Product Safety & Liability Reporter: Current Reports Index-Summary

SAFE, ACCOUNTABLE, FLEXIBLE, AND EFFICIENT TRANSPORTATION EQUITY ACT (SAFETEA-LU)

– Budget FY2009, Bush request, 150
– NHTSA Outlook 2008, 74
– Roof strength

SALMONELLA

– Peanut butter contamination claims sufficiently stated (N.D. Ga.), 548; 2 classes denied due to individual issues and refund program, 732

SCHOOL BUSES

– Defect investigations, NHTSA, 530
– Fire, party had chance to be heard and defend expert, exclusion approved (Miss.), 419
– Navistar Inc.

– – IDM fuse holders, buses recalled, 763
– – Oil hose assemblies, buses recalled, 763

– Platform lifts, lighting and threshold warning signs, requirements proposed, 15
– Seat belt requirement included in new safety rule, public interest group raises question about preemption clauses, 1033
– Thomas Built, Daimler Trucks N. Am. recalls, power cables, 763
– Wheelchair lifts, defect investigations, NHTSA, 762

SCOOTERS

– Defect investigations, NHTSA, 321; 813

SEAT BELTS

– Booster seats, NHTSA proposes incorporation of test and seating policy, 98; comment period extended, 320; NHTSA defers use of 6-year-old dummy, final rule excludes preemption language, 761
– Buckle class action, plaintiffs lack standing (Tex.), 139
– Buses

– – Angel Tours N. Tex. crash, plaintiffs sue maker and driver (Tex. Dist. Ct.), 807
– – Safety enhancements

See LEGISLATION, FEDERAL, HR 4690, S 2326

– – Seat belts, verdict thrown out, jury must decide settling parties fault (Tex. App. Ct.), 922

– Designated seating position covers jump seats, NHTSA includes preemption provision, 993
– Inflatable, study research presented at SAE meeting, 506; expert says research not new and unrepresentative of real world, 528
– Jaguar recalls XF sport cars, 858
– Lap belt locking requirement, NHTSA proposes retaining for child seat installation, 883
– Mitsubishi SUV rollover, maker to appeal award to parents of ejected man (Fla. Cir. Ct.), 259
– School buses, requirement included in new safety rule, public interest group raises question about preemption clauses, 1033
– Seller liability in breach of warranty suit (E.D. Mich.), 165
– Third-row retractors, Toyota recalls Highlanders, 478
– Use increased in 2007, NHTSA observational survey, 405
– VW Beetle rollover, families allege defects in occupant protection and other systems, NHTSA final rule may preempt some claims (E.D. Tex.), 1025
– Young people use, study shows lower at night, 529

SEATING SYSTEMS

– Collapse wrongful death cases

– – Ford to appeal (S.C. Cir. Ct.), 8
– – Jury instruction error, award thrown out (Ill.), 1052
– – Punitive award reinstated, not excessive (Tenn. Ct. App.), 710

– Defect investigations, NHTSA, 459
– Designated seating position covers jump seats, NHTSA includes preemption provision, 993
– Welds improper, Ford recalls F-Series trucks, seat-back strength risk, 248

SEROQUEL

– MDL

– – Disclosure of documents used to prep witness ordered (M.D. Fla.), 142
– – Doctors, plaintiffs appeal order allowing defense to contact and retain (M.D. Fla.), 416
– – Lessons learned, Analysis and Perspective, 49

SERVICE OF PROCESS

– Foreign corporations, 120-day limit does not apply but case dismissed for lack of personal jurisdiction (N.D. Ohio), 875
– Protecting Americans from Unsafe Foreign Products Act

See LEGISLATION, FEDERAL, HR 5913

SETTLEMENTS

– Air ambulance helicopter crash, parties settle for $18.4M (Neb. Dist. Ct.), 441
– Alcoholic energy drinks, attorneys general urge MillerCoors and Anheuser-Busch to discontinue drink lines, 895
– American Law Inst. meeting on principles of aggregate litigation, 523
– Asbestos

– – Navy welder awarded $21M, will only receive part due to settlement (Cal. Super. Ct.), 286
– – W.R. Grace announces proposal to settle all current and future litigation, also settles EPA claims (Bankr. D. Del.), 367

– Benlate, recovery in fraudulent inducement to settle case blocked (U.S., rev den), 415
– Bextra and Celebrex MDL, settlement announced (N.D. Cal.), 1053
– Breast implants, French defendant ordered to pay interest from date of breach of settlement (Cal. Ct. App.), 627
– Camcorders, Samsung announces settlement over blank screens (E.D. Mich.), 957
– Chicken raised without antibiotics claim, competitors obtain injunction (D. Md.), 662
– Class actions

– – Notice, Analysis and Perspective, 346
– – On-demand media use, Analysis and Perspective, 531

– Defibrillator MDLs

– – Guidant, settlement fund established (D. Minn.), 10; some attorneys oppose fee request, 170; attorneys' fees dispute resolved, 189; court adopts procedures for common fund attorneys' fees, 265; court explains decision, 288; reconsideration request denied, 337
– – Medtronic announces settlement (D. Minn.), 10; date set for common benefit attorneys' fees hearing, 627; remaining claims transferred, dismissal request denied when preemption unclear at this stage (N.D. Ill.), 900

– Engine coolant-related damages, GM agrees to settlements (Cal. Super. Ct, Mo. Cir. Ct.), 396
– Explorer rollover

– – Fraud, family may pursue claim (5th Cir.), 776
– – Protective order, documents may not be disclosed to other litigants (Mo.), 4

– Gasoline contamination class action, attorney fee allocation criticized (5th Cir.), 140
– Lead data call-in, EPA tells children's products makers to submit health and safety studies (N.D. Cal.), 122
– Lead paint, “Thomas & Friends” railway toys, Ill. consumer class settlement approved (Ill. Cir. Ct.), 86
– Macintosh adapters, fairness hearing set to consider settlement (N.D. Cal.), 522
– Motorcycles, perjury at deposition and witness tampering voids settlement agreement (E.D. Tenn.), 601
– Nightclub fire, foam companies agree to tentative settlements (D.R.I.), 642
– Pet food contamination

– – Aflatoxin mold, Diamond settles class action (E.D. Tenn.), 36
– – Melamine, Menu Foods

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

– Stove tipovers, Sears settles class action (Ill. Cir. Ct.), 183
– Stucco defective, full faith and credit governs case of plaintiff who didn't opt out of settlement (N.J.), 803
– Televisions, rear projection high-definition, Sony settlement approved to replace optical blocks (S.D.N.Y.), 495
– Tobacco industry, N.Y., punitive damages disallowed due to state's participation in settlement (N.Y. App. Div.), 711
– Tulane Law Review, multidistrict litigation conference, Analysis and Perspective, 302
– Vioxx

– – Heart attack and stroke MDL, Merck agrees to settle, panel discusses (E.D. La.), 26; Merck says enrollment threshold met, 237
– – Marketing, state probe leads to settlement, FDA to review ads, 518

– Wheel alignment class action notice, Analysis and Perspective, 346

SHOES

– Crocs sandals, Japan orders U.S. maker to modify design due to injuries, 428
– Girls sandals

– – Nordstrom recalls, choking hazard, 631
– – Rack Room Shoes recalls, choking hazard, 992

SIDE-IMPACT CRASH TESTS

See CRASHWORTHINESS

SIRENS

– Firefighters with hearing loss

– – Ill., unreasonably dangerous claim rejected (Ill. Cir. Ct.), 440
– – Mo. firefighters withdraw suits (Mo. Cir. Ct.), 549

SKID LOADERS

– Defect suit reinstated, expert improperly excluded (Ind. Ct. App.), 581
– “Intended use” definition and evidence issues do not compel new trial (M.D. Pa.), 599

SOUTH AFRICA

– Bumbo Baby Sitter, personal jurisdiction found over S. African maker (N.D . Cal.), 548

SOUTH CAROLINA

– Roof-truss system, exception extended to economic loss rule for risk of injury (S.C.), 896
– Seat collapse wrongful death case, Ford to appeal (S.C. Cir. Ct.), 8

SPAS

See SWIMMING POOLS AND SPAS

SPINAL DISCS

– DePuy Spine, parent company dismissed from defect suit (D. Nev.), 717
– ProDisc suit alleges maker failed to follow FDA approval process (S.D. Tex.), 263; improper venue dismissal argument rejected, 451; plaintiff allowed to take discovery related to clinical trials, 579; venture capital firm remains defendant, 691

SPOLIATION

– Boat steering cable break, no dismissal despite prejudice from spoliation (D. Colo.), 11
– Clothes dryer, award in fire death upheld (Tex. App. Ct.), 105
– Drilling equipment, case dismissed as spoliation sanction regardless of intent (Tenn. Ct. App.), 168
– Sutures, loss of allegedly defective suture does not count against plaintiff (Del. Super. Ct.), 239

SPORT UTILITY VEHICLES (SUVs)

– Clockstring and steering wheel hub, Land Rover recalls LR3 and Sport SUVs, 608
– Crashworthiness

See CRASHWORTHINESS

– Powertrain control module, Chrysler recalls Jeep Commander SUVs, 510
– Rollaway hazard, GM recalls SUVs, 1036
– Rollovers

See ROLLOVERS

SPORTS AND RECREATIONAL EQUIPMENT

– Baseball aluminum bat blamed for brain injury (N.J. Super. Ct.), 517
– Bowflex machines, Nautilus moves class action to federal court (Ark.), 113
– Child injuries and deaths, CPSC links, encourages use of safety equipment, 427
– Dune buggies, TJ Power Sports recalls, seat belts faulty, 475
– Folding soccer goals, Regent Sports recalls, entrapment or strangulation hazard, 904
– Golf cars, E-Z-GO recalls, fall and injury risk, 650
– Scuba regulators and adaptors, Aqua Lung recalls, drowning hazard, 882
– Snowboard bindings, Rossignol Ski recalls, fall hazard, 786
– Swimming pools and spas

See SWIMMING POOLS AND SPAS

– Synthetic turf, CPSC staff finds children not at risk of lead exposure, 741
– Trampolines, Stamina agrees to penalty for failure to report injuries, 94
– Tree stands, Ardisam agrees to penalties for failure to report injuries, 94

STANDARDS

See specific products

STANDING

– Bowflex machines, Nautilus moves class action to federal court (Ark.), 113
– HP printers, claims about low ink warnings allowed but national class certification denied (N.D. Cal.), 755
– Methamphetamine activity, cold medicine makers cannot be held liable (E.D. Ark.), 189
– Seat belt buckle class action, plaintiffs lack standing (Tex.), 139
– Tire pressure monitoring, Public Citizen lacks standing to challenge (D.C. Cir.), 125
– Tobacco industry, future physical harm not sufficient alone to constitute actionable injury (Or.), 441

STATE AND LOCAL GOVERNMENT

See also specific states
– Alcoholic energy drinks, attorneys general urge MillerCoors and Anheuser-Busch to discontinue drink lines, 895
– Bisphenol-A in baby bottles and formula containers, AGs urge companies to stop using, 1031
– Consumer Product Safety Improvement Act (CPSIA) deputizes State AGs, Analysis and Perspective, 1037
– Lead paint

See LEAD PAINT

– Motorcycle helmets, state laws strong predictor of use, NHTSA says, 811
– Pool and Spa Safety Act, comments sought on draft guidance for grant program, 854; CPSC revises technical inaccuracies, 904
– Vioxx marketing probe leads to settlement, FDA to review ads, 518

STATUTES OF LIMITATIONS

– Body wrap weight-loss treatment, woman's health claims not time-barred (E.D. Cal.), 1056
– Catheter dislodged, case dismissed for lack of personal jurisdiction, no new parties can be added (N.D. Ohio), 875
– Cautery machine, amended complaint naming true defendant relates back to original filing (N.D. Miss.), 450
– Combine catches fire, tort recovery denied for attached devices (D.N.D.), 953
– Contrast dye, gadolinium-based MDL, couple's suit remanded to Cal., drug distributor not fraudulently joined (N.D. Ohio), 877
– Defibrillators, widow's suit dismissed on timeliness grounds (N.D. Miss.), 471
– Dodge Neon oil leaks not warranty breach, fraud claims time-barred (9th Cir.), 645
– Ephedra suit remanded on question of medical knowledge (2d Cir.), 821
– Fishing boat, limitations period triggered when defect manifest (Alaska), 820
– Hernia patches, no bar to man's claims, on notice from FDA report (R.I. Super. Ct.), 519
– Hip prostheses, fact question on discovery of defect, dismissal of suit reversed (7th Cir.), 778
– Hormone replacement therapy as cause of breast cancer, N.J. woman to appeal (Pa. Ct. C.P.), 61
– IUD as cause of infertility, claims time-barred (9th Cir.), 663
– Knee prostheses, Mich. consumer law provides no remedy due to federal rules (E.D. Mich.), 1021
– Mercury exposure from broken blood pressure monitor, latent injury claim may proceed, proof of untimeliness unclear (S.D.N.Y.), 959
– Mesh patch, removal of claim approved where plaintiff didn't follow pleading rule, medical malpractice claims time-barred (C.D. Ill.), 1057
– Nursing home bed as cause of death, clock starts with “inquiry notice” of potential claim (Iowa), 334
– Paxil suit time-barred, fraudulent concealment argument rejected (D. Kan.), 236
– Pondimin and Redux claims against prescribing doctor timely (E.D. Pa.), 825
– Steering systems, nationwide class in DaimlerChrysler warranty breach suit upheld (Okla.), 658
– Tobacco industry, diagnosis starts clock ticking for later claims (N.D. Cal.), 576
– Toxic chemicals, date of last exposure rule overruled, suit time-barred (Ala.), 135
– Viagra, N.Y. not appropriate forum for plaintiffs prescribed drugs in Cal. and Ariz. (N.Y. Sup. Ct.), 186
– Vioxx heart attack and stroke MDL, Merck agrees to settle, panel discusses (E.D. La.), 26; Merck says enrollment threshold met, 237
– Windshield wipers, class action over alleged defect tossed (8th Cir.), 733

STATUTES OF REPOSE

– Airplane crash killed former Macedonian president, wrongful death suit blocked (9th Cir.), 469
– Asbestos exposure from boiler installation, choice-of-law review in Okla. construction worker's claim (Cal.), 545
– Child safety, foreign maker accountability, Analysis and Perspective, 219
– Diet drugs, claim barred before accrual (E.D. Tenn.), 311
– Ohio, tort reform law constitutional but doesn't apply to pre-effective date injury (Ohio), 234

STEERING SYSTEMS

– Bolts loose, Hino recalls trucks, 510
– DaimlerChrysler, nationwide class in warranty breach suit upheld (Okla.), 658
– Defect investigations, NHTSA, 152; 216; 296; 587; 696; 857; 907
– Power-steering

– – Fluid leak, GM recalls Saturn Vue, 939
– – Hoses, Mercedes-Benz recalls M-Class cars, 939

STEVENS-JOHNSON SYNDROME

– Anti-seizure drugs, pre-service removal allowed (N.D. W. Va.), 822
– Motrin allegedly caused blindness, Johnson & Johnson exonerated (Cal. Super. Ct.), 735

STOVES

– Gas ranges, Wolf Appliance recalls, burn hazard, 855
– Tipovers, Sears settles class action (Ill. Cir. Ct.), 183

STROLLERS

– Activity bars, Intl. Playthings recalls, choking hazard, 829
– Nursery product related injuries and deaths, CPSC releases report, 213

STUDIES

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

SUCCESSOR LIABILITY

– Hernia patches, no bar to man's claims (R.I. Super. Ct.), 519

SUICIDE

– Antiepileptic drugs, FDA warns of increased suicide risk, 172
– Cymbalta, warning claim rejected when doctor would have prescribed anyway (E.D. La.), 521
– Effexor

– – Learned intermediary and prescribing practices bar widow's claims (5th Cir.), 445
– – Widow to appeal whether suicide warning claim barred (W.D. Okla.), 82

– Generic bupropion, information sharing provision of order too broad (D.N.M.), 578
– Paxil

– – 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
– – Learned intermediary doctrine and estoppel defeat suit (E.D. La.), 235
– – Mich., fraud exemption to drug maker immunity preempted (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 suit, family seeks reversal of defense judgment (D. Kan.), 111

– Strattera, family sues ADHD drug maker for failure to warn of suicide risks (D. Neb.), 168
– Telephones, breach of implied warranty considered tort claim subject to proportionate responsibility limitations (Tex.), 643
– Zyprexa, learned intermediary doctrine bars widow's suit (S.D. Tex.), 186

SUNSCREENS

– Nanotechnology, study shows ingredients safe, 630

SUPREME COURT, U.S.

– Asbestos, whether federal maritime law rather than state law applied to shipyard worker's suit (rev sought), 14
– Benlate, recovery in fraudulent inducement to settle case blocked (rev den), 415
– Medical Device Amendments, preemption

– – Cardiac catheters (aff), 182; Leahy (D-Vt) says Supreme Court preemption rulings warping congressional intent, 602; AdvaMed panel discusses liability risks for devices, 929
– – Heart valves (rev den), 207

– New term includes preemption and punitive damages issues, 959
– Preemption rulings warping congressional intent, Leahy (D-Vt) says, 602
– Prescription drug labeling rule

– – Antidepressant as cause of suicide, FDA dismissal of stronger warning preempts claims (U.S.), 986
– – Phenergan IV push administration, warning claim not barred (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 (brief filed), 84; (oral arg), 202; (judg aff), 234

– Salmon-colored farmed salmon, whether FDCA preempts claims enforcing parallel state laws (briefs filed), 644; Solicitor General asked for brief, 988
– Tobacco industry

– – Light cigarette marketing, whether federal labeling law preempts deceptive practice claims (rev grant), 90; (oral arg set), 959; (oral arg), 983
– – Marlboro cigarettes, whether state supreme court may interpose state-law procedural bar (rev grant), 575; (oral arg set), 959

SURGICAL EQUIPMENT

– Adhesion barrier, court suggests ways of pleading around preemption ruling (N.D. Ill.), 777
– Cutting/stapling device maker not liable for failure to warn when doctor aware of risk (Tex. Ct. App.), 34
– Mesh patch, removal of claim approved where plaintiff didn't follow pleading rule, medical malpractice claims time-barred (C.D. Ill.), 1057
– NovaSure device, negligence claim against representative of device maker not preempted (W.D. Va.), 687
– Panacryl sutures, oral arguments set on centralization (J.P.M.L.), 623
– Stapler, failure to identify defeats second motion to compel discovery (N.D. Ga.), 66
– Sutures, loss of allegedly defective suture does not count against plaintiff (Del. Super. Ct.), 239
– Tape, ObTape suit remanded to state court, facts do not support improper joinder (S.D. Fla.), 522
– Targis System, negligent training claims preempted due to premarket approval (Ky. Cir. Ct.), 754
– Teflon surgical paste approved prior to MDA, state warning claims preempted (W.D. La.), 106

SURVEYS

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

SUSPENSIONS

– Bolts, Nissan N. Am. recalls Altima vehicles, 763
– Defect investigations, NHTSA, 17; 174; 344; 430; 459; 833; 857
– Motorcycles, Kawasaki recalls ZX14, 530
– Pontiac GTO owners class sues GM for concealing problems (E.D. Cal.), 956

SUTURING EQUIPMENT

– Loss of allegedly defective suture does not count against plaintiff (Del. Super. Ct.), 239
– Panacryl sutures, oral arguments set on centralization (J.P.M.L.), 623
– Perclose device, defense judgment not precluded for non-preempted claim (Kan.), 626

SWIMMING POOLS AND SPAS

– Child safety, consumer advocate groups bring their concerns to CPSC over product hazards, 191
– Chlorine feeder explosion, plaintiffs' expert allowed to testify (Ohio Ct. App.), 65
– Pool and Spa Safety Act

– – Drain covers

– – – CPSC seeks comments on draft guidance, 295; staff releases interpretation addressing preemption of state rules, 605
– – – Deadline, industry group says may be “tight call,” 402; CPSC calls for compliance, 525

– – Grants, comments sought on draft guidance setting minimum state requirements, 854; CPSC revises technical inaccuracies, 904

– Pool cleaner, no loss of smell evidence, medical testimony barred (E.D. Tenn.), 647
– Submersion injuries and fatalities, CPSC releases report, 525

SWITZERLAND

– Bank accounts, warnings that U.S. Constitution does not protect not needed (N.D. Cal.), 114
– Biocide in furniture, Nordic agencies seek tighter rules after complaints, 742