Product Liability Monitor

May 10, 2017
New Developments
Discovery Sanctions Sanctioned
By Alan Hoffman

On April 18, 2017 the United States Supreme Court did something unusual: it decided a discovery issue. In Goodyear Tire & Rubber Co. v. Haeger (2017), it reversed a $2.7 million sanctions order for bad faith discovery misconduct. And in Sec. Nat’l Bank of Sioux City v. Day, 800 F.3d 936 (8th Cir., 2015), another recent high profile discovery case, the United States Court of Appeals for the Eighth Circuit reversed a sanctions order requiring a lawyer to write and produce a training film on deposition conduct as a punishment for “obstructive deposition practices.” Each of these decisions held that the sanctions exceeded the court’s inherent authority. [Continue Reading]

Tesla Autopilot Goes to Court
By Mark Pratzel

Tesla is facing its first U.S. product liability litigation challenging its Autopilot autonomous vehicle (AV) technology in a putative class action filed in Federal Court in San Jose, California. The three named plaintiffs are owners of Tesla Model S cars in Colorado, Florida, and New Jersey, who paid between $81,200 and $113,200 for their vehicles, including a $5,000 premium for Tesla’s “Enhanced Autopilot” 2.0 AV software. Each plaintiff claims that both the Autopilot “Standard Safety Features” and Enhanced Autopilot features were non-functional at delivery and remained so when suit was filed. The plaintiffs claim that Tesla sold 47,000 vehicles with “dangerously defective” software, at least half of which were supposed to have Enhanced Autopilot. They refer to it derisively as “vaporware,” which they define as “computer software that is advertised but still nonexistent.” [Continue Reading]

“Innocent Seller” Statutes: More Warnings, Less Protection
By Dan Jaffe

In Davis v. Dunham’s Athleisure Corp. (E.D. Mo., 2017), the U.S. District Court for the Eastern District of Missouri recently ruled that a firearms retailer was not entitled to the protection of Missouri’s “innocent seller” statute because it gave additional warnings and directions to the buyer beyond the manufacturer’s warnings. In Davis, the plaintiff bought a used rifle from the defendant retailer, Dunham’s Athleisure Corporation. The rifle was sold to Dunham’s by Century International Arms, Inc.  Plaintiff was injured when the rifle exploded. Dunham’s moved for dismissal under the Missouri “innocent seller” statute, §537.762.1, RSMo. [Continue Reading]

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Product Liability Practice

Manufacturers work hard to develop material goods and product designs that are high-quality, safe and durable. We understand your commitment to excellence and commit ourselves to defending you against product liability allegations. Husch Blackwell’s Product Liability team has insight into your industry-specific challenges. [More information]

Product Liability Monitor Archive
April 2017

The Supreme Court, in a 6-2 landmark decision issued January 25, 2016, in FERC v. Electric Power Supply Association, upheld FERC Order No. 745 and ruled that the Federal Energy Regulatory Commission (FERC) Electric Energyhas authority to establish demand response rules and rates in wholesale power markets. FERC’s rules call for payments to large energy users that reduce their electric usage during periods of high electricity demand.

The Court of Appeals for the District of Columbia Circuit had vacated Order No. 745, ruling among other things that FERC had overstepped its authority and directly interfered with the states’ exclusive right to regulate the retail electricity market.

Continue Reading The Supreme Court Upholds FERC’s Authority Over Demand Response Payments Bringing Smiles To Big Energy Users


If you are planning, like many of us, to ring in the new year in the usual, festive manner – while enjoying a few libations, you will likely want to consider first how you plan to get home from the shindig. If you are one of the seemingly few who actually do plan ahead for just such an occasion, you have a number of viable options for your return trip.  Folks in most major cities around the country now have Uber, the Scooter Guy, and the old fashioned Yellow Cab options, among others, to choose from when the fun is over and driving home isn’t an option.  If you are not one of those “planners,” now may be a good time to make an early New Year’s resolution to become one.

Continue Reading DUI Testing Rules