Products liability

Law Reporter, Sep 2002

ATLA's Products Liability Law Reporter includes a broad range of products liability cases. Here are examples of the kinds of cases appearing in each issue of PLLR.

Failure to provide adequate seat belts for children who are too large for child restraints

Settlement for a 6-year-old child who suffered spinal cord and neck injuries resulting in quadriplegia when the mini-- van in which he was a belted, bench seat passenger was struck on its side. Suit against the minivan manufacturer alleged that the restraint system was inadequate for children like plaintiff who are too large to be seated in child restraints. Specifically, plaintiff alleged the system fits these children loosely, allowing for spinal straining. *C. Tab Turner, North Little Rock, Ark.; *Susan E. Lister and *Darrel Peters, Detroit, Mich.; and *Bettye J. King, West Palm Beach, Fla., represented plaintiff.

Rainford v. Ford Motor Co., Fla., Palm Beach County Dist. Ct., No. CL 99-9311 AI, Mar. 3, 2002.

State-of-the-art defense inapplicable where manufacturer only complied with industry custom

The Iowa Supreme Court held that the state-of-the-art defense does not bar products liability claims where the allegedly defective product's design complied with industry custom rather than the state of the art. Joseph Patrick Braun, Cresco, Iowa, and *Judith M. O'Donohoe, Charles City, Iowa, represented plaintiff. Documents in this case are available through the Court Document Sets section in the back of this issue, courtesy of plaintiff's counsel.

Falada ro. Trinity Indus., Inc., 642 N.W.2d 247 (Iowa 2002).

Unreasonably dangerous diabetes drug

Verdict, including punitive damages, for a woman whose husband died after using the diabetes medication Rezulin. Suit against the drug manufacturer alleged Rezulin was unreasonably dangerous in that it caused the man to develop hemolytic anemia and cholestatic hepatitis. Plaintiff also alleged defendant knew of the health risks associated with the drug but failed to provide adequate warnings in light of these risks. *Zoe Littlepage, *Rainey Cawthon Booth, and *Joshua H. Brockman, all of Houston, Tex.; and *Renee Williams, Tulsa, Okla., represented plaintiff.

Wakefield v. Warner-Lambert, Okla., Tulsa County Dist. Ct., No. CJ2000-04654, Mar. 25, 2002.

Comment: For a settlement in another wrongful death case involving Rezulin, see Cunningham v. WarnerLambert, 21 PLLR 88 (June 2002). *T. Roe Frazer II, *Courtney E. Clark, *Martin E. Willoughby, *Edward J. Peters, *Malcolm 0. Harrison, *John L. Davidson, and *Charles E. Gibson, all of Jackson, Miss.; and *J. Michael Papantonio, *Frederick T. Kuykendall III, and *Troy A. Rafferty, all of Pensacola, Fla., represented plaintiff in this case.

FIFRA does not preempt breach-of-express-warranty claim alleging retailer recommended off-label uses

An Illinois appellate court held that the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), 7 U.S.C. sec 136 et seq., does not preempt a claim against an herbicide retailer where the retailer expressly warranted that an off-label use was safe and effective. *Clayton L. Lindsey and Kari A. Vanderzyl, both of Oregon, Ill., represented plaintiff.

Diehl ro. Polo Coop. Assn, 766 N.E.2d 317 (Ill. App. Ct. 2002).

Comment: For a case holding that FIFRA preempts a plaintiff's claim where the plaintiff fails to present evidence that the product in question is unreasonably dangerous or defectively designed, see Netland v. Hess & Clark, Inc., 284 F.3d 895 (8th Cir. 2002). Failure to provide hopper on woodchipper

Structured settlement for a man who suffered a closed head injury, resulting in cognitive deficits and hearing loss, when a log was allegedly ejected from a woodchipper, striking the man in the head. Suit against the woodchipper manufacturer alleged the device was unreasonably dangerous because it was not equipped with a three-sided hopper to prevent wood from being ejected. *Scott H. Wechsler, San Francisco, Cal., represented plaintiff.

Doe v. Roe Mfg. Co., Cal., confidential court and docket no., Jan. 10, 2002.

Comment: For a case alleging a woodchipper was unreasonably dangerous because the intake chute was too short, see Wood v. Morbark Indus., 70 F.3d 1201 (11 th Cir. 1995), 39 ATLA L. Rep. 120 (Apr. 1996). Plaintiff was represented by William KI Jennings, DeFuniak Springs, Fla. Documents in Wood are available through the Court Document Sets section in the back of this issue, courtesy of Mr. Jennings.

Separate instruction on superseding cause not required where court instructs on causation generally

The Indiana Supreme Court held that a trial court did not commit reversible error by failing to give an instruction on superseding cause when it provided an instruction on causation generally that addressed foreseeability issues.

*Nick Katich, Merrillville, Ind., represented plaintiff. Control Techniques, Inc. v. Johnson, 762 N.E.2d 104 (Ind. 2002).

Judge's hostile questioning of expert witness in jury's presence may be grounds for reversal

The Delaware Supreme Court held that a trial judge's questioning of an expert witness in the jury's presence can constitute an abuse of discretion where the judge's crossexamination of the witness jeopardizes the requirement for the judge to remain impartial. *Stephen P. Casarino and Thomas P. Leff, both of Wilmington, Del., represented plaintiffs.