Tag Archives: Products Liability

West Virginia Addresses Its Strict Liability Standard


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Working with an expert to support a product defect theory of liability is hard enough as it is. However, when the standard for strict liability is considered, properly supporting such a theory is even harder. A commonly overlooked aspect of products liability is knowing the specific state standard that needs to be met and preparing for such a standard with your expert. Upon review of a certified question from a federal appeals court, the Supreme Court of Appeals of West Virginia (Supreme Court of WV) recently addressed its standard for strict products liability.

In Judith A. Shears and Gary F. Shears, Jr. v. Ethicon, Inc., No. 23-192, 2024 W.Va. LEXIS 272, petitioners Judith and Gary Shears (the Shears) were several of more than 28,000 plaintiffs to file cases against respondent Ethicon, Inc. (Ethicon) alleging damages from the use of its Tension-Free Vaginal Tape. The Shears filed suit in the United States District Court for the Southern District of West Virginia (District Court), asserting claims that included strict liability based on a defective product design. Ethicon challenged the court’s consolidation of the case with others similarly situated, arguing that the Shears did not offer an alternative design that would have materially reduced the plaintiff’s injuries.

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Amazon Can be Liable in Louisiana


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In June 2024, the Supreme Court of Louisiana held that: (1) Amazon can be considered a “seller” of defective products sold by third parties on its website; and (2) Amazon can be liable under a theory of negligent undertaking for third-party products. In Pickard v. Amazon.com, Inc., No. 2023-CQ-01596, 2024 La. LEXIS 1112, a Louisiana man, Archie Pickard, died from burns sustained in a house fire allegedly caused by a defective battery charger purchased on Amazon from a third-party seller located in China. Mr. Pickard’s family filed a lawsuit against Amazon in the United States District Court for the Western District of Louisiana alleging claims under the Louisiana Products Liability Act (LPLA) and for negligent undertaking. Amazon filed a motion for summary judgment, which prompted the federal court to certify questions to the Supreme Court of Louisiana regarding these two claims.

Amazon Can be a “Seller” Under the Louisiana Products Liability Act

Amazon does not neatly fit within the definition of “seller” under the LPLA because the LPLA was drafted in 1988, before the internet existed. The LPLA defines a “seller” as a person or entity (who is not the manufacturer) who conveys title or possession of the product to another for something of value. La R.S. 9.2800.53(s) (emphasis added). The Supreme Court of Louisiana determined that Amazon was a “seller” because it conveyed “possession” of the charger to Mr. Pickard through the “Fulfillment by Amazon” (FBA) program, which provides storage, delivery, customer service, and returns of third-party products sold on Amazon. Most products on Amazon are sold by third parties, rather than Amazon. Many third-party sellers are small or medium-size companies, and some are individuals seeking to make supplemental income. Amazon offers the FBA program to handle storage and logistics to third-party sellers. When a product is sold through the FBA program, the seller sends the product to Amazon’s warehouses, where it is stored until it is purchased. When an FBA-product is purchased, Amazon collects payment, delivers the product (often in an Amazon van), and handles the potential return of the product. The Supreme Court of Louisiana determined that Amazon was a “seller” of the battery charger even though Amazon did not pass title to Mr. Pickard because: (1) Amazon had physical custody of the charger while stored in the warehouse; and (2) Amazon controlled the transaction and logistics through its FBA program.

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Product Recall

Consumer Product Safety Commission Recalls


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In subrogation cases where the insured’s damages were caused by a defective product, the fact that the product at issue is or was subject to a recall announced by the Consumer Product Safety Commission (CPSC) may help to establish that the product was defective when it left the manufacturer’s possession and control. On June 13, 2024, the CPSC announced the following recalls related to products that present fire hazards:

  1. Bambu Lab Recalls A1 3D Printers Due to Electric Shock and Fire Hazards. According to the CPSC’s website, “[w]hen the recalled 3D printer’s heatbed cable is bent or damaged, it can short-circuit and spark or burn through the insulation layer, posing electric shock and fire hazards.”
  2. Adven Group Recalls Nap Queen Sleep Victoria Hybrid Mattresses Due to Fire Hazard; Violation of Federal Mattress Flammability Regulations. According to the CPSC’s website, “[t]he recalled mattresses violate mandatory federal flammability regulations for mattresses, posing a fire hazard to consumers.”
  3. Southern Telecom Recalls Lomi Roll-On Waxing Kits Due to Fire, Burn and Shock Hazards. According to the CPSC’s website, “[t]he roll-on warmer’s power cord can overheat and short circuit, posing fire, burn, and electrical shock hazards.”
  4. Daikin Comfort Technologies Manufacturing Recalls Amana, Daikin, Goodman-Branded Air Conditioning and Heat Pump Packaged Units Due to Fire Hazard. According to the CPSC’s website, “[t]he unit’s serial plate can have incorrect electrical ratings which can lead to incorrect wirings being used, posing a fire hazard.”
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Consumer Product Safety Commission Recalls


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In subrogation cases where the insured’s damages were caused by a defective product, the fact that the product at issue is or was subject to a recall announced by the Consumer Product Safety Commission (CPSC) may help to establish that the product was defective when it left the manufacturer’s possession and control. On June 6, 2024, the CPSC announced the following recalls related to products that present fire hazards:

  1. Kawasaki Motors USA Recalls Engines Used in Bad Boy Mowers, BigDog, Bobcat, Cub Cadet, Hustler, John Deere and Kubota Brand Lawn and Garden Equipment Due to Fire and Burn Hazards. According to the CPSC’s website, “[t]he recalled engines can overheat, posing fire and burn hazards.”
  2. Good Earth Lighting Recalls More than 1.2 Million Rechargeable Integrated Lights to Due to Fire and Burn Hazards; One Death Reported. According to the CPSC’s website, “[t]he recalled light’s battery can overheat and ignite the light’s plastic housing, posing fire and burn hazards to consumers.”
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Recall Alert

Consumer Product Safety Commission Recalls


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In subrogation cases where the insured’s damages were caused by a defective product, the fact that the product at issue is or was subject to a recall announced by the Consumer Product Safety Commission (CPSC) may help to establish that the product was defective when it left the manufacturer’s possession and control. On May 16, 2024, the CPSC announced the following recalls related to products that present fire-related hazards:

  1. Electrolux Group Reannounces Recall of Frigidaire and Kenmore Electric Ranges Due to Fire and Burn Hazards; Multiple Fires and Injuries Reported. According to the CPSC’s website, “[d]epending on the model, the surface heating elements can: 1) turn on spontaneously without being switched on; 2) fail to turn off after being switched off; or 3) heat to different temperatures than selected. This poses fire and burn hazards to consumers.”
  2. CHZHVAN Combination Smoke and Carbon Monoxide Detectors Recalled Due to Failure to Alert to Fire; Sold Exclusively on Amazon.com by Haikouhuidishangmaoyouxiangongsi. According to the CPSC’s website, “[t]he detectors can fail to activate, posing a risk that consumers will not be alerted to a fire.”
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Product Recall

Textron Specialized Vehicles Recalls Prowler Pro and Tracker Utility Vehicles (UTVs)


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In subrogation cases where the insured’s damages were caused by a defective product, the fact that the product at issue is or was subject to a recall announced by the Consumer Product Safety Commission (CPSC) may help to establish that the product was defective when it left the manufacturer’s possession and control. On May 9, 2024, the CPSC announced the following recall related to a product that presents a fire hazard:

Textron Specialized Vehicles Recalls Prowler Pro and Tracker Utility Vehicles (UTVs) Due to Fire Hazard

According to the CPSC’s website, “[t]he fuel tank cap does not fit correctly, causing a fuel leak around the filler neck, posing a fire hazard.”

Product images from the CPSC website are set forth below:

This entry was posted in CPSC Warning, Products Liability and tagged .

Consumer Product Safety Commission Recalls


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In subrogation cases where the insured’s damages were caused by a defective product, the fact that the product at issue is or was subject to a recall announced by the Consumer Product Safety Commission (CPSC) may help to establish that the product was defective when it left the manufacturer’s possession and control. On May 2, 2024, the CPSC announced the following recalls related to products that present fire hazards:

  1. True Manufacturing Recalls Commercial Refrigerators with Secop Compressors Due to Fire Hazard. According to the CPSC’s website, “[t]he recalled commercial refrigerators with Secop Compressors can fail in a manner causing the compressor to overheat, posing a fire hazard.”
  2. Polaris Recalls Prostar S4 Titan Adventure Snowmobiles Due to Fire Hazard. According to the CPSC’s website, “[t]he snowmobile can leak fuel at the pump flange assembly, posing a fire hazard and risk of serious injury to the rider or passenger.”

 

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Recall Alert

Consumer Product Safety Commission Warning – Stop Using True Brothers Fuel Bottles Due to Risk of Poisoning, Burn, and Flash Fire Hazards; Violation of Federal Safety Regulations for Portable Fuel Containers


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In subrogation cases where the insured’s damages were caused by a defective product, the fact that the Consumer Product Safety Commission (CPSC) issued a warning about the product at issue may help to establish that the product was defective when it left the manufacturer’s possession and control. On April 4, 2024, the CPSC issued a warning urging consumers to “immediately stop using True Brothers refillable fuel bottles sold by Shenzhen Yinglong Industrial.” According the CPSC, bottles “pose a risk of poisoning and burns to children due to lack of a child resistant closure” and “pose a flash fire hazard to all users due to lack of a flame mitigation device.” Apparently, “CPSC issued a Notice of Violation to the seller Shenzhen Yinglong Industrial Co., Ltd. of China, doing business as LetSports, but the firm has not agreed to recall these fuel bottles or offer a remedy to consumers.”

You can find out more information about the warning here.

Product images from the CPSC website are set forth below:

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Product Recall

Consumer Product Safety Commission Warning – Immediately Stop Using Elide Fire Extinguishing Balls Due to Failure to Extinguish Fires and Risk of Serious Injury or Death


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In subrogation cases where the insured’s damages were caused by a defective product, the fact that the Consumer Product Safety Commission (CPSC) issued a warning about the product at issue may help to establish that the product was defective when it left the manufacturer’s possession and control. On March 28, 2024, the CPSC issued a warning urging consumers to “immediately stop using Elide Fire Extinguishing Balls due to failure to extinguish fires and risk of serious injury or death.” According the CPSC, “the products can fail to effectively disperse fire retardant chemicals and fail to extinguish a fire.” Apparently, “Elide Fire USA has not agreed to recall these fire extinguishing balls or offer a remedy to consumers.”

You can find out more information about the warning here.

Product images from the CPSC website are set forth below:

This entry was posted in CPSC Warning, Products Liability and tagged .

Consumer Product Safety Commission Recalls


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In subrogation cases where the insured’s damages were caused by a defective product, the fact that the product at issue is or was subject to a recall announced by the Consumer Product Safety Commission (CPSC) may help to establish that the product was defective when it left the manufacturer’s possession and control. On March 14, 2023, the CPSC announced the following recalls related to products that present fire hazards:

  1. Best Buy Recalls Insignia® Air Fryers and Air Fryer Ovens Due to Fire, Burn and Laceration Hazards. According to the CPSC’s website, “[t]he air fryers can overheat, causing the handles to melt or break, posing fire and burn hazards. Additionally, the air fryer ovens can overheat and the glass on the door can shatter, posing fire, burn and laceration hazards.”
  2. Textron Specialized Vehicles Recalls Tracker Off Road OX EV Light Utility Vehicles Due to Fire Hazard. According to the CPSC’s website, “[w]ater can get into the lithium-ion battery pack of the Tracker OX EV vehicles, posing a fire hazard.”
  3. Honeywell Recalls System Sensor L-Series Low Frequency Fire Alarm Sounders and Strobes Due to Risk of Failure to Alert Consumers to a Fire. According to the CPSC’s website,
    “[t]he sounders and strobes can malfunction and cause the fire alarm system to fail to alert consumers of a fire.”
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