Product Liability Monitor

November 2, 2017
New Developments
Mr. Gorsuch Goes to Washington: Is Chevron Endangered?
By Tierra Jones

Since the Supreme Court’s 1984 holding in Chevron USA v. Natural Resources Defense Council (“Chevron”), courts have looked to federal administrative agencies in interpreting regulatory statutes. Under this doctrine, commonly referred to as “Chevron deference,” courts adopt the reasonable interpretation of the relevant federal agency when application of statutory provisions is uncertain and the agency’s interpretation is reasonable. The Supreme Court went further in National Cable & Telecommunications Ass’n, holding that when the Chevron test is satisfied, “an agency’s interpretation should prevail even when a court has adopted a contrary interpretation in the past.” [Continue Reading]

Artificial Intelligence: A New Frontier for Product Liability Claims?
By David Dean

Long considered the domain of science fiction, recent years have seen numerous applications of artificial intelligence begin to enter the mainstream. Apple’s Siri and Amazon’s Alexa have brought artificially intelligent personal assistants into our pockets and our living rooms. Google Translate applies machine learning to language translation, with near-human accuracy. IBM’s Watson is working with medical doctors in New York City to review patient records and recommend cancer treatment options. The first autonomous technology vehicles are already on the road. [Continue Reading]

Preparing for Depositions
By Alan Hoffman

Preparing witnesses for their depositions is an important task in discovery, and particularly so in product liability cases.  Product knowledge and expertise is often scattered, and sometimes reside in former employees. Loaded questions about “safety,” design choices, warnings and directions are often perplexing for witnesses. [Continue Reading]

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Technology, Manufacturing & Transportation
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
October 2017

Product Liability Monitor

October 11, 2017
New Developments
America’s Opioid Epidemic: Who Will Be Held Accountable?
By Ally Schwab

In recent years America has seen an increasing number of opioid-involved deaths and is currently experiencing what the Center for Disease Control (“CDC”) describes as an “opioid epidemic.” This crisis has been devastating to many communities and individuals, and States are feeling the effect, too. State, county and municipal governments have faced mounting costs in battling this crisis, and some are now taking the fight to the manufacturers and distributors of these drugs. [Continue Reading]

Robots are Becoming a Media Phenomenon—And a Legal Phenomenon, Too
By Eric Krauss

The American public cannot get enough of robots. From science fiction to scientific fact, robotic news and entertainment are part of our daily lives. This past year, at least two television series focused on robots set in the near future (“Westworld” on HBO and “Humans” on AMC) have captured viewers’ imagination, and last week the Blade Runner 2049 sequel opened at theaters nationwide. Indeed, the relationship between people and robotics has been a film subject at least since Fritz Lang’s silent film Metropolis in 1927.  Its continuing popularity reflects our love-hate relationship with automation. [Continue Reading]

Heed the Heeding Presumption
By Alan Hoffman

One of the legacies of the Restatement of Torts, Second, Section 402A published in 1965, is the so-called “heeding presumption.” Section 402A’s Comment j afforded product sellers a presumption that an adequate warning, when given, would be heeded to avoid the risk: “Where a warning is given, the seller may reasonably assume that it will be read and heeded.” However, courts soon began inverting Comment j to create a presumption favoring plaintiffs; i.e., that since they would have heeded an adequate warning, they need not show that the absence of an “adequate” warning caused their injury. Effectively, the heeding presumption shifts the burden to the seller to disprove causation. [Continue Reading]

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Technology, Manufacturing & Transportation
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
September 2017

Product Liability Monitor

September 8, 2017
New Developments
The SELF DRIVE Act Motors Through Congress
By Mark Pratzel

On September 6, 2017 the House of Representatives unanimously passed H.R. 3388, also known as the “Safely Ensuring Lives Future Deployment and Research in Vehicle Evolution Act,” also known as the “SELF DRIVE Act.” The broad, bipartisan support for this legislation seems to reflect a rare Congressional consensus favoring national standards for autonomous vehicle (AV) technology. [Continue Reading]

FAA Preemption: The Continuing Sikkelee Saga
By Alan Hoffman

Last April, in a case closely followed by the aviation industry, the Third Circuit reversed a District Court order granting summary judgment to Textron Lycoming in a fatal Cessna 172 accident case on the ground that the plaintiffs’ design defect claims were preempted by the Federal Aviation Act. The Third Circuit held that the District Court erred in applying field preemption to plaintiff’s tort design defect claims, and remanded the case for further proceedings. [Continue Reading]

Standing as a Defense in Class Action Products Cases
By Jonathan Schmalfeld

It is a basic legal principle that, for party to have standing to bring a case, that party must have suffered (or in some instances be under the immediate threat to suffer) some actual harm. This is commonly referred to as the injury-in-fact requirement. This requirement is particularly important in cases where class certification is sought. [Continue Reading]

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Technology, Manufacturing & Transportation
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
July 2017

 

Product Liability Monitor

July 14, 2017
New Developments
Rats! Eco-Friendly Soy-Based Insulation Could Spell Trouble Down the Road
By Sarah Rashid

A new “eco-friendly” biodegradable material used to insulate wiring in newer cars could make for trouble — and lawsuits — down the road for car manufacturers. This insulation is made from soybeans, making it more environmentally friendly and cheaper for car manufacturers. But it has a downside: it serves as an attractive, tasty treat for rats, mice, squirrel, rabbits, and other rodents. [Continue Reading]

The Benefits And Risks Of Autonomous Vehicles
By Leslie Gutierrez

On June 15, 2017, Texas Governor Greg Abbott signed a bill that will allow autonomous vehicles (AVs) to operate on the state’s roads. Texas is now one of 17 states (Alabama, Arkansas, California, Colorado, Florida, Georgia, Louisiana, Michigan, New York, Nevada, North Dakota, South Carolina, Tennessee, Utah, Virginia, Vermont, plus Washington D.C.) that have passed legislation related to AVs. Governors in Arizona, Massachusetts, Washington and Wisconsin have also issued executive orders related to AVs. Wisconsin Governor Scott Walker has formed a committee to determine AV best practices, and Washington Governor Jay Inslee formed a similar interagency work group. [Continue Reading]

Speak, Corporation!
By Alan Hoffman

Mitt Romney famously told a heckler during his Presidential campaign, “Corporations are people, my friend.” While corporations are not people, they and other organizations surely are legal persons capable of suing and being sued. But how to take the deposition of a corporation or organization which can only speak through employees or representatives? [Continue Reading]

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Technology, Manufacturing & Transportation
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
June 2017

Product Liability Monitor

June 9, 2017
New Developments
Lung Cancer Without Asbestosis? The Effects of Smoking
By Mark Zellmer

In the medical and scientific literature, a finding of asbestosis is clear evidence that asbestos at least contributed to cause a person’s lung cancer. Many medical experts regard a finding of asbestosis as essential to any finding that asbestos caused any lung cancer. Other experts look for sufficient exposure to cause asbestosis, even if not evident from radiology or pathology. Still others take a position contrary to both views. [Continue Reading]

Defend Trade Secrets Act: Protecting Product Manufacturers and Sellers’ Confidential Information
By Dan Jaffe

Manufacturers and sellers of products can use the Defend Trade Secrets Act (“DTSA”) to effectively protect their trade secrets. The DTSA was enacted on May 11, 2016, extending the Economic Espionage Act of 1996 (18 U.S.C. §§ 1831, et seq.). DTSA creates a federal civil cause of action for trade secret misappropriation whereby “[a]n owner of a trade secret that is misappropriated may bring a civil action . . . if the trade secret is related to a product or service used in or intended for use in, interstate or foreign commerce.” [Continue Reading]

Protective Orders in Product Cases
By Alan Hoffman

Discovery in product liability cases often involves inquiry into and disclosure of a firm’s confidential internal product information and documents not available to competitors or the public that it has a legitimate interest in protecting. Plaintiffs frequently serve broad brush stroke discovery in an effort to avoid in missing documents, information and witnesses that might prove relevant to prosecuting their claims. Defense counsel must act quickly and effectively to defend their clients’ valid interests, and seek to limit the scope of discovery as much as possible to avoid costly and burdensome discovery disruptive to their clients’ normal course of business. [Continue Reading]

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Technology, Manufacturing & Transportation
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
May 2017

 

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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Technology, Manufacturing & Transportation
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

Product Liability Monitor

April 10, 2017
New Developments
I Like It, But Do I Trust It? Drivers Weigh In on Autonomous Vehicle Technology
By Shannon Peters

The American Automobile Association (AAA) recently released the results of a survey of American drivers which yielded an interesting conclusion:  Americans want autonomous vehicle (AV) technologies in their next vehicle, but they are not sold on fully self-driving cars.The AAA survey indicates that 75 percent of Americans would be afraid to ride in a self-driving vehicle, and more than half would feel less safe sharing the roads with a self-driving car. Not surprisingly, younger generations are slightly less afraid of this developing technology than their older counterparts. [Continue Reading]

Walking the Lone Pine Trail
By Alan Hoffman

Lone Pine orders take their name from Lore v. Lone Pine Corp. They are most often entered in toxic tort litigation, requiring plaintiffs to provide some prima facie evidence to support causation or other claims based on expert opinion. Typically, such orders call for expert affidavits or other evidence supporting a claimed connection between the plaintiff’s condition and defendants’ products. [Continue Reading]

Due Process Limits on Personal Jurisdiction
By Dan Jaffe

In recent years the United States Supreme Court has strengthened the due process protections for defendants against suits in states with which they have no meaningful contacts. In J. McIntyre Machinery, Ltd. v. NiCastro, the plaintiff sued the British manufacturer of a metal-shearing machine in New Jersey, where he was injured. The defendant neither marketed nor sold its products in that State. It sold its machines nationwide through an independent U.S. distributor, but defendant’s representatives were never present in New Jersey. In any event, no more than four of its machines ended up in New Jersey. The Court held that exercise of judicial power over a defendant is unlawful unless the defendant purposefully avails itself of the privilege of conducting activities within the forum State. [Continue Reading]

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Technology, Manufacturing & Transportation
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
March 2017

 

Product Liability Monitor

March 9, 2017
New Developments
Missouri Products Law: Are The Times A-Changin’?
By Joe Guffey

Missouri, the home of Mark Twain and Harry S Truman, has in recent years become one of the most deeply red states politically. Yet it has also acquired a reputation as of one of the most plaintiff friendly forums nationally, thanks to its substantive law and to juries in the City of St. Louis (dubbed the Number 1 “Judicial Hellhole” by the defense-oriented American Tort Reform Association for 2017).

Some of that may be about to change following the 2016 election of Republican former Navy Seal Eric Greitens as Governor and heavy Republican majorities in the Missouri House and Senate. Several bills are now pending in the Legislature which could bring about significant changes in Missouri product liability law and practice. [Continue Reading]

Immunity for Autonomous Vehicle Manufacturers?
By Mark Pratzel

As autonomous automobile vehicle (AV) technology develops new legal issues and challenges continue to appear. An issue that has led to much debate is the potential impact of lawsuits, which some contend could hamper the growth of AV technology. [Continue Reading]

What is an Adequate Warning? Criteria and Application
By Dan Jaffe

Many courts have stated criteria for determining the adequacy of product safety warnings. The Tennessee Supreme Court established a particularly useful 5-part test in Pittman v Upjohn Co., 890 S.W.2d 425, 429 (Tenn. 1994).  As recently re-stated by the Court of Appeals for the Sixth Circuit [Continue Reading]

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Technology, Manufacturing & Transportation
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
February 2017

Product Liability Monitor

February 8, 2017
New Developments
Autonomous Vehicle Technology Regulation In the Trump Administration
By Eric B. Krauss

Last autumn President Obama revealed his administration’s plan for autonomous driving technology. The National Highway Traffic Safety Administration (“NHTSA”) published fifteen guidelines in September, 2016, that were almost widely lauded as striking the right balance between safety and technological progress.   Consumer, automotive and technology interests—with the notable exception of Apple—seemed pleased that the government espoused policies that did not overregulate and stifle innovation, yet provided enough potential federal oversight to prevent a state law quagmire. Transportation Secretary Anthony Foxx recognized that the emerging technology faced tremendous burdens, and federal guidelines would bring some uniformity to the fifty states’ differing regulations. Support for the Obama administration guidelines was near-universal and cost to the industry was minimal. [Continue Reading]

Defective and Dangerous Spacecraft
By Alan Hoffman

On January 27, 1967, the Apollo 1 spacecraft burst into flames during a ground test at Cape Canaveral. Three astronauts—Virgil “Gus” Grissom, Ed White, and Roger Chaffee—died in the conflagration.  The fire and the loss of the astronauts traumatized NASA, which had a six year record of spaceflight without loss of life. [Continue Reading]

Product Liability Defense: New Resources and the Changing Platform
By Dan Jaffe

At many law firms and companies information technology is the moving force changing and enhancing the resource platform supporting product liability defense efforts. These rapidly improving technologies can reduce costs while increasing the amount and quality of available information needed to support the liability defense of products. Automated systems allow lawyers’ tasks to be performed with greater efficiency. Law practice is similar in this respect to other service businesses in which information technology has had a profound impact on workplace organization as well as the type and amount of skilled labor needed to accomplish the enterprise’s goals and objectives. [Continue Reading]

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Technology, Manufacturing & Transportation
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
December 2016

Product Liability Monitor

December 13, 2016
New Developments
Auto Manufacturers Partner with Nauto to Improve Driverless Car Technology
By Shannon Peters

One of the main obstacles to the autonomous vehicle industry is “infrastructure,” but not in the sense typically associated with the term. Since autonomous vehicles come in all shapes, sizes, and powertrain types (gasoline, electric, and hybrid), and a wide range of degree of automation, the key infrastructure issue is not with the roads or the need for a worldwide network of guidance wires, rails, or charging stations, but ensuring the safe integration of autonomous vehicles into the world of human drivers.  Enter “Nauto.” [Continue Reading]

Confidentiality and the Public Interest
By Dan Jaffe

Public Justice, a public interest advocacy organization, recently posted over one million pages of Remington Arms Company internal documents on a publically available searchable online database. These documents concern the “Walker” trigger mechanism of the Remington Model 700 rifle, which has been the subject of more than 100 lawsuits, and is allegedly implicated in at least 24 deaths. [Continue Reading]

What is an Adequate Warning?
By Alan Hoffman

In Miasa Barron, et al. v. Abbott Laboratories, Inc., the Missouri Court of Appeals recently affirmed a verdict by a St. Louis jury awarding $15 million in compensatory damages and $23 million punitive damages for birth defects caused by the antiepileptic drug Depakote.  While there were other issues, the central liability question was whether Abbott adequately warned about the dangers of birth defects from using Depakote during pregnancy. [Continue Reading]

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Technology, Manufacturing & Transportation
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
November 2016