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This Week's Double Feature
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Consumer Product Safety Commission E-Rulemaking: Implementation of the Consumer Product Safety Improvement Act of 2008
By John Parker Sweeney and Erin C. Miller
Womble Carlyle Sandridge & Rice, PLLC, Baltimore, MD
E-rulemaking highlights how the practice of law is changing in the Information Age and how counsel must take advantage of all of the new electronic resources available in administrative practice. This is best illustrated by the United States Consumer Product Safety Commission’s (“CPSC”) promulgation of rules to implement the Consumer Product Safety Improvement Act of 2008 (“CPSIA”), which provided sweeping modifications to consumer product safety standards for children’s products as well as many enhancements to the CPSC’s enforcement authority. Public Law 110-314, 122 Stat. 3016 (August 14, 2008). The CPSIA is a noteworthy regulatory enactment, not only for its sweeping consumer protection laws, but also for the CPSC’s design and implementation of the rulemaking procedures mandated by Congress.
[FULL STORY]
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A Sigh of Relief for Corporate Defendants: Rhode Island Supreme Court Unanimously Rejects the Application of Public Nuisance in the Products Liability Context
By Robert P. Alpert and W. Marion Wilson
Morris, Manning & Martin, LLP, Atlanta, GA
In recent years, creative plaintiffs who are faced with the inability to state a claim under traditional products liability theories, such as negligence, strict liability and breach of warranty, have attempted to hold product manufacturers liable via a novel application of public nuisance law. In February 2006, a Rhode Island trial court embraced such a theory to hold former manufacturers of lead pigment liable for costs of removing lead-based paints from buildings throughout the state of Rhode Island (the “Lead Paint Public Nuisance Theory”). Although this decision appeared to set a dangerous precedent for product manufacturers throughout the United States, subsequent cases generally have declined to apply the Lead Paint Public Nuisance Theory in the products liability context. This article discusses the Lead Paint Public Nuisance Theory adopted by the Rhode Island trial court, how the theory has been rejected by courts in New Jersey, Missouri and Ohio, the Rhode Island Supreme Court’s reversal of the trial court’s abatement order, and the future of the Lead Paint Public Nuisance Theory.
[FULL STORY]
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DRI News
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SAVE THE DATE!
Commercial and Intellectual Property Litigation Symposium:
Litigating the Financial Meltdown and
Protecting Your Intellectual Property
April 22-24, 2009
Wyndham Chicago, Chicago, Illinois |
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New from the Defense Library Series – Trade Secrets and Agreements Not To Compete
DRI proudly announces the publication of a new compendium of state law specific to the dynamic areas of trade secrets and non-competition covenants. A project of the DRI Commercial Litigation Committee, this publication describes each state's law and procedure in these increasingly important subject areas. Chapter authors are lawyers who regularly practice in these two closely related areas. They advise employers in their states as they draft non-competes and seek protection for the secrets the employers have developed over the years. This publication is written for lawyers who work closely with employers to protect their clients' interests.
[FULL STORY]
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And The Defense Wins!
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DRI member Donna L. Burden, a partner at Burden, Gulisano & Hickey, LLC in Buffalo, New York, obtained a defense verdict in the U.S. District Court, Western District of New York, in a motor vehicle case in which the plaintiff, a passenger in a vehicle rear-ended by a FedEx Custom Critical van, claimed serious and permanent injuries. Just prior to jury selection, the plaintiff agreed to a stipulation of discontinuance against FedEx Custom Critical because the driver was an owner/operator and was not delivering any packages at the time of the accident. The trial continued against the driver of the FedEx Custom van only.
[FULL STORY]
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Shawn W. Schlesinger, a partner with Koeth, Rice & Leo, Co., LPA in Cleveland, Ohio, defended an indoor driving range in August 2008, in an action brought by a customer hit by a golf ball. By way of background information, the defendant indoor driving range was constructed in 1996. The driving range utilized 14" tee dividers that separated the tee stations and provided protection to customers. Since its construction, there had been a few minor accidents at the driving range involving errant golf balls.
[FULL STORY]
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Quintairos, Prieto, Wood & Boyer, P.A.’s Tampa office trial attorneys Kevin W. Richardson and Brooke Chastain Juan obtained a Final Summary Judgment on behalf of a gasoline supply company and a convenience store/gas station landowner in a case involving a slip and fall at a gas station operated by a third party tenant.
[FULL STORY]
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In October, DRI member Dan La Fave, a partner in Quarles & Brady LLP's Product Liability Group in Milwaukee, completed a rare calendar year trifecta by obtaining his third defense verdict in as many product liability trials in 2008. As lead trial counsel for the defense in Ternus v. 4Front Engineered Solutions, Inc., he persuaded a federal court jury in Minneapolis to find no defect in the design of the Kelley brand aFX dock leveler. The lawsuit was brought by a trained service technician who suffered numerous broken vertebrae and the permanent loss of sensation in his left arm when the aFX's heavy main metal ramp fell on him during installation. Fellow DRI member Cort Sylvester, a partner in the Minneapolis firm of Halleland, Lewis, Nilan & Johnson PA, capably assisted at trial, handling all of the damages aspects of the case.
[FULL STORY]
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DRI members Brian Bell and Jody Kahn of Swanson, Martin & Bell, LLP and Ryan McQueeney of Sanchez, Daniels & Hoffman, LLP in Chicago recently represented Chrysler LLC in the successful defense of a product liability case in the U.S. District Court for the Southern District of Illinois. After a four-day trial, the plaintiffs, Bradford and Cynthia Freeland, represented by the St. Louis firm of Holland, Groves, Schneller & Stolze asked the jury for $1.8 million in damages. The jury returned a verdict in favor of the plaintiffs in the amount of $15,000 for pain and suffering, with 80% of the fault being allocated to another defendant, Arvin-Meritor, Inc. (the manufacturer of a prop strut used by Chrysler) and 20% of the fault allocated to Chrysler LLC. The jury did not award Mr. Freeland damages for lost wages or loss of a normal life. The jury awarded zero damages to Cynthia Freeland.
[FULL STORY]
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Keep those defense wins coming! Send a short summary and recent photo of yourself to Barb Lowery by e-mail (blowery@dri.org).
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Legislative Tracking
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Legislative Update — INSURANCE LAW
Mississippi
MS SB 2024: Homeowners’ insurance policies.
• An Act to provide that, in any action for damages by the policyholder against an insurer under a homeowner policy, the insurer has the burden of proof as to the application of any exclusion in the policy and any exception to or other avoidance of coverage by the insurer; and for related purposes.
• 01/06/2009 – Introduced; referred to the Judiciary Committee.
PRODUCT LIABILITY
Indiana
IN SB 99: Exposure to hazardous substances.
• An Act to provide statutes of limitations for causes of action for occupational disease, deficiencies in the design, planning, supervision, construction, or observation of construction of an improvement to real property, and product liability when the cause of action is based on an exposure to a hazardous substance; and for related purposes.
• 01/07/2009 – First reading; referred to Committee on Corrections, Criminal, and Civil Matters.
MISCELLANEOUS
Mississippi
MS HB 92: Costs awards.
• An Act to provide for the payment of costs and expenses incurred by a prevailing defendant in a civil action; to authorize the filing of a suit to recover such costs and expenses; amending sections of the Mississippi Code in conformity to the provisions of this Act; and providing that a party and his or her attorney shall be jointly liable for costs and damages in a frivolous suit.
• 01/06/2009 – Introduced; referred to Judiciary Committee.
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Quote of the Week
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Pleasure in the job puts perfection in the work.
—Aristotle
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DRI CLE Calendar
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Dissecting the Anatomy of a Trucking Case — The Trial and Beyond (webconference)
January 20, 2009
Civil Rights and Governmental Tort Liability
January 28-30, 2009
The Ritz-Carlton New Orleans, New Orleans, Louisiana
Communicating with Potential Plaintiffs in Class Actions (webconference)
February 3, 2009
Sharing Success — A Seminar for Women Lawyers
March 5-6, 2009
Loews Santa Monica Beach Hotel, Santa Monica, California
Medical Liability and Health Care Law
March 11-13, 2009
Walt Disney World Dolphin, Lake Buena Vista, Florida
Damages
March 18-20, 2009
Bellagio, Las Vegas, Nevada
Toxic Torts and Environmental Law
March 19-20, 2009
Arizona Biltmore, Phoenix, Arizona
Insurance Coverage and Claims Institute
April 1-3, 2009
The Westin Michigan Avenue Chicago, Chicago, Illinois
Product Liability Conference
April 15-17, 2009
Hilton San Diego Bayfront, San Diego, California
For all other seminars and webconferences, click here.
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Evidentiary Privileges for Corporate Counsel
DRI Defense Practice Form Book
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