. Id. at 104.
Further, it was found that the stream of commerce theory did not apply where the product was
resold by third parties with no involvement by the foreign manufacturer. Id. at 105. The Swiss
manufacturer had not targeted Pennsylvania or availed itself of the Commonwealth’s market, and
the fact that other aircrafts manufactured by the them entered Pennsylvania through the stream of
commerce was considered irrelevant. Mere foreseeability that its planes might eventually end up
in Pennsylvania was not enough, as the defendant must reasonably anticipate being sued in
Pennsylvania before personal jurisdiction will be found. Id.

The lower court’s denial of transfer was vacated however so that the District Court could
consider the availability of personal jurisdiction in Colorado. Id. at 107.

       A.      DELAWARE

Tort Reform:

No cases reported in this area.

Preemption:

Kirks v. Gen. Elec. Co., 2009 U.S. Dist. LEXIS 85193, No. 08-856 (D. Del., Sept. 17, 2009)

Defendant turbine manufacturer sought to remove two asbestos-exposure lawsuits from the
Delaware Superior Court to federal court pursuant to the federal officer removal statute, 28
U.S.C. § 1442(a)(1). The two plaintiffs alleged that while serving aboard U.S. Naval ships they
were exposed to asbestos from the defendant manufacturer’s turbines, which caused them to
develop mesothelioma. Plaintiffs sought remand back to state court, while defendant argued that
the federal officer removal statute presented a federal question.

The defendant manufacturer argued that, under the federal contractor defense, it was not liable
for plaintiffs’ injuries because the Navy had controlled all aspects of the design and manufacture
of all equipment installed aboard Navy ships, including the decision of what warnings should or
should not be included. Defendant turbine manufacturer offered three affidavits in support of its
removal motion.

Denying plaintiffs’ motion to remand to state court, the court observed that to show that a
government contract displaces the state-tort-law duty to warn under the federal contractor



                                               43
defense, the contractor must show that the contract includes warning requirements that
significantly conflict with those that might be imposed by state law, and show that whatever
warning accompanied a product were dictated by the government. The court held that, based
upon the affidavits submitted, defendant turbine manufacturer was “acting under” the office of
the Navy and its officers, and had raised a colorable federal defense that warranted retaining
federal jurisdiction.

Environmental or “Green” Products Litigation:

No cases reported in this area.

Market Share or Other New Theories of Liability:

Riedel v. ICI Americas Inc., 968 A.2d 17 (Del. 2009)

Plaintiff brought an asbestos-exposure personal injury negligence against her husband’s
employer, alleging that exposure to asbestos brought home on her husband’s clothing caused her
to develop asbestosis. Plaintiff further alleged that her husband’s employer failed to prevent her
husband from taking asbestos home on his clothing and failed to warn her of the dangers of
asbestos. The trial court granted defendant employer’s motion for summary judgment on the
basis that plaintiff did not share a legally significant relationship with the employer that would
create a duty to her.

Plaintiff appealed, arguing that the trial court erred by focusing on plaintiff’s relationship with
the defendant employer rather than the foreseeability of the harm. The Delaware Supreme Court
en banc affirmed the trial court’s decision, on the grounds cited by the trial court. The Delaware
Supreme Court also noted that plaintiff had presented a theory of nonfeasance to the trial court,
alleging that defendant failed to prevent plaintiff’s exposure or to warn of the dangers of
asbestos. On appeal, however, plaintiff presented a theory of misfeasance, alleging that
defendant affirmatively released asbestos into the environment. The court rejected plaintiffs’
attempt to alter her theory of liability, and based its decision solely on plaintiffs’ theory of
nonfeasance. The court declined to comment on whether the result would be different under a
misfeasance theory. Potential liability under a nonfeasance theory of liability thus remains
unresolved.

The Delaware Supreme Court also expressly declined to adopt any sections of the Restatement
(Third) of Torts, noting that the drafters of the third restatement redefined the concept of duty in
a way that is inconsistent with Delaware law, and created additional duties that were properly
within the discretion of the legislature to determine.

Tobacco:

No cases reported in this area.

Automobiles:




                                                44
Pena v. Cooper Tire & Rubber Co., Inc., 2009 Del. Super. LEXIS 137, No. 07C-06-059 (March
31, 2009)

The plaintiff filed a product liability action against a tire manufacturer and auto manufacturer in
Delaware for an accident which occurred in Mexico. The defendants filed a joint motion to
dismiss on forum non conveniens grounds. The Court held that Mexico was not an available
alternative forum because it lacked subject and personal jurisdiction The defendants could not
confer personal and subject matter jurisdiction to a Mexican court merely by waiving any
defense to jurisdiction. The Court further found, after applying the required hardship factors, the
defendants would not suffer overwhelming hardship and inconvenience if they were forced to
litigate the case in Delaware.

Drug Litigation:

Scaife v. Astrazeneca LP, 2009 Del. Super. LEXIS 216, No. 06C-04-218 (June 9, 2009)

The Court found that the plaintiff needed expert testimony in order to establish medical causation
between the drug and her alleged injuries. The Court held that the expert testimony provided by
the plaintiff was not reliable and therefore inadmissible. could not be admitted. The plaintiff’s
expert failed to rule out other causes, impermissibly concluded that a link between the drug use
and development of the plaintiff’s injuries could be based solely on the time when the drug was
used and he failed to show the mechanism by which the drug caused the plaintiff’s injuries. As
the plaintiff could not prove causation without expert testimony, the Court granted the drug
manufacturer’s summary judgment motion.

Class Action Fairness Act (CAFA):

No cases reported in this area.

Other:

Gen. Motors Corp. v. Grenier, 981 A.2d 531 (Del. 2009)

Plaintiff, a former auto mechanic, brought an asbestos-exposure action against defendant
automobile manufacturer, alleging that exposure to asbestos fibers emitted from asbestos-
containing brakes and clutches incorporated into the manufacturer’s automobiles caused plaintiff
to develop mesothelioma. The parties agreed that automotive friction products such as brakes
and clutches contain chrysotile asbestos, and that unrefined chrysotile asbestos causes
mesothelioma. Defendant manufacturer argued, however, that refined chrysotile fibers
incorporated into finished friction products were not the same as unrefined chrysotile, and that
plaintiffs’ expert opinions had failed to establish that chrysotile asbestos incorporated into
finished friction products were capable of causing mesothelioma. The trial court had previously
held a lengthy Daubert hearing, after which it had concluded that plaintiff’s expert testimony was
reliable and admissible.




                                                45
After a jury trial in which plaintiff relied upon the testimony of his experts, the jury returned a
verdict against the manufacturer. Manufacturer appealed on grounds that the trial court abused
its discretion when it admitted plaintiff’s expert testimony. Manufacturer argued that; 1) the
experts made an unsupported assumption that chrysotile asbestos in friction products is
indistinguishable from unrefined chrysotile, and 2) all existing epidemiological studies
contradicted plaintiff’s expert opinions.

On appeal, the Delaware Supreme Court en banc held that plaintiff’s experts were qualified in
their field, and their work had been peer reviewed. In particular, the court noted Dr. Ronald F.
Dodson, one of plaintiff’s experts, had opined that because the morphology, size, and shape of
asbestos fibers from finished friction products was the same as that of unrefined chrysotile
asbestos, they should be equally carcinogenic. The court found this sufficient to establish the
reliability of Dr. Dodson’s testimony. The court also found the testimony of plaintiff’s other
expert, Dr. Richard Lemen, reliable because he had determined that friction products can release
respirable chrysotile fibers in amounts sufficient to cause disease, and had further determined
that there was no reliable evidence to support a hypothesis that all fibers released from friction
products were somehow structurally or chemically different from unrefined chrysotile in a
manner that would render them incapable of causing disease. The court found, based on this
information, that Dr. Lemen’s assumption that friction fibers and unrefined chrysotile fibers were
the same was well founded.

One Delaware Supreme Court justice dissented, arguing that the majority had improperly shifted
the burden of proof to the defendant manufacturer to disprove the reliability of the plaintiff’s
experts’ testimony. The dissent further argued that plaintiff’s experts had failed to identify a
scientific basis for their testimony.

Brown v. Dollar Tree Stores, Inc., 2009 Del. Super. LEXIS 459, No. 07C-07-092 (Dec. 9, 2009)

Plaintiffs brought product liability allegations against the manufacturer and seller of a mop
which injured the plaintiff-child. The plaintiffs did not retain an expert witness to testify that the
mop was defective or that the defective mop caused the plaintiff-child’s injury. Id. at *2. The
defendant manufacturer filed a motion for summary judgment arguing that the plaintiffs could
not maintain their design defect claim without an expert witness. Id. The Court held that the
plaintiffs did not require expert testimony to establish a defect in the mop. Id. at *3. The
existence of any potential defect in a common household mop, which contained no mechanical
parts or sophisticated design, was within the average juror’s scope of knowledge. Id.

Collins v. Ashland, Inc., 2009 Del. Super. LEXIS 7, No. 06C-03-339 (Jan. 6, 2009)

Plaintiff brought product liability action against paint manufacturer and numerous other
defendants, alleging that exposure to benzene-containing products manufactured by defendants
caused him to develop Acute Myelogenous Leukemia (“AML”). Defendant paint manufacturer
sought summary judgment on grounds that plaintiff had failed to adduce sufficient evidence
identifying a benzene-containing product for which the paint manufacturer may be held
responsible. In response to the motion for summary judgment, plaintiff, for the first time,
produced affidavits of two co-workers. Paint manufacturer defendant moved to strike the



                                                 46
affidavits as untimely, and argued that, even if accepted, they were insufficient to create a
material issue of fact for the jury. The court reluctantly allowed one affidavit and struck the
other.

The court denied paint manufacturer’s summary judgment motion, holding that with the
additional affidavit, plaintiff satisfied the “time and place” standard necessary to establish a
“product nexus” between the plaintiff and defendant’s product. The court held that the late-
admitted affidavit established the “place” requirement because the affidavit placed the plaintiff in
the proximity with the paint manufacturer defendant’s product. The court further held that
plaintiff had satisfied the “time” requirement because the affidavit stated that plaintiff used the
defendant paint manufacturer’s products on “many occasions,” over a nine-month period. The
court found this sufficient to meet the “time and place” standard to establish product nexus.

       B.      NEW JERSEY

Tort Reform:

No cases reported in this area.

Preemption:

No cases reported in this area.

Environmental or “Green” Products Litigation:

No cases reported in this area.

Market Share or Other New Theories of Liability:

Dean v. Barrett Homes, Inc., 406 N.J. Super. 453, 968 A.2d 192 (2009)

Plaintiffs, second owners of a house constructed with an Exterior Insulation Finishing System
(“EIFS”), brought claims under New Jersey’s Consumer Fraud Act (CFA) and Products Liability
Act (PLA) against the builder of the house, the installer of the EIFS and the EIFS seller.
Plaintiffs alleged that the EIFS was defective and had caused damage to their house as a result of
water infiltration, and that defendants had concealed information about problems with the EIFS
on their house. Defendants sought summary judgment.

The court granted defendants’ motion for summary judgment on plaintiffs’ product liability
claim, holding that the economic loss rule barred recovery in tort where damage from a product
defect was only to the product itself. The court held that the product that the plaintiffs had
purchased was a house, of which the EIFS was only one component. Because the house was the
product, and plaintiffs could have protected their interest in other ways, such as by further
investigation of the EIFS system on the house, or obtaining a warranty, damage to other portions
of the house was damage only to the product itself. The court specifically noted that plaintiffs




                                                47
claimed no personally injury, no damage to the contents of the house, and no damage to
landscaping.

The court also granted defendants’ motion for summary judgment on plaintiffs’ consumer fraud
act claims, noting that plaintiffs had had no communications whatsoever from the defendants,
and did not rely upon any representations from any of the defendants when plaintiffs decided to
purchase the house from the previous owners.

Sarkozy v. A.P. Green Inds., Inc., 2009 N.J. Super. Unpub. LEXIS 2052, No. A-0312-07T1
(App. Div. July 31, 2009)

Plaintiffs, multiple former employees of paper mills located in New Jersey, brought product
liability action against manufacturer of asbestos-containing dryer felts used in the process of
making paper. After a jury trial, the jury awarded damages to various plaintiffs for wrongful
death, future medical monitoring, and past and future pain and suffering. Defendant appealed.

On appeal, the court rejected defendant’s argument that the award of $400,000 to one of the
plaintiffs was excessive given that decedent was 83 years old and had a life expectancy of 7.3
years. The court held that expert testimony is not required for a jury to quantify the value of
service, guidance and counsel and companionship lost as a result of decedent’s death. The court
further observed that recovery for such losses does not cease when children reach the age of
majority, nor is it dependent upon the age of the decedent’s children.

The court also rejected defendant’s argument that an award for medical monitoring was
excessive or inappropriate given that the likelihood that the surviving plaintiffs would not
develop additional asbestos-related conditions. The court noted that future testing costs could be
very high, and even if the likelihood that plaintiffs would contract cancer was only slightly
higher than the national average, medical intervention may be completely appropriate in view of
the attendant circumstances.

Tobacco:

No cases reported in this area.

Automobiles:

Tluczek v. Prestige BMW of Ramsey, 2009 N.J. Super. Unpub. LEXIS 2316 (App. Div. 2009)

The plaintiffs brought a product liability claim against the defendants based upon a
manufacturing defect in the plaintiffs’ vehicle’s power or active steering. The plaintiffs did not
produce an expert witness or expert report upon the close of discovery. The defendants
thereafter filed for summary judgment which was granted by the Law Division, holding that
without expert testimony, the jury “could do nothing but speculate what the defect [in the
vehicle] might have been.” Id. at 4.




                                               48
After reviewing prior decisions of the Court regarding the need for expert testimony, the
Appellate Division upheld the lower court’s grant of summary judgment. The Court held that the
lack of expert testimony was fatal to the plaintiffs’ ability to prove their manufacturing defect
claim. Id. at 13. The Court found that the alleged manufacturing defect dealt with computerized
micro chips and complex steering mechanisms. Id. at 12-13. Such mechanisms were beyond the
basic knowledge of a jury and required the plaintiffs to proffer expert testimony in order to
maintain their cause of action for a manufacturing defect. Id. at 13.

Drug Litigation:

No cases reported in this area.

Class Action Fairness Act (CAFA):

No cases reported in this area.

Other:

Marrone v. Greer & Polman Constr., Inc., 405 N.J. Super 288, 964 A.2d 330 (App. Div. 2009)

The defendants were granted summary judgment dismissing the plaintiffs’ second amended
complaint which alleged that the Exterior Insulation Finish System (“EIFS cladding”) used on
their home was defective and it allowed moisture damage to occur to the house’s sheathing and
window frames. Id. at 298, 964 A.2d at 336. The Appellate Division narrowed the issue before
it to whether the plaintiffs could recover for damages to their home caused by a component part
of the house. Id. at 297, 964 A.2d at 336. The court ruled that the important determination in a
case such as this was to look at what product the plaintiffs purchased; not what product the
defendants sold. Id. at 302-03, 964 A.2d at 340.

In this case, the plaintiffs purchased a house, not the EIFS cladding manufactured by the
defendants. Id. After making this determination, the Court held that the plaintiffs’ product
liability claims were barred by the economic loss doctrine. The plaintiffs could not maintain
their product liability claims because 1) the house was the “product” which the plaintiffs
purchased and the house could not be subdivided into component parts for the purposes of a
product liability action; and 2) even if the plaintiffs had purchased the EIFS cladding separately,
they still would not be able to maintain their product liability claim as the alleged defects
constituted “damage …to the product itself” which precludes a product liability action under
N.J.S.A. 2A:58C-1b(2). Id. The Court reasoned that the New Jersey Legislature created
statutory remedies for parties similar to the plaintiffs, but such remedies do not include tort
liability. To allow tort liability in cases similar to the present would leave component
manufacturers open to potentially unlimited liability. Id. at 303, 964 A.2d 340.

         C.    PENNSYLVANIA

Tort Reform:




                                                49
Durkot v. Tesco Equip., LLC, 2009 U.S. Dist. LEXIS 82387, No. 08-4538 (E.D. Pa., Sept. 9,
2009)

Airline worker injured while operating a catering lift truck brought products liability action in
state court against the truck’s manufacturer. Following removal, the manufacturer sought
application of Sections 1 and 2 of the Restatement (Third) of Torts. The district court examined
the Third Circuit’s recent decision on this issue in Berrier v. Simplicity Mfg.., Inc., 563 F.3d 38
(3d Cir. 2009), and the later-decided decision by the Pennsylvania Supreme Court in Bugosh v.
I.U. N. Am., Inc., 971 A.2d 1228 (Pa. 2009), in which the Pennsylvania Supreme Court declined
an opportunity to adopt the Restatement (Third) of Torts. The Durkot court noted that it was not
bound by the Third Circuit’s prediction of state law once a state court’s later decisions indicate
that the Court of Appeals’ earlier prediction was in error. The court noted that the Bugosh court
had neither adopted the Restatement (Third), as the Court of Appeals had predicted, but neither
had it affirmed the existing Pennsylvania law adopting the Restatement (Second). The court
noted, however, that Bugosh had presented an opportunity for the Pennsylvania Supreme Court
to adopt the Restatement (Third), and declined to do so. The Durkot court, thus held that the
Restatement (Second) of Torts would apply.

French v. Commonwealth Assocs., Inc., 980 A.2d 623 (Pa. Super. Ct. 2009)

Widow brought wrongful death action against engineering firm and others alleging negligence,
products liability, and breach of warranty. The Court of Common Pleas entered judgment of non
pros as to claims against the engineering firm due to plaintiff’s failure to file a timely certificate
of merit. Widow appealed.

Widow argued that the trial court erred when it adopted, on its own, the Restatement (Third) of
Torts and required a certificate of merit if an expert must testify at trial to support her products
liability claim. The court noted in a footnote that the Pennsylvania Supreme Court had recently
dismissed as improvidently granted the case of Bugosh v. I.U. N. Am., Inc., 971 A.2d 1228 (Pa.
2009), thereby declining to move from Section 402A of the Restatement (Second) of Torts to
Section 2 of the Restatement (Third) of Torts on product liability.

Preemption:

No cases reported in this area.

Environmental or “Green” Products Litigation:

Steffy v. The Home Depot, Inc., 2009 U.S. Dist. LEXIS 27682, No. 1:06-cv-02227 (M.D. Pa.
Mar. 31, 2009)

Plaintiffs constructed a building on their property for various uses, including: storage, fitness,
entertaining, display space for hunting trophies, and office space. While browsing Home Depot
plaintiff decided to use cabinet grade plywood for the building’s interior walls instead of drywall
or standard wood paneling. After the building was finished, plaintiffs experienced watering and
burning eyes, headaches, and burning in the throat. Investigation revealed that the plywood used



                                                 50
for the interior walls was emitting formaldehyde, which was causing plaintiffs’ symptoms.
Plaintiffs brought action against Home Depot and the manufacturer of the plywood, stating
causes of action for strict liability, negligence, breach of implied warranties of merchantability
and fitness for a particular purpose, fraud, negligent misrepresentation, breach of implied
consumer product warranties, and violation of the Pennsylvania Unfair Trade Practice and
Consumer Protection Law. Defendants moved for summary judgment.

The court rejected defendants’ argument that use of the plywood for interior walls was not an
intended use. The court noted that in strict liability actions, a manufacturer is liable only for
harm that occurs in connection with the manufacturer’s intended use of the product by the
intended user, and even foreseeable misuse of the product will not support a strict liability claim.
The court held, however, that cabinet grade plywood had multiple uses, and disagreed that use
for interior walls constituted misuse of the product. The court thus denied defendants’ motion
for summary judgment on those grounds.

The court also found that plaintiffs had presented sufficient evidence to create a material issue of
fact on their failure to warn claim, and their assertion that the plywood was unreasonably
dangerous. The court noted that no warnings were given that the plywood contained
formaldehyde, or that exposure to formaldehyde might cause physical injury. The court thus
found that, in the absence of proper warning, the plywood was unreasonably dangerous.

The court granted defendants’ motion for summary judgment on plaintiffs strict liability and
negligence claims under the economic loss doctrine. The court noted that the economic loss
doctrine forecloses tort actions for economic injury not attended by physical injury or damage to
real or personal property. The court further noted that, when a product causes damage only to
the product itself, there can be no action in negligence or strict liability. The court thus found,
because plaintiffs had withdrawn their personal injury claim, and had established no damage to
real or personal property, their tort claims could not stand. The court reject plaintiffs’ argument
that the air inside the building constituted personal property that had been damaged by the
formaldehyde emitted from the plywood.

Market Share or Other New Theories of Liability:

Richetta v. Stanley Fastening Systems, L.P., 2009 U.S. Dist. LEXIS 75230, No. 07-cv-3814
(E.D. Pa. Aug. 25, 2009)

Plaintiff, a user of nail gun, brought strict products liability action against the nail gun
manufacturer after plaintiff was injured when nail gun fell and discharged nail into user’s chest.
Plaintiff asserted that the nail gun was defective because it lacked a lock to prevent accidental
discharge if the nail gun was dropped. Manufacturer sought summary judgment.

The district court first examined whether the Second or Third Restatement of Torts applied. The
court noted that the Second and Third Restatements are significantly different in that the Third
Restatement emphasizes foreseeable risks of harm while the Second Restatement emphasizes
whether the product was being used as intended by an intended user. The court also noted that
the Third Circuit had predicted in Berrier v. Simplicity Mfg., Inc., 563 F.3d 38 (3d Cir. 2009) that



                                                51
the Pennsylvania Supreme Court would have adopted the Restatement (Third) of Torts if it had
considered the issue. The district court also considered the Pennsylvania Supreme Court’s
refusal to address the issue in Bugosh v. I.U. N. Am., Inc., 971 A.2d 1228 (Pa. 2009), holding
that, because the Bugosh Court had dismissed the Bugosh appeal as improvidently granted, and
thus had not decided whether to adopt or reject the Restatement (Third) of Torts, the Bugosh
decision had no precedential value. The court thus held that the Restatement (Third) of Torts
controlled.

Addressing the merits of manufacturer’s motion for summary judgment, the Richetta court found
that the risk that a nail gun might discharge when dropped was foreseeable, and further found
that the plaintiff had shown that a reasonable alternative was available that would have prevented
the injury. Manufacturer argued that it had warned of the risk of accidental discharge if the nail
gun was dropped, and that the user had failed to follow instructions by not disconnecting the
energy supply to the nail gun when not in use. The court held that, under the Third Restatement,
a plaintiff’s negligence is not relevant unless the defendant can show that plaintiff’s conduct was
the sole cause of the injury. On this basis, the court found that the manufacturer’s warning of the
precise hazards that caused plaintiff’s injury was insufficient to establish as a matter of law that
no material issue of fact existed for the jury.

The court granted manufacturer’s motion for summary judgment on plaintiff’s punitive damages
claim, noting that the mere possibility of establishing liability alone could not justify imposition
of punitive damages. The court held that manufacturer’s strategic decision to place warnings on
its product rather than change the design did not establish the necessary degree of recklessness to
justify an award of punitive damage.

Martinez v. Triad Controls, Inc., 593 F. Supp. 2d 741 (E.D. Pa. 2009)

Plaintiff, a non-English-speaking factory worker, brought strict liability and negligence claims
against the manufacturer of a mechanical power press that caused amputation of several of
plaintiff’s fingers, and against the manufacturer of a safety device on the power press identified
as a “light curtain.” Plaintiff alleged that the power press was unreasonably dangerous because
the press controls should have been fixed in a position that would have prevented his injury, and
should have been equipped with a programmable logic controller (“PLC”) that would have
detected when two employees were operating the press improperly. Plaintiff further alleged that
the light curtain was defective because it failed to prevent the press from operating if the light
curtain itself failed or malfunctioned. Defendants moved for summary judgment.

The court noted that whether a product is unreasonably dangerous is a question of law for the
court, whose resolution depends on social policy, and identified seven factors that it could
consider in making its determination. These include:

       (1)     the usefulness and desirability of the product, including its utility to both the user
               and the public;
       (2)     the likelihood that the product will cause injury and the seriousness of such
               injuries;




                                                52
       (3)     the availability of a substitute product that would meet the same need and not be
               unsafe;
       (4)     the manufacturer’s ability to eliminate the unsafe character of the product without
               impairing its usefulness or making it too expensive to maintain its utility;
       (5)     the user’s ability to avoid danger by the exercise of care in the use of the product;
       (6)     the user’s anticipated awareness of the dangers inherent in the product and their
               avoidability, because of general public knowledge about the obvious condition of
               the product or about the existence of suitable warnings; and
       (7)     the feasibility, on the part of the manufacturer, of spreading the loss by setting the
               price of the product or carrying liability insurance.

Granting the press manufacturer’s motion for summary judgment, the court found as a matter of
law that plaintiff had failed to show that the power press was lacking an element necessary to
make it safe, and, therefore, failed to show that the press was unreasonably dangerous. In
particular, the court found that plaintiff had failed to produce evidence that employing a PLC
would not affect the utility of the press, and had also failed to produce evidence that a safer
product that uses a PLC was available.

The court denied the light curtain manufacturer’s motion for summary judgment, finding that the
light curtain was unreasonably dangerous because it failed to stop operation of the press if the
light curtain failed. The court noted that press operators were unlikely to detect if any of the
lights of the light curtain had failed, and continued operation while the light curtain was
inoperable would erroneously create an impression of safety that did not exist. The court further
observed that it was foreseeable that over the course of years portions of the light curtain might
cease working, and that the manufacturer should have taken this into consideration in its design
of the light curtain.

The court rejected plaintiff’s argument that the press was defective because safety instructions
were given only in English. The court noted that the press had been manufactured in Canada in
1978, and the manufacturer had not targeted Spanish-speaking populations or reasonably
expected that its press would be sold to Spanish-speakers. The court further noted that a
different result might apply if the product had been sold or used in a geographic area of dense
Hispanic population, the product had been marketed toward Hispanics, or the product was used
in an industry with a large percentage of Hispanic workers, such as the migrant farm industry.
The court also noted the confusion that would result with too many warnings in too many
different languages.

Hicks v. Dana Companies., LLC, 2009 Pa. Super. LEXIS 4470, No. 3008 EDA 2006 (Nov. 18,
2009)

Seventy-Five-year-old plaintiff construction laborer brought strict products liability action
against gasket manufacturer and packing manufacturer, alleging that inhalation of asbestos fibers
from defendants’ products caused him to develop mesothelioma. Following a jury trial, the jury
awarded plaintiff’s estate $5 million. Defendants appealed.




                                                53
The Pennsylvania Superior Court held that the “regularity, frequency, and proximity” test set
forth in Gregg v. V-J Auto Parts Co., 596 Pa. 274, 943 A.2d 216 (2007) must be tailored to the
facts and circumstances of each case. The appellate court rejected defendants’ argument that the
Gregg Court had rejected the theory that “each and every exposure to asbestos” could satisfy that
test. The court noted plaintiff’s experts’ testimony that each and every inhalation of asbestos
was significant and contributed to the accumulation of asbestos in the body, and also noted
defendants’ experts’ testimony that “extraordinarily low levels of asbestos,” or “next to nothing”
was given off by defendants’ products. Based upon this conflicting expert testimony, the court
held that because defendants’ products gave off “some respirable fibers of asbestos,” it had
created the proverbial “battle of the experts,” for the jury to decide.
The court distinguished Gregg by noting that the Gregg plaintiff allegedly worked with
defendants’ brakes on three occasions over a five-year period, and was also exposed to other
sources of asbestos throughout his forty-five-year career. The Hicks plaintiffs, however, alleged
near continuous exposure to defendants’ products throughout his career as a construction laborer.
The court held “that the evidence needed to satisfy the frequency, regularity and proximity test
so as to survive summary judgment will differ . . . due to the various diseases associated with
asbestos exposure, the medical evidence presented, the types of asbestos involved, the manner in
which the products were handled, and the tendency of those asbestos products to release asbestos
fibers into the air.” Under Hicks, therefore, the significance of a plaintiff’s exposure to a
particular defendant’s product will turn on the extent to which the plaintiff was exposed to
alternative asbestos-containing products, the propensity for those alternative products to release
asbestos fibers, the potency of the alternative asbestos fibers, and the duration to which the
plaintiff was exposed to the alternative types of asbestos.

The Hicks court also addressed defendants’ argument that evidence of compliance with industry
or governmental regulations should have been admitted as evidence of whether the products at
issue were defective. The court rejected defendants’ argument, holding that such evidence was
relevant only to the reasonableness of defendants’ actions, and that negligence principles had no
place in determining liability in a strict product liability action.

Tobacco:

No cases reported in this area.

Automobiles:

Gaudio v. Ford Motor Co., 976 A.2d 524 (Pa. Super. Ct. 2009)

A strict liability action was filed against a car manufacturer after alleging that the air bag should
not have deployed or that the airbag deployed late. Evidence that the plaintiff-decedent was not
wearing his seatbelt at the time of the accident and plaintiff-decedent’s pre-impact conduct,
along with the car manufacturer’s compliance with Federal Safety Standards was admitted
during the trial and the jury returned a verdict for the car manufacturer. The plaintiff appealed
alleging that such evidence was admitted in error.




                                                 54
Before reaching the plaintiff’s appeal, the court responded to the car manufacturer’s argument
that the trial court erred in denying its motions for a compulsory non-suit and directed verdict on
the plaintiff’s strict liability-crashworthiness claims pursuant to Pa. Dep’t of Gen. Servs. v. U.S.
Mineral Products Co., 587 Pa. 236, 898 A.2d 590 (2006). The car manufacturer argued that this
decision precluded the application of crashworthiness in strict liability cases because the
fundamental basis for this doctrine is that crashes are intended uses of automobiles because they
are foreseeable. Id. at 533. The manufacturer further argued that holding a motor vehicle
manufacturer liable for harm from foreseeable but unintended uses without the protection
available under negligence law is inconsistent with the holding in U.S. Mineral Products Co. Id.

The Superior Court disagreed, holding that the Supreme Court did not eliminate the
crashworthiness doctrine as a subset of strict liability in U.S. Mineral Products Co. Id. at 533-
34. Instead, without disapproving the discrete use of the foreseeable concept in crashworthiness
cases, the Supreme Court refused to extend the use of the foreseeability test as to other products.
Id. at 534.

Turning to the plaintiff’s appeal, the Court held admission of the plaintiff-decedent’s seatbelt
non-use was in error as 75 Pa. C.S. § 4581(e) creates an absolute bar of evidence of non-use of
seatbelts in civil actions. The statute does not contain, nor does it reference, any exceptions to
this rule. Therefore the Court ruled that 75 Pa. C.S. § 4581(e) was a blanket exclusion of
evidence of seat belt usage in civil actions for any purposes, including to prove contributory
negligence, defect, causation and/or damages. Id. at 536.

The Court further held that the admission of the plaintiff-decedent’s pre-impact conduct was also
in error because the car manufacturer failed to argue any exceptions to the general rule that
evidence of a plaintiff’s contributory negligence is inadmissible. Id. at 541. There existed no
evidence that the plaintiff-decedent was aware of any defect in the air bag system or that the
plaintiff-decedent assumed any risked. In addition the car manufacturer did not argue that the
plaintiff-decedent’s pre-impact conduct was in any way unforeseeable, outrageous or
extraordinary. Id.

The Court also held that the admission of the car manufacturer’s compliance with Federal Safety
Standards was erroneous. Id. at 545. The Court did not find any similar evidence presented by
plaintiff which would have opened the door and created the necessity for the car manufacturer to
have to respond with evidence of its compliance with Federal Safety Standard. Id. at 544.

Finally, the Court upheld the trial court’s admission of statistical evidence of the lack of prior
claims and the testimony of the car manufacturer’s expert regarding the benefits or risks of the
use of air bags. Id. at 546, 549. The Court reasoned that both requirements where met to allow
evidence of the lack of prior claims and that the car manufacturer’s testimony of the benefits and
risks of the use of air bags raised legitimate factual issues for the jury to consider, including
whether the alterative design proposed by the plaintiff was safer. Id. at 543-47, 549-50.

Drug Litigation:

Simon v. Wyeth Pharm., Inc., 2009 Pa. Super. LEXIS 4994, No. 2620 (Dec. 31, 2009)



                                                55
The Superior Court upheld the jury’s determination in favor of the plaintiffs’ failure to warn
claim because evidence proffered at trial was sufficient to allow the jury to conclude that the
drug manufacturer negligently failed to provide adequate warnings on its drug. Id. at *37. The
plaintiff-wife’s doctor testified that since the study regarding the side effects of the drug was
published he has changed his practices when prescribing the subject drug. He also testified that
while he continues to prescribe the drug, he does so only after warning his patients about the
results of the study. Id. at *42-43.

Owens v. Wyeth, 2009 Phila. Ct. Com. Pl. LEXIS 185, No. 1756 (Aug. 17, 2009)

The plaintiffs brought a failure to warn claim against a drug manufacturer. The plaintiff-wife’s
doctor testified that he was aware of the risks of the drug he prescribed to the plaintiff-wife and
that he would have prescribed the drug to her even if he knew that it could cause the plaintiff-
wife’s present disease. Id. at *15-18. Given the plaintiff-wife’s doctor’s testimony, the Court
granted the drug manufacturer’s motion for summary judgment. The court held that the
plaintiffs failed to establish through sufficient evidence that a change in the drug’s warning
would have prevented her from receiving the drug, thereby failing to establish proximate cause.
Id. at 18.

Class Action Fairness Act (CAFA):

No cases reported in this area.

Other:

DiPaolo v. Black and Decker (US) Inc., 2009 U.S. Dist. LEXIS 116800, No. 07-4314 (E.D. Pa.
Dec. 15, 2009)

The defendants challenged the plaintiffs’ expert’s qualifications and reliability of his opinion.
After finding the plaintiffs’ expert was qualified to render his opinions, the Court focused on the
reliability of the opinions.

The defendants argued that the plaintiffs’ expert did not have sufficient factual predicate to base
his opinions, but that he merely relied on documents provided to him by the plaintiffs’ counsel.
Id. at *11-12. The plaintiff-husband was injured while using a table saw which allegedly kicked-
backed. One of the plaintiffs’ expert’s opinions was essentially that because there was a kick-
back, the plaintiff-husband must have been using bowed wood at the time of the accident. Id. at
*12.

The Court found that the expert’s opinion that the kick-back occurred was based on factual
evidence as plaintiff-husband testified he heard bang. However, the Court found that the
expert’s opinion of the plaintiff-husband’s use of bowed wood was based solely on his say-so.
Id. Although the expert relied in part on his past experience with kick-backs to make this
opinion, the Court found such reliance in this situation insufficient due to the availability of
empirical testing to determine when kickbacks occur. Id. at *12-13. The Court next reasoned



                                                56
that the expert’s reliance on the fact that an accident occurred did not explain why or how the
accident’s occurrence implied the use of bowed wood. Id. at *13. Finally the Court reasoned
that the experts sole reliance on general scientific principals as the total of his methodology in
forming his opinion did not pass the Daubert scrutiny. Id. The Court also went on to note that
the expert’s opinion was based solely on his own intuition as he (1) performed no testing; (2)
cited no literature to support his opinions; and (3) provided no reasons to believe that his
methodology was reviewed or accepted by other engineers in the field. Id. at *13-14.

Hartsock v. Wal-Mart Stores East, Inc., 2009 U.S. Dist. LEXIS 112873, No. 07-3200 (E.D. Pa.
Nov. 24, 2009)

The plaintiff alleged that a ride-on tractor was defective because it failed to warn users of the
dangers associated with the product during a rollover. Id. at *1-4, 9. The manufacturer filed a
partial motion for summary judgment arguing that the plaintiff failed to adequately plead its
failure to warn cause of action as the plaintiff failed to offer any evidence to show that a lack of
warning was the cause in fact or proximate cause of the plaintiff’s injuries. Id. at *4, 7.
Although the plaintiff conceded that he could not maintain a failure to warn claim against the
manufacturer with respect to the warnings in the owner’s manual, the plaintiff argued that
evidence of warnings outside of the manual should not be precluded, including those written on
the mower itself and any other printed material accompanying the mower. Id.

The Court agreed with the manufacturer that the plaintiff failed to present evidence as to how the
inadequate warnings caused his injuries. Id. at *9. The plaintiff provided no statements on how
he would have acted differently, nor does he claim that he would have changed his behavior on
the day of the incident, if additional warnings had been provided. In addition, the plaintiff’s own
expert does not explain precisely how the plaintiff would have acted differently to prevent or
mitigate his injuries based on additional warnings. Id. at 9-10.

Del Baggio v. Maytag Corp., 2009 U.S. Dist. LEXIS 87284, No. 3:05378 (W.D. Pa. Sept. 23,
2009)

The plaintiffs brought a product liability claim under the malfunction theory against the
manufacturer of an electric range following a fire in their home. The manufacturer filed a
motion for summary judgment arguing that the plaintiffs could not maintain a cause of action
under the malfunction theory due to the prolonged used of the electric range prior to the fire. Id.
at *18-19.

The electric range had been used for approximately three and a have years before the fire without
incident. Id. at *18. No evidence existed to show that the range was subjected to abnormal use
during this time period and the manufacturer did not argue that the range was misused. Id.
Based upon the evidence, the Court held that prolonged use of a product did not automatically
entitle a defendant to summary judgment. Id. at *21. The three and a half years of use of the
electric range did not mandate summary judgment. Id. at *19. The Court reasoned that it was a
question for the jury to determine whether the age and wear and tear, rather than a defect, caused
the electric range to malfunction, especially, where as here, the plaintiffs provided evidence,
including expert testimony, from which a jury could infer a defect. Id.



                                                57
Nilson v. Hershey Entm’t & Resorts Co., 649 F. Supp. 2d 378 (M.D. Pa. 2009)

The plaintiffs filed suit against a roller coaster manufacturer for their son’s hearing loss alleging,
among other things, that the roller coaster was defective due to inadequate warnings. Id. at 386.
Specifically, the plaintiffs alleged that the warnings failed to warn how violent and fast the roller
coaster might be and if the warnings had been adequate, the plaintiffs’ son would have heeded
the warnings and not ridden the roller coaster. Id.

The roller coaster’s warning provided “THROUGHOUT THE RIDE RIDERS WILL
EXPERIENCE SPEED CHANGES AND UNEXPECTED FORCES.” Id. at 388 (emphasis
in original). The plaintiffs’ alleged that the roller coaster should have warned that the rider
“would be shaken violently and would be subjected to trauma to their heads and necks.” Id. The
plaintiffs’ expert opined that the roller coaster’s warning was inadequate because it failed to
provide sufficient warnings regarding the character or severity of the forces associated with the
roller coaster. Id. The expert proposed the following amended warning: “WARNING!!! THIS
IS A HIGH SPEED RIDE WITH RAPID JOLTS IN SHARP TURNS AND HARD DIPS. DO
NOT RIDE UNLESS YOU ARE PREPARED FOR THE MOST SEVERE LEVEL OF
PHYSICAL IMPACT AND THRILL.” Id. (emphasis in original).

After reviewing both warnings, the Court found that it could not determine any difference
between the roller coaster’s warning and the plaintiffs’ proposed warning. Id. The Court
reasoned that the plaintiffs’ proposed warning suffered the same alleged flaws which the roller
coaster’s warning currently had; i.e. it did not quantify the character of speed and did not
quantify the motions or forces exerted by the rider. Id. The proposed warning would not
communicate any new information that was not already included in the current warning on the
roller coaster.

In addition, the plaintiffs’ son testified that he would not have ridden the roller coaster if the
warning stated that the roller coaster would include “violent shaking.” The Court again noted
that the plaintiffs’ proposed warning lacked any mention of “violent shaking” and therefore the
plaintiffs could not maintain that the proposed warning would have changed their son’s behavior.
Id. at 388-89.

The Court also found that the plaintiffs did not provide any evidence that the danger complained
of, i.e. the speed and force exerted by the roller coaster, was unobvious. Id. at 389. As
manufacturers are only required to warn of latent risks, the plaintiffs’ failed to demonstrate that
the warning was defective.

Martinez v. Skirmish, U.S.A., Inc., 2009 U.S. Dist. LEXIS 51628, No. 07-5003 (E.D. Pa. June 16,
2009)

The Court granted the defendant’s motion for summary judgment as to the plaintiff’s negligence
claims, but found that the strict liability claims alleging that the goggles rented to the plaintiff by
the defendant were defective and the plaintiff’s breach of warranty claims could proceed.




                                                  58
With respect to the plaintiff’s negligence allegations, the court found that the Waiver & Release
entered into by the plaintiff prior to renting the allegedly defective equipment was enforceable
and acted as a waiver to his negligence claims. Id. at *34. The Waiver & Release however, did
not waive the plaintiff’s gross negligence, strict liability or breach of implied warranties of
merchantability and fitness for a particular purpose. Id.

Thereafter, the Court denied the defendant’s motion for summary judgment as to the plaintiff’s
remaining allegations. The Court found that there was evidence which the jury could consider as
to whether the defendant’s conduct grossly deviated from the ordinary standard of care owned to
the plaintiff. Id. at *45-46. This included evidence that none of the defendant’s employees
showed the plaintiff how to tighten the goggles, the goggles were worn and fit loosely on the
plaintiff’s face and that one of the defendant’s employees ignored the plaintiff when he
attempted to complain about the goggles. Id. at *46.

 In addition, after applying all seven (7) of the Azzarello factors, the court denied the defendant’s
motion for summary judgment as to the plaintiff’s strict liability and breach of warranty claims.
The Court held that the defect in the design of the goggles rented by the plaintiff outweighed
their social utility and that the goggles were unreasonably dangerous. Id. at *56-67.

Czarnecki v. Home Depot USA, Inc., 2009 U.S. Dist. LEXIS 51637, No. 07-4384 (E.D. Pa. June
15, 2009)

The plaintiffs alleged that a ladder purchased from the defendant was defectively designed. The
defendant filed a Motion in Limine to preclude the use of prior claims or lawsuits involving
ladders manufactured by the same company as the ladder used during the accident. The Court
granted the defendant’s Motion holding that the plaintiffs did not establish the proper foundation
to admit this evidence as there was no way for the Court to determine whether and to what extent
the prior claims/lawsuit were substantially the same or similar to the present case. Id. at *4.
First, there was no indication that the prior claims/lawsuits dealt with the same or similar design
or materials in the subject ladder or that the claims involved the same or similar facts as the
present case. Id. Second, none of the claimants in the prior claims/lawsuits were identified as
witnesses and none of the other ladders involved in these claims/lawsuits were disclosed as
exhibits. Id.

The plaintiffs filed a Motion in Limine seeking to exclude evidence of industry standards at the
time of trial. Id. at *20. In opposition, the defendant relied on a recent opinion from the Third
Circuit, Berrier v. Simplicity Mfg., Inc., 563 F.3d 38 (3d Cir. 2009), where the Third Circuit
stated that evidence of industry standards “may” be relevant in a strict liability case. Id. at *21.
The Eastern District held that this comment made by the Third Circuit was merely dictum and
did not compel the admission of industry standard evidence. Id. The Court further noted that the
purpose for which the defendant wanted to admit industry standards was general in nature and
not specific to the facts of the present case, which is clearly inadmissible in a products liability
case. Id. at *22.

Martinez v. Skirmish, U.S.A., Inc., 2009 U.S. Dist. LEXIS 43837, No. 07-5003 (E.D. Pa. May 21,
2009),



                                                 59
The Court granted the defendants’ motions for summary judgment as to the plaintiff’s strict
liability claims alleging that the paintball gun was defective because the plaintiff could not
identify any paintball gun which was designed, manufactured, sold, distributed or rented by the
defendants. The fact that most of the products involved were manufactured or rented by the
defendants was not enough to impose liability on the defendants. The Court held that a
probability that the defendants manufactured or rented the paintball gun which injured him was
not enough and, as such, the plaintiff failed to provide evidence linking the defendants to the
allegedly defective product. Id. at *12-14. See also, Martinez v. Skirmish, U.S.A., Inc., 2009
U.S. Dist. LEXIS 46811, No. 07-5003 (E.D. Pa. June 2, 2009) (reconsideration denied by 2009
U.S. Dist. LEXIS 56099, No. 07-5003 (E.D. Pa. July 1, 2009).

Robinson v. Midwest Folding Prods. Corp., 2009 U.S. Dist. Lexis 30395, No. 07-cv-3837 (E.D.
Pa. Apr. 2, 2009)

The Eastern District held that because the plaintiff was unable to produce the table in question
and could not identify the individual table which caused her injuries, the plaintiff could not
maintain her strict liability manufacturing defect claims. Id. at *7. In addition, applying the
seven-factor Azzarella/Dambacher test to the claim, the court found that the table was not
unreasonably dangerous: “[A]s a matter of public policy it would be inappropriate to place the
risk of loss on the manufacturer where there have been no other reports of accidents of this kind
and the risk of the table folding up can be easily avoided if the table is properly opened.” Id. at *
15-16.

The Court did allow plaintiff to proceed on her design defect and failure to warn claims sounding
in negligence because “…the Pennsylvania Supreme Court would reject the proposition that the
social policy determination as to a product defect in strict liability is necessarily the equivalent of
a determination of duty in negligence law.” Id. at * 19.
Mracek v. Bryn Mawr Hosp., 610 F. Supp. 2d 401 (E.D. Pa. 2009)

The plaintiff filed a product liability action against the manufacturer of an operative robot. The
manufacturer filed a Motion for Summary Judgment arguing that the plaintiff could not maintain
his strict liability claim without expert testimony. The Court reiterated that the absence of expert
testimony is not fatal to a strict liability claim and has never precluded a claim where the matter
under consideration is simple and the lack of ordinary care is obvious and within the range of
comprehension of the average juror. The Court held that the operative robot however, was a
complex machine which would require expert testimony to determine if a defect exists. Id. at
405. Merely providing evidence that the robot failed to function properly does not opine that the
robot was defective. Id. 405-06. In addition, none of the medical reports submitted by the
plaintiff causally related plaintiff’s medical condition to the operative robot. Id. at 407. Finally,
the Court held that even plaintiff’s malfunction theory must fail as plaintiff did not provide
evidence to eliminate any reasonable secondary causes of his injuries. Id. at 408.

Barnish v. KWI Building Co., 980 A.2d 535 (Pa. 2009)




                                                  60
The plaintiffs alleged that a spark detection system malfunctioned when it failed to activate as
intended. The manufacturer of the system filed a Motion for Summary Judgment challenging
plaintiffs’ ability to prove that the system was defective when it left the manufacturer’s control
as the plaintiffs admitted that the system had functioned properly for 10 years prior to the
incident. Id. at 539.

The Supreme Court granted review of the case in order to address the issue of the significance of
a product’s prior successful use on a plaintiff’s ability to withstand summary judgment in a
malfunction theory case. Id. at 546. The Supreme Court held that the plaintiffs failed to meet
their burden under Section 402A of the Restatement (Second) of Torts because they could not
present evidence from which a reasonable jury could conclude that an unspecified defect existed
when the spark detection system left the manufacturer’s control. Id. at 543. Although prior
successful use does not doom a plaintiff’s malfunction theory case, a plaintiff must still present
evidence necessary to meet all the elements of strict liability. Id.

In this case, the Supreme Court reasoned that while the plaintiffs presented evidence of a
malfunction, along with expert testimony that the malfunction caused the injury, they still failed
to present evidence, circumstantial or direct, that the product was defective when it left the
manufacturer’s control. Id. at 547. To the contrary, the plaintiffs admitted that the system
functioned properly for 10 years prior to the incident and did not present any explanation as to
how the system could have done so, yet be defective when it left the manufacturer’s control. Id.

The Supreme Court noted that this case did not turn on whether the wear and tear of the prior
years of successful use was the cause of the malfunction or whether the resultant wear and tear
was part of the plaintiffs’ case-in-chief vs. the manufacturer’s theory of the case. Id. Such
evidence will be factually distinct in each case. Instead, the Court held that “a plaintiff’s
acknowledgement of prior successful use undermines the inference that the product was
defective when it left the manufacturer’s control.” Id. For a plaintiff who admits that the
product functioned properly in the past to survive a summary judgment, the plaintiff must
present some evidence explaining how the product could be defective when it left the
manufacturer’s control and yet still function properly for a period of time. Id.

Burger v. Owens Ill., Inc., 966 A.2d 611 (Pa. Super. Ct. 2009)

Plaintiff alleged that inhalation of asbestos fibers from asbestos-containing products
manufactured by numerous defendants caused him to develop mesothelioma. One defendant, a
manufacturer of window glazing caulk, sought summary judgment on grounds that it had ceased
manufacturing asbestos-containing caulks before plaintiff allegedly used its product. Affirming
the trial court’s grant of summary judgment, the Pennsylvania Superior Court held that plaintiff
had failed to establish a material issue of fact regarding exposure from the window caulk
because, while plaintiff had clearly identified the defendant’s product, plaintiff could not
establish whether he used the material before or after the defendant manufacturer eliminated
asbestos from the product.

Another defendant, a manufacturer of replacement automotive brake shoes, sought summary
judgment on grounds that plaintiff had failed to establish that he had actually used that



                                               61
defendant’s product. Affirming the trial court’s grant of the brake shoe manufacturer’s summary
judgment motion, the Pennsylvania Superior Court held that plaintiff could not establish
exposure to the particular defendant’s products by merely demonstrating that the automotive
parts store where he purchased replacement brake shoes carried that defendant’s brand, or that
that brand actually contained asbestos. The court noted that the parts store carried numerous
brands of brake shoes, and plaintiff was unable to identify what brand of brake shoes he had
purchased from the store.

Another defendant, an insulation manufacturer, sought summary judgment on grounds that
plaintiff had failed to establish that its products were actually used on the specific ships on which
plaintiff had worked while they were under construction. Plaintiff argued that testimony in an
unrelated case from other employees at the shipyard where plaintiff was allegedly exposed to this
defendant’s product, had testified that approximately 40% of the insulation used at the shipyard
during the period that plaintiff worked there had been manufactured by this defendant. Without
considering whether testimony from an unrelated case could even be considered, the
Pennsylvania Superior Court affirmed the trial court’s grant of summary judgment, holding that,
although the testimony might establish that 40% of the asbestos at the shipyard had been
manufactured by that specific defendant, it failed to create a material issue of fact because there
was no evidence that this defendant’s products were actually used on the specific ships on which
the plaintiff had work.

Vanaman v. DAP, Inc., 966 A.2d 603 (Pa. Super. Ct. 2009)

Plaintiffs husband and wife brought products liability action against caulk manufacturer, alleging
that wife’s mesothelioma was caused by exposure to asbestos fibers from the caulk. Plaintiff
testified that he used defendant’s caulk, that it created “minimal” dust, and that his wife had
helped, but gave no details about her participation. Affirming the grant of defendant caulk
manufacturer’s summary judgment motion, the court noted that it would not indulge in the
fiction that each and every exposure to asbestos, no matter how minimal in relation to other
exposures, implicates a fact issue concerning substantial-factor causation. The court held that
testimony that wife helped, without further explanation, was not sufficient to satisfy
Pennsylvania’s frequency, regularity and proximity test discussed in Gregg v. J-V Auto Parts
Co., 596 Pa. 274, 943 A.2d 216 (2007).

       D.      VIRGIN ISLANDS

Tort Reform:

No cases reported in this area.

Preemption:

No cases reported in this area.

Environmental or “Green” Products Litigation:




                                                 62
No cases reported in this area.

Market Share or Other New Theories of Liability:

No cases reported in this area.

Tobacco:

No cases reported in this area.

Automobiles:

Anders v. Puerto Rican Cars, Inc., 2009 U.S. Dist. LEXIS 85848, No. 040036 (D.V.I. Sept. 15,
2009)

The plaintiffs brought defective design and manufacture claims against the car manufacturer
alleging that the vehicle’s brake system, seatbelt, airbags and seats were defective. The car
manufacturer filed a motion for summary judgment arguing that that the plaintiffs’ expert was
not qualified to testify as an expert in accident reconstruction and investigation, nor was he
qualified to testify as a lay witness in the matter. The car manufacturer further argued that
without expert testimony, the plaintiffs failed to set forth valid evidence in support of their
product liability claims. Id. at *10.

The Court found that the plaintiffs’ expert’s opinions were not reliable and that they would not
be helpful to the jury in understanding the case. Id. at *21. The Court further found that without
qualified expert testimony, the plaintiffs could not maintain their defect design and manufacture
claims against the defendants as the plaintiffs could not identify any defect in the vehicle. Id. at
*26-27.

The Court reasoned that while the plaintiffs’ expert may have been knowledgeable about brake
repair and maintenance, his background was severely lacking in any expertise as to accident
reconstruction and investigation. Id. at *16-17. The plaintiffs’ expert conceded that he lacked
“specialized knowledge, skills and training” in automotive systems which were important in the
case, including seatbelts, airbags and car seats. Id. at *21. The measurements taken by the
expert were done so with the least accurate device in his possession, he was not familiar with the
standards for the thickness of the vehicle’s rotors and brakes and he did not attempt to research
such standards before his inspection, or before preparing his report or before his deposition. Id.
at *21-22.

The Court went on to further hold that the plaintiffs’ expert could not provide testimony as a lay
witness as his opinions were not rationally based on his own perceptions. Id. at *23. The
expert’s opinions were based instead on an inspection which occurred five (5) years after the
accident, photographs taken by other individual and on the statements of others. Id.

Drug Litigation:




                                                63
No cases reported in this area.

Class Action Fairness Act (CAFA):

No cases reported in this area.

Other:

No cases reported in this area.




                                    64
   IV.     Fourth Circuit

                Carrie B. Freed                                  Petra L. Justice
             Hunton & Williams                                Banker Lopez Gassler
            951 E Byrd St 12th Fl                         501 E Kennedy Blvd Ste 1500
         Richmond, VA 23219-4074                               Tampa, FL 33602
                (804) 788-7247                                   (813) 221-2071
             cfreed@hunton.com                             pjustice@bankerlopez.com

       Tort Reform

No cases reported in this area.

       Preemption

No cases reported in this area.

       Environmental or “Green” Products Litigation

No cases reported in this area.

       Market Share or Other New Theories of Liability

No cases reported in this area.

       Tobacco

No cases reported in this area.

       Automobiles

Robinson v. Am. Honda Motor Co., 551 F.3d 218 (4th Cir. 2009).

Plaintiff appealed from the dismissal of his purported class action suit against automobile and
tire manufacturers alleging breach of express and implied warranties regarding the durability of
tires on his minivan. The Fourth Circuit affirmed.

The tires on plaintiff’s minivan came equipped with a “run-flat” capability that allows the
minivan to be driven at speeds up to 55 mph if the tire is punctured. Because of the minivan’s
unique wheel-rim and tire combination, only one brand and model of tires fit on the minivan
unless the wheels themselves were replaced. The Fourth Circuit found that the district court had
correctly dismissed the express warranty claim against the automobile manufacturer because the
warranty explicitly and repeatedly excluded tires from its coverage. It rejected plaintiff’s claim
that other provisions in the warranty that stated that by keeping the minivan in top condition
“you will be rewarded with years of trouble-free service at the lowest operating cost” meant
there would be no operating cost associated with the tires on the minivan. Regarding the express
breach of warranty claim against the tire manufacturer, the Fourth Circuit found that the tire




                                               65
warranty did not promise that the tread on the tires would last for an indefinite period of time or
for a certain number of miles.

For the implied warranty claims, the Fourth Circuit found that plaintiff’s claims likewise failed
because he did not allege that his tires had a shorter tread life than other run-flat tires, which was
the proper standard of comparison in evaluating whether the tires conformed to the standard of
merchantability present in the automobile industry.

       Drug Litigation

Quillin v. C.B. Fleet Holding Co., No. 08-1814, 2009 WL 1336719 (4th Cir. May 14, 2009).

Plaintiff appealed from the dismissal of his negligence and strict liability claims on statute of
limitations grounds in a suit in which plaintiff alleged he suffered severe complications and long-
term renal failure after ingesting twice the recommended amount of an over-the-counter oral
saline laxative manufactured and sold by defendants. The Fourth Circuit affirmed.

Plaintiff took the saline laxatives in advance of a colonoscopy procedure. Following the
procedure, plaintiff became ill and was hospitalized for two weeks with acute renal failure.
During his stay in the hospital, a renal biopsy revealed interstitial fibrosis and tubular injury.
The Fourth Circuit agreed with the district court that plaintiff was put on inquiry notice that the
laxative may have caused his injury at the time of this biopsy. The Fourth Circuit noted that the
fact that plaintiff may not have been certain that his injury was the result of the laxative did not
free him from his obligation to investigate the cause of his injury because he was reasonably on
notice that some wrongdoing occurred.

       Class Action Fairness Act (CAFA)

       No cases reported in this area.

       Other

Assurance Co. of Am. v. York Int’l, Inc., No. 08-1411, 2008 WL 5455704 (4th Cir. Jan. 6, 2009).

Plaintiffs appealed from a grant of summary judgment in favor of a furnace manufacturer,
installer and general contractor on products liability claims arising out of a fire that occurred
during construction of plaintiffs’ home. In granting summary judgment, the district court
excluded as unreliable the opinion of plaintiffs’ expert that the fire was caused by a clogged
filter. The district court also found that plaintiffs’ could not rely on the “indeterminate defect”
theory to prove a product defect because plaintiffs’ allegations of product misuse by the
contractor precluded application of the theory. The Fourth Circuit affirmed on different grounds.
It found that plaintiffs could not avail themselves of the indeterminate defect theory because they
failed to provide expert testimony as to the possible causes of the fire, they failed to eliminate
other possible causes of the fire and they failed to put forth evidence of similar accidents
involving this furnace model. Given this finding, the Fourth Circuit declined to consider whether
allegations of product misuse would preclude application of the indeterminate defect theory.




                                                 66
Shonk v. Fountain Power Boats, No. 08-1450, 2009 WL 2132659 (4th Cir. July 16, 2009).
Plaintiff appealed from the dismissal of claims against defendants engine and stern drive
manufacturers and a grant of summary judgment to defendant boat manufacturer in a suit in
which plaintiff alleged breach of warranty and unfair and deceptive trade practices claims after
his boat’s engine was damaged. The Fourth Circuit affirmed. It held that plaintiff had failed to
plead a breach of warranty claim under the Magnuson-Moss Warranty Act or an unfair and
deceptive trade practices claim against the engine and stern drive manufacturers because he
failed to identify a consumer product supplied or manufactured by the manufacturers. With
regard to the boat manufacturer, the Fourth Circuit found that plaintiff had failed to establish
through expert testimony whether the boat had the alleged defect when it left the boat
manufacturer’s control and thus summary judgment was proper.

White v. Dow Chem. Co., No. 08-1165, 2009 WL 931703 (4th Cir. Apr. 8, 2009). Plaintiff
appealed from the grant of summary judgment to defendant chemical company in a suit in which
plaintiff alleged that her husband’s death from leukemia was the result of exposure to harmful
chemicals manufactured by defendant. The Fourth Circuit affirmed. It agreed with the district
court that plaintiff failed to raise genuine issues of material fact as to the element of causation
because there was no evidence that plaintiff’s husband was exposed to defendant’s products.
The court noted that in toxic exposure cases, providing adequate evidence of exposure is
required to provide causation.

Maryland

       Tort Reform:

Green v. N.B.S., Inc., 976 A.2d 279 (Md. 2009).

Plaintiff, the mother of a minor child, appealed from the trial court’s order applying Maryland’s
statutory cap on noneconomic damages to a jury verdict rendered in her favor. The suit arose
from injuries allegedly suffered by the minor child after being exposed to elevated lead exposure
in plaintiff’s rental home, which defendant owned and maintained. The trial court granted
judgment in favor of plaintiff on claims of negligence and violation of Maryland’s Consumer
Protection Act (CPA) prior to trial; thus, the only issues submitted to the jury were whether the
minor suffered injury and, if so, the amount of the minor’s noneconomic damages. The jury
returned a verdict of $2.3 million and the trial court applied Maryland’s statutory cap on
noneconomic damages, reducing the verdict to $515,000.

On appeal, plaintiff argued that the cap only applied to common-law tort claims and that her
CPA claim was not a common-law tort claim. The Maryland Court of Special Appeals affirmed
the trial court’s decision to apply the cap and concluded that the cap applies to all actions for
personal injury or wrongful death, even those based on statutory or constitutional violations.

The Court of Appeals of Maryland granted certiorari and affirmed the rulings of the trial court
and the Court of Special Appeals. The Court of Appeals adopted the reasoning of the Court of
Special Appeals that the legislative history of the statutory cap demonstrates that the legislature
intended to apply the statutory cap to all actions for personal injury or wrongful death and not
just those that were the result of common law torts.


                                                67
       Preemption

No cases reported in this area.

       Environmental or “Green” Products Litigation

No cases reported in this area.

       Market Share or Other New Theories of Liability

No cases reported in this area.

       Tobacco

Bunch v. Lorillard Tobacco Co., No. CCB-09-986, 2009 WL 1491030 (D. Md. May 26, 2009).

Plaintiff brought suit against cigarette manufacturers and the owner of a rental home, in which
plaintiff and her mother resided, for injuries suffered by plaintiff and the death of plaintiff’s
mother that occurred during a cigarette fire in the rental home. Plaintiff alleged that the
cigarette’s defective design and the home’s improper fire protection caused her damages. The
district court granted defendants’ motions to dismiss finding that defendants could not be liable
under Maryland law for injuries resulting from the inherent risks of a cigarette.

       Automobiles

No cases reported in this area.

       Drug Litigation

Blackwell v. Wyeth, 971 A.2d 235 (Md. 2009).

Plaintiffs appealed from the trial court’s dismissal of their suit against a drug manufacturer,
which alleged that the manufacturer’s thimerosal-laden vaccine caused son’s autism. The trial
court excluded the expert testimony of plaintiffs’ expert and granted summary judgment to the
manufacturers on the ground that plaintiffs failed to support their claim of general causation with
science that was generally accepted in the relevant scientific community. In a lengthy opinion,
the Court of Appeals of Maryland affirmed the trial court and found that the testimony of
plaintiffs’ expert, which asserted that vaccines containing thimerosal were linked to autism in
certain genetically susceptible individuals, was inadmissible due to an analytical gap in the
expert’s studies. Specifically, the Court of Appeals found that in order for scientific testimony to
be admissible under the Frye-Reed test, an expert’s generally accepted methodology must be
coupled with generally accepted analysis. While plaintiffs’ expert used a reliable data base in his
studies allegedly linking thimerosal to autism, the data upon which he relied was not tested or
gathered for the purpose of testing the hypothesis that thimerosal caused autism and the
diagnosis employed by the expert did not consider the most suspected cause of autism (i.e.,
unknown genetics).



                                                68
Mack v. Amerisourcebergen Drug Corp., No. RDB-08-688, 2009 WL 4342513 (D. Md. Nov. 24,
2009).

Plaintiffs brought a products liability suit on behalf of their daughter against the manufacturers of
Remicade, a prescription medication used to treat Crohn’s disease, after their daughter died from
a cardiac arrhythmia allegedly caused by the use of Remicade. The district court granted
summary judgment to the manufacturers after finding that plaintiffs did not meet their burden to
show how the product was defective. The court found that plaintiffs could not show defect under
either the risk/utility test or the consumer expectations test because they did not present direct or
expert testimony on the issue of whether the drug was unreasonably dangerous. The court noted
that while plaintiffs submitted circumstantial evidence regarding the side effects of the drug, the
fact that a drug may exhibit certain adverse side effects does not, by itself, create an issue of
material fact as to whether the drug is unreasonably dangerous. The court also pointed out that
given the FDA’s approval of the drug and the FDA’s reaffirmations of the drug’s safety and
efficacy, plaintiffs would need to provide much more evidence to establish that the drug’s
attendant risks outweighed its benefits.

       Class Action Fairness Act (CAFA)

No cases reported in this area.

       Other

Douglass v. NTI-TSS, Inc., 632 F. Supp. 2d 486 (D. Md. 2009).

Plaintiff, who allegedly developed a severe open anterior bite from the use of a mouth guard
brought an action against the mouth guard manufacturer alleging that the manufacturer failed to
warn of the known risks associated with the mouth guard. The district court granted the
manufacturer’s motion to dismiss on the ground that plaintiff’s claim was brought after the
applicable statute of limitations accrued. The court applied the discovery rule to hold that under
Maryland law, plaintiff’s claim accrued on the day she learned that the manufacturer’s product
may have been the cause of her open anterior bite. The court rejected plaintiff’s argument for
tolling based on fraudulent concealment. It found that neither the general statement in a letter
from the manufacturer’s attorney regarding its standard practice of sending information
regarding the risks of its products to dentists nor its statements that it was not to blame for
plaintiff’s injuries, was a fraudulent act of concealment.

Hargett v. Snap-On Inc., No. WMN-08-cv-3420, 2009 WL 5030708 (D. Md. Dec. 15, 2009).

Plaintiff brought design defect and failure to warn claims against the manufacturer and installer
of a tire changer that allegedly caused him injury. On plaintiff’s design defect claim, the district
court granted summary judgment to defendant holding that plaintiff failed to provide any
evidence of a product design or manufacture defect that existed at the time of sale. While
plaintiff argued that he did not need to provide direct evidence to prove what specific defect
caused the product to malfunction when the evidence disappeared in the accident, the court noted
that, even absent direct evidence, a plaintiff’s proof must still rise above speculation. The court
also granted summary judgment on plaintiff’s failure to warn claim finding that defendant had no



                                                 69
duty to warn because it could not have foreseen the specific danger as to the nuts on the tire
changer. The court noted that defendant had been selling the model of tire changer at issue for
ten years and that plaintiff did not introduce any evidence of similar accidents.

Kielar v. Granite Constr. Co., 647 F. Supp. 2d 524 (D. Md. 2009).

Plaintiffs, including the personal representative of the estate of a flight paramedic who was killed
in a helicopter crash, brought various product liability claims against the company that renovated
a helicopter’s interior, including its litter locking mechanism. Defendant moved for summary
judgment as to whether Louisiana’s law, where the design and installation of the allegedly
negligent locking mechanism occurred, or Maryland’s law, where the locking mechanism
allegedly failed, applied to the claims against it. The district court denied summary judgment on
the ground that the choice of law question would not end the litigation. The court found that
because under Maryland law the choice of law is determined by the location of defendant’s
alleged wrongful acts, the law of Louisiana, where the locking mechanism was designed and
installed, should govern.

Pittway Corp., v. Collins, 973 A.2d 771 (Md. 2009).

Parents of deceased and injured children brought an action against landlords, builders,
contractors, and smoke detector manufacturers after children were injured and died in a basement
fire during which a smoke detector was not activated due to a power outage. After certain
defendants settled, the trial court dismissed the case at the motion to dismiss stage on the ground
that events that transpired between defendants’ acts and the fire constituted unforeseeable
intervening acts amounting to a superseding cause of the ultimate injuries. The Court of Special
Appeals held that the trial court erred in dismissing the complaint against the smoke detector
manufacturers and the home builder by determining as a matter of law that the intervening acts
constituted a superseding cause. It reasoned that the trial court could not properly determine,
based solely on the allegations in the complaint, whether defendants could foresee the negligent
acts of others.

The Court of Appeals granted certiorari to consider whether intervening negligent acts
superseded, as a matter of law, defendants’ alleged negligence in causing the fire. After a
lengthy discussion of legal cause and proximate cause, the Court of Appeals affirmed the Court
of Special Appeals’ decision reversing the trial court’s dismissal of the smoke detector
manufacturers and the home builder at the motion to dismiss stage. As to the smoke detector
manufacturer, the Court of Appeals found that the facts alleged in the complaint admitted of
more than one inference thus making it improper to determine at the motion to dismiss stage
whether the intervening acts were highly extraordinary and, hence, superseding causes of the
injury. As to the homebuilder, the Court of Appeals found that the issue of whether the
homebuilder’s alleged negligence in failing to provide home purchasers with an instructional
manual for the smoke detector was superseded by intervening negligent acts or whether the
homebuilder was strictly liable for failing to warn could not be determined with reference to the
instructional manual such that the issues could not be resolved at the motion to dismiss stage.




                                                70
Scapa Dryer Fabrics, Inc. v. Saville, No. 540, 2009 Md. App. LEXIS 194 (Md. Ct. Spec. App.
Dec. 29, 2009)

Plaintiff brought suit alleging that his exposure to defendants’ asbestos-containing products
caused his mesothelioma and carcinoma. Plaintiff settled with three other parties prior to trial
and defendants brought cross-claims against the settling parties alleging they were joint
tortfeasors. At trial, the jury found defendants liable and the settling parties not liable. One
defendant, Scapa Dryer Fabrics (Scapa), moved for a judgment notwithstanding the verdict
(JNOV) on both plaintiff’s claims and its cross-claim, while the other defendant moved for a
JNOV on its cross-claim only. The trial court denied both motions.

On appeal, Scapa argued that the trial court erred in denying its motion because plaintiff did not
prove that Scapa’s products were a substantial factor in causing his injury. Both defendants
argued that the evidence showed that plaintiff had more exposure to the settling parties’ products
than its products. The Court of Special Appeals affirmed the trial court’s denials of the JNOVs
and found that while no direct evidence showed that plaintiff was exposed to Scapa’s products,
there was more than enough circumstantial evidence to demonstrate plaintiff’s exposure and
scant other evidence establishing liability on the part of the settling defendants.

Scapa also argued that the trial court erred when it did not reduce the judgment to account for
payments plaintiff received from certain bankruptcy settlement trusts. The Uniform Contribution
Among Joint Tort-Feasors Act reduces a judgment against a defendant if another “joint-
tortfeasor” is released by settlement. The issue was whether the bankruptcy settlement trusts
were joint-tortfeasors although their liability was not established by a jury verdict or admitted in
a settlement agreement. Scapa argued that asbestos-settlement trusts taking advantage of the
protections offered by the Federal Bankruptcy Code should be considered joint-tortfeasors in
asbestos cases in which plaintiff has received distributions from said trusts. It argued that
because liability is founded upon substantial factor causation, any payment to plaintiff for
damages allegedly caused by asbestos-containing products would necessarily constitute payment
by a joint tortfeasor. The Court of Special Appeals noted that while Scapa presented an
interesting theory, it did not meet its burden to show the joint tortfeasor status of the settling
trusts because it did not introduce evidence of their distribution procedures or evidence that
plaintiff actually received the payments alleged.

Valerio v. Penske Truck Leasing Co., No. CCB-06-2436, 2009 WL 1609045 (D. Md. June 5,
2009).

Plaintiff brought various product liability claims against the servicer of a truck and the
manufacturer of the truck’s side lift gate for injuries he suffered when the truck’s side lift gate
malfunctioned. The district court granted summary judgment to the gate manufacturer on the
ground that plaintiff failed to establish that the gate reached him without a substantial change in
the condition in which it was sold and that, in fact, the submitted documentation showed that the
gate had been modified on several occasions from its original condition. It granted summary
judgment to the servicer of the truck on the ground that no evidence showed that the servicer was
negligent in the maintenance and repair of the portion of the gate that malfunctioned or that any
allegedly negligent repairs caused plaintiff’s injury.



                                                71
North Carolina

       Tort Reform

No cases reported in this area.

       Preemption

Covert v. Stryker Corp., No. 08-447, 2009 WL 2424559 (M.D.N.C. Aug. 5, 2009).

In Covert, the plaintiff began to suffer irritation in his hip after having hip replacement surgery.
He brought action in state court against the defendant manufacturer of the hip replacement
device for failure to warn, defective manufacturing and design, negligence, breach of express and
implied warranties, and violation of the North Carolina Unfair and Deceptive Trade Practices
Act (“NCUDPTA”). The defendant removed the case to the U.S. District Court for the Middle
District of North Carolina and moved for dismissal, claiming that the plaintiff’s claims were
preempted by the Medical Device Amendments of 1976 (“MDA”). The court agreed and
dismissed the tort claims because the plaintiff failed to plead them “parallel” to federal
requirements under the MDA. The court also dismissed the remaining claims for failure to state
a cause of action.

       Environmental or “Green” Products Litigation

No cases reported in this area.

       Market Share or Other New Theories of Liability

No cases reported in this area.

       Tobacco

No cases reported in this area.

       Automobiles

No cases reported in this area.

       Drug Litigation

Stoddard v. Wyeth, Inc., 630 F. Supp. 2d 631, (E.D.N.C. 2009).

Plaintiff brought strict liability and failure to warn claims against the manufacturer and
distributor of the prescription drug Reglan ®, alleging that his use of the generic equivalent
caused him injury. Although the defendants did not manufacture nor distribute the generic
medication, the plaintiff claimed that the defendants were nevertheless liable for his injuries
because they created the warning label for Reglan ®. Thus, according to the plaintiff, it was




                                                72
reasonably foreseeable to the defendants that physicians would rely on the warning label
information in prescribing the generic drug to patients.

The defendants moved to dismiss the strict liability claims on the ground that North Carolina
does not recognize strict liability in product liability cases and moved for summary judgment on
the failure to warn claims because they did not manufacture nor distribute the generic drug at
issue. The court agreed with the defendants and dismissed plaintiff’s strict liability claims
because they were brought in a products liability action. The court also granted the defendants’
motion for summary judgment, reasoning that “under North Carolina law a manufacturer of a
brand name pharmaceutical may not be held liable for injuries stemming from the use of another
manufacturer’s bioequivalent.”

       Class Action Fairness Act (CAFA)

Ahmed v. Porter, No. 09-101, 2009 WL 2581615 (W.D.N.C. June 23, 2009).

While the claims in Ahmed arose from a fraudulent investment scheme, the court discussed and
found persuasive the Eleventh Circuit’s test for whether a case is removable as a “mass action”
under the Class Action Fairness Act (“CAFA”). The Fourth Circuit has not developed nor
adopted a mass action test of its own. The four elements of the Eleventh Circuit’s test are: (1) a
$5,000,000 aggregate amount in controversy; (2) minimal diversity; (3) the action involves the
monetary claims of 100 or more plaintiffs; and (4) plaintiffs’ claims involve common question of
law or fact. Ways to establish commonality is for each plaintiff’s claim to be essentially
identical to the claims of other plaintiffs and for all plaintiffs to have a common right of recovery
based on the same basic facts. The court stated that the first three elements of the Ahmed
plaintiffs’ claims were met. The issue of commonality in the context of mass action was not
before the court; however, it expressed reservations as to whether commonality existed because
certain plaintiffs asserted different claims against some defendants.

       Other

McLaurin v. East Jordan Iron Works, Inc., 2009 WL 3461861 (E.D.N.C. Oct. 27, 2009).

The plaintiff in McLaurin was injured when a U-shaped drop handle or “U-bolt” detached from a
manhole cover that he was attempting to remove. He brought action against the manhole
supplier, U-bolt distributor, U-bolt manufacturer, and others for negligence and breach of
implied warranty. The U-bolt manufacturer and U-bolt distributor moved for summary
judgment.

The court found that the plaintiff’s claim for breach of implied warranty against the manufacturer
failed unless he could provide evidence that he or his employer purchased the manhole cover,
and it dismissed the plaintiff’s claim for negligence because he did not provide sufficient
evidence of the relevant standard of care for manufacturing U-bolts, nor did he provide evidence
that the manufacturer violated the standard of care. The court also dismissed the claims of
negligence and breach of implied warranty against the U-bolt distributor because under North
Carolina law, no product liability action, except an action for breach of express warranty, can be
brought against a seller when the seller was not afforded a reasonable opportunity to inspect the


                                                 73
product and discover potential defects. There was no dispute that the distributor was a “seller,”
and the court found that the distributor did not have a duty, nor a reasonable opportunity, to
inspect the U-bolts and discover the alleged defect.

Hospira Inc. v. Alphagary Corp., 671 S.E.2d 7 (N.C. Ct. App. 2009).

The manufacturer of medical devices brought an action for negligence, fraud, negligent
misrepresentation, violations of the North Carolina Unfair and Deceptive Trade Practices Act
(“NCUDPTA”), and third-party beneficiary breach of contract claims against the supplier of
resin to a contractor. The contractor was retained by the plaintiff to convert the resin into pellets
for use in IV kits. The plaintiff claimed that the pellets could not withstand sterilization by
irradiation and was forced to recall and destroy the IV administration kits. The trial court
granted summary judgment in defendant’s favor and manufacturer appealed.

On appeal, the court first determined that the plaintiff’s claims for fraud and negligent
misrepresentation failed because there was no evidence that the defendant concealed or
misrepresented the composition of the pellets to the plaintiff, that the defendant acted with intent
to deceive, or that the plaintiff relied on any alleged misrepresentations. Furthermore, the court
found that alleged misrepresentations made through a non-agent party cannot be actionable
fraud. Likewise, the court affirmed dismissal of the plaintiff’s claims under NCUDPTA because
there was no evidence that the defendant’s representations deceived the plaintiff or that the
plaintiff relied on them. The court also affirmed dismissal of the third-party beneficiary claim
because there was no evidence that the transactions between the defendant and contractor
involved the type of “active and direct dealings” that would confer a third-party beneficiary
status on the plaintiff. The court, however, did reverse dismissal of the plaintiff’s negligence
claim, reasoning that the economic loss rule did not bar it because there was no contractual
privity between the plaintiff and defendant.

Kelly v. Georgia-Pacific LLC, No. 7:08-cv-197-D, 2009 WL 4249587 (E.D.N.C. Sept. 30, 2009).

The plaintiff brought action in state court against the designers and manufacturers of exterior
trim for various state law claims as well as a claim under the Magnuson-Moss Act (“MMA”) for
damage caused by the allegedly defective trim used in the construction of his home. Defendants
moved to dismiss all but the plaintiff’s claim for breach of express warranty, arguing that (1) the
economic loss rule barred the negligence claim; (2) the lack of privity between the plaintiff and
defendants barred the implied warranty claim; (3) the contractual nature of the dispute barred the
North Carolina Unfair and Deceptive Trade Practices Act (“NCUDPTA”) claim, and (4) the
MMA claim should be dismissed because the exterior trim is not a consumer product.

The court agreed with the defendants’ arguments and dismissed all but the plaintiff’s breach of
express warranty claim. Specifically, the court found that the economic loss rule barred the
negligence claim because the plaintiff alleged only economic damage and had an available
contractual remedy. The court also found that there was no privity of contract between the
parties, to which the parties stipulated, and that even if third-party beneficiary status was
available to the plaintiff, he failed to allege such status in his complaint. On the issue of
whether the defendants violated the NCUDPTA claim, the court held that a breach of warranty
alone is insufficient to state a claim under NCUDPTA and that defendants’ alleged conduct did


                                                 74
not rise to the level of unfair or deceptive trade practices. Finally, the court found that the
plaintiff’s MMA claim failed as a matter of law because the exterior trim was not a separate
consumer product, but rather a building material that had been integrated into the structure of the
house.

South Carolina

       Tort Reform

Sapp v. Ford Motor Co., No. 09-26754, 2009 WL 4893648 (S.C. Dec. 21, 2009).

The Supreme Court of South Carolina overruled its prior decision which expanded the exception
to the economic loss rule to all manufacturers in product liability cases. The context in Sapp
arose from two separate cases where the cruise control in the plaintiffs’ Ford F-150s short
circuited and caused a fire in the engine compartment. The plaintiffs did not allege that the fire
caused personal injury or damage to other property. Both plaintiffs brought actions against Ford
Motor Co. for negligence, strict liability, breach of warranty, and fraud/misrepresentation, and
both plaintiffs’ tort claims were dismissed at the trial level pursuant to the economic loss rule.
When the plaintiffs appealed on the basis that the economic loss rule’s exception did not bar the
tort actions, their cases were consolidated.

On review, the Supreme Court focused its analysis on the purpose behind the economic loss rule,
explaining:

       Contract law seeks to protect the expectancy interests of the parties. Tort law, on
       the other hand, seeks to protect safety interests and is rooted in the concept of
       protecting society as a whole from physical harm to person or property. In the
       context of products liability law, when a defective product only damages itself,
       the only concrete and measurable damages are the diminution in the value of the
       product, cost of repair, and consequential damages resulting from the product’s
       failure…. On the other hand, the parties have not bargained for the situation in
       which a defective product creates an unreasonable risk of harm and causes
       personal injury or property damage. Accordingly, where a product damages only
       itself, tort law provides no remedy and the action lies in contract; but when
       personal injury or other property damage occurs, a tort remedy may be
       appropriate.


Using this rationale, the Court reviewed its prior decision in Colleton Preparatory Academy, Inc.
v. Hoover Universal Inc., 666 S.E.2d 247 (S.C. 2008), in which it expanded an economic loss
rule exception to all manufacturers that was previously applicable only in the residential real
estate context. The Court reasoned that in residential real estate cases, the exception allows
homebuyers to recover in tort where a builder violates building code, deviates from industry
standards, or constructs a house known to pose a serious risk of physical harm. The Court then
distinguished the ruling in Colleton Prep., which permitted plaintiffs to file a product liability
suit in tort where only the product itself was injured, and found that it “drastically changes the
fundamental elements of a tort action, makes any amount of damages entirely speculative, and


                                                75
holds manufacturers as an insurer against all possible risk of harm.” Thus, the Court overruled
Colleton Prep. to the extent that it expands the narrow economic loss rule exception beyond the
residential builder context and affirmed the dismissal of the plaintiffs’ tort actions.

       Preemption

Weston v. Kim’s Dollar Store, 684 S.E.2d 769 (S.C. Ct. App. 2009).

The plaintiff bought non-corrective, colored contact lenses with ultraviolet light protection from
a store which was not authorized to sell or distribute contact lenses, and she did not have a
prescription to purchase the contacts, despite a symbol on the box warning that it was for
“prescription only.” After wearing a pair of the contact lenses, the plaintiff developed an eye
infection and suffered temporary loss of vision. She brought suit against the store and the
manufacturer of the contact lenses for claims of negligence, strict liability, and breach of
warranty. The defendant manufacturer moved for summary judgment on plaintiff’s actions that
were dependant on warning, labeling, design, marketing, and misbranding on the basis that they
were federally preempted by the Medical Device Amendments of 1976 (“MDA”). The circuit
court granted the defendant’s motion, and the plaintiff appealed.

After determining that the contact lenses were subject to regulation by the FDA as a Class III
medical device, the court then found that the MDA was applicable and that it expressly precludes
States from imposing different or additional requirements than those promulgated by the FDA.
Reasoning that a jury could find that additional or different labeling was appropriate for the
contact lenses, which would affect the FDA-approved model of labeling, it affirmed summary
judgment for the defendant.

       Environmental or “Green” Products Litigation

No cases reported in this area.

       Market Share or Other New Theories of Liability

No cases reported in this area.

       Tobacco

No cases reported in this area.

       Automobiles

Laffitte v. Bridgestone Co., 674 S.E.2d 154 (S.C. 2009).

The Supreme Court of South Carolina ruled that in any civil action, a party seeking discovery of
trade secret information must first show that the information is “relevant and necessary” before a
court can compel discovery. This case arose from a car accident that was allegedly caused by
tread separation from the left rear tire. The plaintiff claimed that the defendant used an
inadequate tire design and failed to use proper manufacturing techniques, which resulted in a
defective tire. The plaintiff requested the defendant’s trade-secret formula for the steel belt skim


                                                76
stock used in the tires on the basis that he could not prove a manufacturing deviation without
knowing the formula and manufacturing process. The defendant objected on grounds that the
plaintiff could prove his claims without discovery of the formula because he had access to the
actual failed tire and could conduct appropriate testing. The plaintiff filed a motion to compel
the formula and the trial court granted it, finding that the plaintiff had met the prerequisites for
discovery of trade secret information under the South Carolina Trade Secrets Act (“SCTSA”)
and Rule 26(c) of the South Carolina Rules of Civil Procedure.

On appeal, the Court analyzed the SCTSA and Rule 26(c) to fashion a “relevant and necessary”
standard of proof that the party requesting the trade secret information must meet before a trial
court can compel it in any civil action. Specifically, the Court explained that a trial court must
evaluate whether there are reasonable alternatives available to the party seeking discovery, and it
must compel discovery only when “the issues cannot be fairly adjudicated unless the information
is available.” Applying the standard to the facts of Laffitte, the Court found that the plaintiff
could not prove the formula was relevant and necessary. Plaintiff’s expert could not testify that
if he were provided with the formula he could opine on whether there was a defect and other
methods, such as testing, were available.

Duncan v. Ford Motor Co., 682 S.E.2d 877 (S.C. Ct. App. 2009).

Plaintiffs filed a lawsuit against the defendant vehicle manufacturer after a fire that originated
under the hood of the plaintiffs’ vehicle spread to and destroyed their home and personal
possessions. The plaintiffs claimed that a faulty switch installed on the vehicle failed and caused
the fire. The trial court entered judgment on the jury’s verdict in favor of the plaintiffs for
$589,721.80 in actual damages and three million in punitive damages. The defendant appealed,
citing several errors of the trial court’s rulings, including: the admission of unqualified expert
testimony, admission of manufacturer’s prior recalls of the vehicle model; submission of
plaintiffs’ claim of emotional distress to the jury absent expert testimony; and an
unconstitutionally excessive punitive damages award.

The appellate court affirmed the judgment entered against the defendant, focusing its review on
the punitive damages award. First, the court found that the plaintiff proved punitive damages by
clear and convincing evidence because the defendant knew of the switch’s failure prior to the
manufacture of the plaintiffs’ vehicle, but did not take steps to remedy the design flaw. The
court also found it proper to permit the plaintiffs to introduce evidence of out-of-state conduct
“to demonstrate the reprehensibility of the defendant’s conduct.”

Turning to the main issue of whether the punitive damages award was constitutionally excessive,
the court relied on the Gore Guideposts as identified by the United States Supreme Court in
BMW of North Am. v. Gore, 517 U.S. 559 (1996), which are: “(1) the reprehensibility of the
defendant’s conduct; (2) the ratio between the punitive damages award and the plaintiff’s harm
as measured by compensatory damages; and (3) the difference between the punitive damages
awarded by the jury and the civil penalties authorized or imposed in comparable cases.” The
court reasoned that while the fire only caused economic harm and not personal injury, the
defendant’s knowledge of the defective switch warranted punitive damages. It also explained
that the punitive damages award was reasonable because the plaintiffs sustained a significant



                                                77
economic loss and the ratio of actual to punitive damages was less than the ratios affirmed in
other South Carolina cases.

       Drug Litigation

No cases reported in this area.

       Class Action Fairness Act (CAFA)

No cases reported in this area.

       Other

Jackson v. Bermuda Sands, Inc., 282 S.E.2d 612 (S.C. Ct. App. 2009).

The court affirmed summary judgment in favor of the defendants because the plaintiff offered no
material issue of fact that the product in question was defective at the time of shipping from the
manufacturer. The plaintiff in Jackson, a hotel patron, claimed that while he was partially sitting
down on one of the hotel’s white resin pool chairs, the chair collapsed underneath him and
caused him injury. Thereafter, the plaintiff brought an actual and punitive damages claim against
the hotel, the manufacturer of the chair, and distributor of the chair for negligence, recklessness,
strict liability, and breach of implied warranty. The chair was unavailable for testing because
hotel maintenance personnel disposed of it prior to suit. The hotel settled with the plaintiff in
mediation. The remaining defendants filed motions for summary judgment, arguing that the
degradation of the chairs due to chemical exposure was not a foreseeable event, the plaintiff’s
failure to identify the cause of the alleged crack in the chair was fatal to his claim, and that the
plaintiff’s expert’s testimony was insufficient given the inability to examine the broken chair.
The circuit court granted summary judgment and the plaintiff appealed.

On review, the appellate court focused began its analysis by discussing the three elements a
plaintiff must establish in any products liability action: (1) the product caused injury; (2) the
injury occurred because the product was defective and unreasonably dangerous to the user; and
(3) the product, at the time of the accident, was in essentially the same condition as when it left
the hands of the defendant. The court disagreed with the plaintiff’s contention that the chair was
defective at the time of manufacture because the defendants should have been on notice that the
chairs are typically used at hotels and are frequently subjected to extreme conductions, i.e.
thrown off balconies. Instead, the court found that any alleged crack in the chair had to exist at
the time it left the manufacturer and that the plaintiff failed to give proof that a crack in the chair
ever existed.

Additionally, the plaintiff provided expert testimony that the chair collapsed due to exposure to
UV rays, chlorine, and suntan lotion, and was defective at the time of manufacture because the
defendants should have had notice of chemical degradation. The court, however, found that this
argument was also insufficient to avoid summary judgment because the degradation theory was
not based on first-hand testing and knowledge, but rather on “guesses and speculation.”




                                                  78
Virginia

       Tort Reform

No cases reported in this area.

       Preemption

No cases reported in this area.

       Environmental or “Green” Products Litigation

No cases reported in this area.

       Market Share or Other New Theories of Liability

No cases reported in this area.

       Tobacco

No cases reported in this area.

       Automobiles

No cases reported in this area.

       Drug Litigation

No cases reported in this area.

       Class Action Fairness Act (CAFA)

No cases reported in this area.

       Other

Holmes v. Wing Enters., No. 1:08-cv-822, 2009 WL 1809985 (E.D. Va. June 23, 2009).

Plaintiff brought a negligent design claim against the manufacturer of a ladder after he suffered a
fall from the ladder and resulting injuries. The district court granted summary judgment to the
manufacturer after excluding the proposed expert testimony of plaintiff’s expert under Daubert.
Plaintiff’s expert hypothesized that the ladder was designed in an unreasonably dangerous
manner because an unsafe amount of deflection occurred in the ladder during regular use. The
court found that the expert’s hypothesis was flawed because substantial parts of it were
supported solely by speculation and not scientific or objective evidence. Specifically, the court
found that the expert failed to perform certain necessary mathematical calculations, failed to
consider the standards of the American National Standards Institute in his analysis, and failed to
consider any other type of similar standards regarding ladders.




                                                79
Royal Indemn. Co. v. SimplexGrinnell L.P., No. 67519, 2009 Va. Cir. LEXIS 99 (Va. Cir. Ct.
Feb. 20, 2009).

Plaintiffs brought a property damage suit after a sprinkler system designed, manufactured and
installed by defendants failed to work during a fire. The issue before the court was whether
plaintiffs’ claims were barred under Virginia’s statute of repose. The court examined whether
sprinkler heads are ordinary building materials or equipment within the meaning of Virginia
Code § 8.01-250. After considering numerous cases, the court determined that the sprinkler
heads were essential to the building and were fungible materials thus making them ordinary
building materials under the statute of repose.

Soto v. Meadow Mills, Inc., No. 3:09-cv-292, 2009 WL 1873785 (E.D. Va. June 29, 2009).

Plaintiff brought suit against defendant after suffering severe injuries to his hand when
attempting to dislodge a jammed lumber edger. Defendant had previously purchased the product
line of the manufacturer of the edger. Defendant moved to dismiss for lack of personal
jurisdiction. The district court granted the motion and found that Virginia’s long-arm statute did
not provide jurisdiction over the company because it did not transact business in and had no
contact with Virginia and did not assume any liability for previously manufactured edgers by
purchasing the product line.

Sprouse v. Am. Tire Distrib., No. 3:08-cv-491, 2009 WL 1404735 (E.D. Va. May 15, 2009).

Plaintiff brought a wrongful death action against the manufacturer of a truck lift after a truck fell
off the lift and killed plaintiff’s husband. The district court granted summary judgment to the
manufacturer after excluding the proposed expert testimony of plaintiff’s expert on the ground
that the expert presented a wholly speculative theory of causation. In particular, the court found
that the expert only inspected the lift after the accident and did not show how the condition of the
lift post-accident was caused by the defect and not the accident itself.

West Virginia

       Tort Reform

Roney v. Gencorp., No. 3:05-cv-0788, 2009 WL 2915084 (S.D. W. Va. Sept. 4, 2009).

Plaintiff brought a failure to warn claim against supplier of vinyl chloride monomer (VCM) to
recover for the death of his father from liver cancer. The supplier raised the sophisticated user
defense asserting that it had no duty to warn because the duty was obviated by plaintiff’s
employer’s duty to warn. Because West Virginia has not explicitly adopted or rejected the
sophisticated user defense, the district court undertook an analysis of how a West Virginia court
would decide the issue.

The court first considered defendant’s argument that it had no duty to warn because the danger of
VCM was open and obvious. The court found that West Virginia would adopt the open and
obvious exception to a duty to warn in the products liability context but found the exception was
not available under the facts of this case because at the time of exposure the dangers of VCM
were not known throughout the workplace or readily apparent from observing the chemical.


                                                 80
Next, the court examined the case law concerning the sophisticated user defense in West
Virginia. It found that the West Virginia Supreme Court had cited with approval, in dicta, the
Restatement (Second) of Tort’s Section 388, comment n. regarding the sophisticated user
defense. But the Court also noted that the West Virginia Supreme Court had recently rejected
the similar learned intermediary defense in a pharmaceutical case. The court found, however,
that the facts of the pharmaceutical case were much different from the facts of the instant case.
The court then examined two Fourth Circuit cases applying a narrow version of the sophisticated
user defense, which focuses on the reasonableness of relying on the employer to generate or pass
on warnings. The court found that West Virginia would adopt this narrow version of the
sophisticated user defense.

The court then considered whether West Virginia would likewise adopt the bulk supplier
defense, which concerns the burden that would be imposed on the supplier if it were bound to
directly warn all users. It found that West Virginia would adopt the bulk supplier defense as well
because the status of the manufacturer as a bulk supplier is one of the factors to be considered in
conjunction with the sophisticated user defense.

In subsequent proceedings the district court denied summary judgment to the supplier finding
that general issues of material fact existed as to the employer’s awareness of the hazards of VCM
and the reasonableness of the supplier’s reliance upon the employer to warn its employees of the
hazards of VCM. See Roney v. Gencorp., No. 3:05-cv-0788, 2009 WL 3073973 (S.D. W. Va.
Sept. 18, 2009).

American Tort Reform Ass’n, Judicial Hellholes 2009/2010, available at
http://www.atra.org/reports/hellholes/report.pdf (last visited Jan. 5, 2010). The American Tort
Reform Foundation ranks West Virginia as judicial hellhole number two in its latest annual
report on Judicial Hellholes. The report cites the state’s lack of appellate review, a perception
that the state judiciary favors local plaintiffs over out-of-state corporate defendants, procedural
unfairness such as prejudicial trial plans, and “jaw-dropping departures from core principles of
tort law” as reasons for West Virginia’s ranking. The report, however, notes that in 2009,
Governor Joe Manchin signed an executive order establishing an Independent Commission on
Judicial Reform to consider “broad systematic reforms” including establishment of an
intermediate appellate court. The Independent Commission issued its final report in November
2009. The report urges the legislature to establish an intermediate appellate court and provide
parties with a right to appeal. See West Virginia Independent Comm’n on Judicial Reform, Final
Report, Nov. 19, 2009, available at http://www.judicialreform.wv.gov/reports/Documents/Final
Report.pdf (last visited 1/11/10).

       Preemption

Harrison v. Skyline Corp., No. 34706, 2009 W. Va. LEXIS 108 (W. Va. Nov. 13, 2009).

The West Virginia Supreme Court considered certified questions from the trial court regarding
the extent to which formaldehyde-based negligence claims were preempted under the provisions
of the federal Manufactured Home Construction and Safety Standards Act (MHA). The
underlying facts involved plaintiffs who purchased a manufactured home and later learned that
debris from the formaldehyde-treated floor decking had been left in the duct work of the



                                                81
manufactured home’s heating system. The parties agreed that formaldehyde treated floor
decking complied with the federal regulatory standards for formaldehyde emission levels of
plywood and particleboard materials used in manufactured homes.

The Supreme Court first considered whether the preemption provisions, a supremacy provision
and a savings provision, of the MHA expressly preempted state common law claims. It found
that a common sense reading of these provisions demonstrated that common law claims are not
expressly preempted. The Supreme Court reasoned that the express terms of the supremacy
provision only preempts States and their political subdivisions from having manufactured home
standards which are not identical to a federal standard applicable to the same aspect of
performance. It explained that the issue raised in the pending suit does not involve conflicting
state standards but rather a claim based on common law negligence. The Supreme Court noted
that the savings clause makes it clear that the congressional intent was not to preclude common
law claims explicitly.

The Supreme Court then considered whether the MHA impliedly preempted common law
claims. It found that implied preemption through field preemption did not apply because
negligent conduct has historically been regulated by state common law. As to implied
preemption through conflict preemption, the Supreme Court examined various pieces of
legislative history and concluded that such history did not lead to the conclusion that Congress
intended to remove all matters related to formaldehyde emissions in the manufactured homes
from the purview of the States.

Finally, the Supreme Court examined whether ambient air testing for the presence of
formaldehyde in wood products used in the construction of a manufactured home built in
accordance with the MHA was admissible as evidence in the underlying action. The U.S.
Department of Housing and Urban Development (HUD) had previously rejected the use of
ambient air standards as the measure of acceptable formaldehyde emission levels for certain
wood products to be installed in manufactured homes. The Supreme Court found it was not
persuaded that HUD’s rejection of an ambient air standard precludes allowing the use of ambient
air levels as evidence in a case in which no direct challenge to HUD’s formaldehyde emission
standard was made.

Morgan v. Ford Motor Co., 680 S.E.2d 77 (W. Va. 2009).

The West Virginia Supreme Court considered whether plaintiff’s suit alleging that his vehicle
was defective because the manufacturer used tempered glass in the side-door window instead of
stronger laminated glass was preempted by the Federal Motor Vehicle Safety Standard 205
(FMVSS 205). FMVSS 205 is a federal regulation that permits motor vehicle manufacturers
options in choosing side-window materials.

The Supreme Court first concluded that FMVSS 205 did not expressly preempt the lawsuit
because while the preemption provisions of the National Traffic and Motor Vehicle Safety Act
indicated an intent to preempt state-enacted regulations, they did not evidence an intent to
preempt common law suits that arise even though a manufacturer has complied with federal
regulations.




                                              82
In considering implied preemption, the Supreme Court noted that through FMVSS 205, the
National Highway Transportation Safety Administration has indicated that glazing a side-
window other than through tempered glass can increase the risk of neck injuries. Based on this,
other courts have concluded that a state tort law, which imposes liability based upon a
manufacturer’s choice to use the tempered glass option as allowed by FMVSS 205, is an obstacle
to the accomplishment and execution of the purposes and objectives of Congress and is therefore
federally preempted. The Supreme Court agreed with the conclusion of these courts and held
that FMVSS 205 preempted plaintiff’s state tort action.

       Environmental or “Green” Products Litigation

No cases reported in this area.

       Market Share or Other New Theories of Liability

No cases reported in this area.

       Tobacco

No cases reported in this area.

       Automobiles

No cases reported in this area.

       Drug Litigation

Meade v. Parsley, No. 2:09-cv-00388, 2009 WL 3806716 (S.D. W. Va. Nov. 13, 2009).

Plaintiff brought suit against brand name drug manufacturers and fictional defendants all alleged
to be manufacturers of the pharmaceutical drug metoclopramide, which plaintiff alleged caused
her neurological injuries. Two of the brand name manufacturers moved for summary judgment
on the ground that they did not make the drug that plaintiff ingested and cannot be held liable for
damages caused by another manufacturer’s product. Plaintiff argued in response that because
generic manufacturers are permitted to rely on brand name manufacturers’ warnings, the brand
name manufacturers are ultimately liable for inaccuracies and deficiencies in their safety
information, regardless of whether the brand name or generic drug was ingested. The court
granted the brand name manufacturers summary judgment on the ground that they are not
responsible for damages from products that they did not manufacture, distribute, or sell. The
court found its decision directly in line with the Fourth Circuit’s decision in Foster v. Am. Home
Prods. Corp., 29 F.3d 165 (4th Cir. 1994), in which the Fourth Circuit rejected a claim that a
brand name manufacturer could be responsible for misrepresentations when a generic
manufacturer’s product caused a plaintiff’s injury. Although the Foster decision was based on
Maryland law, the court found that West Virginia law does not yield a different result.

Woodcock v. Mylan, Inc., No. 2:09-cv-00507, 2009 WL 3271252 (S.D. W. Va. Oct. 14, 2009).




                                                83
Administrator of an estate brought product liability claims against a pharmaceutical company
alleging that a fentanyl transdermal patch manufactured by the company caused the decedent’s
death. Defendants moved to dismiss on the ground that Alabama law should govern the claim.
Alabama courts recognize the learned-intermediary doctrine under which a drug manufacturer
cannot be liable for failing to warn a consumer of the potential risks of using a drug, if the
consumer’s prescribing physician was aware of those risks. Plaintiff argued that Alabama law
should not apply because it would contravene West Virginia’s public policy, which prohibits use
of the learned-intermediary doctrine. The court agreed and found that West Virginia courts had
rejected the learned-intermediary doctrine because of the public-policy interest in having
manufacturers bear the costs of warning consumers about product’s risks. It further found that to
apply Alabama law would contravene this public-policy interest even though plaintiff was from
out-of-state and the alleged injury occurred out-of-state.

       Class Action Fairness Act (CAFA)

No cases reported in this area.

       Other

Crum v. Equity Inns, Inc., 685 S.E.2d 219 (W. Va. 2009).

Plaintiff brought suit against a hotel owner for failing to inspect and maintain its premises
properly after a light fixture from the hotel fell on plaintiff’s head injuring him. The trial court
granted summary judgment to defendant because plaintiff failed to establish causation and
denied plaintiff’s request to amend his complaint to rely on the doctrine of res ispa loquitur. On
appeal, the West Virginia Supreme Court considered whether the doctrine of res ispa loquitur
applied. The Supreme Court found that plaintiff did not eliminate other responsible causes for
his injuries as required in order to infer negligence under the doctrine of res ispa loquitur. To
the contrary, there was evidence that that the lighting fixture was improperly installed prior to
defendant’s purchase of the hotel and the improper installation of the fixture would not be
apparent to anyone changing the light bulbs or otherwise examining the fixture. The Supreme
Court also considered, and rejected, plaintiff’s argument that hotels and their owners should be
strictly liable for any injuries that occur on their premises. The Supreme Court noted that its
prior case law demonstrated that the operation of a hotel would not normally constitute an
abnormally dangerous activity.

Steel of W. Va., Inc. v. AMI G.E., LLC, No. 3:09-cv-0005, 2009 WL 1648915 (S.D. W. Va. June
10, 2009).

Plaintiff brought suit against defendant alleging that defendant designed and installed a defective
transformer control system that caused damage to plaintiff’s furnaces. The district court granted
defendant summary judgment on plaintiff’s tort liability claims finding that under West Virginia
law a tort action cannot arise from a breach of contract unless the tort action would arise
independent of the existence of the contract. The court found that but for plaintiff’s contract
with defendant, defendant would have no duty to provide engineering services to plaintiff and
would not have owed any duty of care to plaintiff.




                                                84
   V. Fifth Circuit


            Michael Garner Berry                                 Sarah Brehm
            Daniel Coker Horton                                  Jones Walker
         4400 Old Canton Rd Ste 400                      8555 United Plz Blvd Ste 500
          Jackson, MS 39211-5982                         Baton Rouge, LA 70809-7000
               (601) 969-7607                                   (225) 248-2142
          gberry@danielcoker.com                          sbrehm@joneswalker.com



Tort Reform

Nothing of significance to report.

Preemption

In re FEMA Trailer Formaldehyde Products Liability Litigation, No. MDL 07-1873, 623 F.
Supp. 2d 755 (E.D. La. May 29, 2009).

The court found plaintiffs’ claims against makers of mobile homes are preempted by the
Manufactured Home Construction and Safety Standards Act (“MHA”) and related regulations set
by the United States Department of Housing and Urban Development (“HUD Code”). FEMA
provided emergency housing units (“EHUs”) to individuals whose homes were destroyed by
Hurricanes Katrina and Rita. Plaintiffs, individuals residing in the EHUs, asserted claims that
the EHUs were constructed with products that included formaldehyde and, as a result, they were
exposed to unsafe levels of formaldehyde. Plaintiffs also claimed that the warnings included in
the EHUs were inadequate to alert them to the potential for dangerous exposures. Numerous
actions were filed against the manufacturers of the EHUs, the United States Government and
some government contractors who delivered and installed the EHUs. .

EHUs consist of mobile homes, travel trailers and park models. The defendants who
manufactured mobile homes moved to dismiss, contending that the construction of mobile homes
(unlike trailers and park models) is governed by federal law, specifically the Manufactured
Home Construction and Safety Standards Act (“MHA”) and related regulations set by the United
States Department of Housing and Urban Development (“HUD Code”). The manufactured
home defendants asserted that plaintiffs’ claims were explicitly and impliedly preempted by the
MHA and the HUD Code. The court agreed with the manufactured home defendants that the
plaintiffs’ claims against them were preempted.

The court concluded that federal law preempted plaintiffs’ state law products liability claims
alleging excessive levels of formaldehyde in the mobile homes. The court also concluded that
the plaintiffs’ inadequate warnings claims were preempted. The court noted that plaintiffs’ state
law claims, to the extent they alleged “non-compliance” with the federal formaldehyde
regulations, were not preempted. Likewise, failure to warn claims alleging violations of the


                                               85
federal warning requirements were not preempted.

Environmental or “Green” Products Litigation

Chinese-manufactured drywall is a hot topic this year. Cases from Florida, Ohio, and Louisiana
involving Chinese-manufactured drywall were transferred to the Eastern District of Louisiana in
June 2009. In re Chinese-Manufactured Drywall Products Liability Litigation, MDL 2047, 2009
WL 1725973 (J.P.M.L. June 15, 2009). Plaintiffs in these cases allege that the drywall, imported
from Chinese manufacturers, emit noxious, corrosive gases that results in both property damage
and personal injury.

With the recent filing of an omnibus complaint in December 2009, approximately 3,000
plaintiffs are now involved in the litigation against approximately 600 defendants. At the
December status conference bellwether trials were discussed and the Court advised the parties
that such trials will be limited to property damage only. Class action motions are currently
pending.        Additional information can be obtained from Court’s website
(http://www.laed.uscourts.gov/Drywall/Drywall.htm).

In In re FEMA Trailer Formaldehyde Products Liability Litigation, MDL-873, 2009 WL
2496570 (E.D. La. August 19, 2009), the court found it had subject matter jurisdiction over the
United States. The U.S. filed a motion to dismiss all plaintiffs’ remaining Federal Tort Claim
Act claims for lack of subject matter jurisdiction. The motion was denied. On October 3, 2008
(Rec. Doc. 717), the Court found that FEMA was shielded from liability under the discretionary
function exception for its selection and provision of trailers. That opinion, however, left open
the possibility that the discretionary function exception might not apply to some or all of the
plaintiffs’ claims regarding FEMA’s alleged negligent conduct in responding to complaints and
concerns of formaldehyde in the trailers. The August 19, 2009 decision held that at some point
before litigation, FEMA became aware that the trailers it distributed contained potentially unsafe
levels of formaldehyde. And, FEMA must show on a case-by-case basis that its response to each
plaintiff was based on policy considerations that fall into the discretionary function exception.
To hold otherwise, the Court found, the discretionary function exception would effectively
swallow the rule and the Government would always be immune.

On September 24, 2009, the first FEMA formaldehyde trailer bellwether trial ended in victory
for the trailer manufacturer. In re FEMA Trailer Formaldehyde Products Liability Litigation,
MDL-1873. In December 2008, the court denied class certification, which resulted in series of
bellwether plaintiffs being selected. During the first bellwether trial the jury found in favor of
trailer manufacturer Gulf Stream and determined that the trailers were not unreasonably
dangerous under Louisiana law.

Market Share or Other New Theories of Liability

Jowers v. BOC Group, Inc., 608 F. Supp. 2d 724, (S.D. Miss. April 1, 2009).

The court rejected the defendants’ argument regarding the plaintiff’s burden of proving injury
arose from exposure to product manufactured by defendants as opposed to non-defendant
manufacturers. The plaintiff alleged his substantial exposure to manganese-containing welding


                                               86
materials caused his manganese-induced parkinsonism. The action was remanded after pretrial
proceedings in In re Welding Fumes Products Liability Litigation, MDL No. 1501. After a jury
verdict in favor of the plaintiff, the defendants filed a motion for judgment as a matter of law.

It was undisputed that the plaintiff was exposed to welding fumes from the products
manufactured by the three trial defendants and at least two other manufacturers who were
dismissed before trial. Defendants argued that the jury verdict should be reversed because the
plaintiff could not prove that the fumes which resulted in his overexposure were generated by
welding consumables made by the trial defendants rather than the non-defendant manufactures.
The court rejected this argument finding “there was substantial evidence to support a jury
determination that, during the course of his 30-year career . . . [the plaintiff] suffered
overexposure to manganese due to inhaling fumes from products manufactured by every
substantial supplier of welding consumables . . . both defendants and non-defendants.” Id. at
740. Additionally, the court found that the fact that plaintiff “was also exposed (or overexposed)
to fumes from welding consumables manufactured by two non-defendants does not affect the
legitimacy of the jury’s verdict. That is, there is no factual or legal requirement that, in order to
recover at trial, the harm caused to [plaintiff] by exposure to welding fumes be caused only – or
even mostly – by the products manufactured by defendants. . . .” Id. at 741.

In Brennon v. Pfizer, Inc., No. 09-1093, 2009 U.S. Dist. LEXIS 72438 (W. D. La. July 24, 2009)

The Court held that the Louisiana Products Liability Act, La. R. S. 9:2800.51, et. seq., provides
“the exclusive theories of liability for manufacturers for damage caused by their products,” and
may not recover for any theory outside of the statute. By way of example, the Court went on to
note that market share liability is one of those theories outside the Louisiana Products Liability
Act.

Tobacco

There are no significant cases of the traditional nature related to tobacco to report.

One case of an interesting note is Lacoste v. Pilgrim Int., et. al., No. 07-2904 SECTION:R, 2009
U.S. Dist. LEXIS 46752 (E.D. La. June 3, 2009). In Lacoste, defendant Papermates, Inc., filed
summary judgment against plaintiff’s claims of wrongful death that Dwayne Lacoste was killed
when a lit cigarette caused his bedding materials inside his Katrina trailer to ignite and Mr.
Lacoste died from carbon monoxide inhalation. Plaintiff sued Papermates alleging that it
manufactured an ashtray known as the “Ash Eliminator Extinguishing Ashtray Holder” and that
the ashtray was a cause of the fire. Plaintiff sued under the Louisiana Products Liability Act
alleging unreasonably dangerous in design in that the ashtray was taller than a traditional ashtray
which increase the risk of a cigarette falling from the lip; unreasonably dangerous because of
inadequate warnings of the danger in the ashtray failing to hold a lit cigarette; and unreasonably
dangerous because of its nonconformity to an express warranty that it is a safer ashtray when in
fact it was not. Papermate, on the other hand, contended there was no evidence that the ashtray
was inside the trailer and/or being used by plaintiff at the time of the incident; no evidence that a
cigarette fell from the ashtray and started the fire; and no evidence that the design elements of
the ashtray rendered it unreasonably dangerous. The Court granted Papermates summary



                                                 87
judgment motion finding that plaintiff’s arguments and allegations were supported by nothing
more than speculative arguments and were not backed by specific facts and evidence that the
product was the probable cause of the accident and injury.

Automobiles

Trenado v. Cooper Tire & Rubber Co., et. al, No. 4:08-cv-249, 2009 U.S. Dist. LEXIS 116410
(S.D. Tex. December 15, 2009)

Plaintiff filed a product liability suit against Cooper Tire for an accident occurring when a tire on
a vehicle failed and the vehicle crashed. Cooper Tire moved to strike plaintiff’s tire expert for
lack of qualifications and unreliable opinions and methodology. The Court held that plaintiff’s
expert was amply qualified and that the lack of specialized experience in a particular area of
practice is “fodder” for examination and does not go to admissibility.

Willis v. KIA Motors Corp., et. al., No. 2:07CV062-P-A, 2009 U.S. Dist. LEXIS 71099 (N.D.
Miss. July 29, 2009)

Before the Court was defendant’s motion to exclude evidence by plaintiff of other incidents,
claims and lawsuits. At issue were “(1) eight incidents reported in customer assistance records;
(2) ten complaints filed in other lawsuits; (3) an ‘OSI’ (Other Similar Incidents) package
produced by plaintiff expert Dr. Burton; (4) seven lists produced by Dr. Burton regarding
rollover cases in which he has been involved; and (5) eight GM and Ford accidents produced by
plaintiff expert Andrew Gilberg.” The Court stated that to show notice, the “substantial
similarity” requirement is relaxed, although reasonable similarity must still be established for
admissibility. Reasonably similar incidents, claims and lawsuits were deemed admissible as
determined by the Court.

The Goodyear Tire & Rubber Co., et. al., v. Kirby, No. 2007-CA-00325-COA, 2009 Miss. App.
LEXIS 221 (Miss. App. April 21, 2009)

Following a trial in which a jury returned a verdict for 3 plaintiff’s in excess of $2 million for a
defective automobile tire, Goodyear and Big 10 Tire Company (the defendant which installed the
tire) appealed the verdict. The Mississippi Court of Appeals affirmed. The crux of the trial was
what caused the accident: a faulty back right tire manufactured by Goodyear and sold by Big 10
that the tread separated on, or the speed the plaintiff driver was traveling, the driver’s
intoxication and a puncture of the tire by impact damage from hitting something in the roadway.
The Court directed a verdict on plaintiff’s design claims against Goodyear and claims against
Big 10 Tire that it negligently sold a lesser rated tire than what came on the vehicle originally.
However, the Court allowed a single theory of plaintiff’s claim that Goodyear failed to comply
with an express warranty and factual representations that tires were warranted to 50,000 miles
(they only had 10,000 miles use on them) and that they would perform safely at speeds up to 112
mph (plaintiffs were traveling between 88 and 92 mph at the time of the accident) to proceed to a
jury. Finding that the tire failed catastrophically within a very short time and without warning,
that the failure was caused by tread separation, the tire failed to perform for its intended purpose,
that the car was being driven within a speed of the tire’s rating and that a reasonable jury could



                                                 88
find the tire failed to safely perform as expressly warranted, therefore creating an unreasonably
dangerous condition proximately causing or contributing to the injuries and death, the Court of
Appeals affirmed the verdict.

Drug Litigation

Allgood v. Smithkline Beecham Corp., 314 Fed.Appx. 701, 2009 WL 646285 (5th Cir. March 13,
2009)

The Fifth Circuit issued a brief per curiam opinion affirming the grant of summary judgment in
favor of the pharmaceutical company that manufacturers Paxil. The Court held Louisiana’s
“learned intermediary doctrine” applies to product liability claims brought under the Louisiana
Products Liability Act.

Ebel v. Eli Lilly & Co., 321 Fed.Appx. 350, 2009 WL 837325 (5th Cir. March 30, 2009)

This case arises out of the Southern District of Texas. Plaintiff brought suit when her husband
committed suicide after taking the drug prescribed to him for his headaches: Zyprexa. Zyprexa
is an atypical antipsychotic drug produced by Eli Lilly & Co. and approved by the FDA for use
in the treatment of bipolar disorder and schizophrenia. One of the off-label uses for the drug is
treatment of severe headaches. Ebel, decedent, suffered from severe headaches over the course
of his life and was prescribed forty-seven different drugs to try and reduce the pain. The last
medication prescribed in an attempt to relieve some of the severity of his headaches was
Zyprexa. After receiving his prescription for Zyprexa in July of 2002, Ebel visited a different
doctor to obtain a prescription for Paxil. This prescription was given November 9, 2002 and
Ebel ended his life on November 11. Plaintiff brought suit on behalf of herself, Ebel’s estate,
and his two children alleging the Zyprexa’s label failed to warn that the drug may cause akathisia
and suicide. She further alleged the drug caused Ebel’s suicide. The Southern District of Texas
granted Lilly’s Motion for Summary Judgment pursuant to the learned intermediary doctrine.
The Fifth Circuit issued a per curiam opinion affirming this holding and reasserting well-settled
Texas precedent. When the learned intermediary doctrine applies, a plaintiff must show two
things: 1) that the drug’s warning was defective, and 2) that the warning was the producing cause
of the injury. In addition, the court held that the “reed-and-heed” presumption does not apply to
cases involving learned intermediaries. Plaintiff asserted Lilly had the affirmative burden of
negating causation under the reed-and-heed doctrine thereby excusing her from proving causing.
The Fifth Circuit did not agree. Because Plaintiff failed to demonstrate the warning was the
producing cause of the injury, the Court affirmed the summary judgment without considering
whether the warning was defective.

Wells v. Smithkline Beecham Corp., 2009 WL 564303 (W.D. Tex. 2009)

The district court granted summary judgment in favor of defendant where the plaintiff failed to
establish general causation. The plaintiff claimed that his use of Requip, a medication prescribed
for Parkinson’s disease, caused his pathological gambling. The federal court found Merrell Dow
Pharms., Inc. v. Havner, 953 S.W. 2d 706 (Tex. 1997)establishes substantive Texas law on a
plaintiff’s causation burden of proof but declined to determine if Havner controls the



                                               89
admissibility of expert testimony. Wells at *8. Plaintiff’s experts cited epidemiological studies
that reflected an association, but did not provide sufficient summary-judgment proof, as required
by Havner, to raise a genuine issue of material fact. Havner establishes statistical guidelines that
courts must consider in determining if epidemiological studies are sufficient to constitute some
evidence of general causation: 1) proof that exposure to a substance more than doubled the
likelihood of a condition, 2) a confidence interval of 1.0, and 3) a confidence level of at least
95%. “The [Havner] Court recognized that sometimes ‘waiting until an association found in one
study is confirmed by others will mean that early claimants will be denied a recovery. Despite
this, Havner, expressly rejects a more lenient standard, stating ‘[l]aw lags science; it does not
lead it.’” Id. at *12.

Class Action Fairness Act (CAFA)

        No cases reported in this area.

Other

Brookshire Bros. Holding, Inc. v. Dayco Prods., Inc., No. 07-31154, 2009 WL 22876 (5th Cir.
Jan. 6, 2009)

The Fifth Circuit instructed the district court to keep a case under supplemental jurisdiction. In
August 2003, several retail gas station owners brought a claim against a manufacturer of flexible
thermoplastic pipe, its commercial liability insurer, and others. The gas station owners alleged
that the thermoplastic pipe was defective. Although the owners originally filed suit in state
court, the case was removed to federal court on May 26, 2004, because one of the defendants
filed bankruptcy proceedings and the suit was “related to” the bankruptcy.

After the case proceeded in federal court for three years, a settlement was reached with the
bankrupt defendant’s insurer, leaving only issues of state law. The district court in its discretion
refused to exercise supplemental jurisdiction over the remaining state law claims and sent the
case back to state court. The district court’s decision was appealed, and Judge Benavides,
writing for a panel of the United States Court of Appeals for the Fifth Circuit, held that a district
court inappropriately exercises its discretion when it declines to decide a case in which only state
law claims remain, but after investing a significant amount of judicial resources in the litigation
during the time that complete federal jurisdiction existed.

During the three years that this case proceeded in federal court, the district court had decided 41
motions, 14 motions to strike expert witnesses, and 7 motions ruling on the admissibility of
evidence. Indeed, at the time of remand, the parties were in the final stages of preparing for trial.
Judge Benavides determined that sending the suit back to state court would be a waste of judicial
resources, and, as a result, it was an abuse of the district court’s discretion to refuse to continue
to handle the case under its supplemental jurisdiction.

Norris v. Bombardier Recreational Products, Inc., et. al, No. 1:08-CV-525, 2009 U.S.Dist.
LEXIS 2298 (E.D. Tex. January 12, 2009)




                                                 90
In Norris, plaintiff filed a motion to remand the case back to Texas state court alleging that
Dennis Lee d/b/a Triple L Powersports, Inc., was properly joined as a party defendant. Plaintiff
filed her complaint against the defendants in state court alleging injuries suffered from the high-
pressure jet pump of the Sea-Doo RXP thrusting water inside her after she fell from the back of
the Sea-Doo while riding. The Sea-Doo RXP was manufactured by Bombardier and purchased
from Triple L. Bombardier subsequently removed the case to federal court asserting that Triple
L was joined as a defendant to defeat diversity. The federal district court found that since
Bombardier was not claiming actual fraud by the plaintiff in her allegation of facts, Bombardier
must establish that plaintiff has no possibility of establishing a cause of action against Triple L.
In doing, the Court does not determine whether a plaintiff may prevail on the claim, but only
determine whether it is a possibility a plaintiff may prevail. If the possibility of prevailing exists,
then plaintiff has made a good faith assertion to establish jurisdiction in state court. This
possibility determination must be reasonable though, not just theoretical. In the instant case,
Bombardier urged the Court to look beyond the pleadings and consider evidence which would
have refuted plaintiff’s factual allegations; however, the Court declined to administer a summary
judgment-like standard and stated that additional evidence would go to Triple L’s defense
against the merits and not the legal basis for the joinder. The case was therefore remanded.

Paz v. Brush Engineered Mats., 555 F.3d 383 (5th Cir. Jan. 13, 2009)

The Fifth Circuit affirmed the district court’s granting of summary judgment in favor of
defendants that were distributors of beryllium products. Plaintiffs claimed the defendants’ sale
of beryllium-containing products to Boeing used at the Stennis Space Center in Mississippi
caused the employees personal injuries, including chronic beryllium disease and beryllium
sensitization, which is the precursor for chronic beryllium disease. The court dismissed the
plaintiffs’ expert opinion for one of his diagnoses as unreliable under Daubert because his
diagnosis was based on erroneous information. The court also found that an immune response
such as beryllium sensitization is not a compensable injury or cause of action under Mississippi
law. Although beryllium sensitization precedes the formation of granulomas and clinical illness,
“[t]he quintessential issue is whether any physiologic change in the body rises to the level of
compensable injury pursuant to Mississippi law.” Id. at 395. The Court noted there is no dispute
that the rate of progression from beryllium sensitization to chronic beryllium diseases is
unknown; therefore, summary judgment was warranted because plaintiffs failed to proffer
substantial proof of exposure and medical evidence that indicated the plaintiffs may contract any
disease at any point in time. Additionally, the court noted that the Mississippi Supreme Court
does not recognize mere exposure to dangerous substances as an injury and plaintiffs are unable
to recover damages in the form of medical monitoring costs based entirely on exposure to
harmful levels of beryllium. Paz v. Brush Engineered Mats., Inc., 949 So. 2d 1 (Miss. 2007)




                                                  91
   VI.      SIXTH CIRCUIT

                Roshan D. Shah                                    C. Ryan Germany
             Baker Sterchi Cowden                         Lightfoot, Franklin & White, LLC
            1010 Market St Ste 950                              400 20th Street North
            Saint Louis, MO 63101                             Birmingham, AL 35203
                (314) 231-2925                                     (205) 581-0700
              shah@bscr-law.com                             rgermany@lightfootlaw.com


                                            KENTUCKY

       Tort Reform:

No cases to report in this area.

       Preemption:

       Morris v. Wyeth, Inc., 642 F. Supp. 2d 677 (W.D. Ky. 2009); Wilson v. PLIVA, Inc., 640
F. Supp. 2d 879 (W.D. Ky. 2009).

        In these two consolidated cases, Consumers filed action against manufacturers of certain
generic drugs. The court dismissed Plaintiff’s strict liability and negligent failure to warn claims,
finding that the claims were preempted by federal law. In Wyeth v. Levine, 120 S. Ct 1187
(2009), the U.S. Supreme Court held that failure to warn claims against brand name drug
manufacturers were not preempted by federal law because the manufacturer could unilaterally
strengthen warnings.

        In these cases (decided before Levine was released) the court considered whether state
failure to warn claims in regards to generic drug manufacturers actually conflict with federal
regulation. The court concluded that the two do conflict and denied Plaintiff’s motion to
reconsider. The court found that generic drug manufacturers do not have the same ability as
brand name manufacturers to make unilateral post-FDA approval changes to the label, but
recognized a split of authority on the issue.

       Cummins v. BIC USA, Inc., 628 F. Supp. 2d 737 (W.D. Ky. 2009).

        Plaintiff brought suit against BIC and other defendants after her three-year-old son used a
BIC lighter to ignite his tee shirt, causing him to engulf in flames. The parties agreed that the
child-resistant guard had been removed.

        BIC’s motion for summary judgment argued that Plaintiff’s product liability, breach of
warranty, failure to warn, and Kentucky Consumer Protection Act claims were preempted by the
federal Consumer Product Safety Act (“CPSA”), which requires that “lighters shall be resistant
to successful operation by at least 85 percent of the child test panel.”




                                                 92
       BIC argued that, because the CPSA has fully occupied the field of child resistancy for
disposable lighters, Plaintiff’s state law claims were preempted through implied field preemption
and conflict preemption. The court rejected both arguments.
       The court, citing the CPSA’s savings clause and other court decisions finding that CPSA
does not completely preempt tort claims related to product safety, rejected BIC’s field
preemption argument out of hand.

        In evaluating BIC’s conflict preemption argument, the court noted the conflicting
decision on the issue, but ultimately found that the facts in this case were more similar to Colon
v. BIC USA, Inc., 136 F. Supp. 2d 196 (S.D.N.Y. 2000) (holding that a state law defective
product claim did not conflict with the CPSA because it was possible to comply with both
regulations), than Frith v. BIC Corp., 863 So. 2d 960 (Miss. 2004) or BIC Pen Corp. v. Carter,
251 S.W. 3d 500 (Tex. 2008) (finding the opposite). The court found that the federal standard
was “general, rudimentary and minimal” and was not in conflict with the state law standards.

         Environmental or “Green” Products Litigation:

         No cases to report in this area.

         Market Share or Other New Theories of Liability:

         Industrial Risk Insurers v. Giddings & Lewis, Inc., 2009 KY 0707.838 (Ky. App. July 2,
2009).

        In this dispute between a manufacturer and the insurer of the purchaser of that product,
the Court of Appeals considered, amongst other things, 1) whether the Economic Loss Rule
applies in Kentucky and 2) if so, whether the destructive or calamitous exception to the rule
applies in Kentucky. The court held that the Economic Loss Rule, which states that injury to the
product itself is recoverable only in contract law and not tort law, does apply in Kentucky and
affirmed summary judgment for the manufacturer on the plaintiff insurer’s products liability
claims.

        Some jurisdictions recognize an exception to the Economic Loss Rule and permit a claim
in tort when a product only injures itself “if the defective product creates a situation potentially
dangerous to persons or other property, and loss occurs as a proximate result of that danger.”
The court followed the majority rule and found that Kentucky does not recognize the destructive
or calamitous exception to the rule.

         Tobacco:

         Walker v. Phillip Morris USA, Inc., 610 F. Supp. 2d 785 (W.D. Ky. 2009).

        Plaintiff’s case stemmed from a house fire that began when a lit cigarette came into
contact with a piece of upholstered furniture. The fire killed ten people, including six children.
Plaintiffs claimed that Phillip Morris (the cigarette manufacturer) and the maker of the furniture
were liable for the deaths because they manufactured and sold defective products that were



                                                 93
unreasonably dangerous. The court, granting Defendant’s motion to dismiss, rejected the
argument.

        Plaintiff alleged that Phillip Morris should have sold fire-safe cigarettes in Kentucky, as it
did in other states where fire-safe cigarettes were required by law. Defendant argued that the
risk of fire resulting from a lit cigarette coming into contact with upholstered furniture was open
and obvious, and that therefore, the products were not defective. The court agreed with
Defendants, stating that there is no “duty to make our world fool-proof or risk free, nor is there a
duty to warn of obvious consequences of foolish behavior.”

       Automobiles:

       No cases to report in this area.

       Drug Litigation:

See Morris v. Wyeth and Wilson v. PLIVA, Inc. above.

       Class Action Fairness Act (CAFA):

       Powell v. Tosh, 2009 WL 3484064 (W.D. Ky. Oct. 22, 2009).

        Twenty-eight residents and property owners in Marshall County, Kentucky filed suit
against swine barn operators alleging that their barns were a nuisance and have caused “recurring
intolerable noxious odors” leading to nausea, vomiting, respiratory problems, and water
contamination. Defendants removed based on the CAFA, and Plaintiffs filed a motion to remand
arguing that federal jurisdiction was improper under the CAFA.

         Plaintiffs argued that federal jurisdiction was improper based on the “local controversy”
and the discretionary exceptions to the CAFA. The court rejected both arguments, finding that
“Congress intended the local controversy exception to be a narrow one, with all doubts resolved
in favor of exercising jurisdiction over the case.” The court found that Plaintiff had not met his
burden of showing that “one-third but less than two-thirds of the proposed class must be
members of the state where the action was originally filed” or that the primary defendants were
all citizens of the state where the action was originally filed. The court rejected Plaintiffs’
assertion that corporate Defendants, although incorporated in Tennessee, had principal places of
business in Kentucky and were therefore Kentucky citizens. Thus, the court denied Plaintiffs’
motion to remand.

       Other:

       Martin v. Cincinnati Gas and Elec. Co., 561 F. 3d 439 (6th Cir. 2009).

        Plaintiff, executor of his father’s estate, brought suit against Cincinnati Gas and Electric,
GE, and GM alleging that exposure to asbestos from their various products caused his father’s
death from malignant mesothelioma.



                                                 94
      The claims against CG&E and GE were based on asbestos that decedent’s father brought
home on his work clothes while working for CG&E. The claim against GM was based on
decedent’s exposure to asbestos while working as a ship mechanic.

       The court upheld the district court’s grant of summary judgment to all defendants,
agreeing with the district court that Plaintiff failed to raise an issue of material fact regarding
causation on his claim against GM and that injury to decedent was not foreseeable for CG&E
and GE.

        The court found that Plaintiff had not established that GM products contained asbestos or
that decedent was ever exposed to asbestos from GM products. Therefore, GM’s conduct was
not a substantial factor in bringing about the harm suffered by decedent.

       With regards to CG&E and GE, the court held that neither defendant had a legal duty to
decedent. “There is no evidence that either defendant had actual knowledge of the danger of
bystander exposure,” and the risk was not foreseeable at the relevant times.

       R.T. Vanderbilt Company, Inc. v. Franklin, 290 S.W. 3d 654 (Ky. App. 2009).

        R.T. Vanderbilt, a manufacturer of asbestos-containing talc, appealed from a $4,090,000
jury verdict entered against it for causing the death of Flora Franklin by her exposure to asbestos.
Plaintiff brought suit in June 2004, but R.T. Vanderbilt was not added as a defendant until May
31, 2006. R.T. Vanderbilt contended that this late addition violated the statute of limitations, as
Plaintiff failed to use reasonable diligence to discover the source of asbestos. Plaintiff argued
that Vanderbilt willfully concealed the fact that its talc contained asbestos and that Plaintiff
relied on this misrepresentation.

       The jury and the appellate court agreed with Plaintiff, finding that R.T. Vanderbilt had
concealed the existence of asbestos in its products and that Plaintiff used reasonable diligence in
obtaining knowledge that she had a claim against R.T. Vanderbilt.

         The court also upheld the trial court’s order of sanctions against R.T. Vanderbilt for
failing to comply with court orders regarding discovery requests. The appellate court upheld the
trial court’s decision to limit Vanderbilt’s defenses, finding that Vanderbilt’s failure to comply
was willful.

       Watkins v. Safety-Kleen Systems, Inc., 2009 WL 2240556 (E.D. Ky. July 27, 2009).

        Plaintiff brought suit against various defendants for exposure to harmful chemicals
during his employment at L3 Communications. Defendant Technical Products, Inc. moved to
dismiss for failure to state a claim (converted to a motion for summary judgment) on the grounds
that Plaintiff’s complaint alleged he was exposed to chemicals manufactured and/or distributed
by Defendants from approximately 2001 to 2007, but Technical ceased operations in 1997.
Plaintiff argued that he meant exposure to products from 2001 to 2007, but the court pointed out




                                                  95
that the plain language of the complaint twice states the exposure came from products
manufactured and/or distributed from 2001 to 2007.

        Plaintiff provided an affidavit stating he had found a material safety data sheet seeming to
correspond with Technical’s product and that the sheet was “up-to-date and current to the best of
his knowledge” even though it was dated 1993, but the court, citing Ashcroft v. Iqbal, 129 S. Ct.
1937, 1950 (2009) and Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 547 (2007), found that a
factual inference was unwarranted based merely on Plaintiff’s conclusory statement and granted
Technical’s motion for summary judgment.

                                            MICHIGAN

       Tort Reform:

       No cases to report in this area.

       Preemption:

       No cases to report in this area.

       Environmental or “Green” Products Litigation:

       Bearup v. General Motors Corp., 2009 WL 249456 (Mich. Ct. App. Feb. 3, 2009)

         Plaintiffs, former employees of an automobile manufacturer, alleged they suffered
injuries related to their contact with “draw compounds,” hazardous chemicals sprayed or brushed
onto metal parts during the automobile manufacturing process. Plaintiffs asserted product
liability and negligence claims against their employer and the manufacturer of the compounds,
alleging the defendants failed to warn them of the risks associated with exposure to, and
inhalation of, the compounds. The manufacturer moved for summary judgment, arguing
Plaintiffs’ claims were barred by: 1) the three-year statute of limitations, and 2) the sophisticated
user doctrine. The trial court granted the manufacturer’s motion for summary judgment based on
the statute of limitations, but held the sophisticated user doctrine was inapplicable.

        In an opinion addressing Plaintiffs’ motion for reconsideration, the court of appeals
agreed with the trial court’s holding that the common law discovery rule could not be used to
extend the three-year statute of limitations for product liability and negligence actions. The court
acknowledged that the Michigan legislature had narrowed the discovery rule to apply in only five
situations: 1) professional malpractice; 2) medical malpractice; 3) actions against certain
defendants for injuries due to unsafe property; 4) breach of warranty claims; and 5) actions
where the alleged tortfeasor fraudulently conceals the claim or the identity of any person liable
on the claim. Because Plaintiffs had not pled these theories, the discovery rule was inapplicable.

       The appellate court also held the sophisticated user doctrine barred Plaintiffs’ failure to
warn- and breach of warranty claims. The sophisticated user doctrine provides that a commercial
supplier of a product will not be held liable for failure to provide an adequate warning if the



                                                 96
product is provided for use by a sophisticated user. This doctrine was subject to a pre-tort reform
exception known as the “reasonable conduct rule,” which provides: “a commercial supplier of [a]
product to a sophisticated user may nevertheless be held liable to the sophisticated user’s
employees . . . . based on an evaluation of the reasonableness of the conduct of the sophisticated
user, including the dissemination of information about the product.” However, the court
recognized that, when the Michigan legislature codified the sophisticated user doctrine as part of
the 1996 tort reform enactments, 1995 PA 249 (eff. March 28, 1996), it did not codify the
reasonable conduct rule. Accordingly, the court held the tort reform enactments abrogated the
reasonable conduct rule. The court agreed with the trial court’s finding (in dicta) that the
employer was a sophisticated user and, thus, held Plaintiffs’ failure to warn claims were barred.

        The court remanded the action to the trial court with instructions to dismiss Plaintiffs’
failure to warn and breach of warranty claims. The court also instructed the trial court to
determine when plaintiffs’ negligence claims (to the extent they were unrelated to a failure to
warn theory) accrued, and if those claims were brought within the three-year statute of
limitations.

       Market Share or Other New Theories of Liability:

       No cases to report in this area.

       Tobacco:

       No cases to report in this area.

       Automobiles:

       In re OnStar Contract Litigation, 600 F.Supp.2d 861 (E.D.Mich. 2009).

        In a multi-district litigation action, Plaintiffs filed their Master Amended Class Action
Complaint against four automobile manufacturers and OnStar Corporation. Plaintiffs purchased
or leased vehicles equipped with OnStar telecommunications systems (“OnStar systems”)
between August 2002 and February 2008. To function, the OnStar systems depended upon
analog cellular signals. In August 2002, the Federal Communications Commission (FCC) ruled
cellular telephone companies could discontinue carrying analog cellular signals after February
2008. Plaintiffs claimed the Defendants were aware of the FCC ruling in August 2002, but
intentionally concealed it from them until February 2008, thus forcing them to choose between
upgrading their OnStar systems or having them rendered inoperable. The Master Amended Class
Action Complaint asserted five counts: 1) violations of the Michigan Consumer Protection Act, §
445.901 et seq. (“MCPA”); 2) violation of “[a]ll [s]tates’ [c]onsumer [p]rotection [a]cts”; 3)
breach of express warranty (against the manufacturers only); 4) breach of implied warranties
(against the manufacturers only); and 5) violation of the Magnuson-Moss Warranty Act
(MMWA) (against the manufacturers only). The Defendants moved to dismiss each count for
failure to state a claim.




                                                97
       With respect to the MCPA claim, the court granted the Defendants’ motion to dismiss.
The court held class action claims under the MCPA could only be maintained “on behalf of
persons residing or injured in [Michigan].” Because none of the Plaintiffs were Michigan
residents, or purchased or leased their vehicles in Michigan, they could not bring a class action
under the MCPA.

       With respect to claims under the various states’ consumer protection acts, the court
denied all challenges regarding the sufficiency of the pleadings and the statute of limitations. In
addition, the court rejected Subaru’s argument that the Plaintiffs had constructive notice of the
FCC ruling because it was published in the Federal Register, and Plaintiffs received OnStar
system literature notifying them of the FCC ruling. The court seemed to ignore the Federal
Register argument, and held it could not determine, in a motion to dismiss posture, whether the
contents of the literature provided sufficient notice.

       The court also rejected Volkswagen’s (VW) argument that California’s Consumers Legal
Remedies Act, CAL.CIV.CODE § 1750 et seq. (“the CLRA”), required a direct transaction
between itself and the Plaintiffs before a suit could be maintained. In addition, the court rejected
VW’s argument that the Colorado Consumer Protection Act, COL. REV. STAT. § 6-1-113(2), does
not permit a class action to be maintained for monetary damages. However, the court agreed that
New York law does not permit the maintenance of a class action “to recover a penalty . . . .
imposed by statute.” Thus, the court held Plaintiffs could not maintain a class action to recover
“exemplary or minimum” damages under New York law.

        Furthermore, the court dismissed the breach of express warranty claims as to those
Plaintiffs whose OnStar system capabilities remained intact throughout the duration of the
manufacturer’s warranty period. For example, a Plaintiff whose manufacturer’s warranty expired
in 2005 – three years before cell phone service providers could legally discontinue providing
analog cellular signal service – had no cognizable claim.

       Finally, the court declined to rule on the MMWA and breach of implied warranty claims
because the requisite conflict of laws determinations had yet to be made.

         Estate of Lakey v. Kia Motors America, Inc., 2009 WL 2448570 (E.D. Mich. Aug. 10,
2009).

       Decedent’s estate filed suit against the manufacturer of an automobile alleging the
automobile’s airbags failed to deploy in an “under-ride” accident, thus causing the decedent’s
death. An “under-ride” accident occurs when a driver brakes heavily before impact, thereby
lowering the front-end of the vehicle and causing it to “ride” under a vehicle with a higher
ground clearance. The manufacturer stated in its user instruction manual that airbags may not
deploy in under-ride accidents. Plaintiff pursued claims for negligent design defect and breach of
implied warranty. The parties filed cross-motions for summary judgment.

        The court granted summary judgment in favor of the manufacturer on both counts. The
court held summary judgment was proper on the negligent design defect claim because Plaintiff
failed to provide “evidence or analysis that her proffered [alternative] design is feasible, cost-



                                                98
effective, safe, or reasonable.” The affidavit of Plaintiff’s expert was held insufficient because it
“consist[ed] of little more than a recitation of the required elements.” Without evidence that an
alternative design would have been safer, cost effective, feasible, and/or reasonable, the court
held there was no genuine issue of fact.

        The court also dismissed Plaintiff’s breach of implied warranty claim because “a prima
facie case for breach of implied warranty is not materially distinguishable from a prima facie
case for design defect, except when determining the liability of a non-manufacturing seller.”
Accordingly, Plaintiff’s breach of implied warranty claim against the manufacturer failed for the
same reasons as her negligent design defect claim.

       Drug Litigation:

       No cases to report in this area.

       Class Action Fairness Act (CAFA):

       No cases to report in this area.

       Other:

       Paquin v. Control Chief Corp., 2009 WL 1174457 (W.D. Mich. April 29, 2009).

        Plaintiff filed suit against manufacturers and component part suppliers for injuries
suffered when a crane he was operating allegedly malfunctioned, causing a 15-ton cylindrical
shaft being hoisted by the crane to strike him. Plaintiff’s expert claimed the handheld remote
control box used to maneuver the crane was defective. The expert opined that the remote control
box had experienced a “contact weld,” a phenomenon during which heat melds together separate
parts. The expert for the remote control box manufacturer, the only remaining defendant, stated
that a contact weld could not have occurred because of the miniscule amount of voltage – a
maximum of 5 volts – running through the device. Plaintiff’s expert admitted he did not know
how much voltage was required for a contact weld to occur, or if such voltage was present at the
time of the incident. The manufacturer moved for summary judgment.

        The court granted the manufacturer’s motion because the Plaintiff could not establish a
defect in the remote control box. The court reasoned that Plaintiff had failed to reconcile his
expert’s “contact weld” theory with two undisputed facts: 1) the remote control box had a low
amount of voltage running through it; and 2) a contact weld was impossible without a higher
amount of voltage. The court rejected Plaintiff’s argument that the case presented a “battle of the
experts” because “expert testimony, which is not in dispute, establishes that a condition [i.e.,
higher voltage] essential [to] the existence of the alleged defect did not exist.”

                                               OHIO

       Tort Reform:




                                                 99
       No cases to report in this area.

       Preemption:

       Longs v. Wyeth, 621 F.Supp.2d 504 (N.D.Ohio 2009).

        In light of the U.S. Supreme Court’s refusal to find post-FDA-approval claims
preempted, see Wyeth v. Levine, 129 S. Ct. 1187 (2009), are manufacturers foreclosed from
asserting the preemption defense against pre-FDA-approval claims? In Longs, the court held
preemption was still a viable defense to pre-FDA-approval claims and, accordingly, declined to
vacate its grant of summary judgment in favor of the defendant.

        Plaintiff filed a wrongful death suit alleging products liability claims for failure to warn
(which was later withdrawn), design defect, and negligence. Specifically, Plaintiff alleged
Defendant’s prescription diet drug, Redux, was “an unreasonably dangerous drug for which no
warning would have been adequate.” In an earlier decision, the court held the FDCA preempted
Plaintiff’s design defect and negligence claims, to the extent they related to the manufacturer’s
conduct pre-FDA-approval. Further, the court held that Plaintiff’s design defect and negligence
claims relating to the manufacturer’s conduct post-FDA-approval “failed on their merits.” On
Plaintiff’s motion for reconsideration, the court considered, inter alia, whether Wyeth dictated
reversal of its prior decision regarding preemption of pre-FDA-approval claims.

        The court held Wyeth did not dictate reversal: “While Wyeth may stand for the
proposition that post-FDA approval claims are [not] preempted, it does not purport to hold that
the same is true for pre-FDA approval claims.” In addition, the court rejected Plaintiff’s
remaining arguments relating to which party bears the burden of proof on the adequacy of
warnings issue, and whether Wyeth properly raised challenges to Plaintiff’s post-FDA-approval
claims.

       Codonics, Inc. v. DatCard Systems, Inc., 2009 WL 2382567 (N.D. Ohio July 31, 2009).

        Plaintiff, a seller of medical devices, filed suit against its competitor, alleging it falsely
advertised its products, used deceptive trade practices, and engaged in unfair competition,
thereby violating, respectively, the Lanham Act, 28 U.S.C. § 1125(a)(1)(B); OHIO REV. CODE §§
4165.01-.04; and the Lanham Act, 28 U.S.C. § 1125(a)(1)(A) and Ohio common law.
Previously, Plaintiff had filed a parallel petition with the FDA, asserting that the defendant failed
to comply with FDA regulations by omitting the required safety warnings on its products.

       The defendant moved to dismiss the civil suit on the grounds that 1) Congress intended to
preempt federal and state law claims when it gave the FDA authority to implement the Federal
Food, Drug, and Cosmetic Act (“FDCA”), 21 U.S.C. § 301 et seq., and the Medical Device
Amendments of 1976 (“MDA”), 90 Stat. 539; and 2) adjudicating the federal and state law
claims would usurp the role of the FDA by requiring the court to interpret FDA regulations.

       The court disagreed. Relying on Wyeth v. Levine, 129 S. Ct. 1187 (2009), the court held
the defendant failed to show Congress intended to preempt state tort law claims when it enacted



                                                 100
the FDCA and MDA. In a footnote, the court noted its decision was narrow and did not reflect
whether the express preemption provision of 21 U.S.C. § 360k applied, as the defendant failed to
raise that argument.

        With respect to the federal law claims, the court held the defendant failed to show
Congress intended the FDCA and MDA to preempt Lanham Act claims for false advertising.
The court reasoned that “[w]here the MDA and the FDCA are intended to protect the safety of
consumers, the Lanham Act is ‘primarily intended to protect commercial interests’ . . . [t]he two
statutes protect different interests and [the defendant] has not demonstrated that Congress
intended [for] the FDCA to pre-empt Lanham Act claims whenever a case involves a medical
device.”

       Finally, the court rejected the defendant’s argument that adjudication of the claims would
usurp the role of the FDA. The court held that the precise scope of the Plaintiff’s claims had not
been defined at this stage and, thus, the possibility remained that the claims could be adjudicated
without the need to interpret FDA regulations.

       Miles v. Raymond Corp., 612 F.Supp.2d 913 (N.D.Ohio 2009).

        Does the Ohio Products Liability Act (“OPLA”), OHIO REV. CODE § 2307.71 et seq.,
preempt common law negligence and breach of warranty claims? Yes, according to the court in
Miles. Plaintiffs filed a wrongful death suit against manufacturers and distributors of a forklift.
In addition to product liability claims under OPLA, Plaintiffs asserted common law claims for
negligence and breach of warranty. Defendants moved to dismiss on the grounds, inter alia, that
OPLA preempted Plaintiffs’ common law negligence and breach of warranty claims. Applying
an Erie analysis, the court agreed, noting that, in enacting OPLA, the Ohio legislature had
declared its intent to “abrogate all common law product liability causes of action.” The court,
however, noted that OPLA did not preempt Plaintiffs’ breach of warranty claims to the extent
they were premised on Ohio’s Uniform Commercial Code (UCC), OHIO REV. CODE § 1302.26 et
seq. Nonetheless, the court dismissed the UCC claims because the statute of limitations had
expired. The court rejected defendant’s arguments regarding whether Plaintiffs had adequately
pled their OPLA-based failure to warn claims.

       Environmental or “Green” Products Litigation:

       No cases to report in this area.

       Market Share or Other New Theories of Liability:

       No cases to report in this area.

       Tobacco:

       No cases to report in this area.

       Automobiles:



                                               101
       Rose v. Truck Centers, Inc., 611 F.Supp.2d 745 (N.D. Ohio 2009).

         Plaintiffs sued the manufacturer of their tractor-trailer truck for injuries suffered when
their truck collided with a median barrier. Plaintiffs alleged the truck’s steering mechanism failed
due to a manufacturing defect. Plaintiffs’ expert, a mechanic, opined that the accident was
caused by the manufacturer’s failure to properly “torque” the bolts that seal the steering gear,
which led to the bolts becoming loose due to road vibrations, leading to the loss of power
steering fluid and, ultimately, causing the steering wheel to malfunction. The manufacturer
moved for summary judgment, arguing that Plaintiffs’ expert was not qualified to testify on
issues of product defect and causation and his opinions were unsupported by the facts of the
case.

         The court agreed. The court held Plaintiffs’ expert was not properly qualified because he
had “not demonstrated that he knows any more about mechanical engineering principles than an
average juror.” The court noted that Smith had never designed or manufactured a steering gear
for a truck, nor had he ever received formal training regarding such matters.

        The court also noted the expert’s testimony was unreliable because it was unsupported by
the facts. The court found unacceptable that Plaintiffs’ expert based his conclusions on a faulty
assumption: that the steering mechanism he tested six months after the accident was in the same
condition as at the time of the accident. Photographic evidence clearly showed the mechanism
had been manipulated during the six-month interval. Because Plaintiffs had failed to produce
adequate expert testimony on the issues of product defect and causation, the court granted
summary judgment in favor of the defendant.

       Drug Litigation:

       Frey v. Novartis Pharmaceuticals Corp., 642 F.Supp.2d 787 (S.D.Ohio 2009).

        Plaintiffs filed claims for manufacturing defect, design defect, failure to warn, “failure to
conform to representation under OHIO REV.CODE § 2307.77,” supplier liability, and punitive
damages, against the manufacturer of Trileptal, a prescription drug. The court granted
defendant’s motion to dismiss the manufacturing and design defect claims on the grounds that
the allegations fell woefully short of the standard set forth in Bell Atl. Corp. v. Twombly, 550
U.S. 544, 555, 127 S. Ct. 1955, 167 L.Ed.2d 929 (2007). The allegations did “nothing more than
provide a formulaic recitation of the elements of a claim under the statute . . . [and] failed to
allege any facts that would permit the Court to conclude that a manufacturing [or design] defect
occurred and that the defect was the proximate cause of [Plaintiff’s] alleged injuries.” The court
also dismissed Plaintiffs’ claim for supplier liability, reasoning that, because the Complaint
“unequivocally” described the defendant as the manufacturer of the prescription drug, the
defendant was not a “supplier” as defined by OHIO REV.CODE § 2307.71(A)(15)(b)(i).

       Class Action Fairness Act (CAFA):

       No cases to report in this area.



                                                102
       Other:

       DeGidio v. Centocor, Inc., 2009 WL 1867676 (N.D.Ohio June 29, 2009).

        Plaintiff, an Ohio citizen, filed suit in Ohio state court alleging state law claims for
products liability, fraud, civil conspiracy, and commercial bribery, against out-of-state
manufacturers and distributors of Remicade, a prescription drug. The same suit alleged medical
malpractice against Plaintiff’s prescribing physician, also an Ohio citizen. The manufacturers
and distributors removed the case to federal court based on diversity, despite the fact that
Plaintiff and the co-defendant physician were citizens of the same state. Plaintiff moved for
remand.

        The court denied remand and, instead, severed the non-diverse prescribing physician
pursuant to Federal Rule of Civil Procedure 21. The court reasoned that the prescribing physician
was not a necessary party to the lawsuit against the manufacturers and distributors because the
theories of recovery “involve different legal standards and different factual allegations.”

       Joseph v. Baxter Intern. Inc., 614 F. Supp. 2d 868 (N.D. Ohio 2009).

        Plaintiffs, citizens of Louisiana, filed suit in Louisiana state court alleging state law
claims for products liability against an out-of-state manufacturer of a prescription drug, and
medical malpractice claims against Louisiana health care providers. The manufacturer removed
the action to federal court based on diversity. The Judicial Panel on Multi-District Litigation
transferred the case to the multi-district litigation (MDL) court to be consolidated with the In re
Heparin proceedings. Plaintiff moved for remand, arguing complete diversity was destroyed by
the presence of the health care providers.

         The MDL court denied remand, opting instead to sever the health care providers from the
action pursuant to Federal Rule of Civil Procedure 21. The court reasoned that the allegations
against the health care providers differed significantly from those against the manufacturer:
“With regard to the Healthcare Defendants, the Josephs allege medical negligence-namely, that
physicians administered Heparin to the decedent despite her chart noting her allergy to Heparin,
failed to obtain informed consent, and did not have in place adequate procedures to prevent
improper use of Heparin. Such medical malpractice allegations differ from the Josephs’ products
liability claim which focuses on Baxter’s conduct in designing, manufacturing, labeling and
recalling tainted Heparin.”

                                           TENNESSEE

       Tort Reform:

       Montgomery v. Wyeth, 580 F. 3d 455 (6th Cir. 2009).

        Plaintiff sued Wyeth after she developed primary pulmonary hypertension (“PPH”) from
ingesting “Fenphen,” a diet drug. The district court held that Tennessee’s statute of repose,



                                               103
which requires that an action “be brought within one (1) year after the expiration of the
anticipated life of the product” barred Plaintiff’s claim. Tenn. Code Ann. § 29-28-103(a).
Plaintiff was a member of a class of Plaintiffs in separate litigation regarding diet drugs. The
class consisted of all people who had used the diet drug and did not involve PPH. The court held
that Plaintiff’s membership in the class did not preserve her right to sue for different injuries
caused by the same drug outside of the limitations imposed by the Tennessee statute of repose.

       In response to Plaintiff’s claims that the district court failed to consider the policy effects
of applying the statute of repose in this case, the court found that the Tennessee legislature
enacted the statute of repose “as an important and specific measure to address products liability
actions” and that those concerns were addressed by applying the statute in this case.

       Preemption:

       Dorsey v. Allergan, Inc., 2009 WL 703290 (W.D. Tenn. Mar. 11, 2009).

        Plaintiff brought suit against Allergan, manufacturer of silicone breast implants, alleging
that the implants she received, which purportedly caused neck, back, and shoulder pain, heart
palpitations, difficulty swallowing, metallic taste in mouth, and other neurological symptoms,
were defective and unreasonably dangerous. Allergan moved for summary judgment on the
grounds that Plaintiff’s claim was preempted by the Medical Device Amendments (“MDA”) to
the Food, Drug and Cosmetic Act. Citing the MDA’s express preemption provision and Riegel
v. Medtronic, Inc., 128 S.Ct. 999 (2008), the court held that Plaintiff’s claims were preempted
and granted Allergan’s motion for summary judgment.

        Plaintiff argued that Riegel was distinguishable because the catheter in that case had
received pre-market approval by the FDA whereas the implant at issue had not. The court
decided this was a distinction without a difference. The court points out that the subsequent
approval of the implants by the FDA equals a finding that the implants were reasonably safe for
consumers. This finding made it impossible for Plaintiff to show that the “implant was in a
defective condition or unreasonably dangerous at the time it left the control of Defendant.”

       Environmental or “Green” Products Litigation:

       No cases to report in this area.

       Market Share or Other New Theories of Liability:

       Lincoln General Insurance Co. v. Detroit Diesel Corp., No. M2008-01427-SC-R23-CQ
(Aug. 21, 2009).

        The Tennessee Supreme Court considered the following certified question from the
Middle District: Does Tennessee law recognize an exception to the economic loss doctrine
under which recovery in tort is possible for damage to the defective product itself when the
defect renders the product unreasonably dangerous and causes the damage by means of a sudden,
calamitous event? The court held that Tennessee law does not recognize such an exception. The



                                                 104
court agreed with the U.S. Supreme Court in East River Steamship Corp. v. Transamerica
Delaval, Inc., 476 U.S. 858, 868-71 (1986), that “the owner of a defective product that creates a
risk of injury and was damaged during a fire, a crash, or other similar occurrences is in the same
position as the owner of a defective product that malfunctions and simply does not work.”
Therefore, the remedies afforded each situation should be the same and they should be based on
the parties’ contractual allocation of risk, not tort law.

       Tobacco:

       No cases to report in this area.

       Automobiles:

       No cases to report in this area.

       Drug Litigation:

       See Dorsey v. Allergan above.

       Class Action Fairness Act (CAFA):

       No cases to report in this area.

       Other:

       Nye v. Bayer Cropscience, Inc., 2009 WL 3295137 (Tenn. Ct. App. Oct. 14, 2009).

        Plaintiff brought suit on behalf of decedent for exposure to asbestos that led to decedent’s
death by mesothelioma. Defendants North Brothers and Dupont were the only ones left at trial,
and the jury found that decedent was exposed to various asbestos-containing products sold by
North Brothers to Dupont. The jury returned a verdict in favor of North Brothers, finding that
even though North Brothers was at fault, Dupont was the sole cause of Plaintiff’s damages. At
issue on appeal was whether the trial court erred by charging the jury on North Brothers’s “sole
cause defense” as it related to Plaintiff’s sale of a defective product theory of liability. The
court found that the trial court erred when it instructed the jury that if Dupont knew of the
hazards of asbestos, North Brothers could not be found liable for failure to warn, as the charge
incorporated either the learned intermediary doctrine or the sophisticated buyer doctrine. On that
basis, the court remanded for a new trial.




                                                105
    VII.      Seventh Circuit

               William Seth Howard                            Michael A. McCaskey
                 SmithAmundsen                                Swanson Martin & Bell
           150 N Michigan Ave Ste 3300                       330 N Wabash Suite 3300
                Chicago, IL 60601                               Chicago, IL 60611
                 (312) 894-3832                                   (312) 321-8464
             whoward@salawus.com                             mmccaskey@smbtrials.com



Illinois

           Automobiles

Henry v. Panasonic Factory Automation Co., 917 N.E.2d 1086 (4th Dist. 2009)

Plaintiff worker was injured when attempting to repair a cutter bade on a high-speed placement
machine known as an “MSH,” while working at automotive component manufacturer. Plaintiff
was attempting his repairs while inside of the MSH. The undisputed facts established that the
machine was capable of being repaired from its exterior. Plaintiff was also trained to repair the
machine from its exterior. It was also undisputed that the plaintiff would not have been injured if
he had conducted his repairs from the exterior of the MSH. Plaintiff’s only retained design
expert admitted during his deposition that the machine would not be unreasonably dangerous if a
person could repair the MSH machine from its exterior. Manufacturer’s summary judgment
motion, which asserted the plaintiff was unable to support his allegations with expert testimony
per Baltus v. Weaver Division of Kidde & Co., 199 Ill.App.3d 821, 145 Ill.Dec. 810, 557 N.E.2d
580 (1990), was granted. Although Baltus involved a plaintiff who did not retain an expert, the
Fourth District upheld the trial court’s holding in the instant case because plaintiff’s expert
admitted the MSH machine was not unreasonably dangerous if capable of being repaired from its
exterior.

Piagentini v. Ford Motor Co., 901 N.E.2d 986 (1st Dist. 2009)

Plaintiff sued automobile manufacturer in strict liability and negligence, alleging various design
allegations. The strict liability count alleged various sub-allegations in strict liability.
Manufacturer filed summary judgment motion as to a portion of the strict liability sub-
allegations. Motion was granted and plaintiff was given leave to re-plead. Plaintiff voluntarily
dismissed its claims against manufacturer, and later re-filed his complaint against the
manufacturer as to those remaining sub-allegations. Manufacturer moved for summary judgment
again, this time based on res judicata, and the motion was granted by the trial court. On appeal,
the appellate court reversed and remanded. The Illinois Supreme Court issued a supervisory writ
directing the First District to vacate its judgment and reconsider.

In the end, the First District held that the summary judgment order was not a “final order” for
purposes of res judicata. For purposes of res judicata, a final order either terminates litigation on



                                                106
the merits or disposes of the rights of the parties, either on the entire controversy or a separate
branch thereof. The order at issue dismissed only a portion of the strict liability sub-allegations,
and not the negligence count against the manufacturer. Moreover, even if re-filing of the
complaint by plaintiff after its voluntary dismissal constituted “claim-splitting,” manufacturer
acquiesced to the claim-splitting as it waited 3 ½ years after the suit was re-filed to raise its
defense, and participated in complete fact and expert discovery.

       Environmental or “Green” Products Litigation:

       No reported cases.

       Drug Litigation:

Abad v. Bayer Corp., 563 F.3d 663 (7th Cir. 2009)

Two separate suits brought by residents of Argentina were dismissed on forum non conveniens
grounds in favor of Argentine courts. On appeal, the matters were consolidated. One matter
involved a class action against pharmaceutical companies regarding allegations of plaintiffs who
became infected with HIV or hepatitis C by using the defendants’ medications while in
Argentina. The second suit was against a tire manufacturer alleging wrongful death for a vehicle
accident which occurred in Argentina. Both cases involved Argentine citizens, and in each case
the injury occurred in Argentina. The 7th Circuit, noting the abuse of discretion standard,
affirmed the district courts’ rulings. The majority of evidence and witnesses were in Argentina
and the law of Argentina would govern the substantive issues.

Indiana

       Automobiles

Cook v. Ford Motor Co. 913 N.E.2d 311 (Ind.App.,2009).

Plaintiff sued auto manufacturer for injuries to child when the front-passenger seat airbag
deployed. Plaintiff’s claim was based on a failure to warn. Following a mistrial, the trial court
granted summary judgment to manufacturer on the failure to warm claim. Manufacturer argued
the warning claim was preempted by FMVSS 208. Over a dissent, the appellate court reversed
summary judgment finding that the plaintiff’s state law tort claim for failure to warn was not
preempted by FMVSS 208. The appellate court reasoned against preemption because the
standard described only the general content of the warning at issue. Although the Supreme
Court’s ruling in Geier involved air bags and FMVSS 208, the case at hand was more akin to
Wyeth in that the standard at issue left the content of the warnings to the manufacturer’s
discretion.

       Environmental or “Green” Products Litigation:

       No reported cases.




                                                107
       Drug Litigation:.

Kovach v. Caligor Midwest, 913 N.E.2d 193 (Ind. 2009)

Plaintiffs claimed their son was given an overdose of pain medication by a nurse following
surgery, and which allegedly caused his death. Plaintiff’s sued the manufacturer of the medicine
cup used to administer the pain medication, claiming it was inadequately designed so that it
created inaccurate medicine measurements. Plaintiff also claimed the cup failed to contain
adequate warnings regarding inaccurate measurements. On appeal, the trial court’s granting of
summary judgment was reversed as the appellate court found the lack of any type of warning
was sufficient evidence in itself to overcome summary judgment. The Indiana Supreme Court
reversed, and granted summary judgment as to the manufacturer. The Supreme Court found that
the uncontested facts, i.e., the medical examiner’s report and the father’s eye witness testimony,
established that the decedent had been given double the amount of pain medication by the
administering nurse. Although the cup could be capable of an error ratio of 20-30%, it was
undisputed that the proximate cause of death was due to the nurse doubling the prescription, and
not an imprecise measurement. Lastly, the “read-and-heed” presumption applicable to
allegations of missing warnings was not applicable because the child’s death was not factually
caused by the danger that a warning could have prevented.

Wisconsin

       Automobiles

       Tammi v. Porsche Cars North America, Inc., 768 N.W.2d 783 (Wis., 2009)

Lessee of automobile sued the vehicle manufacturer for violations of Wisconsin lemon law.
Manufacturer removed the matter to the District Court for the Eastern District of Wisconsin.
Judgment was grated in lessee’s favor following a jury verdict. The District Court modified the
damages portion of the jury verdict following lessee’s motion. On appeal, the Court of Appeals
certified various questions relating to damages which were accepted and responded to by the
Wisconsin Supreme Court. The case posed unique damages calculation issues under the
Wisconsin lemon law. During the pendency of the litigation, lessee elected to purchase the
subject vehicle based on the purchase option provision of the lease. In discussing the various
damages a manufacturer may be subject to under the lemon law, the Wisconsin Supreme Court
went so far as to quote Kenny Rogers from The Gambler, noting that a manufacturer must know
when “to hold ‘em and when to fold ‘em.” In conclusion, the court found that since the lessee
voluntarily chose to purchase the vehicle, the lessee was not entitled to damages for the price of
his voluntary purchase. The purchase was not “caused” by the manufacturer’s violation of the
lemon law statute. Lastly, the refund and pecuniary loss damages to the lessee was subject to a
reasonable allowance for use before the doubling of the damages under the statute.

       Environmental or “Green” Products Litigation:

       No reported cases.



                                               108
           Drug Litigation:  
            
           No reported cases. 
            
           Class Action Fairness Act: 

In re Safeco Ins. Co. of Am., 585 F.3d 326, 2009 U.S. App. LEXIS 23429 (7th Cir. 2009)

Plaintiff, a chiropractor, filed a complaint against Defendants, insurance carriers, for allegedly
programming their computer systems to under-pay on claims arising out of automobile accidents.
Four days after Plaintiff’s complaint was filed, the Class Action Fairness Act of 2005 (CAFA)
was enacted. The Defendants sought removal of the action from state court on the grounds that
the post-CAFA class certification definition introduced new claims made on policies issued by
their non-party affiliates which did not relate back to the original complaint, thereby
commencing a new action for purposes of removal jurisdiction under CAFA. The District Court
disagreed, stating that the conduct by affiliates who were brought in as class members and whose
conduct was that which was alleged in the complaint prior to CAFA was not grounds for
removal. The Appellate court agreed, stating that the additions to the complaint constituted
“workaday” changes and not new litigation for purposes of removal under CAFA.

               Preemption:

               No reported cases.

               Other:

               No reported cases.

Illinois

               Class Action Fairness Act:

               No reported cases

               Preemption:

Adames v. Sheahan, 233 Ill. 2d 276, 909 N.E.2d 742 (Ill. 2009)

Decedent, a child, was killed when he was accidentally shot by his friend with his friend’s
father’s service revolver. Decedent’s estate sued the Sheriff of Cook County, the father’s
employer, and Beretta, the revolver manufacturer. The Supreme Court upheld the appellate
court’s granting of summary judgment in favor of Beretta, dismissing plaintiff’s counts for strict
products liability because the gun performed as it was intended. More importantly for
preemption purposes, the court ruled the plaintiff’s failure to warn claim against Beretta was
preempted by the “Protection of Lawful Commerce in Arms Act” codified at 15 USCS § 7901


                                               109
because the discharge of the gun was caused by a volitional act that constituted a criminal
offense.

           Other:

Henry v. Panasonic, 917 N.E.2d 1086; 2009 Ill. App. LEXIS 1024 (4th Dist. 2004)

         Plaintiffs, Keith and Sue Henry filed a two count complaint against Panasonic sounding
in strict products liability arising out of an incident which occurred while plaintiff was working a
Panasonic “MSH.” An MSH is a high speed placement machine that is used to assist in the
manufacture of safety systems for automobiles. Plaintiff argued that the machine was
unreasonably dangerous because it required the operator to enter the machine while it was
operating in order to ensure that it was operating correctly. At deposition, plaintiffs’ expert
acknowledged that if the machine’s operation could be evaluated while outside of the machine,
then the machine would not be unreasonably dangerous. Consequently, Panasonic’s motion for
summary judgment was granted. Plaintiffs appealed, arguing that their expert’s testimony was
prima facie evidence that the machine was unreasonably dangerous. The appellate court upheld
the dismissal of Panasonic indicating that plaintiffs’ experts inability to point to any specific
defect was tantamount to providing no expert testimony at all, and that in a products liability
case, specialized knowledge is necessary to maintain a cause of action.

Indiana

           Class Action Fairness Act:

           No reported cases.

           Preemption/Other:

Cook v. Ford Motor Co., 913 N.E.2d 311, 2009 Ind. App. LEXIS 1633 (Ind. Ct. App. 2009) –
See also the motor vehicle section for Indiana and elaborated preemption discussion below.

The National Traffic and Motor Vehicle Safety Act (the Act) codified at 49 U.S.C. § 30101 seeks
to “reduce traffic accidents and death and injuries to persons resulting from traffic accidents.”
The Act mandates specific requirements which pertain to visor warnings and airbag warnings.
Ford contended that their adherence to such standards preempted any failure to warn claims
under Indiana law. The court cited that under the Act, “compliance with a motor vehicle safety
standard under this chapter does not exempt a person from liability at common law.” Cook v.
Ford Motor 913 N.E. 2d 311, 320. However, the court indicated that “state law tort actions may
be preempted if the state standards in question actually conflict with federal objectives.” The
court, in holding that the failure to warn claims were not preempted by the Act, stated that “the
implementing agency’s comments, if not outright stating that the standard is a floor only,
strongly imply that such is the case by allowing the manufacturers flexibility to tailor the
warning language to their vehicles.” Id. at 325

           Other:



                                                110
Ford Motor Co. v. Moore, 905 N.E.2d 418 (Ind. Ct. App. 2009)

         Plaintiff, as personal representative of Decedent, sued Ford Motor Company, TRW
(seatbelt manufacturer), Goodyear Tire and Rubber, and Renner Motors Inc., after her husband
was killed when his front tire separated causing his automobile to lose control, ejecting him from
the sunroof despite wearing his safety belt. Goodyear and Renner Motors settled before trial. At
trial, the jury was instructed based upon an alleged design defect theory regarding the crash-
worthiness of the vehicle that the decedent was driving and that the alleged design defect was
either the seat-belt assembly or the sunroof of the vehicle. The appellate court, in reversing the
jury’s verdict which apportioned fault, in part, to Ford and TRW, held that plaintiff failed to
present sufficient evidence that Ford and TRW breached a duty of reasonable care. Indiana law
requires plaintiff to establish that Ford and TRW failed to exercise reasonable care under the
circumstances in designing their products. In order to meet such a burden, the plaintiff was
required, and failed, to present alternative designs that would have prevented the decedent’s
death and would have improved the safety of drivers in a cost-effective manner.

Wisconsin:

           Class Action Fairness Act:

           No reported cases.

           Preemption:

           No reported cases.

           Other:

Horst v. Deere & Company, 2009 WI 75, 769 N.W. 2d 536 (2009)

         Plaintiff, mother of a minor child who was injured after being backed over by the riding
lawnmower his father was operating, sued the lawnmower manufacturer for strict products
liability and negligence arguing that the product, as designed, was unreasonably dangerous. At
trial, the circuit court rejected plaintiff’s negligence and strict liability claims. Plaintiff appealed
the circuit court’s instruction to the jury which evaluated defendants’ product under the lens of
the consumer contemplation test. On appeal, plaintiff argued that in bystander claims, such as
this one, the consumer contemplation test (the expectation that a product is unreasonably
dangerous as contemplated by a consumer) that was given to the jury was inappropriate. Rather,
plaintiff argued that the jury should be instructed based on the “contemplation and expectations
of an ordinary bystander”, what plaintiff called a “bystander contemplation test.” The Wisconsin
Supreme Court, affirming the Appellate Court, held that even in cases where a bystander is
injured, the consumer contemplation test and not the bystander contemplation test applied to
strict products liability actions.




                                                 111
Tort Reform

Ready v. United/Goedecke Servs., 393 Ill. App. 3d 56, 911 N.E.2d 1140 (1st Dist. 2009)

        In 2008, The Illinois Supreme Court rendered a decision in Ready v. United/Goedecke
Servs., 232 Ill. 2d 369, 905 N.E.2d 725 (2008), which set the stage for the 2009 decision.
Michael P. Ready (“Ready”) was fatally injured when a beam that was to be used for scaffolding
fell eight stories and struck him. The decedent’s estate sued Midwest Generation EME, L.L.C.
(“Midwest”), Ready’s employer; BMW Constructors, Inc. (“BMW”), which was hired as the
general contractor; and United/Goedecke Services, Inc. (“United”), which was hired by BMW as
the scaffolding subcontractor. Prior to trial plaintiff settled with defendants Midwest and BMW
and the jury returned a verdict for plaintiff in the amount of $ 14,230,000. The jury assessed
Ready’s contributory negligence at 35%, which reduced the judgment to $ 9,250,000. The circuit
court allowed a set-off of approximately $ 1,112,502, i.e., the total amount paid to plaintiff by
the settling defendants. On appeal United argued that the trial court erred when it barred United
from presenting any evidence at trial regarding the conduct of the settling defendants and by
failing to include the settling tortfeasors on the verdict form so that the jury could allocate fault
to all parties that were sued by the plaintiff. Therefore, the issue before the Supreme Court of
Illinois was whether the settling tortfeasors “were defendants sued by the plaintiff” within the
meaning of 735 Ill. Comp. Stat. 5/2-1117. (The plaintiff’s bar wants to keep a settling defendant
off the jury form because under Illinois law if a defendant’s portion of the total fault is
determined by a jury to be less than 25%, then pursuant to Section 2-1117, that defendant is only
severally liable for plaintiff’s non-economic damages.)

       The Illinois Supreme Court held that the phrase “defendants sued by the plaintiff” in
Section 2-1117 is not defined in the statute and is thus ambiguous. Therefore, the Illinois
Supreme Court engaged in a legal analysis outside the four corners of the legislation to conclude
that Section 2-1117 did not apply to good-faith settling tortfeasors who have been dismissed
from the lawsuit. However, the Illinois Supreme Court remanded the case to the appellate court
for a decision on United’s claim that the circuit court erred when it excluded evidence of the
conduct of defendants Midwest and BMW, and refused United’s jury instruction on sole
proximate cause.

        In Ready v. United/Goedecke Servs., 393 Ill. App. 3d 56 911 N.E.2d 1140 (1st Dist.
2009) the appellate court rendered an opinion on this issue and held that the circuit court should
not have excluded evidence of Midwest and BMW’s conduct and it was an abuse of discretion
for the circuit court to grant plaintiff’s motions in limine as to that issue. The appellate court
reasoned that a defendant’s answer, which is a general denial that an injury was the result of or
caused by the defendant’s conduct, is sufficient to permit the defendant to present evidence that
the injury was the result of another cause. United claimed that the evidence would have shown
that Midwest was in charge of operating the tugger and deciding how the signaling would be
done and that Midwest’s workers failed to barricade off the tugger bay where Ready was struck
by the beam. As for BMW’s conduct, United argued that the evidence would have shown that
BMW should have provided a crane to lift the beams outside the factory as required by the
contract and discussed in the pre-bid meeting. The appellate court stated that “had the jury
heard the whole story, its verdict may have been different.” The appellate court thus allowed the



                                                112
defendant to offer evidence of the settling defendants negligence and allowed the non-settling
defendants to argue that the settling defendants were the sole proximate cause of plaintiff’s
injury. It is important to note that a sole proximate cause defense does not mean one entity has
to be the sole proximate cause. Pursuant to the facts of the Ready case, a non-settling defendant
can clearly argue that multiple settling defendants, in addition to the plaintiff and any remaining
defendants, were the sole proximate cause, i.e., sole does not mean “one” or “singular.”

       Lebron v. Gottlieb Memorial Hospital (Illinois)

        In December 2009, the Illinois Supreme Court was scheduled to render an opinion on the
constitutionality of the Malpractice Reform Act of 2005 (“Act”), in the case Lebron v. Gottlieb
Memorial Hospital. As of the date of this publication, the Illinois Supreme Court has yet to
render an opinion. The Act caps jury awards for non-economic pain and suffering and other non-
liquidated damages in medical malpractice lawsuits at $500,000 against physicians and $1
million against hospitals. LeBron was a suit brought by the mother of a 3-year-old child born
with cerebral palsy allegedly as a result of medical negligence. The Cook County Circuit Court
held that the arbitrary cap on non-liquidated damages as specified by the Act was
unconstitutional, relying on an earlier Illinois Supreme Court decision in 1997, Best v. Taylor
Mach. Works, 179 Ill. 2d 367, 689 N.E.2d 1057 (1997). The Best Court held that caps on non-
economic damages imposed by a similar 1995 Act infringe on the jury’s role in determining
appropriate compensation. Nonetheless, the Act is narrowly tailored and only seeks to establish
caps for medical malpractice claims, while the 1995 Act contained extensive provisions on
product liability tort reform which the Best Court also held to be unconstitutional.

       Phelps v. Physicians Ins. Co. of Wis., Inc., 2009 WI 74, 319 Wis. 2d 1 (2009)

        In Phelps v. Physicians Ins. Co. of Wis., Inc., 2009 WI 74, 319 Wis. 2d 1 (2009) a father
brought a claim for negligent infliction of emotional distress when one of his children died at the
hospital due to the alleged negligence of the treating physician. The Supreme Court of
Wisconsin remanded the case to the circuit court to issue a dismissal order. In so holding, the
Supreme Court of Wisconsin pointed out that Wis. Stat. §§ 655.005 and 655.007 (1997-98)
specify that a relative’s claim must be derivative to fall within the scope of allowable medical
malpractice recovery, and only certain types of claims are considered derivative. Claims for the
loss of society, companionship, and consortium are derivative even though they technically
“belong” to the close relative making the claim because the claims are derived from the
underlying injury to the other person. However, a claim for the negligent infliction of emotional
distress to a bystander is a direct, not a derivative, claim, because the claim “does not depend on
the primary tort victim’s ability to make the claim.” That is, a derivative claim arises from the
tort injury to another and does not have its own elements of proof that are distinct from the
negligence claim to which it attaches. By contrast, a claim of bystander emotional distress has
elements that, while arising from the underlying negligence, are distinct and subject to separate
proof. See Bowen v. Lumbermens Mut. Cas. Co., 183 Wis. 2d 627, 657-58, 517 N.W.2d 432
(1994).

Market Share Liability




                                               113
       Godoy v. E.I. du Pont de Nemours & Co., 2009 WI 78, 768 N.W. 2d 674 (2009)

        In Godoy v. E.I. du Pont de Nemours & Co., 2009 WI 78, 768 N.W. 2d 674 (2009),
numerous defendants, including E.I. du Pont de Nemours and Company, Armstrong Containers,
the Sherwin-Williams Company, and American Cyanamid (collectively, “manufacturer
defendants”) designed, manufactured or sold white lead carbonate products. The plaintiff,
Godoy, filed suit alleging that the white lead carbonate pigment was defectively designed and
that the defendant manufacturers should be liable under theories of strict liability and negligence.
However, Godoy could not identify which defendant produced the defective product that caused
his injury, and therefore he proceeded under the “risk-contribution theory.”

        Wisconsin had previously adopted the “alternative liability” theory enunciated in
Summers v. Tice, 33 Cal. 2d 80, 199 P.2d 1 (1948), which held multiple defendants liable
without requiring the plaintiff to prove the identity of a specific tortfeasor. Summers is a staple of
first year tort classes and involves a case in which two hunters negligently shot in the direction of
the plaintiff, but it could not be ascertained which hunter’s bullet injured the plaintiff. Because
the plaintiff could not identify the actual tortfeasor, the court held that “[w]here the conduct of
two or more actors is tortuous, and it is proved that harm has been caused to the plaintiff by only
one of them, but there is uncertainty as to which one of them has caused it, the burden is upon
each such actor to prove that he has not caused the harm.” Collins v. Eli Lilly Co., 116 Wis. 2d
166, 183, quoting Restatement (Second) of Torts sec. 433B(3)(1965). The theory assumes that
the defendants would be “in a far better position [than the plaintiff] to offer evidence to
determine which one caused the injury.”

      Under the risk-contribution theory, the plaintiff is not required to identify the specific
manufacturer when all similar products are fungible and identically defective. The Wisconsin
Supreme Court recently applied the risk-contribution theory to white lead carbonate pigment in
Thomas ex rel. Gramling v. Mallett, 2005 WI 129, 285 Wis. 2d 236, 701 N.W.2d 523 (2005);
however, the court has not applied the risk-contribution theory to residential paint pigment.

        The risk contribution theory was a tangential issue in this case, but it was an issue that
created a catch-22 for the plaintiff and a victory for the defendants. That is, the plaintiff was
trying to argue that the white lead carbonate paint was defectively designed under strict liability
theories; however the court pointed out that lead is a characteristic ingredient of white lead
carbonate pigment. By definition, white lead carbonate pigment contains lead and removing lead
from white lead carbonate pigment would transform it into a different product. Therefore, the
Godoy Court held that the design of white lead carbonate pigment was not defective. Plaintiff
tried to circumvent this problem by arguing that lead paint is a defective design in reference to
the class of all residential paint pigment. However, the Godoy Court noted that if this were true
and plaintiff could thus argue there was a product design defect in the paint because it was made
with lead, the Plaintiff would not be able to prove causation because not all residential paint
pigments are identically defective, which is a prerequisite of the risk-contribution theory.

       Therefore, plaintiff was stuck in a quandary in which he needed to argue that the product
was white lead carbonate paint because the court had already allowed the risk-contribution test to
be used for white lead carbonate paint, but in so arguing plaintiff could not prove there was a



                                                 114
design defect. Whereas, if plaintiff elected to argue that using lead was a defect in the design in
the class encompassing all residential paints, he would now be able to prove defective design,
but would be unable to use the risk-contribution theory to prove causation.

Tobacco Litigation

       Cleary v. Philip Morris, Inc., 2009 U.S. Dist. LEXIS 82032 (N.D. IL 2009)

        In Illinois, the plaintiffs’ bar is still trying to find a way to maintain lucrative lawsuits
against the tobacco industry after the Illinois Supreme Court dismissed Price v. Philip Morris,
Inc., 219 Ill. 2d 182 (2006). In Price, a Madison County class action, plaintiff’s counsel alleged
that the tobacco companies concealed the true nature of “light” cigarettes; however the Illinois
Supreme Court held that under the Illinois Consumer Fraud Act (“Act”) the complaint failed
because the Act exempts from liability “conduct in compliance with orders” of a federal agency.
Because the defendants were authorized by the Federal Trade Commission practice and consent
orders in the marketing of light cigarettes, the claims were barred. Id. In 2009, plaintiffs took
another shot at the tobacco industry, pursuant to a different theory in Cleary v. Philip Morris,
Inc., 2009 U.S. Dist. LEXIS 82032 (N.D. IL 2009). The intervening catalyst was Altria Group,
Inc. v. Good, 129 S.Ct. 538 (2008), in which the United States Supreme Court held that neither
the Federal Labeling Act nor the FTC’s decisions regarding the advertising of low tar or light
cigarettes preempt state law claims predicated on a duty not to deceive.

        The plaintiffs in Cleary argued that the Altria Group holding represented a significant
change in the law as compared with the Illinois Supreme Court’s Price decision. On March 13,
2009, the case was removed to Federal Court, by Lorillard, a new defendant, pursuant to the
Class Action Fairness Act, 28 U.S.C. § 1446(b) (“CAFA”) premised on the proposition that the
inclusion of the light cigarettes-based claims against Lorillard amounted to the filing of a new
action under CAFA. Plaintiffs sought to remand the case to state court alleging that the claim
against Lorillard was not a new claim but instead related back to the original compliant; however
the court concluded that the light cigarette claims against Lorillard did not relate back to the
plaintiffs’ first amended complaint because that complaint mentioned only Marlboro Lights, a
Philip Morris product. (In a later ruling, the Court dismissed the light cigarettes claims against
Lorillard as time-barred.)

        Thereafter, the plaintiffs conceded that the light cigarettes claims against all defendants
except Philip Morris were time-barred and therefore the only issues before the court was whether
the light cigarettes claims against Philip Morris were timely and, if so, whether plaintiffs could
assert those claims with respect to brands other than Marlboro Lights. Philip Morris argued that
because the light cigarettes claims in the first amended complaint were dismissed with prejudice,
the new claim cannot relate back to the date plaintiffs filed that version of the complaint. Philip
Morris also argued that plaintiffs’ filing of a second amended complaint, which omitted the light
cigarettes claims, renders impossible relation back to the date plaintiffs filed the first amended
complaint.

      The Cleary Court held that the state courts’ ruling on Philip Morris’ motion to strike in
2002 was an interlocutory order, as it did not “settle or finalize any rights between the parties”



                                                115
and under Illinois law, a court may modify or vacate an interlocutory order at any time before
final judgment. Hemphill v. Chicago Transit Auth., 357 Ill. App. 3d 705, 708, 829 N.E.2d 852
(2005). The same is true under federal procedural law. The Cleary Court reasoned that the
plaintiffs agreed to withdraw their light cigarettes-based claims against Philip Morris in the state
court case solely because certification of the class was pending in a Madison County case. The
Cleary Court held that state court’s decision to dismiss the plaintiffs’ Marlboro Lights claims
with prejudice was premised on the pendency of the Madison County case and although the
Madison County case was later dismissed, the Supreme Court’s decision in Altria amounted to a
change of the law that enables plaintiffs to proceed. The Cleary Court held that there was no
evidence of Judge-shopping on the plaintiffs’ part because it was not plaintiffs’ decision to
remove the case to federal court, and furthermore, the claims did not prejudice Philip Morris
unfairly because it had notice of these claims long ago.

        Although the Cleary Court allowed the claims to proceed against Philip Morris, the
Cleary court only allowed the claims which were directed at Philip Morris’ Marlboro Lights
brand; the twenty-eight other Philip Morris brands that were not part of the claims in the first
amended complaint did not relate back and thus were barred. This is because there was nothing
in the first amended complaint from which Philip Morris would have received notice of a
potential claim relating to its low tar, light, and ultra light cigarette brands other than Marlboro
Lights.




                                                116
   VIII. EIGHTH CIRCUIT
                 Lori Rook                                         Todd C. Stanton
               Brown & James                              Sandberg Phoenix & von Gontard
     300 John Q Hammons Pkwy Ste 202                       515 N 6th St 1 City Ctr 15th Fl
           Springfield, MO 65806                            Saint Louis, MO 63101-1880
               (417) 831-1412                                       (314) 446-4224
              lrook@bjpc.com                                     tstanton@spvg.com


Arkansas

       Tort Reform:

        In Johnson v. Rockwell Automation, Inc., the Arkansas Supreme Court answered two
certified questions submitted by the U.S. District Court for the Eastern District of Arkansas.
2009 WL 1218362 (Ark. 2009). Plaintiff in the underlying action sued a number of defendants
including Rockwell Automation, Inc., (Rockwell) for alleged work-related injuries. He
contended the safety interlock on a starter bucket manufactured and distributed by Rockwell and
supplied to his employer, Eastman Chemical Company (“Eastman”), was defective. Id.
Rockwell pled that Eastman modified the starter bucket after it was supplied to it, and that it was
entitled to all defenses available to it under Arkansas’ Civil Justice Reform Act of 2003 (Act 649
of 2003 (CJRA)). Rockwell filed a “Notice of Non-Party Fault,” designating Eastman as a party
at fault and sought to enforce the CJRA’s medical costs provision, which limits plaintiff’s
damages to medical costs that were actually paid by plaintiff or on behalf of plaintiff and/or costs
that remained unpaid and for which plaintiff was legally responsible. Id. In response, plaintiff
argued the CJRA’s non-party provision and medical costs provision were both unconstitutional.
Id.

        The Arkansas Supreme Court agreed with plaintiff. Id. First, the court held that the non-
party provision of the CJRA was a law affecting procedure and as such, offends the principal of
separation of powers and the powers specifically prescribed to the Supreme Court by the
Arkansas Constitution. Id. Second, the court held the medical costs provision of the CJRA
promulgates a rule of evidence, a function which is squarely within the province of the Supreme
Court, making it violative of the principal of separation of powers under the Arkansas
Constitution. Id.

       Preemption:

        In In re Prempro Products Liability Litigation, plaintiff brought a product liability action
against Wyeth Pharmaceuticals, Inc. (“Wyeth”) and Pharmacia & Upjohn Co. (“Upjohn”) for
failure to warn of the risk of breast cancer from long term use of estrogen and progestin hormone
replacement therapy drugs manufactured. 586 F3d 547 (8th Cir. 2009). Over a period of 11
years, beginning in 1989, plaintiff was prescribed a combination of hormone therapy drugs to
alleviate menopause-related complications. Id. at 554. In 2001, she was diagnosed with breast
cancer in both breasts and had to undergo a double mastectomy. Id. In 2004, she sued Wyeth
and Upjohn.


                                                117
        Following a 3-week long trial on liability, a jury found in favor of plaintiff and against
Wyeth and Upjohn on her failure to warn claim. Id. at 562. The jury also found defendants
liable for punitive damages. The District Court granted Wyeth and Upjohn’s motions to strike
the testimony of plaintiff’s punitive damages expert and for judgment as a matter of law as to
punitive damages, but denied similar motions as to liability. Id. at 562. Both defendants
appealed the jury’s finding of liability and plaintiff appealed the District Court’s granting of
defendants’ motions to strike the testimony of her punitive damages expert, and judgment as a
matter of law on punitive damages. Id. at 563.

        On appeal, Wyeth and Upjohn argued plaintiff’s state law failure to warn claim was
preempted by federal law in that, to the extent the FDA regulates pharmaceutical products and
the labeling requirements, there can be no heightened duty under Arkansas law, and that
compliance with state law would necessarily amount to a violation of FDA requirements. Id. at
563. The Appellate Court disposed of this argument summarily by citing to the United States
Supreme Court’s decision in Wyeth v. Levine, 129 S.Ct. 1187 (2009), for the proposition that
there is no evidence FDA would not have permitted Wyeth and Upjohn to strengthen their labels
in a manner consistent with Arkansas law. Id. The Appellate Court also held the defendants
failed to show that Arkansas’s requirements of a stronger warning label obstruct the purposes of
federal law, noting the FDA’s traditional view of state law as a complimentary form of drug
regulation, Congress’ decision not to enact an express preemption provision for prescription
drugs despite enacting one for medical devices, and being aware of the potential conflict between
state and federal law in this area. Id. The Eighth Circuit thus declined to find that plaintiff’s
state law claim was preempted.

        As to plaintiff’s appeal, the court found no abuse of discretion in the exclusion of the
testimony of plaintiff’s punitive damages expert as the expert offered no analysis to assist the
jury in understanding technical or scientific evidence, and affirmed the District Court ruling. Id.
at 571. The Court also affirmed the judgment as a matter of law in favor of Upjohn, finding that
there was no substantial evidence to find Upjohn acted with malice in marketing its drugs. Id. at
572. However, the Court remanded the case for new trial on punitive damages as to Wyeth,
finding that plaintiff presented sufficient evidence to submit the issue to the jury, even in the
absence of plaintiff’s expert’s testimony. Id.

       Environmental or Green Products Liability:

       No significant cases reported.

       Market Share or Other New Theories of Liability:

       In Fields v. Wyeth, Inc., plaintiff sued Wyeth, Inc. (“Wyeth”), Schwarz Pharma, Inc.
(“Schwarz”), and Teva Pharmaceuticals, Inc. (“Teva”) for injuries she allegedly suffered from
taking metoclopramide. 613 F.Supp. 1056 (W.D. Ark. 2009). Wyeth and Schwarz originally
produced metoclopramide under the brand name Reglan, but since the 1980s a generic version
was also produced by other manufacturers, including Teva. Id. at 1058. Since plaintiff only took
the generic version of the drug and never took any metoclopramide manufactured or distributed
by Wyeth or Schwarz, those defendants moved for summary judgment. Id.


                                               118
        The court granted summary judgment for Wyeth and Schwarz, holding that plaintiff
could not meet the basic requirement of product identification under Arkansas law. Id. at 1059.
Nevertheless, plaintiff argued Wyeth and Schwarz’s liability should be premised on the
foreseeability that physicians prescribing generic metoclopramide would rely on information
provided by Wyeth and Schwarz with Reglan. Id. at 1060. Reiterating that Arkansas had not
adopted alternative or market share liability, the court held that because there was no proximate
cause between any actions or inactions of Wyeth and Schwarz and plaintiff’s injury, they were
entitled to summary judgment. Id. at 1061.

       Tobacco:

       No significant cases reported.

       Automobiles:

       No significant cases reported.

       Drug Litigation:

        In Ashley County, Arkansas v. Pfizer, Inc., 20 individual Arkansas counties brought state
law actions against a number of defendants who manufactured or distributed products containing
ephedrine or pseudoephedrine in Arkansas state court. 552 F.3d 659 (8th Cir. 2009). Plaintiffs
sought to recoup costs they had expended in dealing with the societal problems of the
methamphetamine epidemic in Arkansas, based on the premise that defendants’ products
constituted an ingredient in the manufacturing of methamphetamine. Id. Plaintiffs sought
damages under various theories, including unjust enrichment, nuisance and state consumer
protection statutes. Id. at 663. Defendants removed the case to federal court and moved for
judgment on the pleadings. Id. at 665. The District Court for the Eastern District of Arkansas
granted the motion and dismissed plaintiffs’ cause of action. Id. at 664. Plaintiffs appealed.

        On appeal, the Eighth Circuit held plaintiffs had failed to state a cause of action for unjust
enrichment because in undertaking the various measures to deal with the scourge of
methamphetamine in Arkansas, they did not expend costs with the expectation that defendants
would pay for those costs. Id. at 666. The court also predicted that, based on the intervening
acts of independent retailers’ practices in selling the defendants’ products, the illegal purchasing
of ephedrine/pseudoephedrine and other materials for the purpose of manufacturing
methamphetamine and the illegal manufacturing and distribution of methamphetamine, there was
no proximate causation between defendants and plaintiffs’ claimed damages. Id. at 671. For
these reasons, the Appellate Court affirmed the District Court’s judgment. Id. at 673.

        In In re Prempro Products Liability Litigation, supra, Wyeth and Upjohn also argued
there was insufficient evidence to show that an adequate warning would have prevented
plaintiff’s breast cancer, implicating the application of the “heeding” presumption in
pharmaceutical cases under Arkansas law. Id. at 569. Plaintiff argued the “heeding”
presumption shifts the burden onto the defendants to show an adequate warning would not have
prevented plaintiff’s injury. Id. Defendants on the other hand argued that the burden is on
plaintiff to show an adequate warning would have altered her physician’s decision to prescribe


                                                 119
the drugs at issue and her own decision to take those drugs. Id.

        The Eighth Circuit noted that Arkansas had not yet considered application of the
“heeding” presumption in a pharmaceutical case. As a majority of courts have held that where a
warning is inadequate, a plaintiff is entitled to a rebuttable presumption that an adequate warning
would have been heeded, the Appellate Court concluded Arkansas would require defendants to
rebut the presumption even in a pharmaceutical drug case. Id. at 569. The court thus affirmed
the District Court’s judgment on liability, finding that Wyeth and Upjohn failed to establish that
plaintiff’s physician would have prescribed the hormone replacement therapy despite an
adequate warning. Id.

       Class Action Fairness Act (CAFA):

        In Thompson v. Bayer Corp., plaintiff sued defendants for unjust enrichment relating to
their sale of One-A-Day Weight Smart Vitamins (“Weight Smart”). 2009 WL 362982 (E.D.
Ark. 2009). Plaintiff alleged defendants made uniform false and misleading statements about
Weight Smart and were unjustly enriched by the sale of Weight Smart when plaintiff and other
consumers bought the product, which did not possess the qualities defendants represented to the
public. Id. at *1. Plaintiff sought certification of a multi-state class of, generally, people who
bought Weight Smart from December 1, 2003 through January 5, 2007. Id.

        Given that plaintiff sought to certify a nationwide class, the court conducted a choice of
law analysis to determine whether Arkansas had significant contacts to the claims asserted by
members of the putative class such that the choice of Arkansas law is not arbitrary and unfair,
and whether Arkansas law conflicts in any material way with any other law which could apply.
Id. at *2. After extensively reviewing the law of unjust enrichment in multiple jurisdictions
across the nation, the court found there were significant differences in the way other states
approached unjust enrichment, and that Arkansas lacked the requisite contact with out-of-state
members’ claims. The court also found that there were material conflicts between the unjust
enrichment laws of Arkansas and other states. Id. at *4-6. As a result, it held that plaintiff had
failed to show that common issues of the purported class dominated over individual issues and
that a class action was the superior method of adjudicating the claims of the purported class, and
denied class certification. Id. at *8.

       Other:

        In Hilsman v. Phillips, plaintiffs, leather goods business owners, brought an action
against defendant, a chimney installer, for damages sustained when plaintiffs’ building caught
fire and burned. 2009 WL 249885 (Iowa.App. 2009). A month after defendant had installed the
chimney in plaintiffs’ leather crafts store, the building and most of its contents were destroyed by
a fire. Id. A state fire marshal’s investigation revealed the fire started in the area in which the
defendant had installed the chimney. Id. at *2. Plaintiffs brought suit against defendant seeking
damages for negligence and strict liability, among other theories. Id. At the close of plaintiffs’
evidence, the court granted defendant’s motion for a directed verdict on plaintiffs’ strict liability
claim and submitted the case to the jury on plaintiffs’ negligence claim. Id. Plaintiff appealed.

       The Appellate Court, after briefly reviewing the history of products liability law in Iowa,


                                                120
noted that “it was preferable to label a claim based on defective product design as a design defect
claim without reference to strict liability or negligence” because “a court should not submit a
negligence claim and a strict liability claim based on the same design defect since both claims
rest on an identical risk-utility evaluation.” Id. at *5. (quoting Wright v. Brooke Group, Ltd.,
652 N.W.2d 159 (Iowa 2002)). Thus, plaintiffs were not entitled to have both a negligence claim
and a strict liability claim submitted to the jury, and the Appellate Court upheld the directed
verdict for defendants. Id.

Iowa

       Tort Reform:

        No significant cases reported.

       Preemption:

       No significant cases reported.

       Environmental or Green Products Liability:

       No significant cases reported.

       Market Share or Other New Theories of Liability:

       No significant cases reported.

       Tobacco:

       No significant cases reported.

       Automobiles:

        In Jahn v. Hyundai Motor Co., the Iowa Supreme Court resolved several matters of first
impression in the area of enhanced injuries in a products liability action. 773 N.W.2d 550 (Iowa
2009). Plaintiff was injured in an accident when another driver failed to stop at a stop sign and
struck plaintiff’s vehicle. Plaintiff filed suit against his vehicle manufacturer (after settling with
the other person who hit him), alleging his driver-side air bag failed to deploy. The United
States District Court certified two questions for the Iowa Supreme Court, which were taken up
and answered.

        The Iowa Supreme Court held that in an enhanced injury case, a plaintiff can meet his
burden of showing enhanced injuries by offering evidence that a design defect was a substantial
cause of injury above and beyond that which would have occurred without the design defect. Id.
(relying on Restatement (Third) of Torts: Products Liability § 16(b) and (c)). The Court
reasoned that injuries in an enhanced injury case are often indivisible and held there is no
requirement that a plaintiff prove a divisible injury; overruling Reed v. Chrysler Corp., 494



                                                 121
N.W.2d 224 (Iowa 1992). In cases where the fact finder has found a divisible injury, the Iowa
Supreme Court ruled the liability of the product manufacturer is limited to the amount of the
divisible injury, though still subject to comparative fault principles. (relying on Restatement
(Third) of Torts: Products Liability § 16(b)). The provisions of the Iowa’s joint and several
liability statutes apply to parties liable for divisible or indivisible injuries. ICA § 668.4.

       Drug Litigation:

       No significant cases reported.

       Class Action Fairness Act (CAFA):

        In Bell v. Hershey Company, a non-products liability case, plaintiff brought a purported
class-action against five chocolate manufacturers in Iowa State Court for violation of Iowa
antitrust laws. 557 F.3d 953 (8th Cir. 2009). Plaintiff’s class-action suit alleged that
manufacturers violated Iowa Competition Law by conspiring to fix, raise, maintain and stabilize
the price of chocolate and caused plaintiff and members of the class to pay higher and
competitive prices for chocolate. Id. at 955. Plaintiff’s Complaint peremptorily alleged that the
Class Action Fairness Act (CAFA) did not apply because the amount in controversy was
$4,990,000.00. Id. To arrive at this amount in controversy, plaintiff limited his putative class to
eight specific counties in Iowa, based his compensatory damages on an assumed 5% price fixing
overcharge and calculated compensatory damages based on a 72 month period, though his
Complaint pled a class that extended over at least a 73 month period. Id.

        Believing that a revision of some of the figures used by plaintiff would yield an amount
in controversy in excess of $5,000,000.00, the manufacturer defendants removed the case to
Federal Court asserting CAFA jurisdiction. Id. at 956. Plaintiff moved to remand the case to
state court and the District Court granted that motion. Id. In granting plaintiff’s motion, the
court found that defendants had failed to prove to a legal certainty that the amount in controversy
exceeded the jurisdictional minimum. Id. at 956. Defendants appealed.

        On appeal, the Eighth Circuit noted that “the precise burden that applies to a removing
defendant in the CAFA context has not been defined in this circuit.” Id. Plaintiff urged the
Appellate Court to follow other jurisdictions and apply a legal certainty standard of proof where
a plaintiff has specified an amount in controversy below the jurisdictional threshold. Id. at 956-
57. The Court declined the invitation, outlining the problems that such a standard poses to the
primary purpose of CAFA, and how varying state pleading requirements could yield varying
results within the same circuit. Id. at 957-58. The Court thus decided to apply the
preponderance of evidence standard to CAFA amount in controversy questions, noting the
absence of a logical reason not to use the same standard in both CAFA and non-CAFA cases,
and remanded the case to the District Court with instructions to apply that evidentiary standard to
the jurisdictional facts. Id. at 959.

       Other:

       In Van Fossen v. Midamerican Energy Co., the Iowa Supreme Court was presented with
the question of whether owners of a power plant have tort liability for the wrongful death of the


                                               122
spouse of an employee of an independent contractor. 2009 WL 3786656 (Iowa 2009). Iron
worker-plaintiff brought suit against power plant owners upon the death of his wife alleging
secondary exposure to asbestos. Id. at *1. Plaintiff alleged exposure to asbestos dust while
performing construction and maintenance work at the power plant over a period of several years,
and that Plaintiff’s late wife contracted mesothelioma as a consequence of her regular exposure
to asbestos dust while laundering his work clothes. Id.

        The district court granted the defendants’ motions for summary judgment, concluding the
owners owed no duty to warn the spouse of an independent contractor of the health hazards
posed by asbestos. Id. The appellate court affirmed. Id. On further review, the Iowa Supreme
Court affirmed summary judgment in favor of the power plant owners, holding power plant
owners owed no legal duty to give such warnings to the spouse of an independent contractor’s
employee. Id. at *8. Amongst other reasons, risk that asbestos fibers would be carried home by
plaintiff and cause harm to his wife who laundered his clothes, was not a “peculiar risk” inherent
in the work of iron workers. Id. at *4; Restatement (Second) of Torts §§ 413, 416; Kragel v.
Wal-Mart Stores, Inc., 537 N.W.2d 699, 703 (Iowa 1995). Rather, risk to wife was result of
independent contractor’s (plaintiff’s employer) failure to employ appropriate precautionary
measures. Id. at *4.

Minnesota

       Tort Reform:

        In Newinski v. John Crane, Inc., plaintiffs brought suit against 25 defendants, alleging
claims of strict liability, negligence and breach of warranty arising from exposure to asbestos and
subsequent diagnosis of mesothelioma. 2009 WL 1752011 (Minn.App. 2009). Prior to trial,
plaintiffs dismissed 22 of the defendants and settled with two defendants pursuant to a Pierringer
release (where plaintiffs agreed to indemnify and hold harmless the settling defendants from any
claims, cross-claims and counterclaims for contribution or indemnity). Id. at *1. Plaintiffs’ case
was tried to a jury against the remaining defendant, John Crane, Inc. (“Crane”) and the jury
returned a special verdict in favor of plaintiffs, awarding total damages of $4,611,492.00 and
apportioning fault between Crane, the two settling defendants and four non-party entities. Id.
The District Court held Crane was joint and severally liable for the whole amount, but deducted
an amount commensurate with the share of liability of the two settling defendants. Id. The
District Court also held that the amount commensurate with the allocated fault of the four non-
entity parties was uncollectable and therefore reallocated that portion of plaintiffs’ damages to
Crane and the settling defendants. Id.

        Crane appealed, arguing that its share of liability for plaintiffs’ damages should have
been limited to 55% (the jury’s determination of Crane’s portion of fault) of the total damages
award and that the District Court erred by reallocating the portion of the judgment attributable to
the non-party entities to Crane. Id. *6. The Appellate Court held that the jury’s determination
Crane was 55% liable for the total damages was of no practical consequence since Crane was the
only defendant at trial; Crane shared liability with only the settling defendants subject to the
Pierringer release; reallocation of the portion of judgment attributable to the non-party entities
was error because plaintiff did not have a present legal right to collect from the non-party
entities; and, determination that the amount of the judgment attributable to non-party entities was


                                               123
uncollectible was premature since plaintiff’s right to collect from non-party entities did not yet
exist. Id. The Court reversed the District Court’s reallocation determination and final judgment,
and remanded for entry of judgment against Crane for the total amount of plaintiffs’ damages
minus the amount equal to the released defendants’ liability. Id.

       Preemption:

        In Mensing v. Wyeth, Inc., plaintiff brought a failure to warn and misrepresentation action
against a number of manufacturers of Reglan and its generic version, alleging that she
development tardive dyskinesia after taking the medication. 2009 WL 4111209 (8th Cir. 2009).
Defendants moved to dismiss and for summary judgment on the basis of preemption. Id. at *1.
The Court granted several generic products manufacturer defendants’ motions to dismiss on
federal preemption grounds, and granted two name-brand products manufacturer defendants’
summary judgment on the grounds that, under Minnesota law, they owed no duty to warn
plaintiff because she did not take their products. Id. Plaintiff appealed.

        The Appellate Court disagreed with the District Court that plaintiff’s state law failure to
warn claims against the generic manufacturer defendants were preempted. Id. at *4. The Court
relied on the United Supreme Court’s decision in Wyeth v. Levine, 129 S.Ct. 1187 (2009) in
deciding that it was not impossible for the generic manufacturer defendants to comply with both
state law and the FDA requirements in that, if they deemed that state law required a higher
warning than required by the FDA, they could have proposed a label change or suggested other
means of warning health care professionals about new risks associated with the medication. Id.
at *6. The Court also held that allowing plaintiffs to maintain their state law claims would not
obstruct the purposes and objectives of federal law by impeding the ability of generic
manufacturers to bring low cost generic drugs to the market quickly. Id. at *7.

       As to her claims against the name-brand manufacturer defendants, the Court noted that
although plaintiff never took Reglan, she claimed they should be held liable for common law
negligent misrepresentation and fraud for misrepresenting the risks of tardive dyskinesia
associated with metoclopramide. Id. at *8. Noting other decisions rejecting similar arguments,
the Court held that the plaintiff had failed to show that the name-brand manufacturers owed her a
duty of care to prevent harm caused by her taking generic drugs manufactured by other
defendants. Id. at *9. The Court thus reversed the dismissal and grant of summary judgment to
the generic manufactures, but affirmed the judgment as to the name-brand manufacturers.

       In Riley v. Cordis Corporation, plaintiff allegedly suffered a heart attack because of a
blood clot that had formed at the site of a surgically implanted stent manufactured by defendant
and brought suit against the stent manufacturer. 625 F.Supp.2d 769 (D.Minn. 2009). The
defendant moved for judgment on the pleadings on grounds of federal preemption, which the
United States District Court granted. Applying the rules in the United States Supreme Court
decisions of Riegel v. Medtronic, Inc., 128 S.Ct. 999 (2008), and Buckman Co. v. Plaintiffs’
Legal Committee, 531 U.S. 341 (2001), the District Court discussed the “narrow gap” though
which a plaintiff’s state law claim regarding medical devices must fit to escape federal
preemption under the Food, Drug, and Cosmetic Act (FDCA) and its implementing regulations.

       To survive federal preemption, a state law claim regarding a medical device must be


                                               124
premised on conduct that violates the FDCA and would give rise to a recovery under state law
even in the absence of the FDCA. Id. at 777. At the same time, the state law claim must be
premised on breach of a state law duty that is the same as a duty imposed under the FDCA or its
regulations. Id. at 776. Further, a private litigant cannot sue a defendant for a violation of the
FDCA for a claim regarding a medical device alone, but rather, the conduct must also violate
traditional state tort law predating the FDCA. Id. at 777.

       In In re Medtronic, Inc. v. Fidelis Leads Products Liability Litigation, patients brought
products liability actions against a medical device manufacturer because the leads of its
implantable cardiac defibrillators (ICD) were allegedly defective. 592 F.Supp.2d 1147 (D.Minn.
2009). Plaintiffs argued that the FDA’s recall of the leads “invalidated” the pre-market approval
(PMA), a rigorous process in which a device maker must provide the FDA with reasonable
assurance that its device is both safe and effective, and thus deprived Defendant of a preemption
argument. Id. at 1155.

        The United States District Court for the District of Minnesota held a manufacturer was
not deprived of preemption argument despite the Food & Drug Administration’s (FDA) issuance
of a recall of the medical device at issue. First, the District Court noted that a product recall is
completely different than the revocation of a device’s PMA as evidenced by the separate and
distinct statutory regime which govern each. Id. Second, the District Court emphasized that
what matters is that the PMA for the manufacturer’s leads was in place at the time the leads were
implanted. Id. Third, the District Court reasoned that even if the manufacturer’s PMA was
somehow invalidated, allowing plaintiffs’ claims to proceed would threaten the PMA process by
allowing the retroactive second-guessing of the FDA’s decision-making. Id. Ultimately,
Plaintiffs’ claims were found preempted by the medical device amendments to the Federal Food
Drug & Cosmetic Act (FDCA).

       Environmental or Green Products Liability:

       No significant cases reported.

       Market Share or Other New Theories of Liability:

       No significant cases reported.

       Tobacco:

       No significant cases reported.

       Automobiles:

       No significant cases reported.

       Drug Litigation:

       In In re Viagra Products Liability Litigation, users of Viagra brought product liability



                                                125
actions against manufacturer alleging their use of Viagra caused them to suffer vision loss from a
disorder known as non-arteritic anterior ischemic optic neuropathy (“NAION”), due to
diminished blood flow to frontal portion of the optic nerve. 2009 WL 2899881 (D.Minn.).
Defendant moved to exclude the opinions of various experts and then for summary judgment.
The United States District Court held that motions to exclude were granted in part, and motion
for summary judgment was granted in favor of defendant.

        Of interest, the District Court excluded the specific causation testimony of plaintiffs’
experts because they were all essentially premised on the temporal relationship between
plaintiffs’ ingestion of Viagra and the onset of their NAION. Id. at *5. The District Court held
temporality alone, however, could not form the basis of a specific causation opinion. Id.

       Class Action Fairness Act (CAFA):

       No significant cases reported.

       Other:

        In ADT Security Services, Inc. v. Swenson, two individuals were murdered in a home that
was armed with an allegedly faulty ADT security system. 2009 WL 3069733 (D.Minn.) ADT
brought a declaratory judgment action against the estates of the deceased victims seeking to find
that its liability was limited to the modest amount described in the purchase agreement.
Counterclaims were filed against ADT, and ADT then moved for judgment on the pleadings and
for summary judgment.

        The District Court ruled that the private litigants’ claim against ADT plead under
Minnesota’s private attorney general consumer protection statute would be allowed to proceed as
it satisfied the public benefit requirement. Private litigants alleged that ADT provided
salespeople with instructions that were misleading and constituting false promises. Id. at *6.
Importantly, it appeared that such instructions were provided in a sales manual used nationwide,
indicating to the District Court that the sales practices at issue there might by representative of
ADT’s general sales practices. Id. Noting that federal courts have consistently held that the
prevention of false or misleading advertising is a public benefit, the District Court refused to
dismiss the private litigants’ claim at the pleadings phase. Id.

Missouri

       Tort Reform:

        In Millentree v. Tent Restaurant Operations, Inc., a non-products liability case, a
defendant at trial sought to add a settled party solely for the purposes of having the jury assess
his fault. 618 F.Supp.2d 1072 (W.D.Mo. 2009). Plaintiff, a bar patron of the defendant, was
struck in its parking lot by a truck driven by another patron. Id. at 1073. Plaintiff sued under
Missouri’s Dram Shop Statute, alleging defendant knowingly served alcohol to the driver of the
truck while he was visibly intoxicated. Id. Plaintiff settled with the driver prior to bringing his
cause of action against the defendant. Id. The defendant moved the District Court to join the



                                               126
driver as a defendant for the purpose of having the jury compare the driver’s fault to that of
plaintiff and the defendant. Id. at 1074.

        Relying on the Missouri Supreme Court’s decision in Teeter v. Missouri Highway &
Transportation Commission, 891 S.W.2d 817 (Mo. 1995), which held that “a settling defendant
is dismissed for all purposes including allocation of fault,” the District Court concluded Missouri
law prohibits the joinder of a settling party even for the sole purpose of allocating the settling
party’s fault. Id. The court thus denied defendant’s motion to join the settling party. Id.

Preemption:

        In In re Aurora Dairy Corp. Organic Milk Marketing & Sales Practices Litigation, the
District Court held that plaintiff-consumers’ claims against milk producing defendants were
preempted by the doctrine of conflict preemption despite the fact that defendants’ milk failed to
meet organic standards. 2009 WL 1576928 (E.D. Mo.). Plaintiffs alleged they were misled into
believing the milk they were purchasing was organic because it was labeled “organic” or “USDA
organic,” and as a result of such belief, plaintiffs paid artificially high prices. Id. at *2.
Defendants moved to dismiss all claims based upon several different grounds.

        The District Court found persuasive defendants’ argument that plaintiffs claims were in
conflict with the Organic Foods Production Act (OFPA), 7 U.S.C. § 6501, and its accompanying
regulations. Id. at *9. The District Court reasoned that to allow plaintiffs’ claims to proceed
against defendants would intrude upon the comprehensive scheme in the OFPA and its
regulations, thus frustrating congressional intent. Id. This is because if plaintiffs’ claims were to
succeed, the result would be to effectively invalidate the regulatory scheme established under the
OFPA by finding that the certifications from the USDA were invalid and different labels than
those approved are required. Id. Because this is directly contrary to congressional intent in
enacting the OFPA, the District Court held that the doctrine of conflict preemption must bar
plaintiffs’ claims. Id.

        In In re Bispenol-A (BPA) Polycarbonate Plastic Products Liability Litigation, the
District Court issued an order granting in part and denying in part defendants’ motions to dismiss
based on federal preemption. 2009 WL 3762965 (W.D.Mo.). Plaintiffs brought suit against
numerous defendants for their use of BPA in baby products without disclosing that BPA was
present. For their motions to dismiss, defendants’ primary argument was that their use of BPA
should only be subject to regulation by the FDA under the Food Drug and Cosmetic Act
(FDCA).

        The District Court found that BPA was a “food additive” as defined by the FDCA and
that the use of BPA has been deemed “safe” by the FDA without labeling requirements. Id. at *1
and *2. Defendants argued that plaintiffs’ claims exposed them to the danger of conflicting
rulings between the District Court and the FDA regarding the appropriate conditions of use for
BPA. Id. at *3. The District Court rejected defendants’ argument based on implied conflict
preemption holding that the FDA’s approval of BPA as safe without labeling requirements
established only a regulatory minimum – nothing in the FDCA or its regulations either required
or prohibited defendants from providing the disclosures sought by plaintiffs. Id. at *4. The



                                                127
District Court held that defendants’ conflict preemption argument was controlled by the United
States Supreme Court decision of Wyeth v. Levine, 129 S.Ct. 1187, 1194-95 (2009), and
concluded that federal law did not prevent them from strengthening their labels as necessary to
comply with standards imposed by state law. Id.

        The “Formula Defendants,” who sold infant formula packaged in metal cans lined with a
substance containing BPA, advanced an express preemption argument based on particular
misbranding provisions of the FDCA, rather than relying on the FDA’s general approval of BPA
as “safe.” Id. at *5. Pursuant to those misbranding provisions, the FDA issues regulations
governing labeling requirements on “incidental additives,” which includes BPA. Id; see 21
C.F.R. § 101.100(a)(3)(iii). The District Court found the absence of any regulation imposing a
specific labeling requirement demonstrated the FDA’s intent that Formula Defendants be exempt
from disclosing the BPA in their products. Id. That is, in light of the FDA’s practice of
requiring labeling for certain incidental additives under misbranding provisions, and because
none existed here for BPA, the District Court “assume[d] that § 101.100(a)(3)(iii) exempts
Formula Defendants from disclosing the presence of BPA in their products.” Id.

       Environmental or Green Products Liability:

       No significant cases reported.

       Market Share or Other New Theories of Liability:

      Missouri does not recognize market share liability. See Zafft v. Eli Lilly & Co., 676
S.W.2d 241(Mo. 1984).
      .
      Tobacco:

       No significant cases reported.

       Automobiles:

        In Newton v. Ford Motor Company, plaintiffs (the widow of a police trooper, a motorist,
and the motorist’s wife) brought suit against Ford Motor Company, asserting claims of
negligence and strict liability as a result of an explosion that occurred when a truck collided with
a patrol car in which the trooper and the motorist were sitting. 282 S.W.3d 825 (Mo. 2009). The
trooper had stopped the motorist for a minor traffic violation, and they were sitting in the
Trooper’s Ford Crown Victoria Police Interceptor (“Crown Victoria”) when a truck pulling an
empty trailer veered onto the shoulder and collided with their vehicle, causing it to burst into
flames, injuring the motorist and killing the Trooper instantaneously. Id. Plaintiffs claimed the
fuel tank was defectively designed in its placement behind the rear axle of the Crown Victoria,
and that the anti-spill valve was also defective. Id.

       Evidence at trial revealed that, in 2002, Ford had developed a “shield upgrade kit”
(upgrade kit) for use on the Crown Victoria to prevent certain components of the rear axle from
puncturing the fuel tank in a rear-end collision. Id. at 828. The subject vehicle was equipped
with the upgrade kit. Id. Plaintiffs sought to introduce evidence of 10 other rear impact


                                                128
collisions in which fuel leakage caused fires in vehicles equipped with the upgrade kit. Id. Ford
opposed admission, arguing the other incidents lacked sufficient similarity to the subject accident
to be admissible. Id. In reply, plaintiffs argued they should also be admissible to show notice on
the part of Ford that the upgrade kit had not completely done away with the danger of gasoline
leakage in rear impact collisions. Id.

        The trial court agreed with plaintiffs but limited the evidence to those accidents which
occurred prior to the subject accident. Id. Despite this limitation, the fact there had been 11 total
accidents involving the fuel leakage was presented at trial twice, first through Ford’s presentation
of the deposition testimony of its Vice-President of Safety, and then during plaintiffs’ cross-
examination of one of Ford’s experts. Id. at 829. During closing arguments, plaintiffs’ counsel
attempted to discuss the other accidents and the Court sustained Ford’s objection. Id. at 830.
The jury returned a verdict in favor of Ford and plaintiffs moved for a new trial. In their motion,
plaintiff argued it was error to restrict plaintiffs’ counsel from discussing the other accidents after
Ford had injected the issue into the trial by reading its Vice-President of Safety’s deposition. Id.
The trial court agreed it erred but found no resulting prejudice and, thus, denied plaintiffs’
motion. Plaintiffs appealed.

        The Missouri Supreme Court agreed the trial court erred in barring plaintiffs’ discussion
of any of the other accidents during closing arguments. Id. at 831. The court also found that the
effectiveness of the upgrade kit was a material issue in the case and, as such, barring plaintiffs’
counsel’s discussion of the accidents while allowing Ford’s closing argument that the upgrade kit
effectively addressed the only leakage defect in the Crown Victoria, was prejudicial to plaintiffs’
case. Id. at 832. The Supreme Court reversed and remanded the case for a new trial. Id.

       Drug Litigation:

       No significant cases reported.

       Class Action Fairness Act (CAFA):

         In Garner v. Rockwool Industries, Inc., plaintiff filed a class-action lawsuit against a
number of defendants, alleging that defendants’ release of lead, arsenic and other chemicals
resulted in damages to her and other class members’ property. 2009 WL 2902573 (W.D. Mo.
2009). Plaintiff subsequently added four new defendants, including Prime Tanning Corp.
(Missouri Prime) and Prime Tanning Co., Inc. (Prime Holding). Id. Missouri Prime is a wholly
owned subsidiary of Prime Holding, and Prime Holding is a Maine corporation. Id. Plaintiff’s
claims against Prime Holding were the same as her claims against all other defendants, except
for one count which plaintiff asserted against only Prime Holding and Missouri Prime. Id. In
any event, plaintiff did not allege that her claims against Prime Holding were for vicarious
liability as opposed to direct liability. Id. One of the defendants removed the case to federal
court and plaintiff moved to remand. Id.

       The parties agreed that all elements of the Class Action Fairness Act jurisdiction were
present but disputed whether the “home state controversy exception” to CAFA jurisdiction is
applicable. Id. at *2. The District Court held that because Prime Holding was a primary
defendant and is not a citizen of Missouri as required by the home state exception, the exception


                                                 129
was inapplicable and remand was denied. Id.

        In In re Celexa and Lexapro Products Liability Litigation, the District Court was
requested to consolidate new lawsuits alleging fraudulent misrepresentation with the current
Multidistrict Litigation (MDL) involving personal injury claims for ingestion of medication.
2009 WL 1505578 (E.D.Mo.). The MDL was comprised of 42 cases brought by individual
plaintiffs alleging ingestion of Lexapro or Celexa caused or induced a suicide or suicide attempt.
Id. at *1. The plaintiffs seeking consolidation were claiming economic damages based on
violations of consumer laws and theories of fraud. Id. Applying 42(a) of the Federal Rules of
Civil Procedure, the District Court held consolidation was inappropriate because common issues
of fact and law did not exist and because interests of judicial economy would be hindered by
trying to consolidate such dissimilar classes of plaintiffs. Id. *2.

       Other:

         In Lawson v. DeBoer Transp. Inc., plaintiffs brought a products liability action against a
number of defendants for damages resulting from a motor vehicle accident. 2009 WL 1310027
(S.D. Mo. 2009). Plaintiffs, who were citizens of Missouri, sued four defendants, including the
Missouri defendant, the dealer that sold the vehicle to plaintiffs. The remaining defendants
removed the case to federal court, invoking diversity jurisdiction. Id. at *2. Defendants
contended diversity jurisdiction existed despite both plaintiffs and the dealer being citizens of
Missouri, arguing that plaintiffs’ failure to name an expert regarding their allegations of product
defect against the dealer, showed plaintiffs lacked an objective intent to prosecute a products
liability claim against it. Id. As such, defendants argued the dealer was fraudulently joined by
plaintiffs. Id. Plaintiff’s moved to remand. Id.

        The District Court noted that, under Missouri law, anyone in the chain of commerce who
sells a product in a defective condition unreasonably dangerous to the user is subject to liability
for injury. Id. at *3. The court also noted that there is no requirement for plaintiffs to provide
expert testimony in order to make a submissible case of product defect. Id. at *3. Therefore, the
court concluded, since there existed a reasonable basis that plaintiffs might recover on their
claims against the dealer without expert testimony, defendant’s contention that it was
fraudulently joined because plaintiffs did not name an expert for their claims against it should
fail. Id. at *4. For that reason, the court remanded the case back to state court. Id. at *5.

        In In re Genetically Modified Rice Litigation, the United States District Court allowed
rice farmers to proceed on certain claims against a manufacturer of genetically modified rice
strain based on allegations that the manufacturer contaminated the U.S. rice supply with non-
approved genetically modified strains. 2009 WL 3281928 (E.D. Mo.). In 2006, the U.S. Dept.
of Agriculture announced that trace amounts of a genetically modified strain of rice, developed
by the defendant manufacturer, had been detected in the US long grain rice supply, which at the
time, had not been approved for human consumption. Id. at *1. Following this announcement,
the regulatory bodies of several countries reacted by banning or placing stringent testing
requirements on any US long grain rice imports, causing significant monetary damages to the
plaintiff farmers. Id. Defendant moved for summary judgment on all of the claims. Id. at *2.




                                               130
        On plaintiffs’ common law tort claims, defendant manufacturer argued they were barred
by the economic loss doctrine. Id. The District Court rejected their argument because plaintiffs
were not purchasers of the genetically modified rice and they were not seeking damages to
property that was the subject of a contract. Id. at *3. Rather, plaintiffs alleged they were injured
by defendant’s negligent contamination of the nationwide rice supply; accordingly, the District
Court allowed the tort claim seeking economic damages. Id. Regarding plaintiffs’ nuisance
claims, the District Court held plaintiffs’ private nuisance claim could proceed based on the
theory that contamination of plaintiffs’ crops by the genetically modified rice may interfere with
their enjoyment of the land. Id. at *5.

       In Martin v. Survivair, Inc., a firefighter died while trying to rescue a fellow firefighter
who was lost inside a burning building. 2009 WL 2366129 (Mo. App. E.D.). The firefighter’s
family sued the manufacturer of the firefighter’s equipment alleging a defective valve in his air
mask had become stuck and that a warning device failed to sound on a fellow firefighter he was
attempting to rescue. Id. at *2. A jury verdict in favor of the firefighter’s family members was
entered, and manufacturer appealed several issues. Id. at *3.

         The manufacturer argued the Fireman’s Rule barred claims of defect for the failed
warning device of another because the firefighter had died while performing his duties as a
firefighter in an emergency situation allegedly created by the product defect. Id. at *4. The
Fireman’s Rule states that a firefighter who is brought into contact with an emergency situation
solely by reason of his status as a fireman and who is injured while performing a firefighter’s
duties may not recover against the person whose ordinary negligence created the emergency. Id.
at *5. The Court of Appeals held the Fireman’s Rule did not apply here because the warning
device was not the cause of the fire nor did it create a dangerous situation affecting the public as
a whole, but rather, the warning device was designed to increase the safety of firefighters, which
it failed to do. Id. at *6.

        In In re Bispenol-A (BPA) Polycarbonate Plastic Products Liability Litigation, plaintiffs
brought actions against manufacturers for use of BPA in baby products, including baby bottles,
sippy cups, sports bottles, and containers used to package baby formula. 2009 WL 3762972
(W.D. Mo.). Plaintiffs’ allegations included breach of express and implied warranties,
intentional and negligent misrepresentations, and unjust enrichment. Id. at *1. The District
Court held that plaintiffs failed to plead intentional and negligent misrepresentation and express
warranty claims, but held plaintiffs did sufficiently plead fraudulent omission and unjust
enrichment claims.

        Regarding claims predicated on fraudulent omission, defendants argued they had no duty
to disclose the presence of BPA in their products and that such information was a matter of
public knowledge. Id. at *7. The District Court ruled that there was at least a fact issue as to
whether defendants had a duty to disclose the presence of BPA in the baby products because
such information was more readily known by defendants; further, whether the presence of BPA
was safe or not is a decision that should have been made by informed purchasers, rather than a
unilateral determination by the manufacturers of what purchasers should know. Id. at *7-8.
Regarding whether the information was public knowledge, the District Court found that based on
the record it was not clear whether a diligent consumer could have know about the presence of



                                                131
BPA in the baby products. Id. at *7. Accordingly, the District Court held that plaintiffs
successfully pleaded their claims of fraudulent omission.

        Defendants also argued that in this “no-injury” products liability case, plaintiffs suffered
no damages. Id. at *11. The District Court disagreed with defendants’ argument and held that
certain plaintiffs did suffer the requisite damage – specifically, those consumers who learned of
the dangers posed by BPA after they purchased the baby products but before they had disposed
of them (and either replaced or stopped using them) suffered damage because plaintiffs paid
defendants for products that they would not have purchased had they known the BPA was
present. Id. at *12. Plaintiffs incurred damages because, upon learning of the presence of BPA,
they were unwilling to allow their children to continue use the products and, thus, did not receive
the benefit of their bargain. Id.

        In State ex rel. Proctor v. Messina, a medical malpractice lawsuit, Defendants moved the
trial court to issue a formal order specifically authorizing informal, ex parte communications
with Plaintiff’s health care providers. 2009 WL 3735919 (Mo.App.W.D. 2009). The trial court
issued the sought order advising non-party health care providers that it was permissible, though
not mandatory, for them to engage in ex parte communications with attorneys for defendants.
Plaintiffs filed a petition for a writ of prohibition to prevent enforcement of the trial court’s
order; he writ was granted and made absolute by the Missouri Court of Appeals.

       The Court of Appeals held that, under the privacy rules of Health Insurance Portability
and Accountability Act (HIPAA), doctors and other health care providers of an injured plaintiff
are prohibited from ex parte communications with defense attorneys without the express
permission of the patient. Further, trial courts cannot issue orders either forcing a plaintiff to
allow such communications or otherwise permitting doctors to engage in them. Accordingly, if
defense attorneys wish to speak with a Plaintiffs heath care provider, they will have to do so
through formal discovery.

        In Taco John’s of Huron, Inc. v. Bix Produce Co., LLC, a franchise owner brought an
action alleging that Bix Produce, a food supplier, negligently caused economic injury to plaintiff
restaurant chain franchisees by providing contaminated lettuce to other restaurants in the chain.
569 F.3d. 401, (8th Cir. 2009). The district court granted Bix’s motion to dismiss for failure to
state a claim because it concluded that under South Dakota law plaintiffs’ alleged injuries were
too remote to give rise to liability on Bix’s part and because economic losses like are not
recoverable under general tort principles. The court then entered judgment in favor of Bix and
granted the plaintiffs’ motion to certify the matter for immediate appeal under Fed.R.Civ.P.
54(b). Id. at 402.

        In dismissing for lack of jurisdiction, the court of appeals relied on Rule 54 explaining
the district court’s certification was evidently based on the fact that a resolution of the issue of
Bix’s liability would have had the effect of resolving the question of possible liability as to all
the other defendants because the claims against all defendants were based on the same theory.
The court further explained that while the possibility of early intervention might have been
helpful it did not amount to the kind of justification for exercising jurisdiction. Id.




                                                 132
NEBRASKA

Tort Reform:

Nothing of significance to report in this area.

Preemption:

Nothing of significance to report in this area

Environmental or “Green” Products Litigation:

Nothing of significance to report in this area.

Market Share / Other New Theories of Liability:

Nothing of significance to report in this area.

Tobacco:

Nothing of significance to report in this area.

Automobile:

        In Wilke v. Woodhouse Ford, Inc., 774 N.W.2d 370 (Neb. 2009), plaintiffs’ purchased a
2002 Ford Econoline cargo van from Woodhouse Ford, Inc. Prior to purchasing the van,
plaintiffs’ started the van, but did not test drive it. The purchase agreement stated that the van
was used and purchased “AS IS” and “WITHOUT ANY WARRANTY” in bold type. The
agreement further provided in a smaller font, “DEALER HEREBY EXPRESSLY DISCLAIMS
ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED
WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE
....” Id. at 374.

        The same day of purchase, the plaintiffs’ three year old daughter while sitting in the
driver’s seat disengaged the vehicle from park. As the van rolled backward, plaintiff was hit by
the door and her right foot was caught under the van’s tire. The force caused her to fall
backward onto the pavement and hit her head. According to plaintiffs, the key had been
removed from the ignition after the vehicle was parked. Id. at 374-375.

        Plaintiffs’ filed suit against automobile dealership alleging negligence and breach of
implied warranty of merchantability. Id. at 374. Based on review and investigation, plaintiffs’
expert concluded that “[t]hree separate failure modes caused and contributed” to the accident.
According to the report, the brake shift interlock system failed, the transmission shift cable was
misadjusted, and the key shift interlock failed or malfunctioned. It was undisputed that the van
was not inspected by Woodhouse employees prior to the purchase. Further, there was no




                                                  133
indication in the record that Woodhouse was aware prior to the accident that the gearshift on the
van was defective. Id. at 377.

       In count III of the petition, plaintiffs’ claimed that Woodhouse impliedly warranted,
pursuant to Neb. U.C.C. § 2-314 (Reissue 2001), the van was merchantable and that Woodhouse
breached that implied warranty. The district court granted Woodhouse’s motion for summary
judgment. Id.

        On appeal, plaintiffs’ contended that Woodhouse breached its express warranty of
merchantability with respect to the van it sold to them. Specifically, plaintiffs’ warranty claim
arose from the law of sales as codified in the Uniform Commercial Code (U.C.C.). In defining
implied warranty of merchantability, the statute also noted that the warranty exists “unless
excluded or modified.” Id. at 378.

       The plaintiffs’ argued, however, that exclusion of an implied warranty of merchantability
with respect to a safety defect violates public policy and therefore should not be enforced by a
court. The court disagreed finding that the provisions of the U.C.C. which permit a seller to
exclude warranties make no exception for warranties relating to the safety of the product. Id. at
378-379.

        The court concluded that the use of an “As Is” clause to exclude the implied warranty of
merchantability cannot be against the public policy of Nebraska when it mirrors the statutory
requirements specifically allowing for such exclusion. The court recognized that Section 2-316
is the Legislature’s clear expression of the public policy of this state. Therefore, the purchase
agreement effectively disclaimed and excluded any implied or express warranties for the vehicle.
As such, the district court properly entered summary judgment in favor of Woodhouse for the
plaintiffs’ cause of action for breach of the implied warranty of merchantability. Id. at 379.

        In Wilke, as set forth above, plaintiffs’ also alleged that Woodhouse knew or should have
known that the defective condition of the van would pose an unreasonable and foreseeable
danger to its customer or, alternatively, that Woodhouse knew or should have known that the van
was defective when it was sold and that such negligence was the proximate cause of plaintiff’s
injuries. Id.

         On appeal after summary judgment was granted, Woodhouse maintained that it had no
duty to inspect the van prior to its sale. The court recognized that in negligence cases, a duty
may be defined as an obligation, to which the law will give recognition and effect, to conform to
a particular standard of conduct toward another. In analyzing whether Woodhouse had a duty to
inspect the van, the court employed a risk-utility test concerning (1) the magnitude of the risk,
(2) the relationship of the parties, (3) the nature of the attendant risk, (4) the opportunity and
ability to exercise care, (5) the foreseeability of the harm, and (6) the policy interest in the
proposed solution. Id. at 380.

        The court held that a commercial dealer of used vehicles intended for use on public
streets and highways has a duty to its customer to conduct a reasonable inspection of the vehicle
prior to sale in order to determine whether there are any patent defects existing at the time of sale
which would make the vehicle unsafe for ordinary operation and, upon discovery of such defect,


                                                134
to either repair it or warn a prospective purchaser of the defect. In so holding, the court
explained that the ordinary person purchases a car “as is,” he expects to have to perform certain
repairs to keep the car in good condition. He does not expect to purchase a death trap. Public
policy requires a used car dealer to inspect the cars he sells and to make sure they are in safe,
working condition. Id. at 381.

       In further rationalizing, the court explained that the dealer has no duty to disassemble the
vehicle to discover latent defects or to anticipate the future development of safety defects which
do not exist at the time of sale. The court made clear that the duty recognized in Wilke could not
be absolved by a valid disclaimer or exclusion. Id.

Drug Litigation:

Nothing of significance to report in this area.

Class Action Fairness Act:

Nothing of significance to report in this area.

Other:

        In Barrett v. Rhodia, Inc., 2009 WL 700598 (D.N.D), the plaintiff was employed by
Clean Harbors as an ash technician. As part of the ash fixation process, plaintiff worked with 55
gallon drums of solid phosphorus pentasulfide (P2S5). The P2S5 drums were manufactured and
sold to Clean Harbors by defendant. The P2S5 drums were sold without a warning about the risk
related to condensation, a risk then-known to the defendant. After a P2S5 drum was opened,
plaintiff or his coworker’s condensation created hydrogen sulfide gas in the drum. Plaintiff was
exposed to the hydrogen sulfide gas causing him injuries. Id. at 1.

        Plaintiffs alleged the defendant was strictly liable for plaintiff’s injuries by reason of the
defective design, manufacture and assembly of the drum and based on the defendant’s failure to
provide adequate warnings to foreseeable users of the drums. Id.

       Plaintiffs filed a motion in limine attempting to preclude the defendant from introducing
evidence or argument at trial relating to among other things, the fact that plaintiff was not
wearing a supplied – air respirator on the date of the incident. Id. at 5.

         The court denied plaintiff’s motion in limine ruling that the evidence that he was not
wearing a respirator was relevant to the drum-manufacturer’s possible assumption of the risk
defense. Thus, the employee’s knowledge of available safety procedures and the exercise of or
failure to exercise such procedures in association with the use of the phosphorous pentasulfide
drums may have been relevant to causation. Id.

SOUTH DAKOTA

Tort Reform:



                                                  135
Nothing of significance to report in this area.

Preemption:

Nothing of significance to report in this area.

Environmental or “Green” Products Litigation:

Nothing of significance to report in this area.

Market Share / Other New Theories of Liability:

Nothing of significance to report in this area.

Tobacco:

Nothing of significance to report in this area.

Automobile:

Nothing of significance to report in this area.

Drug Litigation:

       In Kendall v. Bausch & Lomb, plaintiff underwent LASIK surgery to correct his vision.
2009 WL 1740008 1 (D.S.D.). After the surgery, plaintiff developed diffuse lamellar keratitis
(DLK) in both of his eyes. Id. The investigation did not provide a conclusive answer regarding
the causation of the DLK. Id. at 2.

        In its motion for summary judgment, B & L alleged that much of the evidence that
plaintiff intended to use to prove the existence of a defective blade is inadmissible. Id. at 5. In
response plaintiff admitted that his case was based on circumstantial evidence, but he maintained
that this fact was not a barrier to the maintenance of the action. Id.


        The court held that issues of material fact as to seller’s liability for an alleged design and
manufacturing defect precluded summary judgment. The court reasoned that that seller had
repeated reports of a possible product defect within a certain lot of products; subsequently, lasik
eye surgery was performed on patient using a product from the allegedly defective lot, and
patient allegedly developed the same injury as others had complained to seller about previously.
Circumstantial evidence established that the product was possibly a manufacturing or a design
defect. However, the court granted defendant’s motion for summary judgment as to plaintiff’s
claim for punitive damages reasoning that no conduct alleged by plaintiff rose to the level of
actual or presumed malice or willful and wanton conduct. Id. at 13-18.

Class Action Fairness Act:



                                                  136
Nothing of significance to report in this area.

Other:

       In Russo v. Takata Corp., 774 N.W.2d 441, 444 (S.D. 2009), a wrongful death action
was brought against General Motors Corporation, Suzuki Motor Corporation, and a seatbelt
manufacturer Takata Corporation and its American subsidiary, TK holding Inc, (collectively
“Takata”).

       Before trial, Shawn Flynn (Flynn) and other prospective jurors received a summons and a
questionnaire which stated in part: “Do not seek out evidence regarding this case and do not
discuss the case or this Questionnaire with anyone.” Upon receiving his jury summons, Flynn did
not recognize Takata by name or product line. He conducted two Google searches on his home
computer to find out more about Takata. His first search term of “Takata” returned its home
page that revealed it “was a seat belt and airbag manufacturer.” The second search term “TK
Holdings” revealed it “was the American subsidiary of Takata.” Id.

         Among other things asked of Flynn during voir dire, plaintiffs’ counsel asked Flynn
whether any questions posed to other prospective jurors caused him to want to disclose anything.
No one, including Flynn responded positively to the inquiry. Id. at 445. Later, Takata’s counsel
asked whether it would surprise anyone that people other than plaintiffs had claimed that a
Takata seatbelt had malfunctioned in a crash. Takata’s counsel also asked if jurors would wait
until hearing all evidence by both sides on other malfunctions claims before deciding that the
Takata seatbelts in the automobile were defective. Finally, Takata’s counsel asked if anyone
thought that evidence of other seatbelt malfunction claims automatically meant that the seatbelt
in this case was defective. None of the panel members replied in a manner that indicated
evidence of other claims would cause the juror to conclude before all evidence was presented
that the seatbelt in this case was defective. Id.

       The last question posed by counsel for Takata was if there was “anything that we haven’t
asked you about that you think was important for us to know or important for the plaintiffs to
know about you and the way that you’re approaching your job potentially as a juror in this case
that we haven’t talked about already? Anything at all?” No one answered in the affirmative. Id.
Flynn was ultimately named as a jury member and sworn in. Id.

         During jury deliberations, an exchange between Flynn and another juror regarding
whether Takata had notice of any defects as it related to the product manufactured by Takata. Id.
at 445- 446. Flynn stated that he had done a Google search and had learned that Takata
manufactured seatbelts and airbags but did not find any lawsuits during his search. After being
told by another juror that they were not to take into consideration outside information, Flynn
tried to retract what he had said. Three jurors heard the exchange and were aware of what Flynn
said. No report was made to the trial court concerning Flynn’s remarks. Id. at 446. After the
disclosure of Flynn’s Google search, the jury deliberated for approximately another one and one-
half hours before reaching a verdict. The jury returned a verdict for Takata. Id.




                                                  137
        Nineteen days later, plaintiffs filed a Motion for New Trial alleging juror misconduct. Id.
The trial court entered oral findings of fact and conclusions of law from the bench at the
conclusion of the evidence. As a result, the trial court found that Flynn’s actions and comments
were in violation of his oath, the court’s admonishments, and the jury instructions. It also found
the information provided by Flynn was inconsistent with the evidence introduced at trial and was
provided at a time during the deliberations that was crucial to plaintiffs’ case. Id. at 446-447.
Ultimately, the trial court vacated the jury’s verdict and entered an order for new trial. Id. at 447.

        Takata appealed and the Supreme Court of South Dakota held that the trial court did not
abuse its discretion in awarding a new trial, when a typical, reasonable, or normal juror could
have been influenced by juror’s remarks that seatbelt manufacturer’s home page did not reveal
any lawsuits, in an action against the manufacturer for negligent seatbelt design; while the juror
was not an authoritative source, manufacturer’s home page might have been considered by other
jurors to be somewhat authoritative, the issue of whether the manufacturer was aware of other
claims was hotly contested at trial, and such information may have caused at least six jurors to
decide in a manner inconsistent with the instructions given by the court, and the evidence. Id. at
453.

NORTH DAKOTA

Tort Reform:

Nothing of significance to report in this area.

Preemption:

Nothing of significance to report in this area.

Environmental or “Green” Products Litigation:

Nothing of significance to report in this area.

Market Share/ Other New Theories of Liability:

Nothing of significance to report in this area.

Tobacco:

Nothing of significance to report in this area.

Automobile:

Nothing of significance to report in this area.

Class Action Fairness Act:




                                                  138
Nothing of significance to report in this area.

Drug Litigation:

Nothing of significance to report in this area.

Other:

       In Vicknair v. Phelps Dodge Industries, Inc., 767 N.W.2d 171 (N.D. 2009), consumers of
asbestos-containing products, who were 15 of a larger group of plaintiffs but who did not reside
in North Dakota, joined in two lawsuits against manufacturers, sellers, and distributors of
asbestos-containing products who were residents of or did business within North Dakota,
claiming they became ill or disabled after being exposed to those products. The district court
severed the 15 consumers from the lawsuits, and dismissed without prejudice, on the ground of
forum non conveniens, their asbestos-related product liability action. Id. at 175.

        The consumers appealed arguing the district court erred in dismissing their action on the
ground of forum non conveniens. They contended an alternative forum must exist before a forum
non conveniens motion may be granted, and because the statute of limitations had expired in all
jurisdictions except North Dakota, the district court erred in granting the motion. Id. at 176.

        The issue on appeal was whether the forum non conveniens doctrine may be applied only
when there is an alternative forum available and whether an alternative forum can exist if the
statute of limitations has run in the alternative forum. Id.

        The Supreme Court of Nebraska ultimately concluded that the availability of an adequate
alternative forum is a prerequisite to granting a motion to dismiss based on forum non
conveniens and that an adequate alternative forum does not exist if the statute of limitations has
expired in the proposed alternative forum. Id. at 179 -180.

        In Anderson v. Hess Corp. residents brought action against the operator of a tank battery,
alleging the operator negligently allowed toxic gases to be emitted from the tank battery, failed
to have and/or implement an appropriate emergency plan, and failed to warn local residents of
the release of toxic gases. 592 F.Supp.2d 1174 (D.N.D. 2009).

        Plaintiff filed suit alleging that the defendant, Hess Corporation, was negligent by failing
to properly operate and maintain the Silurian Battery, by allowing H2S gas and/or other toxic
gases to be emitted from the tank battery, by failing to have and/or implement an appropriate
emergency plan, and by failing to warn local residents of the release of toxic gases. Id. at 1176-
1177.

        Hess Corporation filed a motion in limine to suppress any causation testimony by
plaintiff’s medical experts. Hess Corporation contended that none of plaintiff’s medical experts
performed tests to determine the cause of plaintiff’s respiratory condition, nor did any of the
witnesses investigate other possible causes to make a differential diagnosis. The court granted
defendant’s motion in limine preventing any opinions on causation to be elicited from all but one



                                                  139
of plaintiff’s medical experts for the reason that general or specific causation is not sufficiently
reliable to satisfy Daubert. Id. at 1184. The court explained that there was no evidence that their
opinions would be based on a reasonable degree of medical certainty or that they had ruled out
other possible causes for plaintiff’s condition. Id.

        The court denied defendant’s motions in limine as to one of plaintiff’s experts reasoning
that he was a qualified medical specialist whose causation opinion was relevant, would assist the
finder of fact, and was based on methodology sufficiently reliable to satisfy Daubert. Id.




                                                140
XI. Ninth Circuit


       Ryan P. Ruggerello
       Ruggerello Law Group L.L.P.                           Rohit Sabnis
       4041 MacArthur Blvd., Suite 300                       1901 Harrison Street, Eleventh Floor
       Newport Beach, California 92660                       Oakland, California 94612
       (949) 293-7689                                        (510) 444-6800
       Ryan@RuggerelloLaw.com                                rsabnis@burnhambrown.com




       Tort Reform:

No cases reported in this area.

       Preemption:

       Hunter v. Phillip Morris USA, 582 F.3d 1039 (9th Cir. 2009).

        Alaska residents brought a wrongful death suit in Alaska state court against Phillip
Morris and its parent (both citizens of Virginia) and the Alaska Commercial Company (“ACC”),
an Alaska corporation, and retailer of cigarettes. The complaint set forth various state law claims
alleging that decedent died of lung cancer as a result of defendants’ defective cigarettes.

        Defendants removed the case to federal court based on diversity jurisdiction arguing that
plaintiffs’ state law claims against ACC, the only non-diverse defendant, were preempted by
congressional policy against the categorical ban of cigarettes and that ACC was therefore
fraudulently joined pursuant to the “fraudulent joinder” exception to the rule of complete
diversity. Plaintiffs’ motion for remand was denied as the district court agreed with defendants’
basis for removal. Defendants then successfully moved to dismiss based on preemption.

        In vacating the judgment of the district court with instructions to remand to state court,
the court noted that fraudulent joinder exists when the plaintiff lacks the ability to establish a
cause of action against the non-diverse defendant in state court. However, a non-diverse
defendant cannot be said to be a “sham” defendant and, therefore, fraudulently joined, on the
basis that the claims asserted in the complaint may be preempted. The court held that if it is not
obvious, according to the settled rules of applicable state law, that the plaintiff has failed to
properly alleged a state claim against the non-diverse defendant, there is no fraudulent joinder.




                                               141
        The court also held that, even if implied preemption could be used to invoke diversity
jurisdiction through fraudulent joinder, the strong presumption against removal jurisdiction and
the general presumption against fraudulent joinder precluded a finding of preemption. Under
this standard, the defendants could not demonstrate that the congressional policy not to remove
cigarettes from the marketplace created a direct conflict between federal law and the plaintiff’s
state law product liability claims. As such, defendants did not overcome the presumptions
against removal and the case was remanded to state court.

       Martin v. Midwest Express Holdings, et al., 555 F.3d 806 (9th Cir. 2009).

        A pregnant woman claimed that she and her fetus were injured when she fell from
aircraft stairs used by Midwest Express airline. She sued the airline and the manufacturer of the
aircraft. The airline settled the case for $8 million and sought indemnity from the manufacturer.
The district court dismissed the indemnity claim after accepting the manufacturer’s argument
that the personal injury claim, and thus the indemnity claim, were preempted by the FAA.

         In reversing the district court, the court held that the FAA espouses no intent to exclude
all state law personal injury claims associated with air travel. In fact, the FAA expressly
preserves such suits by declaring “[a] remedy under this part is in addition to any other remedies
provided by law.” 49 U.S.C. § 40120(c). FAA preemption is analyzed by looking to the
pervasiveness of federal regulations in the specific area covered by the tort claim or state law at
issue. With respect to run of the mill personal injury claims based upon a defective product, the
FAA regulations are not pervasive such that they impliedly preempt state remedies and standards
of care.

       Ileto, et al. v. Glock, Inc., et al., 565 F.3d 1126 (9th Cir. 2009).

        Victims injured during a criminal shooting along with the surviving wife of one of the
victims who was killed filed an action against various manufacturers, marketers, importers,
distributors and sellers of firearms. They alleged that defendants intentionally produce, market,
distribute and sell more firearms than the legitimate market demands in order to take advantage
of re-sales to distributors that they know or should know will, in turn, sell to illegal buyers. They
also alleged that defendants’ marketing strategies create an undue risk that their firearms would
be obtained by illegal purchasers for criminal purposes. They did not, however, allege that
defendants violated any particular statute prohibiting manufacturers or sellers from aiding,
abetting, or conspiring with another person to sell or otherwise dispose of firearms to illegal
buyers Instead, they brought their claims solely under California common law statutes for
causing injury, emotional distress and death through knowing, intentional, reckless and negligent
conduct.

         In 2002, the district court dismissed plaintiffs’ case for failure to state a claim under
California law. On appeal, the Ninth Circuit affirmed in part and reversed in part holding that
plaintiffs stated claims under California law with respect to the defendants whose firearms were
actually used in the shootings. The claims against the other defendants were dismissed because
their firearms were not alleged to have been used in the shootings. In response, in 2005,
Congress enacted the Protection of Lawful Commerce in Arms Act (“PLAA”). The PLCAA



                                                 142
generally preempts civil claims against federally licensed manufacturers and sellers of firearms
and ammunition resulting from the criminal use of those products. The PLCAA requires the
immediate dismissal of all future and pending lawsuits that are preempted.

       After enactment of the PLAA, the district court dismissed plaintiffs’ claims against
defendants Glock and RSR holding that the claims were preempted by the PLCAA and upheld
the constitutionality of the Act. With regard to one of the defendants, China North, the court
denied summary judgment because it was not a federal firearms licensee, as required by the
PLCAA. Both orders were appealed and consolidated.

        In affirming the district court’s rulings with regard to Glock and RSR, the Ninth Circuit
held that the claims against Glock and RSR were preempted by the PLCAA. The major dispute
between the parties on appeal was the appropriate construction of the PLCAA’s “predicate
exception” that identifies certain civil suits that are not preempted by the PLCAA. The statutory
language of the predicate exception provision of the PLCAA states that it applies when a
manufacturer or seller of a qualified firearm knowingly violates a State or Federal statute
applicable to the sale or marketing of the firearm. Plaintiffs argued that defendants’ alleged
violation of California’s codified, general tort law, specifically Cal. Code Civ. Code section
1714(a) (negligence), section 3479 (nuisance) and section 3480 (public nuisance) qualified as the
violation of a state statute because such statutes could be applied to the sale or marketing of a
firearm, thus implicating the predicate exception. Defendants argued that the predicate exception
could not be invoked because it applies only to the violation of statutes that pertain exclusively to
the sale or marketing of firearms.

        After finding that the text of the PLCAA’s predicate exception provision statute is
inconclusive as to revealing Congress’ intent with regard to the state and federal statutes that can
be used to employ the exception, the court examined the purposes and legislative history of the
PLCAA. The court determined that Congress intended the PLCAA to preempt common law
claims, such as general tort theories of liability. Plaintiff’s claims, even though codified, were
nothing more that general tort theories of liability and did not specifically involve a statute that
regulates manufacturers and sellers of firearms. Thus, the claims did not invoke the predicate
exception to the PLCAA.

        With regard to defendant China North, the court affirmed the district court in finding that
plaintiffs claims against it could proceed because it was not a federally licensed manufacturer or
seller of firearms. Therefore, the PLCAA did not preempt plaintiffs’ claims.

       Finally, the court upheld the constitutionality of the PLCAA with regard to various
challenges made by plaintiffs as applied to retroactivity, separation of powers, equal protection,
substantive due process and takings, procedural due process and constitutional avoidance.

       Environmental or “Green” Products Litigation:

       No cases reported in this area.

       Market Share or Other New Theories of Liability:



                                                143
No cases reported in this area.

Tobacco:

See supra Hunter,, 582 F.3d 1039 (9th Cir. 2009).

Automobiles:

No cases reported in this area.

Drug Litigation:

No cases reported in this area.

Class Action Fairness Act (CAFA) :

No cases reported in this area.

Other:

No cases reported in this area.


Alaska

Tort Reform:

No cases reported in this area.

Preemption:

No cases reported in this area.

Environmental or “Green” Products Litigation:

No cases reported in this area.

Market Share or Other New Theories of Liability:

No cases reported in this area.

Tobacco:

No cases reported in this area.

Automobiles:


                                       144
       No cases reported in this area.

       Drug Litigation:

       No cases reported in this area.

       Class Action Fairness Act (CAFA):

       No cases reported in this area.

       Other:

       No cases reported in this area.

       Arizona

       Tort Reform:

       No cases reported in this area.

       Preemption:

       No cases reported in this area.

       Environmental or “Green” Products Litigation:

       No cases reported in this area.

       Market Share or Other New Theories of Liability:

       No cases reported in this area.

       Tobacco:

       No cases reported in this area.

       Automobiles:

       Parra v. Cont’l Tire N. Am., Inc., 213 P.3d 361 (Ariz. Ct. App. 2009).

        Plaintiffs appealed a judgment from the Superior Court in Maricopa County, which
dismissed on forum non conveniens grounds a personal injury and wrongful death case brought
against defendants, the manufacturer and seller of an allegedly defective tire, asserting claims of
strict products liability and negligence. The court reversed and remanded for further
proceedings. While driving in Mexico with her family, an Arizona resident lost control of her
vehicle after the tread on one of her tires separated. The tire was sold in Arizona. The superior


                                               145
court’s order dismissing the case did not explain how it weighed the evidence relevant to the
applicable factors and did not reflect how or whether it considered Arizona’s interest in the
litigation. The court stated that whether or not there was an available and adequate forum in
Mexico, the evidence did not show that the private and public interests outweighed the plaintiffs’
choice of forum. The private interest factors did not weigh heavily on either side; although the
cost of obtaining discovery from Mexican witnesses would be higher if the case were to be tried
in Arizona, the testimony and documents pertaining to the tire’s manufacture and design would
have to be translated if the case were litigated in Mexico. Arizona had a significant interest in
applying its law because several of the injured parties were Arizona residents and the tire was
sold in the state. Evidence of court congestion in the superior court had little weight, absent
evidence of how quickly the case could be tried in Mexico.

         Brethauer v. GMC, 221 Ariz. 192, 211 P.3d 1176 (Ariz. Ct. App. 2009).

         In a products liability case, plaintiff driver appealed a judgment of the Superior Court in
Maricopa County in favor of defendant automobile manufacturer, arguing that the trial court
erred in denying his motion for a mistrial because counsel for the automobile manufacturer
engaged in misconduct by violating a trial court order precluding testimony regarding seatbelt
usage. The judgment of the trial court was affirmed. The driver was involved in a single-vehicle
accident in which he was ejected out of his truck’s rear window opening and suffered a
paralyzing injury. The driver filed a products liability suit against the automobile manufacturer,
claiming that it negligently designed and manufactured his truck’s windows and seatbelt. Prior to
trial, the manufacturer filed a motion in limine seeking to preclude any lay witness testimony that
its seatbelt was defective. The trial judge denied the motion, commenting that he could not
imagine an accident scene witness or medical witness mentioning the word “seatbelt.” At trial,
the manufacturer introduced testimony from an emergency medical technician who treated the
driver at the scene and stated that the driver had not been wearing his seatbelt at the time of the
accident. On review, the court held that the manufacturer did not engage in misconduct. The trial
court’s in limine order did not preclude fact-based testimony from accident scene witnesses
regarding seatbelt usage but denied the manufacturer’s request to preclude opinion testimony
from those witnesses that the seatbelt was defective or caused injury to the driver.

         Drug Litigation:

         No cases reported in this area.

         Class Action Fairness Act (CAFA):

         No cases reported in this area.

         Other:

         Hughes Custom Bldg., L.L.C. v. Davey, 221 Ariz. 527, 212 P.3d 865 (Ariz. Ct. App.
2009).




                                                146
        Plaintiff builders sued defendant engineering firm for breach of implied warranty and
negligence arising from the improper compaction of a subdivision. The Superior Court of Gila
County, Arizona, granted summary judgment on the basis of the economic loss doctrine as a bar
to plaintiffs’ claims. The trial court entered a final judgment in favor of the engineering firm,
awarding it $ 3,390.80 in costs. Plaintiffs appealed. The trial court’s grant of summary judgment
in favor of the engineering firm on plaintiffs’ negligence claim and its ruling that plaintiffs
lacked standing to bring the damages action was reversed. The trial court’s grant of summary
judgment on the implied warranty claim was affirmed. The case was remanded to the trial court
for further proceedings.

        Plaintiffs’ negligence claim rested in part on the engineering firm’s alleged conduct in
performing a grading and drainage improvement design of the subdivision lots. The district court
held that plaintiffs’ claim was barred by the economic loss doctrine. The doctrine precluded a
party from recovering in tort if the party had suffered only an economic loss and, therefore, could
pursue its remedy in contract. On review, the appellate court applied the Salt River test and held
that the economic loss doctrine did not apply to plaintiffs’ claims based on negligent design.
Because the houses were separate property from the lots, a claim for damage to those houses was
properly brought in tort. The damages plaintiffs alleged were not purely economic; the defects at
issue posed an unreasonable risk of harm to persons and property. Because plaintiffs sought
damages based on their responsibility to the homeowners for the lost value of and damage to
their homes, this was a sufficient particularized harm to provide plaintiffs with standing to sue.
Plaintiffs waived any error in the trial court’s grant of summary judgment on the implied
warranty claim.

       Valley Forge Ins. Co. v. Sam’s Plumbing, LLC, 220 Ariz. 512, 207 P.3d 765 (Ariz. Ct.
App. 2009).

        Plaintiff insurer challenged the judgment of the Superior Court of Pinal County, Arizona,
granting summary judgment in favor of defendants, plumbing company and owners. The
judgment was reversed and remanded. The case arose from a gas explosion in a shopping center
building insured by the insurer. The plumbing company performed gas line work pursuant to a
contract with a shopping center tenant. The insurer paid the insured more than $1.1 million for
property and business-interruption damages. The insurer asserted a subrogated negligence claim
against the company. The trial court applied the economic loss doctrine and found the damage to
the building itself was not qualifying property damage for the purpose of bringing a negligence
claim. The trial court found that the insurer’s negligence claim was barred as a matter of law.
The appellate court ruled that the trial court erred in finding the subrogated negligence claim
barred by the economic loss rule, as the claim sounded in tort. The record suggested the losses
suffered went far beyond damage to the gas lines themselves and caused extensive damage to the
shopping center. The work presented an extreme risk of danger to everyone and everything
around the piping, and the explosion was the very type of sudden calamity or extraordinary event
that was the hallmark of tort liability.

       California

       Tort Reform:



                                               147
       No cases reported in this area.

       Preemption:

       Paduano v. American Honda Motor Co., Inc., 169 Cal.App.4th 1453, 88 Cal.Rptr.3d 90
(Cal. App. 2009).

        Appellant hybrid car purchaser challenged a summary judgment entered by the Superior
Court of San Diego County in favor of respondent car manufacturer in the purchaser’s action that
alleged violations of California’s Song-Beverly Consumer Warranty Act, Consumer Legal
Remedies Act, and Unfair Competition Law, Cal. Bus. & Prof. Code § 17200 et seq., and the
federal Magnuson-Moss Warranty Act, 15 U.S.C. § 2301 et seq. The court affirmed the summary
judgment as to the purchaser’s warranty claims but reversed the summary judgment as to the
purchaser’s state law causes of action for deceptive advertising. The court remanded the matter
to the trial court for further proceedings. The trial court concluded the purchaser’s
misrepresentation and breach of warranty claims were preempted by federal law. The appellate
court agreed that the warranty claims failed. However, the appellate court disagreed that federal
law entirely preempted the misrepresentation claims and/or that the statements the manufacturer
made in its advertising about the car’s fuel economy were, as a matter of law, accurate and not
misleading. The court held that the provisions of the federal Energy Policy and Conservation Act
of 1975, 49 U.S.C. § 32901 et seq., that regulated fuel economy estimates and labels did not
preempt every lawsuit that challenged any statement an automobile manufacturer made
regarding fuel economy. Taking into account all of the evidence submitted in support of, and in
opposition to, the manufacturer’s summary judgment motion, the court concluded there existed a
genuine issue of material fact as to whether the manufacturer’s advertising statements that
suggested that a consumer could drive the hybrid car in the same manner as a conventional
vehicle, and achieve the superior fuel economy in the federal Environmental Protection Agency
estimates, were deceptive and/or misleading.

       Environmental or “Green” Products Litigation:

       No cases reported in this area.

       Market Share or Other New Theories of Liability:

       No cases reported in this area.

       Tobacco:

       In re Tobacco II Cases, 46 Cal.4th 298, 207 P.3d 20 (Cal. 2009).

        Plaintiff consumers sought review of a decision from the Court of Appeal, Fourth
Appellate District, Division One (California), which affirmed the trial court’s order decertifying
a class of consumers in an action under California’s Unfair Competition Law (UCL), Cal. Bus. &
Prof. Code § 17200 et seq., against defendant tobacco companies. The court reversed the
decertification order and remanded for further proceedings to determine whether the named
representatives could establish standing in light of the court’s decision and, if not, whether


                                               148
amendment should be permitted. The complaint alleged that the tobacco companies had violated
the UCL by conducting a long campaign of deceptive advertising and misleading statements
about the addictive nature of nicotine and the relationship between tobacco use and disease.

        Prior to the passage of Proposition 64 (approved November 2, 2004), the trial court had
certified the case as a class action. After Proposition 64 was approved, the trial court ruled that
each class member was required to show an injury in fact. The California Supreme Court
concluded that in a UCL class action brought in accordance with Bus. & Prof. Code, § 17203,
and Code Civ. Proc., § 382, the standing requirements of Bus. & Prof. Code, § 17204, were
applicable only to the class representatives and not to all absent class members. Further, a claim
of misrepresentation required a showing of actual reliance on the allegedly deceptive or
misleading statements for purposes of establishing standing under the “as a result of” language in
§ 17204. Class representatives were not required, however, to plead or prove individual reliance
on particular advertisements or statements when the unfair practice was a fraudulent advertising
campaign.

         Automobiles:

         Paduano v. American Honda Motor Co., Inc., supra, 169 Cal.App.4th 1453.

       Yamaha Motor Co., LTD v. Superior Court, 174 Cal.App.4th 264, 94 Cal.Rptr.3d 494
(Cal. App. 2009).

         Petitioner manufacturer sought mandate relief from an order of respondent Superior
Court of Orange County, which denied its motion to quash service of process in a products
liability action. The court denied the petition for writ of mandate. The complaint was served on
the manufacturer, a Japanese corporation, through its American subsidiary’s agent for service of
process. The manufacturer argued that it should have been served pursuant to the Hague
Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil and
Commercial Matters, Nov. 15, 1965, 20 U.S.T. 361, 658 U.N.T.S. 163. The court held that the
Convention’s provisions were not implicated because California law provided for service of
process on a foreign corporation by serving its domestic subsidiary as its agent and did not
necessarily require transmittal of the relevant documents for service abroad. California Code of
Civil Procedure section 413.10, which recognized that the Convention governed over conflicting
state law, did not require all service on foreign nationals to be made pursuant to the Convention.
California Code of Civil Procedure section 416.10 provided for service under California
Corporations Code § 2110, which authorized service on a foreign corporation’s general manager
in California. Such service could be made on a sales representative of a foreign corporation
where ample regular contact made it reasonably certain that the representative would apprise the
corporation of the service.

         Gordon v. Nissan Motor Co., Ltd., 170 Cal.App.4th 1103, 88 Cal.Rptr.3d 778 (Cal. App.
2009).

        Appellant driver sued respondent auto manufacturer for strict product liability after
sustaining severe injuries in a vehicle rollover. The driver elected not to pursue a roof defect



                                               149
claim at his first trial, which ended in a mistrial. Prior to his second trial, he designated expert
witnesses to testify regarding the roof defect claim. A jury of the Superior Court of Los Angeles
County awarded judgment to the manufacturer. The driver appealed. The court reversed the
judgment and remanded the case to the trial court with directions to conduct a new trial in
accordance with the court’s opinion. The driver was entitled to present new expert witness
testimony regarding his roof defect claim in the second trial, even though he abandoned the
claim prior to the first trial, and even if the factual basis of his new claim arguably contradicted
the facts presented in the first trial. No exceptional circumstances existed that would justify
depriving the driver of an opportunity to present his roof defect claim to the jury.

         Drug Litigation:

         No cases reported in this area.


         Class Action Fairness Act (CAFA):

         No cases reported in this area.

         Other:

       Taylor v. Elliott Turbomachinery Co., Inc., 171 Cal.App.4th 564, 90 Cal.Rptr.3d 414
(Cal. App. 2009).

        In a case arising from injuries allegedly suffered by a Navy servicemember from
exposure to asbestos-containing products during his service aboard a Navy ship in the mid-
1960s, appellant, the servicemember’s widow, sought damages from respondents, component
manufacturers and suppliers. The Superior Court of San Francisco City & County granted
summary judgment to respondents. The widow sought review. The appellate court affirmed the
judgments. The widow sought to ground her strict liability claim against respondents on their
failure to warn of the dangers inherent in asbestos-containing materials manufactured by others
and used with respondents’ products. The court held that respondents were not strictly liable on a
failure to warn theory. Respondents were not part of the chain of distribution of the injury-
causing products. Moreover, California law recognized no duty to warn of defects in another
manufacturer’s products. The servicemember’s injury did not come from respondents’
equipment itself, but instead was released from products made or supplied by other
manufacturers and used in conjunction with respondents’ equipment. The component parts
doctrine also shielded respondents from liability. Respondents were not liable under a negligence
theory. Although the servicemember had suffered harm, the connection between respondents’
conduct and his injury was remote. Nor would imposing liability on respondents serve the policy
of preventing future harm. Because respondents owed the servicemember no duty of care under
the facts of the case, it necessarily followed that the widow could state no cause of action in
negligence.

         Merrill v. Leslie Controls, Inc., 179 Cal.App.4th 262, 101 Cal.Rptr.3d 614 (Cal. App.
2009).



                                                150
        In a products liability lawsuit, plaintiff, a former machinist’s mate for the United States
Navy, sued defendant valve manufacturer for injuries caused by exposure to asbestos-containing
products. A jury of the Superior Court of Los Angeles County returned a verdict for the
machinist’s mate and against the valve manufacturer. The valve manufacturer appealed. The
court reversed the judgment against the valve manufacturer. The court held that the valve
manufacturer was not strictly liable for failing to warn of hazards associated with handling
products that caused plaintiff’s exposure to asbestos because it was not shown that defendant
manufactured, supplied, or distributed those products, including internal packing and gaskets.
There was no evidence that the manufacturer supplied the old internal packing and gaskets that
plaintiff removed or supplied the new packing he installed. Defendant also did not manufacture
or supply flange gaskets that the Navy attached to the exterior of the valves or asbestos-
containing insulation. The manufacturer had no duty to warn of defects in another
manufacturer’s products, even if they were used in association with its valves. The component
parts doctrine provided a third reason why the manufacturer was not strictly liable for failure to
warn. The manufacturer also could not be liable for injury caused by a design defect because it
was not shown that plaintiff was exposed to asbestos from a product manufactured, supplied,
distributed, or placed in the chain of commerce by the valve manufacturer.

         Oxford v. Foster Wheeler LLC, 177 Cal.App.4th 700, 99 Cal.Rptr.3d 418 (Cal. App.
2009).

        Plaintiffs, the family of a worker who died after being diagnosed with mesothelioma,
alleged that the decedent was exposed to asbestos while working on boilers manufactured by
defendant for United States Navy ships. A jury of the San Francisco Superior Court, found
against plaintiffs on their products liability claims for design defect and failure to warn, but
found in favor of plaintiffs on their negligence claim. Defendant appealed. The court reversed
the judgment and remanded the case for a new trial. The court held that the verdict was
irreconcilably inconsistent under California Code of Civil Procedure § 657. The record disclosed
no explanation of how the jury might have found defendant negligent for failure to warn while
also finding that the product was not defective with respect to its warnings. Although the jury
could have found defendant negligent in some other aspect, for example negligent testing, such a
finding would have been inconsistent with the finding that the product was not defectively
designed, and would also have been barred by the government contractor defense. With regard to
the jury’s verdict on the government contractor defense, the trial court correctly concluded that
defendant was not entitled to judgment in its favor. Although the jury findings on the
government contractor defense appeared to preclude liability for claims relating to the design of
the boilers, it did not necessarily follow that the defense, as presented to the jury, immunized
defendant from liability as to plaintiffs’ failure to warn claims. The jury was not given a
government contractor defense instruction tailored to the failure to warn context.

       Johnson v. Honeywell International Inc., 179 Cal.App.4th 549, 101 Cal.Rptr.3d 726 (Cal.
App. 2009).

      Appellant personal injury claimant sought review of a judgment of the Superior Court of
Los Angeles County, which sustained, without leave to amend, respondent manufacturers’
demurrer to a product liability complaint asserting causes of action for negligence on a



                                               151
negligence per se theory and for strict liability on a design defect risk-benefit theory. The court
reversed and remanded to the trial court for further proceedings. The claimant, a technician who
worked on commercial air conditioning systems, alleged that he was injured by phosgene gas
from the manufacturers’ R-22 refrigerant during the normal course of repairing air conditioner
pipes. The claimant alleged that the manufacturers knew that the harmful gas would be created
when the equipment was serviced and that their warnings failed to comply with California Labor
Code sections 6390, 6390.5, and 6391. The trial court ruled that the sophisticated user defense
barred both causes of action. The court stated that neither the doctrine of negligence per se, as
codified in California Evidence Code section 669, nor the statutes cited by the claimant provided
a private right of action. Thus, the claimant’s negligence cause of action was negligence for
failure to warn, and because he was charged with knowing the dangers as a sophisticated user, he
could not meet his burden of proving causation. The sophisticated user defense did not bar the
design defect cause of action, however, because the defense was based on the need for warning.
The court declined to engage in a risk/benefit analysis at this stage of the case.

         Doe II v. MySpace Inc., 175 Cal.App.4th 561, 96 Cal.Rptr.3d 148 (Cal. App. 2009).

        Plaintiffs, girls aged 13-15, were sexually assaulted by adults they met through defendant
internet social networking site. They filed four separate cases, through parents or guardians,
asserting negligence, gross negligence, and strict product liability claims. The four cases were
related at the trial court level, and the Superior Court of Los Angeles County sustained
defendant’s demurrer without leave to amend. Plaintiffs appealed. The appellate court
consolidated the cases on appeal and affirmed the judgment. The court held that 47 U.S.C. § 230,
a provision of the Communications Decency Act, immunized the site from liability. The general
consensus among courts was to interpret Section 230 immunity broadly. Characterizing the
complaint as one for failure to adopt reasonable safety measures did not avoid the immunity
granted by Section 230. It was undeniable that plaintiffs sought to hold the site responsible for
the communications between the girls and their assailants. At its core, they wanted the site to
regulate what appeared on the site. The court disagreed with the contention that plaintiffs did not
allege liability on account of the site’s exercise of a publisher’s traditional editorial functions,
such as editing, altering, or deciding whether or not to publish certain material. That was
precisely what they alleged: they wanted the site to ensure that sexual predators did not gain
access to (i.e., communicate with) minors on the site. That type of activity—to restrict or make
available certain material—was expressly covered by Section 230.

         Guimei v. General Electric Co., 172 Cal.App.4th 689, 91 Cal.Rptr.3d 178 (Cal. App.
2009).

         In consolidated products liability actions arising from an airplane crash in China, the
Superior Court of Los Angeles County stayed the actions on the ground of forum non conveniens
upon the motion of defendants, the plane’s Canadian manufacturer, a related Delaware
corporation, the plane’s New York turbojet engine manufacturer, and a Chinese commercial
airline. Plaintiffs, the crash victims’ relatives, appealed. The appellate court affirmed the order.
The appellate court held that the trial court did not err in finding that China was an adequate
alternative forum. The testimony of defendants’ experts on Chinese law supported a conclusion
that Chinese courts—at least in Shanghai, where plaintiffs could bring their action—were in fact



                                                152
capable of adjudicating complex product liability claims. The trial court offered a reasoned basis
for finding that trial of the action in California would be so inconvenient as to justify staying the
action so that it could proceed in China. California was home to none of the parties. The crash
occurred in China, which was home to the vast majority of the plaintiffs and one of the
defendants, and where all defendants had agreed to be bound by the judgment of the court. There
were no witnesses or documents in California, whereas there were witnesses and evidence in
China. To the extent that the trial court gave little deference to plaintiffs’ choice of California as
the forum state, it did not abuse its discretion. The trial court’s ruling did not have an
impermissible substantive impact on plaintiffs’ rights.

       Guam

       There are no reported cases.

       Hawaii

       Tort Reform:

       No cases reported in this area.

       Preemption:

       No cases reported in this area.

       Environmental or “Green” Products Litigation:

       No cases reported in this area.

       Market Share or Other New Theories of Liability:

       No cases reported in this area.

       Automobiles:

       Udac v. Takata Corp., 121 Haw. 143, 214 P.3d 1133 (Haw. Ct. App. 2009).

         The Circuit Court of the Third Circuit granted judgment in favor of plaintiff trustees on
their negligence and other claims against defendants, manufacturer and seller. In a second
amended judgment, the court awarded the trustees special and general damages and ordered
prejudgment interest and post-judgment interest to accrue. Defendants appealed; the trustees
cross-appealed. The second amended judgment was vacated and remanded to the circuit court for
further proceedings. The appellate court found that the manufacturer’s testimony was not
cumulative and the circuit court erred in precluding him from testifying. The expert’s testimony
was not cumulative of the manufacturer’s seatbelt expert’s testimony. The expert was qualified
to testify about the results of his surrogate study. The expert should have been allowed to testify
as to the cause of bruises and marks on one trustee’s thorax and the left side of his body. The
trustees did not seek to admit the patents into evidence to show similar performance



                                                 153
characteristics between the buckles. The fact that the buckle the trustees sought to introduce was
not in the same product line as the others and was structurally different did not diminish the
patents’ probative value. The circuit court erred by giving the jury instructions on latent danger
and failure to warn as the trustees presented no evidence that a failure to warn in any way caused
the injuries. The circuit court properly denied the portion of the manufacturer’s judgment as a
matter of law motion (JMOL) pertaining to the trustees’ false-latch theory, but erred in denying
the portion of the JMOL pertaining to the punitive damages award.

       Drug Litigation:

       No cases reported in this area.

       Class Action Fairness Act (CAFA):

       No cases reported in this area.

       Other:

       Mullaney v. Hilton Hotels Corp., 634 F.Supp.2d 1130 (D. Haw. 2009).

        While attending an expo at the hotel, the husband was seriously injured when a large
registration booth which had been assembled by the booth provider fell on him during a strong
gust of wind. The hotel was not liable in strict products liability with respect to the booth because
since the hotel did not design, manufacture, or commercially distribute the booth, it was not the
hotel’s “product.” There appeared to be genuine issues of material fact as to (1) whether the
danger of the booth toppling over because of a strong gust of wind was reasonably foreseeable,
(2) whether the booth would be used in an area that was subject to strong gusts of wind was
reasonably foreseeable, (3) whether the risk of the booth being blown over by what appeared to
have been an ordinary gust of wind was open and obvious, and (4) whether the hotel should have
known that the booth was susceptible to being blown over by those strong winds. Because there
were genuine issues of material fact as to the issue of defectiveness of the booth’s design,
summary judgment as to the implied warranty claim was also precluded. Any want of care on the
hotel’s part was not aggravated or outrageous.

       Idaho

       Tort Reform:

       No cases reported in this area.

       Preemption:

       No cases reported in this area.

       Environmental or “Green” Products Litigation:

       No cases reported in this area.


                                                154
       Market Share or Other New Theories of Liability:

       No cases reported in this area.

       Tobacco:

       No cases reported in this area.

       Automobiles:

       No cases reported in this area.

       Drug Litigation:
       No cases reported in this area.

       Class Action Fairness Act (CAFA) :

       No cases reported in this area.

       Other:

       Aardema v. Freedom Electric, et al., 215 P. 3d 505 (Idaho 2009).

         In this case, the plaintiff dairy filed suit against defendants for negligently designing,
installing and maintaining a milking system alleged to have caused reduced milk production and
damage to the dairy’s cows. The defendants moved for summary judgment on the ground that
the dairy’s recovery was barred by the economic loss rule. In response, the dairy argued that the
economic loss rule did not apply, and even if it did, a special relationship existed between the
parties which barred its application. The trial court found that the economic loss rule did not bar
the claim, and that no special relationship existed between the parties.

        The Idaho Supreme Court affirmed in part and reversed in part. It explained that the
economic loss rule bars recovery in tort for damage to the “subject of the transaction” – here, the
milking system. The dairy would have to prove property damage outside of its dissatisfaction
with the milking system to avoid the economic loss rule, and the court reversed and remanded to
allow the dairy the opportunity to prove damage to its property – here, the cows. Without such
proof, the economic loss rule would bar the claim.

       As to the argument that a special relationship existed, the Idaho Supreme Court affirmed.
An exception to the economic loss rule exists where the parties have a special relationship under
which equitable considerations override the application of the rule. However, this is a very
narrow exception, which in Idaho is limited to two situations: 1) where a profession or quasi-
professional renders personal services; or 2) where an entity holds itself out to the public as
possessing particular expertise and knowingly induces reliance on that expertise. No evidence




                                                155
was produced to establish the applicability of either exception, and as such, the court found that
no special relationship existed.

       Montana

       Tort Reform:

       No cases reported in this area.

       Preemption:

        Doe v. Cmty. Med. Ctr., Inc., 2009 MT 395, 353 Mont. 378 (Mont. 2009). The
Community Medical Center (CMC) of Missoula, Montana, appealed the Fourth Judicial District
Court’s grant of injunctive relief in favor of plaintiff Dr. Doe. The Supreme Court of Montana
affirmed and remanded. Dr. Doe petitioned the court to revoke the suspension of his hospital
privileges because a revocation of the suspension and reinstatement of his privileges within 30
days would eliminate the requirement that CMC report his suspension to state and federal entities
as required by state and federal law. The District Court granted Dr. Doe’s application for a TRO.
As a result of the TRO, CMC was prohibited from notifying the National Practitioner Data Bank
and the Montana Board of Medical Examiners of Dr. Doe’s suspension as required by 42 U.S.C.
§ 11133(a)(1)(A) of the Hospital Care Quality Improvement Act of 1986 (HCQIA), and § 37-3-
403, MCA. The District Court subsequently granted Dr. Doe’s motion for a preliminary
injunction. On appeal, CMC submitted that the District Court had no authority, under federal
preemption law, to enter injunctive relief interfering with a hospital’s federal mandatory
reporting requirements. The appellate court found that there was no evidence of an express
declaration in the HCQIA to preempt state law, so it embraced a “presumption against
preemption” in those instances in which Congress legislates in a field which the states
traditionally have occupied, such as physician regulation.

       Environmental or “Green” Products Litigation:

       No cases reported in this area.

       Market Share or Other New Theories of Liability:

       State ex rel. Bullock v. Philip Morris, Inc., 2009 MT 261, 217 P.3d 475 (Mont. 2009).

        Plaintiff State brought a declaratory judgment action against defendant tobacco
manufacturers in the District Court of the First Judicial District, In and For the County of Lewis
and Clark, seeking a declaration that Montana diligently enforced the provisions of Mont. Code
Ann. §§ 16-11-401 to -404, during 2003. The manufacturers filed a motion to compel arbitration,
which the district court granted. The State appealed. The court reversed the district court’s order
compelling arbitration and remanded the case for further proceedings. The State, along with
other states, had settled health care claims against the tobacco manufacturers and entered into a
Master Settlement Agreement (MSA), under which the manufacturers made annual payments
through an auditor, which were then allocated to the states. Under the MSA, if a manufacturer’s



                                                156
market share vis-a-vis non-participating manufacturers dropped, the state received a reduced
allocation, unless the state had enacted a statute to protect the participating manufacturers and
had “diligently enforced” the statute. The arbitration clause applied to disputes arising out of or
relating to calculations performed by, or any determinations made by, the auditor. The State
argued, and the court agreed, that the State did not challenge any calculation or determination
performed or made by the auditor. Rather, the State sought a declaration that Montana had, in
fact, diligently enforced its statute. The State’s motion related to an issue (diligent enforcement)
that the auditor had explicitly refused to determine, and under the arbitration provision, the
parties intended to arbitrate only those disputes involving calculations performed or
determinations made by the auditor.

       Tobacco:

       State ex rel. Bullock v. Philip Morris, Inc., supra, 2009 MT 261.

       Automobiles:

       Malcolm v. Evenflo Co., 2009 MT 285, 217 P.3d 514 (Mont. 2009).

         Parents sued a car seat manufacturer after their four-month-old son suffered fatal brain
injuries in a rollover car accident. A jury awarded the parents $6.697 million in compensatory
damages and $3.7 million in punitive damages. Defendant car seat manufacturer sought review
of the order from the District Court of the Sixth Judicial District, in and for the County of Park.
On appeal, the Supreme Court of Montana held that the trial court did not abuse its discretion
when it excluded the manufacturer’s evidence that the car seat complied with safety standards for
the purpose of compensatory damages. The safety standards addressed only minimum levels of
performance in frontal impacts. The dynamic forces unleashed in a high-speed rollover collision
were very different from those present in a frontal crash. The trial court did not abuse its
discretion under Mont. Code Ann. § 27-1-719(2) by admitting evidence regarding the recall and
test failures of an earlier car seat model. The trial court abused its discretion by prohibiting the
manufacturer from introducing evidence of the car seat’s compliance with the safety standards
for the purpose of considering the appropriateness of punitive damages under Mont. Code Ann. §
27-1-221(2). The court affirmed the award of compensatory damages. The court reversed the
punitive damage award and remanded the case for a new hearing on that issue.


       Drug Litigation:

       No cases reported in this area.

       Class Action Fairness Act (CAFA):

       No cases reported in this area.

       Other:




                                                157
         Hopkins v. Superior Metal Workings Systems, L.L.C., 2009 MT 48, 203 P.3d 803 (Mont.
2009).

        Appellant worker was injured at his job when a heavy piece of metal was accidentally
released from the pneumatic chuck of an industrial lathe and fell on his arm. He sued appellee
manufacturer of the pneumatic chuck for strict products liability. The Eighteenth Judicial District
Court, Gallatin County, granted summary judgment to the manufacturer and dismissed the
worker’s action. The worker appealed. On review, the worker contended the district court erred
in granting summary judgment. The district court’s specific findings that the worker’s experts
did not have any opinion on whether the chuck was dangerous or whether the manufacturer
failed to give adequate warnings was in error. Both the experts’ report and their deposition
testimony clearly stated their opinions that warnings to installers were required and were not
given. Those materials, including the expert report, the supplemental expert report and excerpts
from the depositions of both experts, were sufficient to raise a genuine issue of fact as to whether
the chuck was unreasonably dangerous. The summary judgment was reversed and the case was
remanded for further proceedings.

         Bunch v. Lancair International, Inc., 2009 MT 29, 202 P.3d 784 (Mont. 2009).

        Appellant wife challenged a judgment of the District Court of the Eighteenth Judicial
District, In and For the County of Gallatin, dismissing her lawsuit alleging claims of strict
product liability, negligence, and breach of warranty, against appellees, an airplane
manufacturer, the manufacturer’s employee, an engine manufacturer, and a fuel delivery system
components manufacturer, for lack of personal jurisdiction. The judgment dismissing the wife’s
lawsuit for lack of personal jurisdiction was affirmed. On appeal, the court held that the district
court did not err by granting appellees’ motions to dismiss for lack of personal jurisdiction
because it properly analyzed the question under Mont. R. Civ. P. 4B(1) and correctly determined
that exercising jurisdiction over appellees would not comport with due process. The district court
found that none of the appellees, except for the engine manufacturer, had made any sales in or
had contacts with Montana, and therefore none of them could reasonably be expected to be haled
into court in Montana due solely to the unilateral act of a consumer. Further, even if the engine
manufacturer participated in a national chain of distribution, including Montana, it would be
unreasonable to submit it to jurisdiction in Montana since the plane was not purchased in
Montana and none of the other appellees had any connections to Montana aside from the pilot’s
unilateral actions.

         Nevada

         Tort Reform:

         No cases reported in this area.

         Preemption:

         Miller v. DePuy Spine, Inc., 638 F.Supp.2d 122 (D. Nev. 2009).




                                                158
        Plaintiff brought an action against defendants, a seller of an artificial disc and another
company, alleging theories of strict product liability, negligence, and breach of implied and
express warranties after he continued to have back pain and had additional surgery after
implantation of the seller’s disc. Defendants filed motions for summary judgment under Fed. R.
Civ. P. 56(c). The court granted defendants’ motions for summary judgment and entered
judgment for defendants. Defendants’ motions argued that plaintiff’s claims were barred by
preemption under the Food, Drug, and Cosmetic Act (FDCA), 21 U.S.C. § 360k, as interpreted
by the U.S. Supreme Court in Riegel v. Medtronic, because the disc received pre-market
approval (PMA) from the Food and Drug Administration (FDA). The court granted defendants’
motions. There was no dispute that the FDA granted a PMA for the disc and that the disc
underwent the type of rigorous review by the FDA described in Riegel. Defendants were entitled
to summary judgment as to the claims of strict liability, negligence, and implied warranty based
directly on Riegel because those claims could only prevail by imposing a state law requirement
on the disc which was different from or in addition to federal requirements. The express warranty
claim failed because plaintiff received no affirmation of fact or promise made by the seller, a
requirement for the existence of an express warranty under Nev. Rev. Stat. § 104.2313. Also,
plaintiff offered no evidence to show that the disc was manufactured out of conformity with the
materials or specifications approved by the FDA in the PMA to escape preemption of his claims.

       Environmental or “Green” Products Litigation:

       No cases reported in this area.

       Market Share or Other New Theories of Liability:

       No cases reported in this area.

       Tobacco:

       Rivera v. Philip Morris, 209 P.3d 271, CCH Prod.Liab.Rep. P18 (Nev. 2009).

        Appellant husband brought a wrongful death suit against respondent tobacco company.
The district court found that the company had failed to overcome the presumption that the
decedent would have heeded additional information had the company provided them. The United
States District Court, District of Nevada, certified the question of whether Nevada law
recognized a heeding presumption in strict product liability failure-to-warn cases. The certified
question was answered in the negative. The Nevada Supreme Court noted that certification
under Nev. R. App. P. 5 was appropriate. The supreme court found that a heeding presumption,
which the husband sought the supreme court to adopt, departed from well-settled and established
Nevada law. A heeding presumption shifted the burden of production from the plaintiff to the
manufacturer, who had to rebut the presumption by proving that the plaintiff would not have
heeded a different warning. The burden of production as to the element of causation rested with
the plaintiff in strict product liability cases. The supreme court declined the husband’s invitation
to depart from this standard. A manufacturer had to make products that were not unreasonably
dangerous, no matter what instructions were given in the warning. It was better public policy not
to encourage a reliance on warnings because this would help ensure that manufacturers



                                                159
continued to strive to make safe products. It was not logical to presume that a plaintiff would
have heeded an adequate warning, if provided.

       State ex rel. Masto v. Second Judicial Dist. Court of State, 199 P.3d 828 (Nev. 2009).

        In 1997, the State of Nevada instituted an action, alleging wrongdoing in the manner that
the tobacco companies marketed and advertised their products. In 1998, the parties entered into a
Master Settlement Agreement (MSA). The amount of the tobacco companies’ annual payment to
a state depended on whether the state enacted and diligently enforced a qualifying statute. In
2006, certain tobacco companies alleged that Nevada did not diligently enforce its qualifying
statute during 2003. The State filed a complaint for a declaratory order. The tobacco companies
moved the district court to compel arbitration. The Supreme Court of Nevada held that the State
was not entitled to mandamus relief from the order to compel arbitration. The MSA’s arbitration
clause plainly included disputes pertaining to a state’s diligent enforcement of its qualifying
statute. The district court’s decision to compel the parties to arbitrate the dispute was not a
manifest abuse of discretion.

       Automobiles:

       No cases reported in this area.

       Drug Litigation:

       Miller v. DePuy Spine, Inc., supra, 638 F.Supp.2d 122.

       Class Action Fairness Act (CAFA):

       No cases reported in this area.

       Northern Marian Islands

       There are no reported cases.

       Oregon

       Tort Reform:

       No cases reported in this area.

       Preemption:

       No cases reported in this area.

       Environmental or “Green” Products Litigation:

       No cases reported in this area.



                                              160
       Market Share or Other New Theories of Liability:

       No cases reported in this area.

       Tobacco:

       No cases reported in this area.

       Automobiles:

       No cases reported in this area.

       Drug Litigation:

       No cases reported in this area.

       Class Action Fairness Act (CAFA):
       No cases reported in this area.

       Other:

       Mason v. Mt. St. Joseph, Inc., 226 Ore. App. 392 (2009).

        In this case, the plaintiff filed suit on behalf of her deceased husband against multiple
companies, including General Electric, for exposing her husband to asbestos and causing him to
develop mesothelioma. The trial court dismissed the plaintiff’s claims on the ground that they
were not “product liability civil actions” within the meaning of Oregon Rev. Stat. §30.900, et
seq., and were therefore time-barred. Product liability civil actions for asbestos-related injuries,
under Oregon law, are covered by a two-year statute of limitations which begins to run upon
discovery of asbestos-related disease. Without the benefit of this statute of limitations, the
plaintiff’s claims would be barred by Oregon’s 10-year general negligence statute of repose.
Plaintiff appealed the dismissal of her claims, and the Oregon Court of Appeals affirmed.

        In Oregon, a “product liability civil action” is a civil action filed against a “manufacturer,
distributor, seller or lessor” of a defective product. Plaintiff first argued that General Electric
was liable as a distributor for negligently directing decedent’s employer to use asbestos-
containing products at his jobsites. The court disagreed, explaining that “distributors” are in the
business of commercial re-selling – because General Electric was not in that business, but rather
made solitary and noncommercial reuse of recycled asbestos-containing products, General
Electric could not be considered a distributor. Plaintiff also argued that General Electric was a
“manufacturer” because it manufactured the same type of asbestos-containing products to which
the decedent was exposed. The court disagreed again, holding that a “manufacturer,” within the
meaning of the statute, is a manufacturer of the product who is otherwise liable for its condition.
Because the decedent was not exposed to General Electric’s asbestos-containing products,
General Electric was not a “manufacturer” within the meaning of the statute. Thus, these claims
could not be saved by the two-year products liability statute of limitations.



                                                 161
        Plaintiff also asserted causes of action against General Electric for vicarious liability
arising out of alleged joint conduct with unknown “Doe” defendants. After noting that
defendants indirectly involved in the distribution of a defective product are outside the ambit of
§30.900, et seq., the court found that General Electric was not liable as a “seller” for enabling
those Doe defendants to sell asbestos-containing products. Purchasing asbestos-containing
materials and directing another entity to use it does not create “seller” liability. As such,
Plaintiff’s vicarious liability claims against General Electric were outside the application of the
products liability statute and time-barred.

         Weedman Ranches, Inc. v. Deere & Co., 2009 U.S. Dist. LEXIS 98588 (D.Or.Oct. 21,
2009).

       In this case, a ranch brought a products liability suit against the manufacturer of a
harvesting combine after several engine fires erupted and the combine was destroyed. The
manufacturer moved for summary judgment on the product liability claim, arguing that the
economic loss rule barred the ranch’s recovery.

        In Oregon, the economic loss rule bars recovery in products liability cases for damage
limited to the destruction of the product itself. The ranch contended that although the losses
claimed all related to the destruction of the combine, the defects in the engine were “man-
endangering” and thus constitute an exception to the economic loss rule under Russell v. Ford
Motor Co., 281 Ore. 587 (1978). The district court judge noted that the economic loss statute,
Or. Rev. Stat. §30.920(1), was enacted after the Russell decision and that the Legislature chose
not to supersede Russell. Furthermore, later Oregon decisions interpreting Russell after the
enactment of §30.920(1) still adhered to the Russell rule.

        Therefore, because Russell is still good law, the district judge determined that a triable
issue of material fact existed as to the extent of the engine defect. If on remand the defect was
found to be “man-endangering,” the economic loss rule would not apply. The motion for
summary judgment was denied on that ground.

         Washington

         Tort Reform:

         No cases reported in this area.

         Preemption:

         No cases reported in this area.

         Environmental or “Green” Products Litigation:

         No cases reported in this area.




                                                162
       Market Share or Other New Theories of Liability:

       No cases reported in this area.

       Tobacco:

       No cases reported in this area.

       Automobiles:

       Magna v. Hyundai Motor America, et al., 167 Wn.2d 570 (2009).

        An injured passenger in a motor vehicle accident brought suit against various defendants
including Hyundai, the manufacturer of the vehicle, alleging that he was rendered a paraplegic
due, in part, to a defective design in the vehicle’s seat. During discovery plaintiff issued various
discovery requests asking Hyundai to produce information regarding similar accidents involving
seat back failures from 1980 to the present in Hyundai products. Hyundai responded with
objections to the breadth of the information requested by plaintiff’s discovery and
representations that no responsive documents existed with regard to periods of time it determined
were pertinent. Hyundai never moved for a protective order to narrow the scope of the
information it was requested to produce.

       Following a jury trial, plaintiff was awarded $8,000,000 in damages. Hyundai appealed
based on an issue related to the presentation of expert testimony and the Court of Appeals
reversed and remanded for retrial. The retrial was to be limited to the issue of liability.

        Approximately three months before the date of the retrial, plaintiff requested that
Hyundai update its prior discovery responses because plaintiff discovered information leading it
to believe the responses were inaccurate and incomplete. Hyundai updated its responses again
raising objections to the breadth of the requests as related to seat back failure claims in Hyundai
products. It also produced documents relating to failures that occurred in 2000 and 2002.
Hyundai represented that these two claims were the only seat back failure claims involving the
1995-1999 Hyundai Accent or 1992-1995 Hyundai Elantra. Again, Hyundai did not seek a
protective order.

       Plaintiff filed a motion to compel Hyundai to produce all documents relating to other seat
back failures in Hyundai vehicles in compliance with its prior requests. The trial court granted
the motion and ordered Hyundai to produce a broad range of documents regarding other seat
back failures. In response, Hyundai produced numerous documents relating to similar incidents.
Nine reports of seat back failures involving the 1995-1999 Hyundai Accent were produced.

        Plaintiff moved for a default judgment against Hyundai arguing that it would be
impossible to prepare a proper case due to the fact that documents identifying the other, similar
incidents were untimely produced on the eve of trial. Plaintiff also claimed that evidence was
lost due Hyundai’s failure to timely produce the documents. Following plaintiff’s request for an
evidentiary hearing on this issue, Hyundai produced additional documents. After the hearing, the



                                                163
trial court imposed a default judgment against Hyundai as a discovery sanction for what it
characterized as Hyundai’s false responses to plaintiff’s discovery. Hyundai appealed and the
Court of Appeals reversed and remanded for a new trial.

         In reversing the Court of Appeals and reinstating the default judgment, the Washington
Supreme Court determined that the trial court did not abuse its discretion by entering a default
judgment against Hyundai for its discovery violations. The harsh remedy of default was
authorized by statute and was appropriate because the trial court properly found that Hyundai
willfully and deliberately violated the discovery rules by providing false, misleading and evasive
answers to plaintiffs discovery requests. In addition, plaintiff was substantially prejudiced in his
ability to prepare for trial because he could have contacted witnesses and preserved evidence if
Hyundai would have properly responded to his discovery. Finally, the court determined that the
entry of a default judgment was the only suitable remedy against Hyundai for its continued
willful and deliberate failure to comply with plaintiff’s discovery requests.

        Drug Litigation:

        No cases reported in this area.

        Class Action Fairness Act (CAFA) :

        No cases reported in this area.

        Other:

        Lunsford, et al. v. Saberhagen Holdings, et al., 166 Wn.2d 264 (2009).

        A plaintiff with mesothelioma resulting from exposure to asbestos claimed exposure
during a 29 year period, including non-occupational exposure through his father in 1958 to
insulation products sold by a predecessor of defendant Saberhagen. In the trial court, defendant
successfully moved for partial summary judgment as to plaintiff’s strict liability claim arguing it
was not liable as a matter of law because plaintiff was not a “user” of Saberhagen’s product. The
Court of Appeals reversed and remanded. On remand, Saberhagen again sought partial summary
judgment on the strict liability claim arguing that strict liability should not apply retroactively in
this case. The trial court granted the motion. The Court of Appeals reversed.

        In affirming the Court of Appeals, the Washington Supreme Court noted that retroactive
application, by which a decision is applied to both the litigants before the court and all cases
arising prior to and subsequent to the announcing of the new rule, is the norm. It also determined
that, contrary to defendant’s arguments, it had not previously overruled prior decisions
abolishing the selectively prospective application of state appellate decisions whereby a new rule
would apply to the litigants before the court but not to those whose causes of action arose before
the announcement of the rule. Consistent with this, strict liability, which was first adopted by the
Washington courts as applied to manufacturers in 1969 and sellers and suppliers in 1975, applies
retroactively. In this case, the rule of strict liability applied retroactively to allow the plaintiff’s




                                                  164
strict liability claim against Saberhagen even though it was alleged to expose plaintiff to asbestos
in 1958.

       Singh, et al. v. Edwards Lifesciences Corporation, 151 Wn. App. 137 (2009).

        A heart bypass surgery patient’s heart was burned as a result of a defective heart monitor
used during surgery occurring in Washington. Plaintiff patient brought suit against the
California based company who developed the monitor. The evidence presented at trial revealed
that the defendant knew there was a flaw in the monitor’s software but failed to issue a recall or
warnings to users. Defendant later admitted liability for compensatory damages. The jury
determined that defendant had committed fraud, violated the Consumer Protection Act and
breached its contracts. It returned a verdict in plaintiffs’ favor for $31,750,000. Defendant’s
conduct was also found to be malicious and plaintiff was awarded punitive damages under
California law in the amount of $8,350,000. Defendant appealed claiming that California law
should not have been applied with respect to punitive damages and that Washington law, which
disfavors punitive damages, should have been applied.

        In affirming the judgments of the trial court, the Washington Court of Appeals
determined that the application of California law was appropriate pursuant to Washington choice
of law rules. Pursuant to these rules, the court must first evaluate the contacts with each
potentially interested state and then, if these interest are balanced, evaluate the public policies
and governmental interest of the concerned states. The court stated that the presumption that the
law of the place of the injury applies in personal injury cases is overcome if another state has a
greater interest in the determination of the issue at hand. The court also noted several choice of
law decisions in which the significant factor in determining what law to apply was the
jurisdiction in which the alleged bad behavior occurred.

       In this case, the trial court’s decision to apply California law was appropriate because the
conduct which resulted in the plaintiff’s injury occurred in California. The defect in the software
was discovered by defendant in California and the decision not to recall the monitors was also
made in California. Finally, the court reasoned that California has an interest in deterring its
corporations from engaging in fraudulent conduct.

       Burton v. Twin Commander Aircraft, LLC, 148 Wn. App. 606 (2009).

        The personal representative of the estates of several individuals who died in an airplane
crash sought damages for wrongful death from the current holder of the “aircraft type certificate”
for the Model 690C aircraft involved in the accident. Twin Commander had acquired the
certificate from Gulfstream American Corporation, the original manufacturer of the aircraft. The
aircraft at issue was sold by Gulfstream in 1981. Plaintiff claimed that an “Alert Service
Bulletin” issued by Twin Commander in 2003 and that required a one time, upper rudder
structural inspection on the Model 690C was the defective part that caused the crash. Plaintiff
also alleged that, in obtaining approval of the service bulletin from the FAA, Twin Commander
knowingly misrepresented, concealed, or withheld information concerning the structural integrity
of the rudder system.




                                                165
        The trial court entered summary judgment in favor of the defendant holding that the
plaintiffs’ action was time barred by the statute of repose contained in the General Aviation
Revitalization Act (“GARA”) of 1994 which bars civil actions against the manufacturer of
certain types of aircraft or the manufacturer of any new component, system or other part of an
aircraft 18 years after delivery to the first purchaser of the date of completion of the placement or
addition. In opposition, plaintiff argued that the service bulletin was a new part that commenced
a new 18 year statute of repose pursuant to GARA’s rolling statute of repose. The service
bulletin was issued by Twin Commander in 2003. The trial court also held there was no
evidence of fraud on the part of Twin Commander.

         The Washington Court of Appeals held that the service bulletin was not a new part such
that a new 18 year statute of repose commenced when it was issued. In particular, the court held
that a maintenance manual is not sufficiently similar to a flight manual such that it is a part of the
aircraft for purposes of triggering a new statute of repose. However, the Court found that
insufficient evidence had been provided by Twin Commander demonstrating that it, as an
acquirer of an aircraft type certificate from Gulfstream, was a “manufacturer” such that the
GARA statute of repose would apply. The court also found that a triable issue existed as to
whether Twin Commander knowingly misrepresented and withheld information from the FAA
by submitting the service bulletin without indicating that recurrent inspection, testing or repair
was required, thus implicating a fraud based exception to GARA’s statute of repose. As a result,
the trial court’s granting of summary judgment was reversed and the case remanded.




                                                 166
                                     TENTH CIRCUIT

                Julia B. Buratti                               Anh Kim Tran
              Hiltgen & Brewer                               Hiltgen & Brewer
          9400 N Broadway Ste 800                        9400 N Broadway Ste 800
       Oklahoma City, OK 73114-7401                   Oklahoma City, OK 73114-7401
                (405) 605-9000                                (405) 605-9000
         jburatti@hiltgenbrewer.com                      ktran@hiltgenbrewer.com


OKLAHOMA

Tort Reform

No significant decisions.

Preemption

Schrock v. Wyeth, Inc., 601 F.Supp.2d 1262 (W.D. Okla. 2009).

Consumer brought action against manufacturers and distributors of brand name and generic drug,
asserting a state law claim based on defendants’ alleged failure to adequately warn about
association between long-term ingestion of drug’s active ingredient and neurological movement
disorders. Court held that consumer’s state law failure to warn claim was not preempted by
federal drug and labeling law, and manufacturer and distributor of brand name drug had no duty
to warn about the risks associated with the use of generic drugs.

Environmental or “Green” Products Litigation

No significant decisions.

Market Share or Other New Theories of Liability

No significant decisions.

Tobacco

No significant decisions.

Automobiles

No significant decisions.

Drug Litigation

No significant decisions.



                                             167
Class Action Fairness Act (CAFA)

No significant decisions.

Other

No significant decisions.

COLORADO

Tort Reform:

No significant decisions.

Preemption:

Hart v. Boeing Company, Inc., 2009 WL 4250122 (D. Colo.)

Passengers involved in an airplane crash brought negligence and products liability causes of
action against the airplane manufacturer for damages caused by design, manufacture, testing,
inspection, and sale of the airplane’s directional control and stabilization system. The defendant
manufacturer filed a motion to dismiss alleging that the plaintiffs’ claims were preempted by the
Federal Aviation Act, 49 U.S.C. § 40101 et seq., and therefore the plaintiffs’ failure to allege a
violation of the federal duty of care was fatal to their claims.

Citing the United States Supreme Court’s decision in Cipollone v. Liggett Group, Inc., 505 U.S.
504 (1992) and the Tenth Circuit’s decision in Cleveland v. Piper Aircraft Corp., 985 F.2d 1438
(10th Cir. 1993), the United States District Court for the District of Colorado denied the
defendant’s motion to dismiss. The court found that “[i]n the absence of an express
congressional command, state law is pre-empted only if that law actually conflicts with federal
law, or if federal law so thoroughly occupies a legislative field as to make reasonable the
inference that Congress left no room for the States to supplement it.” Here, there was no
indication by Congress that federal law was intended to occupy the field of airplane safety to the
exclusion of state common law.

Environmental or “Green” Products Litigation:

No significant decisions.

Market Share or Other New Theories on Liability:

No significant decisions.

Tobacco:




                                               168
No significant decisions.

Automobiles:

No significant decisions.

Drug Litigation:

No significant decisions.

Class Action Fairness Act (CAFA):

No significant decisions.

Other:

No significant decisions.

UTAH

Tort Reform:

No significant decisions.

Preemption:

No significant decisions.

Environmental or “Green” Products Litigation:

No significant decisions.

Market Share or Other New Theories on Liability:

No significant decisions.

Tobacco:

No significant decisions.

Automobiles:

Clayton v. Ford Motor Company, 214 P.3d 865, 632 Utah Adv. Rep. 12, 2009 UT App 154
(Utah Ct. App. 2009)




                                         169
The driver was killed and his passenger were injured in an automobile accident. The plaintiffs
brought suit against the truck manufacturer, alleging strict liability for several product defects,
among other causes of action.

At the trial court level, the jury returned a verdict for the manufacturer, finding that there was no
defect in the truck. The Utah Court of Appeals affirmed the trial court, finding that a
manufacturer has a duty to design and manufacture a product to eliminate any unreasonable risk
of foreseeable injury, but the manufacturer has no duty to make a safe product safer. Further, a
manufacturer has no duty to refrain from marketing a non-defective product when a safer model
is available and a manufacturer has not duty to inform consumers of the availability of the safer
model.

Drug Litigation:

No significant decisions.

Class Action Fairness Act (CAFA):

No significant decisions.

Other:

Davencourt at Pilgrims Landing Homewoners Ass’n v. Davencourt at Pilgrims Landing, LC,
2009 WL 3151197, 640 Utah Adv. Rep. 16, 2009 UT 65 (Utah 2009)

Plaintiff homeowners association sued defendant builders and developers for damages arising
from defects in a planned unit development. Defendants argued that the economic loss rule
would bar plaintiff from recovering damages under tort law, and plaintiff is only able to recover
contract damages. Defendants asserted that the unit owners in the development did not bargain
for and purchase individual components when they acquired their townhomes. Rather, the unit
owners purchased a finished product that included the integral components of roofs, foundations,
and siding. Therefore, there was no “other property” that was damaged by the defective
construction.

The Utah Supreme Court agreed with defendants, holding that the “other property” exception to
the economic loss rule was not satisfied.

Herrod v. Metal Powder Products, Inc., 2009 WL 2601620 (D. Utah 2009)

This lawsuit arises out of an automobile accident which occurred when a wheel assembly
separated from the trailer of a truck and struck the car driven by Mr. Kimball Herrod, killing
him. Plaintiff brought a products liability action against the manufacturer of the wheel assembly.
Plaintiff alleged that the wheel assembly was unreasonably dangerous and defective because it
was difficult or impossible to install.




                                                170
The court granted the defendant manufacturer’s motion for summary judgment, holding that
while improper installation may render a product unreasonably dangerous, that negligent
installation, alone, does not give rise to a cause of action against the original manufacturer of the
product. Further, the court found that “after-sale negligent installation of a nondefective product
does not give rise to a product liability claim.”

WYOMING

No significant decisions.

NEW MEXICO

Tort Reform:

No significant decisions.

Preemption:

No significant decisions.

Environmental or “Green” Products Litigation:

No significant decisions.

Market Share or Other New Theories of Liability:

No significant decisions.

Tobacco:

No significant decisions.

Automobiles:

No significant decisions.

Drug Litigation:

No significant decisions.

Class Action Fairness Act (CAFA):

No significant decisions.

Other:




                                                171
Martinez v. Caterpillar, Inc., 572 F.3d 1129 (10th Cir. 2009).

         Plaintiff sued manufacturer of motor grader in state court on theories of negligence and
strict products liability, seeking damages for injuries suffered while attempting to inflate a right
front tire. Following removal, jury found by special verdict that manufacturer was not negligent
and that grader was not defective. The USDC for the District of New Mexico judgment, and
plaintiff appealed. Plaintiff has the burden of proving that a product “was substantially
unchanged when it reached the user or consumer.” The plaintiff must prove “that the defect
existed at a point in time sufficient to charge a particular defendant with the defect.” Whether a
change is ‘substantial’ must depend on whether the product’s design was defective prior to the
change.” Thus, in determining whether a product underwent a substantial change, the analysis
focuses on the product’s condition when it left the manufacturer’s control and its condition at the
time of injury. The analysis does not focus on the way in which the product was changed.

KANSAS

Tort Reform:

No significant decisions.

Preemption:

No significant decisions.

Environmental or “Green” Products Litigation:

No significant decisions.

Market Share or Other New Theories of Liability:

No significant decisions.

Tobacco:

No significant decisions.

Automobiles:

No significant decisions.

Drug Litigation:

No significant decisions.

Class Action Fairness Act (CAFA):




                                                172
No significant decisions.

Other:

Gaumer v. Rossville Truck and Tractor Company, Inc., 202 P.3d 81, 41 Kan.App.2d 405 (2009)

Buyer’s son brought a products liability action against seller of used farm baler, among others,
alleging negligence and strict liability, and seeking damages for amputation of part of his arm
after it was injured in baler. Plaintiff originally brought suit against both the manufacturers and
RT & T, but after settlement with the manufacturers, the suit proceeded only against RT & T.
After expert designations and discovery, RT & T sought summary judgment against Gaumer,
arguing his negligence claim could not be established without an expert on the standard of care
for sellers, and his strict liability claim based on the sale of a used product was not supported by
Kansas law. The district court agreed with RT & T and entered summary judgment against
Gaumer on both claims.

On appeal the appellate court agreed with the district court and held that whether expert
testimony is necessary to prove negligence is dependent on whether, under the facts, the trier of
fact would be able to understand, absent expert testimony, the nature of the standard of care
required of the defendant and the alleged deviation from the standard. However, the appellate
court reversed a decision with regard to summary judgment on Plaintiff’s strict liability claim.
The court held that the established principles of products liability in Kansas does not recognize
any exception for sellers of used products. In determining whether the plaintiff has presented a
prima facie case of strict liability for a defective product, the focus must be on the product itself,
not the acts or omissions of the maker or seller.




                                                 173
                                       Eleventh Circuit


           Charles Lloyd Clay, Jr.                                 David A. Lester
         Weinberg Wheeler Hudgins                                 Balch & Bingham
        950 E Paces Ferry Rd Ste 3000                         1901 Sixth Ave N Ste 1500
             Atlanta, GA 30326                                 Birmingham, AL 35203
               (404) 876-2700                                      (205) 226-8739
             cclay@wwhgd.com                                     dlester@balch.com

       Tort Reform

       Nothing of significance to report.

       Preemption

       Brinson v. Raytheon Co., 571 F.3d 1348 (11th Cir. 2009).

        This case was filed by the personal representative of the estate of a pilot who died when
the military aircraft he was piloting crashed shortly after take-off. Specifically, Plaintiff alleged
that the aircraft was defectively designed. Defendants moved for summary judgment, arguing
that Plaintiff’s state law claims for defective design were preempted by federal law. Defendants
further argued that Plaintiff’s claims were barred by the military contractor defense, which states
that liability for design defects in military equipment cannot be imposed under state law when:
(1) the government approved reasonably precise specifications; (2) the equipment conformed to
those specifications; and (3) the supplier warned the government about the dangers in the use of
equipment that were known to the supplier but not the government. The trial court found that
defendants carried their burden to show that the claims against them were barred by the military
contractor defense. Accordingly, it entered judgment in the defendants’ favor which was
affirmed by the Eleventh Circuit.

       Environmental or “Green” Products Litigation

       Friends of the Everglades v. South Florida Water Management Dist., 570 F.3d 1210
(11th Cir. 2009).

        Plaintiffs, environmental groups, sued defendants, a water district and its director, to
force the district to get a permit under the Clean Water Act, before pumping polluted canal water
into a lake. The central question raised by Plaintiffs’ suit was whether moving an existing
pollutant from one navigable water body to another, by pumping water from polluted canals to a
lake, was an “addition to navigable waters” of that pollutant. The Environmental Protection
Agency (“EPA”) took the position that it is not an “addition… to navigable waters” to move
existing pollutants from one navigable water to another and, therefore, the district did not need a
permit to pump water from the canal to the lake. The Eleventh Circuit found that there were two
reasonable ways to read the pertinent language stating that “any addition of any pollutant to
navigable waters from any point source.” One was that it meant “any addition to any navigable


                                                174
waters;” the other was the EPA’s interpretation that the language meant “any addition to
navigable waters as a whole.” Thus, the pertinent language is ambiguous. Nevertheless, because
the EPA’s interpretation is reasonable, the Eleventh Circuit held that it must be given effect.
Therefore, the Eleventh Circuit held that the district did not need a permit to pump polluted canal
water into the lake.

       Market Share or Other New Theories of Liability

       Nothing of significance to report.

       Tobacco

       Nothing of significance to report.

       Automobiles

       Waters v. Miller, 564 F.3d 1355 (11th Cir. 2009).

        This case arose from an accident in which a defendant’s tractor-trailer rear-ended
Plaintiff’s vehicle. The tractor-trailer’s insurance had expired and the insurance carrier denied
the claim associated with the accident. The insurance carrier, however, had failed to notify the
state and federal regulatory officials of such expiration. Plaintiff argued that this failure
estopped the insurance carrier from denying coverage because Florida Stat. § 320.02(5)(e) forbid
a policy from being cancelled with less than 30 days written notice from the insurer to the
Florida regulatory agency. In declining to impose liability on the insurance carrier, the trial court
found that Florida Stat. § 320.02(5)(e) applies when an existing policy is cancelled, but not when
it expires. Therefore, the trial court granted summary judgment in favor of the insurance carrier.

       Drug Litigation

       U.S. v. Endotec, Inc., 563 F.3d 1187 (11th Cir. 2009).

        The United States filed suit against Endotec seeking a permanent injunction enjoining
Endotec from manufacturing and distributing adulterated ankle, knee, and jaw devices that
exceed the scope of a clinical trial that was approved by the Federal Food and Drug
Administration (“FDA”) pursuant to the Food, Drug and Cosmetic Act (“FDCA”). Endotec
responded to the lawsuit claiming that the devices fall under the custom device exception to the
FDCA, codified at 21 U.S.C. § 360j(b). The trial court entered an injunction barring Endotec
from manufacturing or distributing the knee devices but rejected the government’s requested
relief with regard to the ankle and jaw devices. Specifically, the trial court found that the
government did not present any evidence that the ankle devices were potentially dangerous and
held that the ankle devices did not exceed the scope of the approved clinical trial. The Eleventh
Circuit reversed, holding that by requiring the government to show actual harm, the court had
improperly shifted the burden of persuasion as to the custom device exemption from Endotec to
the government. The Eleventh Circuit further found that the ankle devices did not qualify as a
custom device because Endotec advertised the ankle devices. The Eleventh Circuit further found



                                                175
that Endotec had distributed the ankle device to more individuals than had been authorized for
the clinical trial. Finally, the Eleventh Circuit found no reversible error with regard to the district
court’s findings related to the knee and jaw devices.

       Stevens v. U.S., 561 F.3d 1200 (11th Cir. 2009).

        This wrongful death action arose from the mailing of anthrax by an unknown individual
to recipients in Florida, New York, and Washington, D.C. Plaintiff, the personal representative
of a man who died after inhaling the anthrax, brought suit against the United States and a private
research facility, alleging that they were the source of the anthrax. The government moved to
dismiss, arguing Plaintiff had failed to state a claim upon which relief could be granted because
the government owed no protection to the decedent and the government did not have the duty or
ability to control the unidentified tortfeasor responsible for mailing the anthrax. The district
court denied the motion to dismiss on the grounds that the claim fell under the “foreseeable zone
of risk” theory. The district court certified its decision for interlocutory appeal. The Eleventh
Circuit certified to the Florida Supreme Court the question of whether a laboratory that handles
ultra-hazardous materials owe a duty of reasonable care to members of the general public to
avoid an unauthorized interception of dissemination of the hazardous materials. The Florida
Supreme Court answered the question in the affirmative and the Eleventh Circuit remanded the
action to the district court for further proceedings.

       Hopper v. Solvay Pharmaceuticals, Inc., 2009 U.S. App. LEXIS 26381 (11th Cir. 2009).

        This action was brought by two qui tam relators alleging that Solvay Pharmaceuticals,
Inc. (“Solvay”) had engaged in an off-label marketing campaign to increase sales of its product
Marinol, a synthetic form the hallucinogenic compound found in marijuana. Specifically, the
relators sought to recoup on claims paid by government health programs as a result of the
marketing campaign. The district court dismissed the relators’ lawsuit for failing to plead with
particularity the specific false claims alleged. The Eleventh Circuit upheld the decision, holding
that while Plaintiffs had alleged that Solvay intended its marketing campaign to be material to
physicians’ decisions to write off-label prescriptions, Plaintiffs had not alleged that Solvay
intended its false statements to play any role in the government’s decision to reimburse state
health programs for the cost of those prescriptions. Thus, Plaintiffs failed to allege any
connection between Solvay’s alleged marketing campaign and the government’s decision to pay
amounts that it did not owe.

       Class Action Fairness Act (CAFA)

       Nothing of significance to report.

       Other

       King v. Cessna Aircraft Co., 562 F.3d 1374 (11th Cir. 2009).

       This partially consolidated action is comprised of two cases arising from the collision of
two aircraft on a runway at the Linate Airport in Milan, Italy. The first case was filed by the



                                                 176
estate of an American decedent in the Southern District of Florida (the “American Suit”).
Thereafter, sixty nine European Plaintiffs brought suits against Cessna (the “European Suits”)
which were consolidated with the American Suit. Cessna moved to dismiss all of the suits based
on forum non conveniens. The district court granted the motion with respect to the European
Suits but denied it with respect to the American suit. The district court certified its decision with
regard to the European Suits as final pursuant to Fed. R. Civ. P. 54 and 58 but declined to certify
its decision with regard to the American Suit for interlocutory appeal pursuant to 28 U.S.C. §
1292(b). All plaintiffs appealed. The Eleventh Circuit upheld the district court’s decision. In
doing so, it noted that the district court committed no reversible error in dismissing the European
suits based on forum non coveniens. The Eleventh Circuit further held that it did not have
pendent jurisdiction to review the district court’s denial of Cessna’s motion to dismiss the
American suit because the two decisions were not “inextricably intertwined.” Specifically, the
Eleventh Circuit found that resolution of the non-appealable issue—the district court’s denial of
Cessna’s motion to dismiss the American Suit—was not necessary to resolve the appealable
issue—dismissal of the European suits based on forum non conveniens. Accordingly, the
dismissal of the European Suits was affirmed and Cessna’s appeal of the trial court’s denial of its
motion to dismiss the American Suit was dismissed for lack of jurisdiction.

Alabama

       Tort Reform

       Nothing of significance to report.

       Preemption

       Nothing of significance to report.

       Environmental or “Green” Products Litigation

       Bryan v. Alabama Power Co., 20 So. 3d 108 (Ala. 2009).

         Downstream landowners whose properties had flooded in May and July 2003 after major
storms sued Alabama Power Company (“APCo”) for alleged negligent and wanton operation of
the upstream hydroelectric dam at Lake Martin on the Tallapoosa River. The landowners
asserted that APCo should have operated the dam to keep Lake Martin at a lower level to absorb
heavy rain storms without having to release large amounts of water downstream, or should have
released water from the dam based on weather reports concerning the storms to create flood
storage in the reservoir. The landowners asserted that APCo had a heightened duty of flood
control, beyond common law duties, contending that there was a duty of flood control under its
Federal license, and discretion under that license, so that whether APCo provided sufficient flood
control for these storms was a jury question. They also argued that APCo voluntarily assumed a
duty of flood control by keeping Lake Martin one-half foot lower than the maximum elevation
permitted by its federal license. After extensive discovery and expert testimony from both sides,
the trial court granted APCo’s summary judgment motion. The Supreme Court affirmed, holding
that APCo’s duty to downstream landowners in flood events is satisfied by compliance with the



                                                177
federal license that included lake levels for various times of the year and that APCo did not
“voluntarily” assume a duty to provide more flood control by providing some flood control
where the landowners showed no reliance on any action by APCo. The Supreme Court
explained: “We are also mindful of the delicate balancing of interests between upstream and
downstream landowners along the Tallapoosa River basin. The balancing of those interests is
subject to federal regulations and has been challenged, negotiated, and agreed upon by various
individuals and entities during the last several decades.” Id. at 29.

         Henderson v. MeadWestvaco Corp. & CSX Transp., Inc., 2009 Ala. LEXIS 58 (Ala.
2009).

        The decedent was diagnosed with mesothelioma allegedly as a result of his exposure to
asbestos at his job for several years preceding and including 1972. In March 2005, the decedent
and his wife filed a personal-injury action in Georgia state court. The decedent died on February
1, 2006 while the action was pending. The decedent’s wife voluntarily dismissed the Georgia
action and filed this wrongful death action in Alabama state court as personal representative of
decedent’s estate. Defendants moved for summary judgment on several grounds, including the
limitation period set forth by Ala. Code § 6-5-410 for asbestos claims. The trial court denied the
motions as to the statute of limitations but granted summary judgment based on the rule of
repose. On appeal, the Supreme Court affirmed summary judgment in favor of the defendants,
but based its decision on the statute of limitations. Alabama’s wrongful death statute allows a
personal representative to commence an action “if the testator or intestate could have
commenced an action” if he lived. Thus, if a decedent’s personal-injury cause of action is time-
barred at his death, then the personal representative cannot bring a wrongful death action. For
exposure to asbestos prior to May 19, 1980, the effective date of Alabama’s discovery statute,
there was a one-year statute of limitations for any asbestos injury (running from the date of last
exposure). Because the decedent’s last exposure to asbestos was in 1972, his claim was time-
barred in 1973. Accordingly, at the time of his death in 2006, the decedent could not have
commenced an action, and, therefore, neither can his personal representative. The plaintiff’s
timely personal-injury action in Georgia does not alter this result. The plaintiff dismissed that
action and filed a new action in Alabama. Under conflicts-of-law rules and the doctrine of lex
fori, the procedural and substantive rules of Alabama apply to the wrongful death action.
Consequently, the wrongful death action is time-barred.

         Market Share or Other New Theories of Liability

         Nothing of significance to report.

         Tobacco

         Nothing of significance to report.

         Automobiles

         Ex parte Navistar, Inc., 17 So. 3d 219 (Ala. 2009).




                                                178
        A resident of Georgia was killed when his heavy truck rolled over in a single-vehicle
accident in Colbert County, Alabama. The administrator of his estate filed a products liability
action against Navistar, Inc., the manufacturer of the truck, in Barbour County, Alabama. Neither
the deceased nor the plaintiff administrator lived in Barbour County. The only connection to
Barbour County was the fact that Navistar had previously sold trucks of the same model to an
unrelated company in Barbour County. Navistar moved to transfer the case to Colbert County
under Alabama’s forum non conveniens statute, Ala. Code § 6-3-21.1. The trial court denied the
motion, and Navistar petitioned the Alabama Supreme Court for a writ of mandamus ordering
the trial court to transfer the action to Colbert County. On review, the Court noted that
Alabama’s forum non conveniens statute contains two alternative bases for transfer—either for
the convenience of the parties or in the interest of justice. The Court also noted that the interest
of justice prong of the statute requires the transfer of an action from a county with little, if any,
connection to the action, to the county with a strong connection to the action. The plaintiff
administrator argued that, in a product liability action, the focus of the analysis should not be the
forum where the accident occurred because the relevant acts or omissions are not those leading
to the accident, but those related to the design, manufacture, assembly, distribution, and sale of
the allegedly defective product. The Court rejected her argument and explained that the forum in
which the product evidenced its alleged defect—the place where the accident occurred and
potential witnesses reside—has a legal connection that in the interest of justice requires a transfer
of this case to that forum. Thus, the Court held that the “legal connection” of the action was with
Colbert County and issued a writ of mandamus ordering the trial court to transfer the case from
Barbour County to Colbert County.

       Ex parte DBI, Inc., 2009 Ala. LEXIS 86 (Ala. 2009).

         This action was filed on behalf of a decedent’s estate against a Korean seat belt
manufacturer. The defendant argued that the trial court lacked personal jurisdiction. The
Supreme Court previously denied defendant’s petition for a writ of mandamus on this issue as
premature. After the parties engaged in additional discovery, defendant filed a second motion to
dismiss for lack of personal jurisdiction, which the trial court denied. In denying defendant’s
petition for a writ of mandamus, the Supreme Court overruled Ex parte Alloy Wheels
International, Ltd., 882 So. 2d 819 (Ala. 2003), which had adopted the stream-of-commerce-plus
test for personal jurisdiction based on the U.S. Supreme Court’s plurality opinion in Asahi Metal
Industry Co. v. Superior Court, 40 U.S. 102 (1987). Instead, relying on the last two pre-Asahi
U.S. Supreme Court opinions supported by majorities – World-Wide Volkswagen Corp. v.
Woodson, 444 U.S. 286 (1980) and Burger King Corp. v. Rudzewicz, 471 U.S. 462 (1985) – the
Alabama Supreme Court held that the stream-of-commerce test is appropriate for determining if
a defendant purposefully establishes minimum contacts with the forum state: “[T]he forum state
does not exceed its powers under the Due Process Clause if it asserts personal jurisdiction over a
corporation that delivers its products into the stream of commerce with the expectation that they
will be purchased by consumers in the forum State and those products subsequently injury forum
consumers.” If this is satisfied, then the court may examine “traditional notions of fair play and
substantial justice” by looking to, among other things, the burden on the defendant, the forum’s
interest in adjudicating the dispute, and the plaintiff’s interest. Although defendant had no
physical presence in Alabama, the Court concluded that it had “purposefully availed” itself of
business in Alabama because it knew its seat belts were incorporated into automobiles sold on a



                                                179
national basis in the United States. Further, the automobile at issue was purchased in Alabama by
an Alabama resident who was driving on an Alabama highway at the time of the incident.
Because a state generally has a “manifest interest” in providing its residents a convenient forum
for addressing injuries inflicted by out-of-state actors, the fundamental-fairness prong of personal
jurisdiction was also met, and the burden on the defendant to litigate in Alabama was not
substantial because “modern transportation and communication have made it much less
burdensome” for international companies to defend themselves.

       Armstrong v. Mazda Motor of America, Inc., 2009 Ala. Civ. App. LEXIS 505 (Ala. Civ.
App. 2009).

        Plaintiff purchased a vehicle manufactured by defendant Mazda, who provided an
express warranty. Because an air-conditioning problem was not corrected to his satisfaction after
several services during the warranty period, plaintiff brought action for, among other claims,
breach of express warranty. Plaintiff presented evidence of the purchase price of $18,807 and
testimony that the vehicle was worthless to him with a damaged air-conditioning system. If the
jury accepted this testimony, it should have awarded $18,807. The jury awarded plaintiff $2,500,
which was the amount of finance charges plaintiff paid in connection with purchasing the
vehicle. The trial court denied defendant’s post judgment motion for judgment as a matter of
law or for a new trial. The Alabama Court of Civil Appeals reversed the judgment because the
jury received no evidence from which it could have concluded that the value of the vehicle had
diminished by $2,500 when compared to the value of the vehicle as warranted. In doing so, the
Court held that, in general, “[t]he measure of damages for breach of warranty is the difference at
the time and place of acceptance between the value of the goods accepted and the value they
would have had if they had been as warranted.”

       Drug Litigation

       Sparks v. Total Body Essential Nutrition, Inc., 2009 Ala. LEXIS 169 (Ala. 2009).

         Several consumers brought suit against the manufacturer and the seller of a nutritional
supplement, Total Body Formula, which allegedly caused serious and permanent injuries to the
consumers after ingesting the product. The consumers alleged claims of breach of the implied
warranty of merchantability and of fitness for a particular purpose, among other claims. The
manufacturer removed the action to the federal district court, alleging that diversity jurisdiction
existed because the only Alabama defendant, the seller of the supplement, had been fraudulently
joined. The manufacturer asserted there was no possibility the plaintiffs could establish a cause
of action against the resident seller, relying upon the sealed container doctrine. The federal
district court stated that the law in Alabama is unclear as to whether a seller may utilize the
sealed container doctrine as a defense to a cause of action for breach of implied warranty under
the UCC. The federal district court therefore certified that question to the Supreme Court of
Alabama, which held that the sealed-container defense is not available to the retail seller of food
products in claims asserting a breach of implied warranty under the Alabama UCC. The Court
reasoned that because the sealed container defense was based on the Uniform Sales Act, and
because Alabama repealed that Act when it adopted the UCC, the sealed container defense was
therefore eliminated. The Court stated that the seller’s recourse was to bring suit against the



                                                180
manufacturer for breach of implied warranty. Justice Bolin, penning the dissent, stated that he
would hold that the adoption of the UCC did not eliminate the sealed container defense in
Alabama. Justice Bolin reasoned that the UCC states that unless displaced by a particular
provision of the UCC, the common law remains intact, and nothing in the UCC states that
previously accepted defenses were abrogated by the UCC. In addition, the elimination of
defenses available to retailers with regards to breach of implied warranty claims would result in
retailers insuring the goods they sell, an outcome which the Court has previously rejected.

       Class Action Fairness Act (CAFA)

       Nothing of significance to report.

       Other

       CNH America, LLC v. Tammy Roebuck, 2009 Ala. LEXIS 255 (Ala. 2009).

        Plaintiff sued defendant for breach of warranty, defective design, and general negligence
after her husband was killed in an accident involving a backhoe manufactured by defendant.
After plaintiff submitted her evidence, defendant moved for a judgment as a matter of law
(“JMOL”) arguing, among other things, that plaintiff’s breach-of-warranty claim was barred by
the statute of limitations and that her various tort claims failed because the evidence showed that
the backhoe had been substantially modified since leavening its control. The jury returned a
verdict in favor of defendant, but the trial court subsequently ordered a new trial as a result of
juror misconduct. On appeal, defendant argued that the trial court either exceeded its discretion
in ordering a new trial or, in the alternative, that it was entitled to a JMOL. The Alabama
Supreme Court agreed that the trial court erred in failing to enter the JMOL. The Court held that
plaintiff’s breach-of-warranty claim was barred by the applicable statute of limitations; the
evidence did not support her assertion that the backhoe was used primarily for personal, family,
or household purposes and was, therefore, not subject to the consumer-goods exception to the
statute of limitations in Ala. Code § 7-2-725. In regard to her tort claims, the Court found that
plaintiff was required to establish that her husband’s death was proximately caused by some act
of defendant. However, the undisputed evidence indicated that the proximate cause of the
accident was the improper modification of the backhoe by a third-party. Defendant had created a
modification kit which provided detailed instructions and the correct equipment; therefore, it
could not foresee a third-party’s performing the modifications incorrectly. Because the Supreme
Court found that defendant was entitled to a JMOL on the tort claims, it did not consider the trial
court’s granting a new trial.

       Swanstrom v. Teledyne Continental Motors, Inc., 2009 Ala. LEXIS 274 (Ala. 2009).

        This case arose from a plane crash in New Mexico which killed the aircraft’s pilot.
Plaintiffs brought a wrongful death action against the manufacturers of the aircraft and the
engine, alleging claims of negligence, strict liability, and breach of implied and express
warranties. Defendants moved for summary judgment and to exclude the opinions of Plaintiffs’
expert. Defendants also filed a motion in limine to exclude the toxicology report of decedent’s
blood and tissue taken, which showed elevated levels of carbon monoxide, and to exclude all



                                               181
testimony based on the report. The trial court excluded the expert’s opinions and toxicology
report and related testimony. The trial court entered summary judgment in favor of Defendants
on all claims. Plaintiffs appealed arguing that the trial court erred in (1) excluding the toxicology
report; (2) excluding all testimony based on the report; (3) excluding their expert’s opinions; (4)
granting summary judgment on their claims of breach of implied and express warranties; and (5)
granting summary on their negligence and strict liability claims. The Court found that the trial
court did not err in (1) excluding the toxicology report because the chain of custody for the
report could not be properly established; (2) excluding the testimony based on the report because
the report was inadmissible and untrustworthy; (3) excluding the opinions of Plaintiffs’ expert
because the expert was not qualified in the field he was opining to; and (4) granting summary
judgment on Plaintiffs’ implied and express warranty claims because the implied warranty
claims merged with the strict liability claim, and Plaintiffs did not produce substantial evidence
of the existence of any express warranties. Finally, the Court found that the trial court erred in
granting summary judgment on Plaintiffs’ claims of negligence and strict liability because
Plaintiffs produced substantial evidence to support these claims. The Court therefore affirmed
the trial court’s exclusion of evidence and summary judgment as to the breach of warranty
claims and reversed the trial court’s summary judgment as to the negligence and strict liability
claims.

Florida

       Tort Reform

       BDO Seidman, LLP v. Banco Espirito Santo Int’l., Ltd., 2009 WL 2448178 (Fla. Dist. Ct.
App. 2009) (“BDO II”).

        Banco Espirito obtained a judgment against BDO Seidman in excess of $500 million.
BDO Seidman appealed the decision and posted a $50 million supersedeas bond, the maximum
bond permitted by FLA. STAT. $ 45.045. In BDO Seidman, LLP v. Banco Espirito Santo Int’l,
Ltd., 998 So.2d 1 (Fla. Dist. Ct. App. 2008) (“BDO I”), Banco Espirito argued that by enacting
the cap on supersedeas bonds, the legislature impermissibly infringed upon the Florida Supreme
Court’s rulemaking authority. The BDO I Court concluded that the legislature was acting within
its authority when it imposed a cap on supersedeas bonds. In BDO II, Banco Espirito attempted
to conduct post-judgment discovery. BDO objected and the trial court refused to grant a motion
to compel. On appeal, the Court held that Banco Espirito was entitled to conduct discovery for
the limited purpose of determining whether BDO Seidman, LLP, the judgment debtor, had, or
was in the process of, dissipating or diverting assets outside the course of its ordinary business.

       Preemption

       Valdes v. Optimist Club of Suniland, Inc., 2009 WL 5126228 (Fla. Dist. Ct. App. 2009).

        This negligence and products liability suit was filed against the manufacturer of Tylenol
Cold for failing to warn consumers that the drug contains pseudoephedrine, which increases the
risk of heart-related problems when ingested with caffeine by individuals engaged in strenuous
activity in a hot environment. The manufacturer argued that the claims were preempted by



                                                182
federal law and successfully moved the district court for the entry of summary judgment in its
favor, arguing that the FDA’s labeling requirements, codified at 21 U.S.C. § 379r, which did not
require the manufacturer to include the risk of heat-related illness on the label, preempted the
state law claims in the Plaintiffs’ complaint. Plaintiff appealed and argued that 21 U.S.C. §
379r(e), which states “[n]othing in this section shall be construed to modify or otherwise affect
any action or the liability of any person under the product liability law of any State” applied to
this case and saved Plaintiff’s claim. The manufacturer conceded that express preemption did
not apply, but argued that implied preemption was applicable because compliance with both state
law and federal law is impossible and, even if not impossible, would frustrate the Congressional
purposes and objectives behind the enactment of the statute. The Florida Court of Appeals held
that, based on the Supreme Court’s holding in Wyeth v. Levine, S.Ct. 1187, 173 L.Ed.2d 51
(2009), the federal statute regulating the labels of over-the-counter medication expressly saves
this type of state law claim and there is no implied federal preemption that would prevent
Plaintiffs from sustaining their claims in this case.

       Munroe v. Barr Laboratories, Inc., 2009 WL 4047949 (N.D. Fla. 2009).

        Plaintiff filed suit against Barr Laboratories, Inc. (“Barr”) alleging that Barr failed to
provide adequate warnings that generic Adderall taken in prescribed doses could cause heart
problems or death and that taking the dug in combination with pseudoephedrine increased the
risk. Barr moved to dismiss on the ground that federal law preempts a state-law failure-to-warn
claim against the manufacturer of a generic drug. Barr attempted to distinguish the Supreme
Court’s holding in Wyeth v. Levine, 129 S.Ct. 1187 (2009), by arguing that the manufacturer of a
generic drug cannot unilaterally change the label of its drug. To the contrary, the label of a
generic drug must use the same label and provide the same warnings as the branded drug, with
certain exceptions not applicable to this case. The court found that Barr’s assertion that it is
impossible for a generic-drug manufacturer to comply with both the federal law requiring an
FDA-approved label and any state law requiring an additional warning is incorrect. Under 21
C.F.R. §§ 314.70, .97, a drug manufacturer may strengthen its label while seeking FDA approval
of the change, and this procedure is not limited to branded manufacturers and that a generic
manufacturer may also invoke the procedure. Therefore, the Court held that under Wyeth,
Plaintiff’s claims were not preempted. In doing so, the Court stated, “The generic manufacturer
rides the brand manufacturer’s coattails-in the right to sell the drug at all, in exposure for any
failure to design the drug properly, and-if it adopts the brand manufacturer’s warnings without
change-in exposure for failing to adequately warn of the drug’s risks.”

       Grills v. Philip Morris USA, Inc., 645 F. Supp. 2d 1107 (M.D. Fla. 2009).

        Plaintiff filed suit against tobacco companies alleging that the defendants failed to
provide sufficient warnings of the health risks of smoking and the addictive properties of
nicotine. Plaintiff further alleged that defendants companies intentionally or recklessly failed to
disclose or fraudulently concealed material facts from the public and government agencies.
Philip Morris USA, Inc. (“Philip Morris”) moved to dismiss the claims against it, arguing that
Plaintiff’s claims are preempted under Cipollone v. Liggett Group, Inc., 505 U.S. 504 (1992),
and its progeny. The Court agreed and held that the failure to warn claim was preempted by
Public Health Cigarette Smoking Act (“PHCSA”). 15 U.S.C. §§ 1331, 1334(b). The Court went



                                               183
on to hold that under Cipellone, Plaintiff’s fraud claims were not preempted by the PHCSA.
Nevertheless, the Court found that Plaintiff had failed to plead his fraud claims with specificity
as required by Fed. R. Civ. P. 9(b).

       Cordis Corp. v. O’Shea, 2009 WL 2871566 (Fla. Dist. Ct. App. 2009).

        In this case, Defendants Cordis Corporation and Johnson & Johnson of New Jersey, Inc.,
sought a prohibition barring a trial court from continuing to entertain a complaint against them
alleging various claims involving the use of a Cypher brand cardiac drug-eluting stent, which
was under continuing supervision by the Food and Drug Administration (“FDA”). Defendants
argued that the FDA’s extensive oversight of the Cypher brand stent’s safety and effectiveness
resulted in complete federal preemption of any state claim that challenges the FDA’s
determination that the stent is safe. In declining to issue the writ of prohibition requested by
defendants, the Court held stated that this case presented an issue of defensive, and not complete,
preemption. In addition, the issues presented were more properly characterized as a “choice of
law” issue rather than “choice of forum.”

       Environmental or “Green” Products Litigation

       Nothing of significance to report.

       Market Share or Other New Theories of Liability

       Kelecseny v. Chevron, U.S.A., 2009 WL 4262603 (S.D. Fla. 2009).

        In this case, a boat owner brought putative class action against gasoline and ethanol
manufacturers, distributors, and suppliers, seeking monetary and injunctive relief against them
under a market share theory for defendants’ failure to warn boat owners of dangers posed by
ethanol blended gasoline (“E10”) to the engines of boats and similar watercraft with fiberglass
fuel tanks. Plaintiff moved for certification of damages class and injunctive class. In declining to
certify the class, the Court held that imposition of market share liability would be inappropriate
in this case because a defendant could exculpate itself by establishing that it did not produce or
market the E10 used by certain Plaintiffs; that it did not market the E10 in the geographic market
area where certain Plaintiffs bought the E10 that allegedly gave rise to their damages; and/or that
it did not distributed E10 during the time period in which certain Plaintiffs suffered damage. The
Court stated that if it were to accept the Boat Owner’s proposal that the relevant market is the
entire State of Florida, Defendants would be unduly prejudiced because no Defendant selling
gasoline in the state of Florida would be able to exculpate itself. The Court further held that the
putative class representative had also failed to satisfy the numerosity, typicality, and adequate
representation requirements of Fed. R. Civ. P. 23(a). Moreover, the Court found that
individualized inquiries would predominate over common issues making a class inappropriate
under Fed. R. Civ. P. 23(b)(3), and that the class lacked the cohesiveness required for
certification in action seeking an injunction, making a class inappropriate under Fed. R. Civ. P.
23(b)(2).

       Tobacco



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In re Engle Progeny Cases Tobacco Litigation: Lucinda Naugle vs. R J Reynolds Tobacco Co.,
17th Judicial Circuit, Case No.: 07-036736(19) (Fla. November 19, 2009).

        In this case, a jury awarded $300 million to Plaintiff, including $244 million in punitive
damages and $56 million in compensatory damages. This is a significant jury verdict from the
8,000 cases filed after the Florida Supreme Court’s decision in Engle v. Liggett Group, Inc., 945
So.2d 1246 (Fla. 2006)(which threw out a $145 billion jury award in a class-action lawsuit filed
in 1994 on behalf of thousands of sick smokers while holding that the fact that tobacco
companies knowingly sold dangerous products and concealed the risks of smoking did not need
to be proved again as they would be given res judicata effect). There were ten Engle progeny
cases in 2009. Juries awarded $7.8 million, $30 million, $8 million, $1.55 million, $1.3 million,
$1.2 million, $5.3 million, and $300 million. In addition, there have been two defense verdicts.
Juries have apportioned fault to the plaintiff ranging from 10 percent to 57 percent.

       Automobiles

       Nothing of significance to report.

       Drug Litigation

       Hoffman-La Roche Inc. v. Mason, 2009 WL 3430190 (Fla. Dist. Ct. App. 2009).

        Defendant, drug manufacturer, challenged a final money judgment in favor of Plaintiff,
awarding Plaintiff compensatory damages after a jury found that manufacturer placed Accutane
on the market with an inadequate warning to Plaintiff’s physicians about the risk of developing
inflammatory bowel disease (“IBD”), and that the failure to provide an adequate warning was a
substantial contributing cause of Plaintiff’s development of IBD. Because Plaintiff presented no
evidence from either treating physician that a differently worded warning would have resulted in
either physician not prescribing Accutane for his extreme acne, Plaintiff failed to establish that
the allegedly deficient warning was the proximate cause of his injury; therefore, the court
reversed.

       Kilpatrick v. Breg, Inc., 2009 WL 2058384 (S.D. Fla. 2009).

        A medical device manufacturer’s motion to exclude expert physician’s causation
testimony and expert opinion on the causation of chondrolysis was granted in a case filed by a
plaintiff alleging product liability claims against medical device manufacturer. The patient
proffered an extensive list of articles that the expert physician purportedly relied upon in
preparing his expert report. However, the expert physician acknowledged that none of those
articles were based on controlled, randomized epidemiological studies of human beings, which
traditionally are considered the best form of statistical evidence for proving causation.
Additionally, none of the articles offered an ultimate conclusion as to the general causation of
glenohumeral chondrolysis. Thus, defendant argued that The expert physician’s causation
opinion was ultimately rooted in nothing more than temporal relationship. Plaintiff responded
that randomized human epidemiological studies would not be ethical or feasible under the



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circumstances and that such studies are not necessary to carry his burden on a Daubert motion.
The court held that it is true enough that a lack of epidemiological evidence is not fatal to
Patient’s case, but this lack of evidence only heightens the need for the expert physician to
present other forms of highly persuasive scientific evidence to lay a foundation for his expert
opinions. In doing so, the Court held that it may be “almost irresistible to conclude that what
happens shortly after the event must have been caused by the event,” but that is not the basis of
good science and does not satisfy the requirements of Daubert or Federal Rule of Civil
Procedure 702.

       Pantages v. Cardinal Health 200, Inc., 2009 WL 2244539 (M.D. Fla. 2009).

        Plaintiff claimed that Defendant’s packaging of a catheter was deficient in violation of 21
C.F.R. § 820.130, “Device Packaging,” and that a failure to comply with this regulation
constitutes negligence per se. The court held that Plaintiff’s claim failed to state a cause of
action for which relief can be granted because Florida law does not recognize a claim based upon
a theory of negligence per se for an alleged violation of this particular federal regulation. Under
Florida law the violation of a federal regulation does not create civil liability based upon a theory
of negligence per se in the absence of evidence of a legislative intent to create a private cause of
action. For § 820.130, neither the regulation nor the FDCA expressly create civil liability for
noncompliance with the part. The federal regulation only provides for regulatory action in the
event of noncompliance and is completely silent with regard to the availability of private
remedies.

       Class Action Fairness Act (CAFA)

       Nothing of significance to report.

Georgia

       Tort Reform

       Condra v. Atlanta Orthopaedic Group, P.C., 285 Ga. 667, 681 S.E.2d 152 (2009).

        The Supreme Court of Georgia overruled Johnson v. Riverdale Anesthesia Assocs., 275
Ga. 240, 563 S.E.2d 431 (2002), and held that evidence regarding an expert witness’s personal
practices, unless subject to exclusion on other evidentiary grounds, is admissible both as
substantive evidence and to impeach the expert’s opinion regarding the applicable standard of
care. The court based its decision on the fact that, subsequent to the Johnson decision, the
Legislature enacted O.C.G.A. § 24-9-67.1, which places particular emphasis on a proffered
medical expert’s professional experience and practice in assessing his or her qualification to
serve as an expert witness. Accordingly, the court held that there can be no dispute as to the
relevance, post-Tort Reform Act, of an expert’s personal experience and practice to the threshold
inquiry into the expert’s qualifications.

       Preemption




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       Ellison v. Ford Motor Co., 650 F. Supp. 2d 1298 (N.D.Ga. 2009).

        Plaintiffs brought this products liability action against Defendant truck manufacturer for
Defendant’s failure to install side-impact airbags in a Ford F-250 pickup truck, which allegedly
led to Plaintiffs’ injuries related to a motor vehicle accident. In its motion for summary
judgment, Defendant alleged that it had complied with 49 C.F.R. § 571.208 (“FMVSS 208”),
which “establishes the types of passenger restraint systems which car manufacturers must install
in their vehicles,” and accordingly, Plaintiffs’ claims were preempted. See Griffith v. General
Motors Corp., 303 F.3d 1276, 1279 (11th Cir. 2002). The court, under the guidance of decisions
from other jurisdictions, found that a verdict in favor of the Plaintiffs would establish a rule
whereby all car manufacturers would be required to install side-impact air bags. Such a ruling
would be in direct conflict with a federal regulation. The court found that when the DOT
established FMVSS 208, it was not merely creating a regulation that was a minimum standard
that could be added to, but a comprehensive regulatory scheme. See also Geir v. American
Honda Motor Co., 529 U.S. 861 (2000). Therefore, Plaintiffs’ claims were preempted by same.

       Environmental or “Green” Products Litigation

       Nothing of significance to report.

       Market Share or Other New Theories of Liability

       Nothing of significance to report.

       Tobacco

       Nothing of significance to report.

       Automobiles

       Ford Motor Co. v. Reese, 300 Ga. App. 82, 684 S.E.2d 279 (2009).

        This wrongful death action was brought against by the survivors of a driver who was
paralyzed and later died as a result of injuries she sustained when her Ford Tempo was struck
from behind by a loaded dump truck. Plaintiffs claimed, in part, that the decedent’s injuries were
the result of a defective design, and that the car manufacturer had a continuing duty to recall its
product once it became aware of vehicle’s deficient design. The trial court instructed the jury on
the manufacturer’s continuing duty to recall, and the jury subsequently found in favor of the
Plaintiffs. Manufacturer appealed, and the appellate court reversed, finding that there is no
continuing duty for a manufacturer to recall its product in Georgia. The opinion was based on
several factors. First, a duty to recall may exist in certain circumstances; more specifically, a
duty to recall exists where evidence establishes that at the time the product was manufactured, an
alternative design would have made the product safer than the original design and was a
marketable reality and technologically feasible. Also, a duty exists when it is required by a
statute or an administrative regulation. In the case at bar, no such circumstances existed.
Second, the court found that the legislators failure to include a continued duty to recall in



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O.C.G.A. § 51-1-11(c) was evidence of an unwillingness to create such a duty. Finally, the court
found that the cost of locating, recalling, and replacing mass-marketed products is enormous and
will likely be passed on to the consumer in the form of higher prices. Nonetheless, there may be
circumstances were a duty to recall should be imposed, but the court found that the decision is
more aptly handled by administrative agencies, which are better able to weigh the costs and
benefits of such action.

       Drug Litigation

       Nothing of significance to report.

       Class Action Fairness Act (CAFA)

       Nothing of significance to report.

       Other

       Bagnell v. Ford Motor Co., 297 Ga. App. 835, 678 S.E.2d 489 (2009).

         This case arose out of an automobile accident in Texas in which the driver, a Georgia
resident, lost control of a van. Representatives of the van accident victims filed case against the
van manufacturer, alleging claims for strict liability, negligent design, and failure to warn of a
stability hazard. The court held that Georgia’s ten-year statute of repose for products liability
actions, O.C.G.A. § 51-1-11(b)(2) applied to the strict liability and negligent design claims rather
than Texas’ 15-year statute of repose for such actions. The court explained that Georgia courts
have consistently held that a statute of repose involves remedial, rather than substantive, rights,
and under Georgia choice of law rules, questions involving procedure or the appropriate remedy
are decided using the law of the state where the action was filed. In addition, the court held that
the trial court did not abuse its discretion in declining to impose spoliation sanctions on the
representatives of the accident victims because they failed to preserve the van following the
wreck. The court explained that “the trial court found that the van was an important piece of
evidence, particularly in determining the cause of the wreck; that Ford was prejudiced by the
van’s destruction; and that the prejudice could not be cured.” However, the trial court concluded
that “the spoliation resulted from negligence, rather than bad faith. Moreover, because the van
was lost or destroyed shortly after the wreck, neither side had an opportunity to inspect it,
placing all parties on equal footing and limiting any potential for abuse through expert
testimony.”

        The appellate court found no abuse of by the trial court in declining to impose spoliation
sanctions because, despite the loss of evidence, all parties remained on a level playing field.
Finally, the court held admissible the evidence that the car rental company had asked the van
manufacturer about the van’s safety record after its van renters experienced a number of
accidents involving rollover incidents. The manufacturer suggested to the rental company that if
it placed a warning in the van, the warning should advise renters that van handled differently
especially when fully loaded with passengers and/or luggage. The court held this evidence
admissible to show the manufacturer’s knowledge of a stability hazard in a fully loaded van, and



                                                188
found that the evidence lent credibility to the representatives’ expert testimony that the
manufacturer knew about this hazard prior to the van’s initial sale date.




                                           189
                                           D.C. Circuit

             R. Scott Masterson                                  Brantley Rowlen
    Lewis Brisbois Bisgaard & Smith LLP                Lewis Brisbois Bisgaard & Smith LLP
      1180 Peachtree St NE Ste 2900                      1180 Peachtree St NE Ste 2900
            Atlanta, GA 30309                                  Atlanta, GA 30309
               (404) 348-8570                                 rowlen@lbbslaw.com
          masterson@lbbslaw.com



Tort Reform

No reported cases in this area.

Preemption

Saleh v. Titan Corp., 580 F.3d 1 (D.C. Cir. 2009)

This was not a products liability case, but it discussed preemption. Plaintiffs, who were Iraqi
nationals, brought separate suits against defendant U.S. military contractors that provided
services to the U.S. government at the Abu Ghraib military prison in Iraq. The U.S. District
Court for the District of Columbia had granted summary judgment in favor of one contractor, but
not the other, on the grounds that state tort claims alleged in this case were preempted. The
D.C. Circuit affirmed in part and reversed in part, ruling in favor of both contractors and
dismissing all of the plaintiffs’ claims. The D.C. Circuit reasoned that wartime and combat is
subject to numerous rules under federal law and the laws of war, and that traditional “tort” law --
deterrence of risk-taking behavior, compensation of victims, and punishment of tortfeasors -- is
out of place in combat. Accordingly, all state law and foreign law claims by the plaintiff Iraqi
nationals against U.S. contractors are preempted by federal law, because the contractors were
essentially acting on behalf of, and taking the role of, the U.S. Military, thereby causing federal
law to govern.

Firearms Manufacturers

Nat’l Ass’n of Mfrs. v. Taylor, 582 F.3d 1, 8 (D.C. Cir. 2009)

This case did not involve firearms manufacturers or products liability in particular, but involved
the national trade organization for all industrial manufacturers both large and small, so it appears
to be worth noting. The plaintiff in this case, the National Association of Manufacturers (the
“Manufacturers”), is the nation’s largest industrial trade association, representing small and large
manufacturers in every industrial sector and in all fifty states. The Manufacturers sued alleging
that Congress’ new Lobbying Reform Act called the Honest Leadership and Open Government
Act of 2007 (the “Act”) was unconstitutionally vague. The D.C. Circuit disagreed, and held that
the lobbying disclosure requirements were constitutional under the strict scrutiny test, in that
they served a vital public interest by requiring the name, address, and principal place of business
of any business engaged in lobbying or contributing funds over a certain monetary threshold.


                                                190
Accordingly, any of our clients that may be engaged in lobbying in Washington, D.C. need to be
aware of both the Act and this case upholding the same.

Drug Litigation

No reported cases addressing pharmaceutical manufacture liability.

Green Products Litigation

No reported cases in the area of green products litigation.

Market Share or Other New Theories of Liability

No reported opinions issued involving market share liability in 2009 by the D.C. Circuit.
However, one D.C. Circuit case in 2009 did discuss the RICO theory of liability against cigarette
manufacturers.

U.S. v. Philip Morris USA, Inc., 566 F.3d 1095 (D.C. Cir. 2009)

Nine cigarette manufacturers and two trade organizations were found liable under the Racketeer
Influenced and Corrupt Organizations Act (“RICO”) in the District Court for the District of
Columbia for engaging in a 50-year conspiracy to deceive the U.S. public regarding the health
effects and addictiveness of cigarettes through both wire and mail fraud. The District Court also
granted injunctive relief against the Defendants. The cigarette manufacturers and the trade
organizations appealed. The D.C. Circuit affirmed the judgment against the manufacturers,
finding that the government had successfully proved a pattern of RICO infractions. But, the
D.C. Circuit remanded the case for dismissal of the injunction against the trade organizations
because they had dissolved and thus the relief ordered against them had become moot. The D.C.
Circuit also modified the injunction against the cigarette manufacturers as being overly broad in
some respects. Accordingly, this case stands for the proposition that, in extreme cases, there can
be liability for manufacturers under RICO laws.




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