Product Safety & Liability Reporter: Current Reports Index-Summary

PACIFIERS

– Baby Town model, Shims Bargain recalls, choking hazard, 70
– It's My Binky recalls, choking hazard, 721
– Third-party lab testing of cribs and pacifiers, CPSC sets accreditation policy, 1059

PACKAGING

See LABELING
– Bisphenol-a

See BISPHENOL-A (BPA)

PAIN RELIEF PRODUCTS

– Heat therapy pads, express warnings protect maker (5th Cir.), 188
– Pain relief bracelets, restitution award upheld against marketers (7th Cir.), 33
– Pumps, degeneration of shoulder cartilage

– – Continued use, Kan. woman alleges use not design unsafe (D. Minn.), 877
– – Drug companies also sued (D. Ore., D. Minn.), 338
– – Makers marketed use of device as safe (D. Minn., S.D. Ind.), 338; oral arguments set on centralization (J.P.M.L.), 623; Ariz. woman files suit (D. Ariz.), 625; transfer and centralization denied (J.P.M.L.), 804

PAINTS AND COATINGS

– Lead paint

See LEAD PAINT

PANAMA

– Radiation therapy devices, case dismissed for lack of personal jurisdiction over maker (5th Cir.), 371

PAPER INDUSTRY

– Sketchbooks with colored spirals, eeBoo Corp. recalls, lead hazard, 174

PARAQUAT

– Causation, jury rejects claims caused highway worker's death (Cal. Super. Ct.), 370

PARLODEL

– Seizure-related death, compensatory award affirmed, causation proof properly admitted (Ky.), 491

PAXIL

– Deceptive advertisement, drug maker unable to block certification (Cal. Ct. App.), 923
– Generic, FDA dismissal of stronger warning preempts claims (3d Cir.), 364; petitioners ask for full court rehearing, 443; en banc rehearing denied, 469; (U.S., rev sought), 986
– Ill. court adopts Colacicco decision, claim of inadequate warning of self-harm preempted (C.D. Ill.), 468
– Ind. suicide case to proceed on the merits, preemption ruling vacated (S.D. Ind.), 708
– Mich. drug maker protections, federal law preempts fraud exemption (W.D. Mich.), 262
– Pennsylvania

– – Mass Tort Program, no implied preemption in case linking suicide to drug (Pa. Ct. C.P.), 280
– – Pediatric warning claim not barred when FDA not stated position on link (E.D. Pa.), 842

– Teenager's suicide, warning claim barred (E.D. Cal.), 137
– Time-barred, fraudulent concealment argument rejected (D. Kan.), 236
– Wis. couple asks for stay pending Supreme Court preemption decision (E.D. Wis.), 735
– Wrongful death

– – Causation, family seeks reversal of defense judgment (D. Kan.), 111
– – Learned intermediary doctrine and estoppel defeat suit (E.D. La.), 235

PEDESTRIAN SAFETY

– Global harmonization system, NHTSA seeks comments, 937
– Quiet-car and blind pedestrian safety, NHTSA meeting set, 559

PENALTIES

– China food safety law, draft published, 426; national congress reviews latest draft, 1064
– CPSC

– – CPSIA, Analysis and Perspective, 1068
– – Modernization Act

See LEGISLATION, FEDERAL, HR 4040

– – Reform Act

See LEGISLATION, FEDERAL, S 2045, S 2663

– Lead, heart-shaped charms, Reebok agrees to penalty for hazardous substance violation, 294
– Pesticides, 99 Cents Only Stores in Cal. face FIFRA fines, 968
– Reporting failures

– – Pressure cookers, Home Shopping Network agrees to fine, 15
– – Trampolines, Stamina agrees to penalties, 94
– – Tree stands, Ardisam agrees to penalties, 94
– – Vornado heater trust agrees to pay civil fine, 148

PENNSYLVANIA

– Asbestos in brake linings, frequency and regularity exposure tests adopted (Pa.), 58
– Cell phone radio-frequency emissions, FCC actions preempt class action suit (E.D. Pa.), 871
– Elidel, parents of toddler unable to prove drug caused lymphoma (E.D. Pa.), 685
– Fosamax, certification denied for three state medical monitoring classes (S.D.N.Y.), 63
– Hedge clippers not faulty, worker negligent (E.D. Pa.), 734
– Hormone replacement therapy as cause of breast cancer, N.J. woman to appeal statute of limitations and causation decisions (Pa. Ct. C.P.), 61
– Neurontin, off-label use, branded makers may be liable for generic product use (Pa. Ct. C.P.), 331
– Paxil

– – Mass Tort Program, no implied preemption in case linking suicide to drug (Pa. Ct. C.P.), 280
– – Pediatric warning claim not barred when FDA not stated position on link (E.D. Pa.), 842

– Pondimin

– – Medical malpractice claim timely (E.D. Pa.), 825
– – Wrongful death claim rejected (Pa. C.P.), 1023

– Pop tart buildup alleged cause of toaster fire, expert may use tests (W.D. Pa.), 848
– Skid loaders, “intended use” definition and evidence issues do not compel new trial (M.D. Pa.), 599
– Vaccine preservative, neurological damage claims preempted (Pa. Ct. Comm. Pls.), 892

PERFLUOROOCTANOIC ACID (C-8)

– Food packaging, Cal. rejects ban, 809
– Norway, ban on use in consumer goods proposed, 720

PERGOLIDE

– Heart disease alleged, risks understated (D. Minn.), 736

PERJURY

– Motorcycles, perjury at deposition and witness tampering voids settlement agreement (E.D. Tenn.), 601

PESTICIDES

– Agent Orange, U.S. veterans and Vietnamese cannot seek damages (3d Cir.), 207
– Benlate, recovery in fraudulent inducement to settle case blocked (U.S., rev den), 415
– 99 Cents Only Stores in Cal. face FIFRA fines, 968
– Outlook, claims allowed for ruined sweet potato crop (W.D. La.), 520
– Paraquat, jury rejects claims caused highway worker's death (Cal. Super. Ct.), 370

PET FOOD

– Aflatoxin mold, Diamond settles class action (E.D. Tenn.), 36
– FDA Amendments Act includes pet food labels and warning systems, CRS report outlines, 69
– Menu Foods contamination

– – Haw. settlement granted preliminary approval (Haw. Cir. Ct.), 546
– – MDL, settlement announced (D. N.J.), 369; preliminary approval granted, 546

PETITIONS

– Air brake compressor warning system, NHTSA denies petition, 274
– Automotive lighting standard, NHTSA postpones compliance, 831
– Drugs, FDA sets new limits, 315
– Electric vehicles

– – Medium speed class, request to create denied, 1034
– – Weight allowance, NHTSA denies request to increase to allow low-speed trucks, 972

– Event data recorders, NHTSA revision delays compliance date, safety group expresses concern, 71
– Motorcycles, third-gear assembly, NHTSA denies requests seeking repair remedies, 127
– Platform lifts, lighting and threshold warning signs, requirements proposed, 15
– Power windows, pull-to-close design rule, NHTSA grants two-year extension, 669
– Side impact

– – Male crash dummies, NHTSA revises, 606
– – Protection, NHTSA final rule extends lead time, specifies phase-in, and speed for pole test, 585

– TREAD Act early-warning reporting

– – Deadline set, 742
– – NHTSA denies petitions to reverse FOIA exemption of confidential data, 475; deadline set for requests for confidential treatment, 722; data released online, 882
– – Rubber Mfr. Assoc. suit, data not exempt from disclosure (D.C. Cir.), 721

– Truck rearview rule, NHTSA withdraws to focus on more comprehensive effort, 723

PETROLEUM INDUSTRY

– Gasoline contamination class action, attorney fee allocation criticized (5th Cir.), 140

PFOA

See PERFLUOROOCTANOIC ACID (C-8)

PHARMACEUTICALS

See DRUGS; specific products

PHENERGAN

– Warning claim not barred, government says case wrongly decided but review not warranted (U.S., brief filed), 5; (briefs filed), 29; (rev grant), 82; Wyeth files brief, 544; government files brief, 577; brief claims Congress never meant to bar state claims, 751; medical journal editors file amicus brief against preemption, 801; Wyeth files reply brief, 926; (oral arg set), 959

PHENYLPROPANOLAMINE (PPA)

– Deceased man's statements to children can't link drug to stroke (N.D. Ill.), 108
– Distributor not “seller” entitled to immunity (N.J. Super. Ct.), 597

PHTHALATES

– Bans, legislative efforts, 553; state legislators urge key members of Congress to restrict phthalate use, 553; CPSC Act includes ban, 739; advisory panel to look at cumulative exposures, 880
– Child Safety Task Force asks CPSC to assess plasticizing chemicals and asks for interim DINP limit, 552
– Minn. to ban above low concentrations in children's products, 425
– Nanotechnology, PEN reports CPSC ill-equipped to deal with products, 808; project recommendations, 809
– Shower curtains, advocacy group says smell toxic, 584
– Substitutes, toxicity uncertain, CPSC chemist cautions, 582
– Toys, Wash. governor signs bill setting standards, 342

PICKUP TRUCKS

– Defect investigations, NHTSA, 744; 1035
– IIHS side-impact tests, small vehicles earn “dismal” ratings, 723
– Jury instructions, new definitions in Tex. on “manufacturing defect” and “producing cause” (Tex.), 31

PLATFORM LIFTS

– Lighting and threshold warning signs, requirements proposed, 15

PLAYGROUND EQUIPMENT

– CPSC announces updated handbook, 426
– Gliders, Backyard Play Sys. recalls, fall hazard, 992
– Swing sets, Playground Sys. recalls, fall hazard, 475

PLUMBING EQUIPMENT

– Sewer-clearing machine, evidence sufficient for electrical shock suit (Tex. App. Ct.), 64

POLICE

– Taser guns

– – Foreseeable dangers only create failure to warn liability (Ariz. Ct. App.), 58
– – Wrong-draw case rejected (9th Cir.), 490
– – Wrongful death

– – – Award upheld (N.D. Cal.), 575
– – – Causation, suit dismissed (D. Nev.), 925

POLYBROMINATED DIPHENYL ETHERS (PBDES)

– Cal., high levels of flame retardants found in blood and in household dust, 965
– Norway, ban on use in consumer goods proposed, 720

POLYVINYL CHLORIDE (PVC)

– Diaper bags, CEH threatens Prop. 65 suit due to lead, 319
– Shower curtains, advocacy group says smell toxic, 584

PONDIMIN

– Medical malpractice claim timely (E.D. Pa.), 825
– Pharmacy dispensed recalled drug, customer may assert negligence claims (Utah), 924
– Repose law bars claim before accrual (E.D. Tenn.), 311
– Wrongful death claim rejected (Pa. C.P.), 1023

POOLS

See SWIMMING POOLS AND SPAS

PORTABLE GENERATORS

– Floods in Midwest, CPSC warns of CO and other hazards, 320

POWER EQUIPMENT

See ELECTRICAL POWER AND EQUIPMENT

PREEMPTION

– Consumer Product Safety Act, cigarette lighters, child-resistance standards, federal law preempts design claim (Tex.), 413
– Consumer Product Safety Improvement Act (CPSIA), Analysis and Perspective, 1037
– FCC regulatory mandates, cell phone radio-frequency emissions, class action preempted (E.D. Pa.), 871
– FDA labeling requirements

– – Antidepressants, FDA dismissal of stronger warning preempts claims (3d Cir.), 364; petitioners ask for full court rehearing, 443; en banc rehearing denied, 469; (U.S., rev sought), 986
– – Democrats grill FDA official at hearing, 497; House Oversight Comm. seeks FDA documents showing stance on preemption, 667; FDA finalizes rule, 827
– – Effexor, widow to appeal whether suicide warning claim barred (W.D. Okla.), 82
– – Ibuprofen, challenge to OTC drug label preempted (N.D. Cal.), 596
– – Metoclopramide generic drug

– – – Cal., preemption rejected, suit reinstated (Cal. Ct. App.), 951; petition filed to reconsider no preemption decision, 1022
– – – Minn., warning claim preempted (D. Minn.), 621

– – Paxil linked to suicides

– – – Ill. court adopts Colacicco decision, claim of inadequate warning of self-harm preempted (C.D. Ill.), 468
– – – Ind. case to proceed on the merits, preemption ruling vacated (S.D. Ind.), 708
– – – Mich. teenage, fraud exemption to Mich. drug maker immunity preempted (W.D. Mich.), 262
– – – Pa. Mass Tort Program, no implied preemption in labeling claim (Pa. Ct. C.P.), 280
– – – Pediatric warning claim not barred when FDA not stated position on link (E.D. Pa.), 842
– – – Wis. couple asks for stay pending Supreme Court decision (E.D. Wis.), 735

– – Phenergan, IV push administration, warning claim not barred (U.S., brief filed), 5; (briefs filed), 29; (rev grant), 82; Wyeth files brief, 544; government files brief, 577; brief claims Congress never meant to bar state claims, 751; medical journal editors file amicus brief against preemption, 801; Wyeth files reply brief, 926; (oral arg set), 959
– – Rezulin, whether suit preempted due to Mich. drug maker immunity law exception (U.S., brief filed), 84; (oral arg), 202; (judg aff), 234
– – Vioxx, compensatory award upheld (N.J. Super. Ct.), 542; review granted (N.J.), 1022

– Federal Cigarette Labeling and Advertising Act, light cigarette marketing

– – Me. deceptive practice claims (U.S., rev grant), 90; (oral arg set), 959; (oral arg), 983
– – Minn., fraud claims not preempted (Minn. Ct. App.), 12

– Federal Hazardous Substances Act, fireworks cause eye injury, preemption defense disallowed when plead too late (8th Cir.), 714
– Food, Drug, and Cosmetic Act

– – Aredia and Zometa MDL, Mich. plaintiffs' claims dismissed due to immunity law and preemption (M.D. Tenn.), 372; Tex. plaintiffs' claims dismissed (M.D. Tex.), 731
– – Lotensin, claim that drug needed pregnancy hazard warning preempted (W.D.N.C.), 332
– – NovaSure device, negligence claim against representative of device maker not preempted (W.D. Va.), 687
– – Paxil as cause of teenager's suicide, warning claim barred (E.D. Cal.), 137
– – Salmon-colored farmed salmon, FDCA does not preempt claims enforcing parallel state laws (Cal.), 162; claims allowed since color represents origin (Cal. Ct. App.), 546; (U.S., briefs filed), 644; Solicitor General asked for brief, 988
– – Tuna, whether FDA actions relating to methylmercury preempted warning claims (3d Cir.), 184; warnings case not preempted by informal FDA actions, 798

– Medical Device Amendments to Food, Drug, and Cosmetic Act

– – Adhesion barrier, court suggests ways of pleading around preemption ruling (N.D. Ill.), 777
– – AdvaMed panel discusses liability risks for devices, 929
– – Bone plates allegedly cause ligament damage, class certification sought (D.N.J.), 143
– – Cardiac catheters, FDA premarket approval triggers preemption (U.S., aff), 182; Leahy (D-Vt) says Supreme Court preemption rulings warping congressional intent, 602; AdvaMed panel discusses liability risks for devices, 929
– – Cochlear implants, adulterated, parallel requirements argument survives preemption claim (N.D. Tex.), 799
– – Defibrillators, Medtronic dismissal request denied when preemption unclear at this stage (N.D. Ill.), 900
– – Hearing devices, finding of no preemption reversed (Ark.), 392
– – Heart valves, state claim preemption upheld

– – – Baxter Healthcare (Cal. Ct. App.), 59
– – – St. Jude Medical (U.S., rev den), 207

– – Knee prostheses

– – – Alternative arguments rejected, suit preempted (N.D. Ill.), 776
– – – Mich. consumer law provides no remedy due to federal rules (E.D. Mich.), 1021

– – Maximo model 7278, preemption ruling controls defect case (D. Minn.), 800
– – Pain pumps, suit seeks to hold makers liable for degeneration of shoulder cartilage, maker responds (D. Minn.), 338; oral arguments set on centralization (J.P.M.L.), 623; transfer and centralization denied, 804
– – Perclose suturing device, defense judgment not precluded for non-preempted claim (Kan.), 626
– – State litigation preserved

See LEGISLATION, FEDERAL, HR 6381, S 3398

– – Targis System, negligent training claims preempted due to premarket approval (Ky. Cir. Ct.), 754
– – Testicular prosthesis, state suit preempted (Cal. Ct. App.), 85

– Motor vehicle rules

– – Booster seats, NHTSA defers use of 6-year-old dummy, final rule excludes preemption language, 761
– – Bus accident verdict thrown out, jury must decide settling parties fault (Tex. App. Ct.), 922
– – Designated seating position covers jump seats, NHTSA includes preemption provision, 993
– – Electronic stability control systems, NHTSA responds to petitions, revises rule, leaves preamble unchanged, 935
– – Glass safety standards do not preempt state rollover claims (Ark.), 163
– – Roof strength resistance standard, Senate blasts rule requirements and preemption language at hearing, 556
– – School buses, seat belt requirement included in new safety rule, public interest group raises question about preemption clauses, 1033
– – VW Beetle rollover, families allege defects in occupant protection and other systems, NHTSA final rule may preempt some claims (E.D. Tex.), 1025

– National Childhood Vaccine Injury Compensation Act, thimerosal as cause of neurological damage

– – No preemption due to conditional nature of clause (Ga.), 982
– – Preempted (Pa. Ct. Comm. Pls.), 892

– New Drug Applications prior to MDA, Teflon surgical paste approved prior to MDA, state warning claims preempted (W.D. La.), 106
– OSHA, benzene exposure suit dismissed due to lack of evidence (Minn. Dist. Ct.), 112
– Pool and Spa Safety Act, drain covers CPSC staff releases interpretation, 605
– Supreme Court rulings warping congressional intent, Leahy (D-Vt) says, 602

PRESCRIPTION DRUGS

See DRUGS; specific products

PRIVACY

– TREAD Act early-warning reporting

PRIVILEGED COMMUNICATIONS

– Attorneys

– – Insurance coverage dispute, lawyer disqualified due to knowledge of ex-client's approach in similar lawsuits (S.D. Ohio), 898
– – Work product, crash-test documents, sanction for refusal to produce and award approved (Ga.), 329

– Journalists, request denied for peer-review article documents about Bextra and Celebrex (N.D. Ill.), 313; another court denies request for documents (D. Mass.), 369

PROSTHESES

– Hip replacements

– – Circumstantial evidence of multiple failure no proof of defect (W.D. Okla.), 602
– – Device maker named as defendant in suit removed to federal court, improper physician contacts also alleged (W.D. Okla.), 1027
– – Lack of evidence of deviation from standards and specifications dooms defect claim (W.D. La.), 824
– – Noisy implants, suit fails to state cause of action (D.N.J.), 90

– Knee implants, oxidation experts qualified but methods unreliable (N.D. Ill.), 336
– Marketing, oral arguments set on centralization (J.P.M.L.), 623
– Testicular prosthesis, state suit preempted (Cal. Ct. App.), 85

PROVERA

– N.J. woman to appeal statute of limitations and causation decisions (Pa. Ct. C.P.), 61

PROZAC

– Learned intermediary doctrine, better warning would not alter prescription (N.D. Ga.), 261

PUBLIC NUISANCE DOCTRINE

– Firearms, N.Y. public nuisance suit against gun industry tossed (2d Cir.), 466
– Lead paint suits

See LEAD PAINT

PUBLICATIONS

– Ed. Note: For information on publications, reports, studies, and surveys, see specific subject headings.

PUERTO RICO

– Defibrillators, Sprint Fidelis leads MDL

See DEFIBRILLATORS

– Synthetic insulin allegedly caused cancer, learned intermediary principles bar suit (D.P.R.), 989

PUNITIVE DAMAGES

– Accutane as cause of inflammatory bowel disease, punitive damages disallowed (N.J. Super. Ct.), 439
– Beef E. coli infection, Ohio product liability suit filed against Kroger and Nebraska Beef (Ohio Ct. C.P.), 663
– Cochlear implants, device allegedly differs from FDA approved device, damages sought (D. Mass.), 338
– Harm to nonparties, Philip Morris

– – Cal. $25M award tossed (Cal.), 136; (rev den), 471
– – Ore., Marlboro cigarettes, large award reaffirmed (Ore.), 135; whether state supreme court may interpose state-law procedural bar (U.S., rev grant), 575; (oral arg set), 959

– Heart monitor faulty, jury awards $40M for injuries (Wash. Super. Ct.), 283
– HRT as cause of breast cancer

– – MDL, jury awards damages (E.D. Ark.), 260; punitive award vacated, 659
– – Nev., court refuses new trial, orders remittitur hearing on award (Nev. Dist. Ct.), 166; verdict reduced, 185
– – N.J. woman to appeal (Pa. Ct. C.P.), 61

– Lead paint public nuisance suits

– – Municipalities, various rulings, 640
– – R.I. suit, paint makers appeal verdict, argue cumulative nuisance unconstitutional (R.I.), 163; amicus brief filed, 165; Webcast of oral arguments offered, 470; suit rejected, claims fall outside public nuisance law, 640; Analysis and Perspective, 834

– Motor vehicles

– – Explorer rollover, award affirmed, says not for harm to third parties (Cal. Ct. App.), 258; whether due process violated (Cal., rev grant), 687
– – Offset collisions, DaimlerChrysler liability upheld but punitive award reduced (Tenn. Ct. App.), 1020
– – Rollover and roof collapse, Ford and family settle case after jury verdict set aside (N.D. Okla.), 517
– – Seat back collapse

– – – Ford to appeal (S.C. Cir. Ct.), 8
– – – Tenn., punitive award reinstated, not excessive (Tenn. Ct. App.), 710

– – U-Haul truck ran over man after brake failed, damages awarded (Tex. Cnty. Ct. at Law), 442

– N.J. courts limit remedies, Analysis and Perspective, 790
– Ortho Evra patch MDL, state caps on noneconomic and punitive damages withstand constitutional challenges (Ohio), 28
– Rhino off-road vehicle unstable, pair of suits filed (Cal. Super. Ct.), 781
– Tobacco industry, N.Y., punitive damages disallowed due to state's participation in settlement (N.Y. App. Div.), 711
– Vioxx

– – N.J. award vacated, consumer claims and attorneys' fees disallowed (N.J. Super. Ct.), 542; review granted (N.J.), 1022
– – Tex. award thrown out when preexisting condition not considered (Tex. Ct. App.), 490

– Welding fume MDL, $20M award affirmed due to adequate expert proof on causation (N.D. Ohio), 750

PVC

See POLYVINYL CHLORIDE (PVC)