Products Liability and Injury Lawyer Blog

Oddone v. Superior Court, (Second District, November 24, 2009) 179 Cal. App. 4th 813, 101 Cal.Rptr.3d 867, 09 Cal. Daily Op. 14,124

A woman whose husband died as a result of a brain tumor allegedly caused by exposure to toxic chemicals at his place of employment, filed an action on her own behalf against the employer. The plaintiff alleged that her husband’s clothing absorbed chemical substances he was using in connection with his employment, and that the substances would remain on his skin, causing her to be exposed to the chemicals as a result of her contact with her husband. The plaintiff further alleged that the defendant had breached duties to warn and to safely operate its premises to protect spouses and family members of employees from coming into contact with chemical substances used at its facility, thereby causing the plaintiff to suffer secondary chemical exposure.

The trial court sustained the defendant’s demurrer without leave to amend. The court of appeal denied the plaintiff’s petition for a writ of mandate, concluding that the trial court correctly found that the defendant did not owe a duty of care to the plaintiff to protect her from secondary exposure to toxic chemicals:

Continue reading "TOXIC CHEMICALS: SECONDARY EXPOSURE" »

O’Neil v. Crane Co., (Second District, September 18, 2009), 99 Cal.Rptr.3d 533, 09 Cal. Daily Op. Serv. 12,021, 2009 Daily Journal D.A.R. 13,945

The widow and children of a naval officer who died of mesothelioma as a result of being exposed to asbestos while working on an aircraft carrier, filed a wrongful death action against the manufacturers of valves and pumps which contained asbestos and which had been installed on naval vessels. The plaintiffs alleged that the decedent had been exposed to asbestos-containing insulation and packing material in the pumps, which released toxic fibers during routine use of the products when the packing was replaced.

The defendants filed a motion for non-suit, arguing, inter alia, that at the time of the decedent’s exposure, the original asbestos-containing parts had been replaced with new parts, and that the plaintiffs had not attempted to prove that the replacement insulation and packing had been purchased from the defendants.

The trial court granted the motion for non-suit but the court of appeal reversed, holding that under the circumstances, the manufacturers could still be liable even if the original components had been replaced:

Continue reading "PRODUCTS LIABILITY: REPLACEMENT PARTS" »

Yamaha Motor Corporation, Ltd. v. Superior Court, (4th District, May 26, 2009)
---Cal.Rptr.3d----, 2009 WL 1458270, 09 Cal. Daily Op. Serv. 6433

A boy who was injured while operating a Yamaha Rhino filed a products liability action against Yamaha Motor Company, Ltd. (Yamaha-Japan), the Japanese entity which manufactured the vehicle, as well as Yamaha Motor Corporation, U.S.A. (Yamaha-America), its wholly owned domestic subsidiary and exclusive importer and distributor in the United States. When the plaintiff attempted to serve Yamaha-Japan by serving Yamaha-America through its agent for service of process, Yamaha-Japan filed a motion to quash service, arguing that Yamaha-America is only a subsidiary of Yamaha-Japan, not Yamaha-Japan’s general manager in California, and therefore service should have been made through the Hague Convention.

The trial court denied the motion, reasoning that Yamaha-America is Yamaha-Japan’s general manager in California. Yamaha-Japan filed a petition for writ of mandate but the court of appeal denied the writ, holding that California law allows service on a foreign corporation by serving its domestic subsidiary:

Continue reading " PRODUCTS LIABILITY: SERVICE ON FOREIGN MANUFACTURERS" »

In re Tobacco II Cases,--- Cal.Rptr.3d ----, 2009 WL 1362556, 09 Cal. Daily Op. Serv. 5993, Cal., May 18, 2009 (NO. S147345)

In a major victory for California consumers victimized by fraudulent advertising and business practices, the California Supreme Court ruled on May 18, 2009 that Proposition 64 does not impose new procedural and substantive proof requirements on consumer class actions. The long-awaited decision, In Re Tobacco Cases II, reversed a holding by a lower court which interpreted Prop. 64 as requiring that all absent class members affirmatively demonstrate injury caused by an unfair practice in order to proceed as a class action. This would have severely hindered lawsuits under California’s Unfair Competition Law (UCL) and False Advertising Law (FAL), which are designed to protect against unfair, unlawful and fraudulent business practices. Robinson, Calcagnie & Robinson senior partner Mark P. Robinson Jr., who argued the case before the Supreme Court on behalf of the Plaintiffs in the case, called the decision “a huge victory for the consumers of California." "This gives the consumers rights to protect themselves from fraudulent advertising,” said Robinson, former president of the Consumer Attorneys of California, who was named California Trial Lawyer of the Year by the American Board of Trial Advocates in 2008.

The suit was brought by smokers alleging that the tobacco industry defendants violated the UCL and FAL by conducting a decades-long campaign of deceptive advertising and misleading statements about the addictive nature of nicotine and the relationship between tobacco use and disease. However, the ruling will potentially impact all consumer class actions in California involving unfair competition, fraudulent and unlawful business practices, and false advertising. Justice Carlos Moreno, writing for the majority, found that interpreting the statutes amended under Proposition 64 to require all unnamed members of a class action to individually establish standing would "effectively eliminate the class action lawsuit as a vehicle for the vindication of such rights." The decision was immediately hailed by attorneys representing injured consumers."We want to congratulate the fine work done by attorney Mark Robinson, a renowned fellow trial lawyer, for his excellent work in arguing the case before the California Supreme Court" noted Audet & Partners, LLP founder William M. Audet. "Without a doubt, Mark Robinson's advocacy carried the day."

Taylor v. Elliott Turbomachinery Co., Inc., (1st District, February 25, 2009), 171 Cal.App.4th 564, 90 Cal.Rptr.3d 414, 09 Cal. Daily Op. Serv. 2395, 2009 Daily Journal D.A.R. 2930

A former U.S. Navy sailor who had worked aboard the U.S.S. Hornet in the mid-1960s, filed an action against several manufacturers of equipment used in the ship’s propulsion system. The plaintiff contended that he had contracted mesothelioma as a result of his exposure to asbestos-containing parts contained within various metal valves and other components which he had serviced. Although the equipment had been installed in 1943 and all the asbestos-containing parts had been removed and replaced with parts made by manufacturers other than the defendants, the plaintiff contended that the original manufacturers had a duty to warn of the hazards arising from the foreseeable use of their products, as well as hazards arising from the combination of their product and products manufactured by others.

The trial court granted the manufacturers motion for summary judgment and the court of appeal affirmed, holding that the defendants owed the plaintiff no duty to warn of the dangers inherent in asbestos-containing products supplied by other manufacturers:

Continue reading "PRODUCTS LIABILITY: REPLACEMENT PARTS" »

McKenney v. Purepac Pharmaceutical Company, (5th District, September 25, 2008) 83 Cal.Rptr.3d 810, 08 Cal. Daily Op. Serv. 12,747

A woman who alleged she suffered injuries as a result of using the prescription generic drug metoclopramide filed an action against the manufacturer. The plaintiff alleged that there were false and/or misleading statements in the labeling of the drug which downplayed the risk of tardive dyskinesia, which the plaintiff had contracted while taking the drug.

The trial court sustained the manufacturer’s demurrer to the complaint, finding that because a generic manufacturer of a drug must obtain approval by the FDA before issuing any label which deviates from the labeling previously approved by the FDA, all of the plaintiff’s claims were pre-empted by federal law. However, the court of appeal reversed, holding that the federal requirement that a generic drug have the same labeling as a reference drug does not necessarily pre-empt a state tort action against a generic manufacturer for failure to adequately warn of the dangers of the drug:

Continue reading "FEDERAL PREEMPTION: GENERIC DRUGS" »

This week top executives of the 'Big Three' automakers are on Capitol Hill asking Congress for $25 billion in government bailout money. Even before the recent economic crisis things were not going well for American automotive giants. Sales had been sliding along with their market share, and the downturn of the last few months has only made matters worse. Ford Motor Company's share price has dropped 74% this year. General Motors revenue was down 45% in October alone, and its stock price has dropped down to where it was half a century ago. Now industry analysts, as well as the unions, are saying that without a bailout GM may be driven into bankruptcy, and others speculate that Ford and Chrysler could eventully follow.

If one or more of these automakers files for bankruptcy, how will this affect claims brought by individuals alleging injuries caused by automotive design or manufacturing defects? It is reasonable to assume that at any given moment there are hundreds of automotive crashworthiness lawsuits being actively litigated across the country, involving everything from SUV rollovers, to fuel system fires, to seatbelt and occupant restraint system defects, to roof crush and door latch failures. While the long term impact on the ability of the manufacturers to pay a judgment against them or to settle a claim is difficult to predict, there may be an immediate impact by the filing of bankrupty proceedings. All pending civil actions could be stayed pursuant to an automatic stay under Section 362 of the Bankruptcy Code, which provides in relevant part:

"[A] petition filed ... under this title ... operates as a stay, applicable to all entities, of- (1) the commencement or continuation, including the issuance or employment of process, of a judicial, administrative, or other action or proceeding against the debtor that was or could have been commenced before the commencement of the case under this title, or to recover a claim against the debtor that arose before the commencement of the case under this title .... " [11 U.S.C. § 362(a)(1) (1993)]"

The scope of the automatic stay is broad. Maritime Elec. Co. v. United Jersey Bank, 959 F.2d 1194, 1203 (3d Cir.1991)(citing Assoc. of St. Croix Condo., Owners v. St. Croix Hotel Corp., 682 F.2d 446, 448 (3d Cir.1982)). “All proceedings are stayed, including judicial proceedings. Proceeding in this sense encompasses civil actions ....” Id

If a stay is put into effect it could not only cause all pending litigation to gring to a halt, but also prevent new cases from being filed until the bankruptcy court determines the stay should be lifted. A court may grant relief from such a stay to allow a party to proceed in an action in another forum under certain limited circumstances. In determining whether to lift the stay courts take into account a number of factors:

1) whether relief would result in a partial or complete resolution of the issues; 2) lack of any connection with or interference with the bankruptcy case; 3) whether the other proceeding involves the debtor as a fiduciary; 4) whether a specialized tribunal with the necessary expertise has been established to hear the cause of action; 5) whether the debtor's insurer has assumed ful responsibility for defending it; 6) whether the action primarily involves third parties; 7) whether litigation in another forum would prejudice the interests of other creditors; 8) whether the judgment claim arising from the other action is subject to equitable subordination; 9) whether the moving party's success in the other proceeding would result in a judicial lien avoidable by the debtor; 10) the interests of judicial economy and the expeditious and economical resolution of litigation; 11) whether the parties are ready for trial in the other proceeding; and 12) impact of the stay on the parties and the balance of the harms. In re Mid-Atlantic Handling Sys., LL C, 304 B.R. at 130 (citing In re Ice Cream Liquidation, Inc., 281 B .R. 154, 165 (Bankr.D.Conn.2002)). See also In re Curtis, 40 B.R. 795, 799-800 (Bankr.D.Utah 1984) (utilizing same factors). All twelve factors are not necessarily present in a particular case, and a court need not rely on any plurality of factors in deciding whether to lift the automatic stay. In re Mid-Atlantic Handling Sys., LLC, 304 B.R. at 130 (citing In re Ice Cream Liquidation, Inc., 281 B.R. at 165).

Should one of the Big Three file for bankruptcy, products liability litigants may be forced to petition the bankruptcy court in order to obtain permission to initiate new actions against a bankrupt automaker, or to allow them to continue proceedings already in progress in another court.

Johnson v. American Standard, Inc. (2008) 43 Cal.4th 56, 74 Cal.Rptr.3d 108

An EPA certified HVAC (heating, ventilation and air conditioning) technician who worked on commercial air conditioning systems, filed a products liability action against a number of manufacturers of air conditioning equipment, chemical manufacturers and chemical suppliers. The plaintiff alleged he was injured by exposure to phosgene gas during maintenance and repair of commercial air conditioning systems, and that the defendants should have warned him that the gas, which can cause a potentially fatal lung disease, is created during the process of brazing, or welding, refrigerant lines containing R-22 refrigerant.

The manufacturer moved for summary judgment, arguing that under the sophisticated user doctrine, it had no duty to warn because the risk was within the professional knowledge of HVAC installers and repairers. The trial court granted summary judgment and the court of appeal affirmed, holding that California law recognizes the sophisticated user doctrine, and that the undisputed evidence showed that HVAC technicians could reasonably be expected to know the hazard of brazing refrigerant lines.

The California Supreme Court affirmed, adopting the sophisticated user doctrine to negate a manufacturer’s duty to warn of a products potential danger when the plaintiff has or should have advanced knowledge of the product’s inherent hazards:

Continue reading "PRODUCTS LIABILITY—SOPHISTICATED USER DOCTRINE" »

Welcome to the Products Liability and Injury Lawyer Blog. This site is intended to be a source of information for the legal profession as well as the general public, on recent appellate court decisions and news items, and changes and developments in the law, relating to personal injury litigation or damages claims arising from products which have been defectively designed or manufactured.