The California Supreme Court has blocked an expansion of product liability law in a major decision that provides guidance for other courts facing similar questions and follows a growing trend in this area. In Barbara O’Neil, et al., v. Crane Co., et al. (#S177401; January 12, 2012) the court held that a manufacturer has no obligation to prevent harm from other manufacturers’ defective products used with its product or equipment. Even if a manufacturer could “foresee” the use of another’s defective product with its own, that manufacturer cannot be held liable in strict liability or negligence for damages caused by the other manufacturer’s defective product. 


Events Leading to the O'Neil Opinion
The case involved equipment installed in a U.S. Navy ship’s steam propulsion system. Twenty years later, Patrick O’Neil, a sailor assigned to work on/near the equipment, was exposed to asbestos dust from work performed on gaskets and packing embedded in the equipment and asbestos insulation covering the equipment. Forty years later, he developed a lethal cancer (mesothelioma) from these and other asbestos exposures. The plaintiffs sued the manufacturers of the equipment. However, there was no evidence the asbestos gaskets, packing or insulation from which he was exposed were manufactured, sold or distributed by the defendant equipment manufacturers. Over the 20 years since the initial installation, the original gaskets and packing had been replaced. The Navy, in most instances, specified asbestos replacement gaskets, packing and insulation. 

At trial, the defendant manufacturers moved for nonsuit saying they were not liable because plaintiffs did not introduce any evidence that their equipment was defective and it did not cause Mr. O’Neil’s cancer. Defendants argued that if gaskets, packing and insulation in and on their equipment were a cause of Mr. O’Neil’s cancer, the defendant equipment manufacturers were not responsible because the asbestos-containing replacement products were designed, manufactured or sold by others.

The plaintiffs countered it was “foreseeable” Mr. O’Neil would be exposed to gaskets, packing and insulation in and on the defendant manufacturers’ equipment. They argued that the equipment was originally sold with asbestos gaskets and packing; that the defendant manufacturers knew users would cover the equipment in asbestos insulation; and, that the defendant manufacturers knew that asbestos replacement gaskets and packing would be used with their equipment. The trial court did not agree with plaintiffs and granted the motions for nonsuit finding there was no evidence the equipment was defective because of the asbestos content and determined that defendants’ equipment did not contribute to the cause of the mesothelioma.

However, the California Court of Appeal reversed. It held the defendant manufacturers are liable “for dangerous products with which [their] product will necessarily be used.” (All emphases added.) The court of appeal made no distinction as to which entity was responsible for design, manufacture or distribution of the defective asbestos products from which Mr. O’Neil was exposed. The court of appeal reasoned that because the defendants’ equipment originally included defective asbestos gaskets and packing and knew that they would need to be replaced with asbestos gaskets and packing made by others, they owed a duty to warn. Moreover, the equipment itself was deemed to be defective, not only because of a failure to warn, but also because their equipment “required” asbestos packing, gaskets and insulation.

Supreme Court's Ruling and Policy Holdings
The California Supreme Court reversed the court of appeal. It found no facts in the record that supported the assertion that defendant manufacturers required asbestos replacement gaskets, packing or insulation. There was no evidence the defendant manufacturers’ equipment depended on asbestos materials to operate. The court stated: “Mere compatibility for use with such components [asbestos containing parts] is not enough to render them defective.”  The court concluded that defendants were not liable because their products were not “a legal cause” of the plaintiffs’ injury in strict liability or negligence. Moreover, defendants “had no duty to warn of risks arising from other manufacturers’ products.” (emphasis in original).

Policy
The supreme court found the court of appeal’s decision to be an unwarranted expansion of California product liability law: “(W)e have never held that these responsibilities [under California law] extend to preventing injuries by other products that might foreseeably be used in conjunction with a defendant’s product” (emphasis in original). Whether to apply strict product liability doctrine “in a new setting is largely determined by the policies underlying the doctrine...”. “’[T]he strict liability doctrine derives from judicially perceived public policy considerations and therefore should not be expanded beyond the purview of these policies.’” The court revisited its 1963 decision in Greenman v. Yuba Power Products, Inc.(1963) 59 Cal.2d 57, 63, quoting: “’The purpose of such liability is to insure that the costs of injuries resulting from defective products are borne by the manufacturers that put such products on the market…’” A year later the California Supreme Court extended the strict liability doctrine to retailers as “’an integral part of the overall producing and marketing enterprise.’” Vandermark v. Ford Motor Co. (1964) 61 Cal 2d 256, 262.

Stream of Commerce
The “marketing enterprise” or “stream of commerce” policy consideration is one of two themes at the backbone of the supreme court’s decision in O’Neil. Where product manufacturers “generally ha[ve] no 'continuing business relationship' with each other," they cannot bear responsibility for other manufacturers’ products. They “cannot be expected to exert pressure on other manufacturers to make their products safe and will not be able to share the costs of ensuring product safety with these manufacturers.” The court said it is “also unfair” to require a manufacturer to “shoulder a burden of liability” for another manufacturer’s product where it “derives no economic benefit from the sale of the product that injured the plaintiff.” A contrary rule would require manufacturers “to investigate the potential risks of all products and replacement parts that might be foreseeably used with their own products and warn about the risks.” This would “impose on manufacturers the responsibility and costs of becoming experts in the manufacturers’ product.” This, it said, is “an excessive and unrealistic burden.” Such a rule could also act “perversely” by “inundating users with excessive warnings” and, quoting New Jersey jurisprudence, “[t]o warn of all potential dangers is to warn of nothing.”

Defendant's Act or Control
An even more fundamental policy lies at the heart of this opinion: Liability is not imposed for an injury unless it was caused “by an act or instrumentality under defendant’s control.” The original asbestos gaskets and packing that defendant manufacturers sold with the equipment were gone when Mr. O’Neil was exposed to asbestos from replacement gaskets and packing manufactured by others. 

The O’Neil opinion (together with two other cases also on appeal and resolved by the O’Neil opinion) stands for the proposition that there is no legal causation for the original product manufacturer where the defective aftermarket replacement part is the source of the harm, even though:
(1) The equipment manufacturer designs the equipment for use with the defective aftermarket product (e.g., asbestos in replacement gaskets and packing);
(2) The manufacturer specifies the use of replacement parts with the same defect;
(3) The manufacturer also supplies replacement parts with the defect in question;
(4) The manufacturer knows that the purchaser of their equipment or product requires that the original equipment contain the defective component and use of the defective replacement part.

Liability Is Not Foreclosed
Likely due to the variety of economic entanglements product manufacturers may have with aftermarket manufacturers’ products, the supreme court conceived of circumstances where liability for another manufacturer’s parts could arise. The court stated in the O’Neil opinion’s opening paragraph that a manufacturer may be held liable for harm caused by another manufacturer’s product where (1) the defendant manufacturer’s own product, although not defective, “contributed substantially” to the harm, or (2) the defendant manufacturer’s (non-defective) product “participated substantially in creating a harmful combined use of the products.” The O’Neil court discusses two appellate cases where the manufacturer’s product would not have been put “into the stream of commerce” but for the manufacturer’s economically beneficial participation in the product that eventually gave rise to the harm. 

Additionally, in a footnote (Fn. 6) the court outlined a hypothetical where a “stronger argument for liability might be made.” If the product/equipment “required the use of a defective product in order to operate” (emphasis in original), the original manufacturer’s product would incorporate the defect and every replacement part would too. The defective replacement parts, though manufactured by others, “would not break the chain of causation.” However, the court warned that in these circumstances, “the policy rationales against imposing liability on a manufacturer for a defective part it did not produce or supply would remain.”

Conclusion

The California Supreme Court appears to have drawn clear rules for precluding liability where an original manufacturer’s product has left its possession or control, but an aftermarket replacement part has ensnared the original equipment manufacturer in litigation. Where the manufacturer does not control or derive direct economic benefit from the defective aftermarket product, it will not be liable. However, the opinion does not build an impregnable wall. The court specifies that an original manufacturer will be liable for another manufacturer’s parts, where the original product contributes substantially or participates in a combined product causing harm. Even under those scenarios, however, imposing liability must not run afoul of the policy rationales supporting the O’Neil opinion. 

Christopher W. Wood
Lisa L. Oberg
McKenna Long & Aldridge
San Francisco, CA
(415) 267-4000
 

 

 

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We often see cross-complaints filed amongst defendants in product liability cases asserting causes of action for contribution, equitable indemnity and declarative relief. They are rarely litigated and are almost never adjudicated.


In Jerry Bailey v. Safeway, Inc. (Case No. A131349 (CA Dist. 1 Ct. App., Sep. 15, 2011)), the California Court of Appeal explored the distinction between equitable indemnity and comparative equitable indemnity arising out of such a cross-complaint.
 
In 2006, Jerry Bailey suffered a severe eye injury while assembling a Cook's Champagne display at a Safeway store. Bailey sued Saint-Gobain containers, Inc. (Saint-Gobain) and Safeway for strict liability design defect under the consumer expectations theory. Bailey also sued Safeway for negligence. Bailey settled the case with Saint-Gobain for $1 million and an assignment of its equitable indemnity rights against Safeway.

The case then proceeded to trial against Safeway alone, under the strict product liability claim and negligence. The jury found Safeway liable under the strict product liability claim, awarding plaintiff $718,915.78. However, the jury found that Safeway "was not negligent or 'at fault'." Because the amount of the settlement exceeded the jury award, the court later entered judgment in favor of Safeway.

Bailey then filed a separate suit against Safeway based on the assigned equitable indemnity claim from Saint-Gobain. The trial court sustained Safeway’s demurrer without leave to amend, and an appeal followed.  Id. at p. 14109.

Equitable Indemnity vs. Comparative Equitable Indemnity
 
"Although product liability defendants are jointly and severally liable to the plaintiff, their liability as among themselves is determined according to comparative equitable indemnity principles. [citation omitted]"  Id. at p. 14110.  "'The doctrine of comparative equitable indemnity is designed to do equity among defendants.' [citation omitted.]"  Id.    

By contrast, "[t]he purpose of equitable indemnification is to avoid the unfairness, under the theory of joint and several liability, of holding one defendant liable for the plaintiff's entire loss while allowing another potentially liable defendant to escape any financial responsibility for the loss." Id. "[E]quitable indemnification is an extension of comparative fault principles which allows parties to seek a division of loss between the wrongdoers in proportion to their relative culpability. [citation omitted]" Id. at p. 14111.

Here, Bailey argued, unsuccessfully, that the jury's determination that Safeway was 100% responsible allowed him to recover, on an equitable indemnity action, all or a portion of Saint-Gobain’s $1 million settlement based on its assignment to him.

The Court Would Not Allow Bailey to Stand in Saint-Gobain’s Shoes

Ultimately, the Court of Appeal invoked the doctrine of collateral estoppel to bar Bailey’s indemnity action. While cautioning that this decision should not be interpreted as precluding an equitable indemnity claim based on strict liability, the court focused on the fact that the jury exonerated Safeway by finding that it was not negligent. This imperative fact, thus, precluded Bailey as Saint-Gobain's assignee from prevailing on an equitable indemnity claim. To hold otherwise would have given rise to an unfair result where the designer and manufacturer of a defective product could recover against a retailer who’s only "sin" was to sell the defective product.
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Law.com has an interesting blog post about a recent defense tactic in the case of an alleged “mouse in a can of soda,” you can find the article here. Basically, the defendant is taking a scientific stand regarding the presence of a mouse allegedly sealed in a can of soda. Essentially, they are saying that a whole mouse would not be present in a sealed can, because the acid in the drink would have turned it to jelly. The beverage giant  may need to start competing with jelly and jam companies.  The position may be technically viable but it appears be a public relations nightmare. Do you think this is an effective stance? Does it do more harm than good? Let us know your thoughts.

Jobby is an associate in the Oklahoma City firm of Hiltgen & Brewer, P.C.  

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The Consumer Product Safety Commission (CPSC) recently adopted a rule that requires children's products (products used by children twelve and under) to be tested by an authorized and independent third-party.  On October 19, 2011, the CPSC voted 3-2 along party lines to pass the rule.  The rule will likely take effect February 2013. 

Before this rule, it was the manufacturer's responsibility to test its products and ensure that they met all safety requirements before releasing them into the stream of commerce.  But by passing this rule, three CPSC Commissioners obviously felt that self-testing and market forces were insufficient to keep unsafe products away from children.  According to Chairman Inez Tenenbaum, the rule will fetter out unsafe children's products before they get in the hands of children.     

While consumer safety advocates see the rule as a much needed safety measure, manufacturers are not happy.  Not only will every new children's product have to be independently tested, but any design, manufacturing, or component change will require a product to be re-tested.  All of this testing will either require manufacturers to absorb extra costs, or pass them onto customers.  And in this economy, passing on costs to consumers can lead to fewer sales and hurt a manufacturer's bottom line. 

Whether or not the rule will actually improve the safety of children's products is yet to be determined.  But it is a foregone conclusion that manufacturers and consumers are footing the bill either way.    

 

William F. Auther is a partner with an active trial practice in product liability and business litigation and Kelly M. McInroy is an associate in the Phoenix office of Bowman and Brooke LLP.  

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It is well known that manufacturers do not have to make the safest possible products.  Rather, manufacturers are prohibited from making unreasonably dangerous products.  And one of the biggest factors in determining whether or not a product is unreasonably dangerous is the existence of a feasible alternative design.  Concerning for manufacturers though, the First Circuit just upheld a verdict against a manufacturer even though the plaintiff failed to prove the existence of a feasible alternative design.    

In Osorio v. One World Tech., Inc., No. 10-1824 (1st Cir. Oct. 5, 2011), the plaintiff sued the maker of a table saw after he cut his arm while using the saw.  The plaintiff argued that the saw should have contained a mechanism that stops and retracts the blade when the blade comes into contact with flesh.  To bolster this argument, the plaintiff brought the inventor of the mechanism to testify on his behalf. 

The manufacturer argued that the mechanism is not a feasible alternative design.  The mechanism makes the saw larger and heavier, which would substantially change the use of the light, portable saw.  Also, the mechanism has a tendency to retract when the blade gets wet, meaning that it cannot be used outside.   Further, each time the blade retracts, the blade must be replaced.  Additionally, the mechanism makes the $179 saw almost twice as expensive, adding $150 to the retail price.  It is no surprise then that none of the major saw manufacturers use the mechanism. 

Even after hearing all of this information, the jury found that the saw was defective and awarded the plaintiff $1.5 million.  The manufacturer appealed, arguing that the plaintiff failed to prove the existence of a feasible alternative design.  On appeal, the First Circuit determined that a plaintiff does not have to prove the existence of a feasible alternative design to win a design defect claim.  Rather, the existence of a feasible alternative design is just one factor in the "unreasonably dangerous" determination.  As such, the court upheld the jury's verdict. 

If you're shaking your head, you're not alone.  While this case may not sit well with manufacturers, at least it provides a reminder that they should think twice before trying design defect cases in states where plaintiffs do not have to prove the existence of a feasible alternative design.   

 

William F. Auther is a partner with an active trial practice in product liability and business litigation and Kelly M. McInroy is an associate in the Phoenix office of Bowman and Brooke LLP.  

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An unnamed company has taken the first step in challenging the Consumer Product Safety Commission's (CPSC) online complaint database.  No information is currently listed in Pacer, the federal court filing system, but the Washington Post reported that a complaint was filed Monday in Maryland District Court.  The company that filed the suit is listed as "Company Doe" to protect its name – the exact reason that it filed the complaint in the first place. 

On August 14, 2008, the Consumer Product Safety Improvement Act became law and mandated that the CPSC create an online portal for customers to post complaints about products that can either injure children or pose fire, electrical, chemical, or mechanical hazards.  The Act sought to provide consumers with timely information about potentially unsafe products, so consumers would not have to wait for a recall to get the information.  However, the database has been criticized because of accuracy issues and the burden it places on manufacturers. 

Anyone can file a report in the database, found at www.SaferProducts.gov. , but a report is not eligible for publication unless it contains: (1) a description of the product; (2) the name of the manufacturer; (3) a description of the injury or risk of injury caused by the product; (4) the date that the incident occurred or risk of injury was discovered; (5) the type of reporter (consumer, agency, child service provider, etc.); (6) the reporter's name and address (this is not published); (7) the reporter's acknowledgement that the report is true and accurate; and (8) whether or not the reporter wants the information published. 

Once a report is filed online, the CPSC has five days to review it before sending it to the manufacturer.  However, the CPSC's "review" only entails ensuring that the minimum publication requirements have been met; the CPSC does not conduct any type of fact-finding investigation.  Instead, the burden is placed on the manufacturer to prove that the report is untrue, and it has just ten days to prove it.   If a report ends up being published, manufacturers can have their comments published with the report, but the CPSC does not always process comments in time to publish them the same day the report is published, and posting a comment is little consolation if a report is untrue. 

Since its inception, the database has been criticized for not requiring more information to reduce inaccuracies, such as a product serial number.  And the fact that manufacturers have to conduct all of the fact-finding and essentially prove themselves innocent seems a bit backwards considering anyone with access to a computer can file a report. 

Given these circumstances, it was only a matter of time before a company stepped up and challenged the system.  Consistent with argument that the database needlessly harms the reputation of manufacturers, the company has filed the lawsuit anonymously.  Whether or not the court will allow the company to remain "Company Doe" presents another question altogether.  But either way, this case could have major consequences for the CPSC database, and is definitely one to watch. 

William F. Auther is a partner with an active trial practice in product liability and business litigation and Kelly M. McInroy is a law clerk in the Phoenix office of Bowman and Brooke LLP.  

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You’ll leave with more than a hangover…

Posted on October 28, 2011 05:03 by Jobby Mathew

For all of you attending Annual Meeting this week – you might want to take a fire extinguisher to the cocktail mixer. Lawyerist.com has an interesting story regarding a lawsuit against the manufacturers of Bacardi 151. It seems that Bacardi’s popularity as a novelty in certain cocktails is contributing to its potential liability. Should the manufacturer be held liable for the tricks of a bartender? Have you had a close call or witnessed a trick like this at a bar? Let us know. In the interim, wear a fire retardant jacket if you are standing to close to the bar.

 

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No, this does not a commentary on a lawsuit regarding a nutritional health claim against Red Bull.  Instead it is about a lawsuit filed by D.C. United striker Charlie Davies against a D.C. bar, the Shadow Room, and Red Bull alleging that the two are liable under D.C.'s dram shop law for over serving a patron who went on to severely injure Davies and kill a passenger in his vehicle.  The suit against Das Enterprises (which owns the bar) and Red Bull North America is pending in D.C. Superior Court.  The driver at issue in the case, Maria Espinoza, was convicted of involuntary manslaughter.  The suit alleges that Red Bull hosted an event at the D.C. bar at which the bar continued to serve Espinoza despite her visible intoxication.  Davies claims that in addition to his physical and medical damages, Red Bull and the bar should be liable for damages due to his loss of the opportunity to play in the 2010 World Cup games in South Africa.

Davies' suit against Red Bull faces some problems.  Proving social host liability, as opposed to holding a licensed establishment liable, can be tricky and varies by state.  D.C. explicitly does not recognize social host liability on its own, although the case law is murky.  In addition to the difficulty in tying the claims to Red Bull, Davies claimed damages related to his playing at the World Cup are speculative at best (my sixteen-year old son's opinion of his ability to score goals notwithstanding).  Finally, Davies faces some comparative fault himself given he was breaking team curfew at the time of the accident. 

This is a sad, high-profile incident and that alone may drive the outcome far more than the strength of the legal claims.  As is often true in the hospitality industry, the media exposure is sometimes a far bigger concern than the legal costs themselves.


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Bad Mouthed Baby Doll

Posted on October 4, 2011 02:22 by Michael Walker

We must be doing our jobs as products defense attorneys if this is what the plaintiffs' bar is beginning to resort to. This story was featured in the ABA Journal and I found it quite amusing. It appears that Arkansas attorney, Joey McCutchen, is on a campaign against Toys R Us due to the store's decision to sell a talking children's doll that Mr. McCutchen claims speaks profanity. As part of his campaign against the store he has produced a YouTube video that he alleges is "proof" that the doll speaks the phrase "crazy b-tch", as opposed to the "realistic baby sounds" the doll is advertised to be able to make. The dolls were being sold in Arkansas, Alabama and Tennessee. In the video he urges Toys R Us to cease selling the dolls. While the article does not mention whether Mr. McCutchen plans on commencing suit, if the viewers' comments on the video provide insight as to a potential jury pool, let's hope for his sake he does not. 

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This is question that City of Chicago answered by banning the sale of bumper pads on Sept. 8, 2011. If you don’t have or haven’t been around infants, these are the pillow-like padding that is tied to the inside railing of a baby’s crib just above the mattress. Originally, bumper pads were the solution to a strangulation problem with cribs with wider crib slat spacing. Now, however, as crib slats are placed closer together, the bumper pads are more ornamental. But there are still some safety uses, i.e. preventing limbs from being caught or protection against the hard wood surface. Nevertheless, they carry a risk of strangulation if an infant rolls into it and does not have the strength to roll away.

The Chicago Tribune reports that the City of Chicago based the ban on the Tribune’s investigations “that found federal regulators for years have received reports of babies suffocating in cases that involved crib bumpers, yet have failed to warn parents or investigate all deaths.” See the full story here. The State of Maryland is also considering similar regulations. 

While obviously saving a child’s life is of the utmost importance, it seems tenuous and to ban the sale of a product on the report of one newspaper’s research. Moreover, the City even admits that this type of regulation should be left to the Federal Government. Yet, they did it anyway to quote, “sound the alarm.” Should the City of Chicago be allowed to ban bumper pads in order to force Federal action? What consequences does this method of spurring action have? Let us know your thoughts.


 

 

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