Products Liability & Insurance

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Products Liability & Insurance

WARNINGS ISSUES—MEDICAL DEVICES—5th Cir.: Summary judgment in favor of medical device manufacturer upheld in IVC filter injury case

An injured patient failed to raise any genuine disputes of material fact regarding his failure to warn and design defect claims against the manufacturer. In an action stemming from complications a patient experienced following the implantation of an ...

WARNINGS ISSUES—MEDICAL DEVICES—5th Cir.: Summary judgment in favor of medical device manufacturer upheld in IVC filter injury case
Law Firms Mentioned:Gertler Law Firm | Greenberg Traurig, LLP | Hill Ward Henderson, P.A. | Irwin Fritchie Urquhart & Moore, LLC | Jones Day | Kasowitz Benson Torres LLP | Lamothe Law Firm, LLC | Tein Malone PLLC
Organizations Mentioned:Bard Peripheral Vascular, Inc. | C.R. Bard, Inc. | Ethicon Endo-Surgery, Inc. | Ethicon Endo-Surgery, LLC | Heartland Recreational Vehicles, LLC | Jayco, Inc. | Liggett Group LLC | Mitsubishi Motors North America, Inc. | R.J. Reynolds Tobacco Co. n/k/a Brown & Williamson Holdings, Inc. | Vector Group Ltd., Inc.
DESIGN AND MANUFACTURING DEFECTS—MEDICAL DEVICES—E.D. La.: Products liability case against Johnson & Johnson over surgical stapler goes forward
August 12, 2022
Brian Craig, J.D.

The patient plausibly alleged a manufacturing defect involving a surgical stapler that misfired during colon surgery. A federal district court in Louisiana concluded that a patient who allegedly received injuries after a surgical stapler misfired dur...

JURISDICTION—TOBACCO PRODUCTS—M.D. Fla.: R.J. Reynolds’ failure to establish fraudulent joinder leads to remand of tobacco case
August 12, 2022
Pankhuri Bhatnagar, B.A. LL.B.

A smoker’s fraudulent concealment claims against other properly joined tobacco companies could succeed; therefore, removal of the case was barred by the forum defendant rule. In an action brought by a smoker against several tobacco companies alleging...

NHTSA NEWS—MOTOR VEHICLES—Awning issues prompt Jayco to recall travel trailers
August 12, 2022
Joe Cox, J.D.

Dealers will repair or replace the awning fabric, as needed. Jayco, Inc. is recalling approximately 11,532 2022-2023 Eagle, Eagle HT, Jayflight, Jayflight SLX, North point, Pinnacle, and Seismic travel trailers because the electric retractable awning...

NHTSA NEWS—MOTOR VEHICLES—Heartland Recreational Vehicles recalls travel trailers over awning drop concern
August 12, 2022
Susan Lasser, J.D.

Dealers will repair or replace the awnings without charge. Heartland Recreational Vehicles, LLC (Heartland) is recalling about 5,446 2022 Cyclone, Elk Ridge, Fuel, Milestone, North Trail, 2022-2023 Big Horn Traveler, Gravity, Lithium, Mallard, Pionee...

NHTSA NEWS—MOTOR VEHICLES—Mitsubishi recalls over 76K Outlander Sport vehicles due to transmission control unit software error
August 12, 2022
Susan Lasser, J.D.

Dealers will remedy the issue by updating the CVT-ECU software in the affected vehicles. Mitsubishi Motors North America, Inc. (MMNA) is recalling approximately 76,508 2019-2022 Outlander Sport vehicles equipped with continuously variable transmissio...

CPSC NEWS—COMMENT CALENDAR—CPSC actions open for public comment
August 12, 2022
WK Editorial Staff

Consumer Product Safety Commission actions, with links to source documents, are open for public comment until the dates indicated. As detailed in previous Products Liability Law Daily stories, the following Consumer Product Safety Commission actions ...

CPSC NEWS—REPORTS AND STUDIES—CPSC releases report on CO fatalities relating to portable generators and PSA on generator safety
August 12, 2022
WK Editorial Staff

Eighty-one percent of generator-related deaths occur in residential locations, according to the report. Last week, the Consumer Product Safety Commission (CPSC) released a new report on carbon monoxide (CO) poisoning deaths associated with portable g...

NHTSA NEWS—COMMENT CALENDAR—NHTSA actions open for public comment
August 12, 2022
WK Editorial Staff

National Highway Traffic Safety Administration actions, with links to source documents, are open for public comment until the dates indicated. As detailed in previous Products Liability Law Daily stories, the following National Highway Traffic Safety...

Products Liability & Insurance

CPSC RECALLS—SPORTS AND RECREATIONAL EQUIPMENT—Electric skateboard footpads recalled due to bystander injury hazard

The manufacturer will provide a free replacement skateboard footpad, including free shipping and installation instructions. Future Motion Inc., of Santa Cruz, California, is recalling an estimated 20,500 Footpads for Onewheel GT Electric Skateboards ...

CPSC RECALLS—SPORTS AND RECREATIONAL EQUIPMENT—Electric skateboard footpads recalled due to bystander injury hazard
Law Firms Mentioned:Germer Beaman & Brown PLLC | Greenberg Traurig, P.A. | Hilliard Martinez Gonzales LLP | K&L Gates LLP | Murphy Anderson PA | Sarkisian Sarkisian & Associates P.C. | Zangari Cohn Cuthbertson Duhl & Grello P.C.
Organizations Mentioned:Ag-Pro Texas, LLC | Ag-Pro, LLC | Bausch & Lomb Holdings Inc. | Bausch & Lomb, Inc. | Cardinal Heavy Equipment Holdings, LLC | Chromalox Inc. | Daimler Trucks North America, LLC | Deere & Co. | Future Motion Inc. | General Motors, LLC | Harley-Davidson Motor Co. | Residential Elevators, Inc. | Tellus Equipment Solutions, LLC f/k/a Ag-Pro Texas, LLC | Valeant Pharmaceutical International, Inc. | Valeant Pharmaecuticals North America LLC
JURISDICTION—HOUSEHOLD PRODUCTS—S.D. Tex.: Mower rollover lawsuit continues in federal court after nondiverse parties dismissed
August 11, 2022
Kenneth H. Ryesky, M.B.A., J.D.

The court declined to permit joinder of service and repair companies and their predecessors, dismissing them without prejudice to the injured man’s right to proceed against them in state court. In a lawsuit by a man who was severely burned when his r...

JURISDICTION—INDUSTRIAL AND COMMERCIAL EQUIPMENT—N.D. Ind.: Heater manufacturer granted dismissal and transfer of claims for lack of jurisdiction in crane injury case
August 11, 2022
Pankhuri Bhatnagar, B.A. LL.B.

An injured crane operator failed to establish that the court had personal jurisdiction over the manufacturer of an allegedly defective crane heater that caused the operator to be electrocuted. In an action brought against the manufacturer of a portab...

PREEMPTION—MEDICAL DEVICES—2nd Cir.: Negligence, failure to warn state law claims against artificial lens maker not preempted by FDC Act
August 11, 2022
Chelsea N. Simms, Esq.

Second Circuit sends medical device claims brought under Connecticut’s state tort law back to lower court. Following the Connecticut Supreme Court’s analysis that Connecticut tort law allowed for claims against a device maker for (1) failure to repor...

CPSC NEWS—HOUSEHOLD PRODUCTS—Child entrapment danger prompts Residential Elevators to recall 31K home elevators
August 11, 2022
Susan Lasser, J.D.

The company will provide space guards free of charge to correct any hazardous gap. Residential Elevators, Inc., of Tallahassee, Florida, is recalling approximately 31,000 home elevators because young children can become entrapped in the space between...

NHTSA NEWS—MOTOR VEHICLE EQUIPMENT—Harley-Davidson recalls motorcycle luggage carrier conversion kits due to turn signal indicator light issues
August 11, 2022
Joe Cox, J.D.

Dealers will replace the faulty kits. Harley-Davidson Motor Company (Harley-Davidson) is recalling approximately 2,055 Detachable Tour-Pak Luggage Carrier Conversion Kits with part numbers 53000916 and 53000917, installed on 2014-2022 Touring and CVO...

NHTSA NEWS—MOTOR VEHICLES—Daimler recalls vehicles over to electrical short circuit, potential engine stalling
August 11, 2022
Joe Cox, J.D.

The remedy is currently under development. Daimler Trucks North America, LLC (DTNA) is recalling about 1,375 2023 Freightliner 108SD, 114SD, Business Class M2, Cascadia, 2023 Freightliner FCCC MC, MT45, S2C 106CAB, XCM, S2RV 106CAB, XCR, XCS, and 202...

CPSC NEWS—COMMENT CALENDAR—CPSC actions open for public comment
August 11, 2022
WK Editorial Staff

Consumer Product Safety Commission actions, with links to source documents, are open for public comment until the dates indicated. As detailed in previous Products Liability Law Daily stories, the following Consumer Product Safety Commission actions ...

NHTSA NEWS—COMMENT CALENDAR—NHTSA actions open for public comment
August 11, 2022
WK Editorial Staff

National Highway Traffic Safety Administration actions, with links to source documents, are open for public comment until the dates indicated. As detailed in previous Products Liability Law Daily stories, the following National Highway Traffic Safety...

NHTSA NEWS—MOTOR VEHICLES—ODI opens preliminary investigation to evaluate rear-view camera malfunction in Cadillac XT5, XT6 and GMC Acadia vehicles
August 11, 2022
WK Editorial Staff

Over 190K vehicles are at issue in the agency’s inquiry. The National Highway Traffic Safety Administration’s (NHTSA) Office of Defects Investigation (ODI) has opened a preliminary evaluation (PE) of complaints ODI has received concerning an estimate...

Products Liability & Insurance

DESIGN AND MANUFACTURING DEFECTS—HOUSEHOLD PRODUCTS—5th Cir.: Texas’ ‘tolerated and ubiquitous’ manufacturing defect standard keeps lawsuit against Bodum in play

A federal appellate court reversed a lower court’s summary judgment ruling favoring the manufacturer of a French press coffee maker in a manufacturing defect case stemming from a child’s burn injuries. A couple whose young child sustained disfiguring...

DESIGN AND MANUFACTURING DEFECTS—HOUSEHOLD PRODUCTS—5th Cir.: Texas’ ‘tolerated and ubiquitous’ manufacturing defect standard keeps lawsuit against Bodum in play
Law Firms Mentioned:Butler Snow LLP | Cavanagh Law Firm P.A. | De Luca Levine LLC | Fain, Major & Brennan, P.C. | Showard Law Firm P.C. | Thompson Coburn, LLP | Wallace Miller | Watts Guerra, LLP
Organizations Mentioned:AmGUARD Insurance Co. | Bodum U.S.A., Inc. | Ethicon Inc. | Johnson & Johnson | KZRV, L.P. | Sealed Unit Parts Co., Inc. | Volkswagen Group of America, Inc. [#1, #2]
EXPERT EVIDENCE—MEDICAL DEVICES—D. Ariz.: Expert’s informed consent opinion not relevant to mesh device suit
August 10, 2022
Jeffrey H. Brochin, J.D.

However, under Arizona law, the expert’s testimony relating to the adequacy of the device’s IFU were relevant to a design defect claim under a risk-benefit analysis. A federal district court in Arizona has granted in part and denied in part the motio...

SUPPLY CHAIN LIABILITY ISSUES—INDUSTRIAL AND COMMERCIAL EQUIPMENT—N.D. Ga.: Failure to warn, negligent misrepresentation claims proceed against seller of exhaust fan in hotel fire case
August 10, 2022
Sara Cracau, J.D.

After reconsidering its previous decision, the court found that there were questions of material fact as to whether the seller exercised reasonable care in marketing the fan as an exact replacement for another model. A federal district court in Georg...

NOTICES—MOTOR VEHICLES—NHTSA seeks comments on information collection relating to motor vehicle importation
August 10, 2022
WK Editorial Staff

The collection ensures that motor vehicles and items of equipment subject to federal safety, bumper, and theft prevention standards are lawfully imported into the U.S. The National Highway Traffic Safety Administration (NHTSA) is requesting public co...

NHTSA NEWS—MOTOR VEHICLES—Faulty front passenger air bags prompt recall of Volkswagen vehicles
August 10, 2022
Joe Cox, J.D.

Dealers will replace the front passenger air bag module. Volkswagen Group of America, Inc. (Volkswagen) is recalling about 1,216 2016 Audi TT Roadster, TT Coupe, S3 Sedan, R8 Coupe, A3 Sedan, A3 Etron, A3 Cabriolet, 2016 Golf Sportswagen, Golf R, Gol...

NHTSA NEWS—MOTOR VEHICLES—KZRV recalls travel trailers over risk of awning fabric detachment
August 10, 2022
Susan Engstrom

Dealers will replace the awnings as needed. KZRV, L.P. is recalling around 4,449 2022-2023 Connect, Confluence, Durango, Durango Gold, Sonic, Sportsmen, Sportsmen Classic, Sportsmen Sportster, SportTrek, Spree Escape, and Venom travel trailers becaus...

NHTSA NEWS—MOTOR VEHICLES—Volkswagen recalls vehicles due to sunroof control problem
August 10, 2022
Joe Cox, J.D.

Dealers will replace the roof module switch. Volkswagen Group of America, Inc. (Volkswagen) is recalling approximately 2,238 2022 Golf R A8 and Golf GTI vehicles because the touch switch for the sunroof may be too sensitive, allowing it to be inadver...

CPSC NEWS—COMMENT CALENDAR—CPSC actions open for public comment
August 10, 2022
WK Editorial Staff

Consumer Product Safety Commission actions, with links to source documents, are open for public comment until the dates indicated. As detailed in previous Products Liability Law Daily stories, the following Consumer Product Safety Commission actions ...

NHTSA NEWS—COMMENT CALENDAR—NHTSA actions open for public comment
August 10, 2022
WK Editorial Staff

National Highway Traffic Safety Administration actions, with links to source documents, are open for public comment until the dates indicated. As detailed in previous Products Liability Law Daily stories, the following National Highway Traffic Safety...

Products Liability & Insurance

EVIDENTIARY ISSUES—DRUGS—N.D. Ill.: Patient denied new trial in testosterone replacement therapy multi-district litigation

The admission into evidence of a warning label of a different drug the patient was taking was not manifest error. A federal district court in Illinois denied a new trial to a patient who claimed that a testosterone replacement therapy drug he had bee...

EVIDENTIARY ISSUES—DRUGS—N.D. Ill.: Patient denied new trial in testosterone replacement therapy multi-district litigation
Law Firms Mentioned:Arnold & Porter Kaye Scholer LLP | Chapman Law Group | Foley & Lardner | Gallagher & Kennedy PA | Goldman Ismail Tomaselli Brennan & Baum LLP | Jones Skelton & Hochuli PLC | McVey & Parsky LLC | Morelli Alters Ratner LLP | Reed Smith LLP | Schachter Hendy & Johnson PSC | Ulmer & Berne LLP | Wicker, Smith, O'Hara, McCoy & Ford, PA
Organizations Mentioned:Abbott Laboratories, Inc. | Actavis Laboratories UT, Inc. f/k/a Watson Laboratories, Inc. | Actavis Pharma, Inc. | Actavis, Inc. | Cummins, Inc. | Eli Lilly and Co. | Endo Pharmaceuticals, Inc. | Home Depot U.S.A. Inc. | Infuserve America, Inc. | Kia America, Inc. | Lilly USA, Inc. | Navistar, Inc.
EXPERT EVIDENCE—TOOLS AND HARDWARE—D. Ariz.: Home Depot largely denied exclusion of expert opinions in ladder death case
August 9, 2022
Pankhuri Bhatnagar, B.A. LL.B.

Expert opinions against the seller of an allegedly dangerous ladder were found to be reliable because they were based on relevant expertise, data, a detailed inspection of the subject incident, and generally accepted methods for hazard evaluation. In...

PLEADINGS—DRUGS—M.D. Fla.: Unfair trade practice claim against drug maker Infuserve can move forward
August 9, 2022
Wendy Biddle, J.D.

The patient failed to meet pleading requirements on breach of warranty and negligent misrepresentation claims. A patient who alleged that a drug manufacturer made negligent misrepresentations about its drug for Lyme disease treatment, failed to adequ...

NOTICES—SEMIANNUAL REGULATORY AGENDA—CPSC issues second semiannual regulatory agenda of 2022
August 9, 2022
Susan Lasser, J.D.

The agenda includes regulatory actions relating to portable generators, table saws, furniture tip-overs relating to clothing storage units, magnets, and recreational off-road vehicles. The Consumer Product Safety Commission (CPSC) has published its s...

NHTSA NEWS—MOTOR VEHICLE EQUIPMENT—Cummins recalls diesel engines over stall risk
August 9, 2022
Susan Engstrom

The remedy is under development. Cummins, Inc. is recalling about 12,196 X15, X12, L9, and B6.7 diesel engines because the engine control module (ECM) may experience an internal electrical short circuit, causing the engine to stall. An unexpected eng...

NHTSA NEWS—MOTOR VEHICLES—Incorrectly grounded battery cables prompt recall of Navistar vehicles
August 9, 2022
Susan Engstrom

Dealers will replace the alternator positive and ground cables and relocate the alternator ground to the starter. Navistar, Inc. is recalling approximately 8,483 2018-2021 International LoneStar and 2016-2021 International LT vehicles because the cab...

NHTSA NEWS—MOTOR VEHICLES—Kia recalls nearly 258K Optima vehicles due to risk of headliner plate detachment
August 9, 2022
Susan Engstrom

A detached plate could strike and injure an occupant in the event of a crash. Kia America, Inc. (Kia) is recalling around 257,998 2012-2013 Optima vehicles because the right and left headliner plates may not be secured properly, which can result in t...

CPSC NEWS—COMMENT CALENDAR—CPSC actions open for public comment
August 9, 2022
WK Editorial Staff

Consumer Product Safety Commission actions, with links to source documents, are open for public comment until the dates indicated. As detailed in previous Products Liability Law Daily stories, the following Consumer Product Safety Commission actions ...

CPSC NEWS—MEETING NOTICE—CPSC roundtable to discuss Freedom of Information Act
August 9, 2022
WK Editorial Staff

Agency staff invites interested parties to attend and participate in the forum in person or via webinar. The Consumer Product Safety Commission (CPSC) will hold a roundtable discussion for CPSC requesters and Freedom of Information Act (FOIA) Office ...

NHTSA NEWS—COMMENT CALENDAR—NHTSA actions open for public comment
August 9, 2022
WK Editorial Staff

National Highway Traffic Safety Administration actions, with links to source documents, are open for public comment until the dates indicated. As detailed in previous Products Liability Law Daily stories, the following National Highway Traffic Safety...

Products Liability & Insurance

SUPPLY CHAIN LIABILITY ISSUES—HOUSEHOLD PRODUCTS—D. Del.: DuPont granted summary judgment on negligent manufacture claim in dryer fire case

A seller failed to raise a triable question of fact as to whether DuPont was liable for the seller’s dryers catching fire because the seller lacked evidence to support that DuPont either manufactured an allegedly defective dryer component or controll...

SUPPLY CHAIN LIABILITY ISSUES—HOUSEHOLD PRODUCTS—D. Del.: DuPont granted summary judgment on negligent manufacture claim in dryer fire case
Law Firms Mentioned:Abrams & Bayliss LLP | Halperin, Halperin & Weiskopf, PLLC | Law Offices of Aaron A. Karger, P.A. | Law Offices of Robert A. Stutman, PC | McConnell, Wagner, Sykes & Stacey PLLC | Nilan Johnson Lewis P.A. | Potter Anderson & Corroon, LLP | Rumberger, Kirk & Caldwell, P.A. | Stutman Law
Organizations Mentioned:Arcelik, A.S. | E.I. DuPont de Nemours and Co. | Forest River, Inc. | Future Motion, Inc. | Jaguar Land Rover North America, LLC | LSP Products Group, Inc. | PACCAR Inc. | Safeco Insurance Co. of Illinois
DAMAGES—HOUSEHOLD PRODUCTS—D. Idaho: Insurer’s tort claims against plumbing product maker barred by economic loss rule in house flooding case
August 8, 2022
Pankhuri Bhatnagar, B.A. LL.B.

The economic loss rule applied to the flooded house, the damaged items within it, and lost rental income, thus prohibiting recovery against the manufacturer. In a subrogation action against the manufacturer of a toilet plumbing product that allegedly...

EVIDENTIARY ISSUES—SPORTS AND RECREATIONAL EQUIPMENT—S.D. Fla.: Electric skateboard maker obtains partial protective order for source code
August 8, 2022
Sara Cracau, J.D.

An injured user was entitled to disclosure of the source code only for the model of the one-wheel electric skateboard involved in his injury, subject to inspection protocols to prevent inadvertent disclosure. A federal district court in Florida grant...

NOTICES—BABY PRODUCTS—CPSC seeks comment on revised voluntary standard for gates and enclosures
August 8, 2022
Susan Lasser, J.D.

The agency is considering whether the revision improves the safety of the infant products. The Consumer Product Safety Commission (CPSC) has announced the availability of a revision to the voluntary ASTM standard for gates and enclosures. CPSC’s mand...

NHTSA NEWS—MOTOR VEHICLES—Forest River recalls over 49K travel trailers for possible detachment of awning fabric
August 8, 2022
Susan Engstrom

The recall supersedes and expands a previous recall relating to the same defect. Forest River, Inc. is recalling about 49,295 2022-2023 Coachmen Catalina, Cross Trail, Pursuit, Sportscoach, East to West Della Terra, Silver Lake, Forest River Forester...

NHTSA NEWS—MOTOR VEHICLES—Jaguar recalls vehicles with malfunctioning tail lights
August 8, 2022
Kendall Heebink

The faulty rear turn signals will be replaced as necessary by dealers. Jaguar Land Rover North America, LLC (Jaguar) is recalling approximately 5,297 2021-2022 Jaguar F-PACE vehicles because the incorrect tail lights may have been installed, resultin...

NHTSA NEWS—MOTOR VEHICLES—PACCAR recalls over 47K vehicles due to incorrectly assembled steering gear
August 8, 2022
Susan Engstrom

Dealers will replace the steering gears as needed. PACCAR Incorporated is recalling around 47,513 2022-2023 Kenworth T170, T270, T280, T370, T380, T440, T470, T480, T680, T800, T880, W900, W990, C500, and 2022-2023 Peterbilt 325, 330, 337, 348, 365, ...

CPSC NEWS—COMMENT CALENDAR—CPSC actions open for public comment
August 8, 2022
WK Editorial Staff

Consumer Product Safety Commission actions, with links to source documents, are open for public comment until the dates indicated. As detailed in previous Products Liability Law Daily stories, the following Consumer Product Safety Commission actions ...

CPSC NEWS—MEETING NOTICE—CPSC meeting to address 2023-2026 draft strategic plan
August 8, 2022
WK Editorial Staff

The meeting will be open to the public. The Consumer Product Safety Commission (CPSC) will meet on Wednesday, August 10, 2022, at 10:00 a.m. to address a decisional matter regarding CPSC’s Draft Strategic Plan 2023-2026. The meeting will be held remo...

CPSC NEWS—MEETING NOTICE—CPSC to hold workshop on ‘beta pilot test’ of compliance data eFiling
August 8, 2022
WK Editorial Staff

Attendance may be virtual or in-person. The Consumer Product Safety Commission (CPSC) will hold a workshop on October 13, 2022, from 9 a.m. to 4 p.m. Eastern Time, to discuss the upcoming test (Beta Pilot Test) of electronic filing (eFiling) of certi...

NHTSA NEWS—COMMENT CALENDAR—NHTSA actions open for public comment
August 8, 2022
WK Editorial Staff

National Highway Traffic Safety Administration actions, with links to source documents, are open for public comment until the dates indicated. As detailed in previous Products Liability Law Daily stories, the following National Highway Traffic Safety...