Articles Posted in Product Liability

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anxiety.jpgProduct Liability, as defined by Black’s Law Dictionary is:

… the legal liability of manufacturers and sellers to compensate buyers, users, and even bystanders, for damages or injuries suffered because of defects in goods purchased. …

Because Product Liability cases often involve a substantial cost to the plaintiff, it must be determined that the potential award is sufficient to warrant bringing the cause of action. Awards are primarily calculated based on damages and damages are typically associated or equated with a physical injury.

You can typically recover four different types of damages from a products liability case:

Compensatory damages – are based on expenses incurred as a result of the defective

Pain and suffering – these damages are for the pain that you endured as a result of an injury.

Loss of consortium – is to compensate a spouse for the negative effect that the incident had on your relationship.

money bag.jpg Punitive damages – are for the sole purpose of punishing the defendant for egregious behavior as to deter the defendant from ever repeating the actions that lead to the incident.

Now, with increasing frequency, plaintiffs are requesting damages or compensation based on emotional distress. Emotional distress is difficult to prove and more difficult to calculate a compensatory value. Emotional distress can be in conjunction with a physical injury or in absence of a physical injury. It is easier to demonstrate emotional distress when it is a result of or in combination with a physical injury. The emotional distress appears to be commensurate with the severity of the physical injury. When is it permissible or appropriate to seek damages based on emotional distress when accompanying an injury? And when is emotional distress compensable if no physical injury was sustained? The answer is different and varies for each state. The lack of definition and unified standard is what makes it one of the most difficult injuries to prove. The following are ways of demonstrating or supporting a claim of emotional distress

  • Intensity. The severity of the distress. The more significant the mental anguish, the greater chance you have of proving that your emotional distress was profound enough to warrant compensation. In some cases, courts will require some sort of physical injury as well.
  • Duration. The period of time that the pain persists. A consistent and or recurring pain with a significant duration may support claims of mental anguish.
  • Belated Bodily Harm. The physical manifestation of emotional distress. Emotional distress can result in ulcers, headaches, hives and other physical ailments. The existence of these stress-related ailments may be demonstrative of emotional stress.
  • Underlying Cause. The more extreme the underlying cause of the emotional distress, the more likely a court will find emotional distress. The severity of the incident that caused the emotional distress is directly commensurate the emotional stress suffered.

Angry Whopper2.jpgA recent case in which emotional stress damages were awarded was brought by a Seattle, Washington Sheriff’s Deputy. The Deputy went through a Burger King drive-thru and was served a whopper. He did not eat any of the burger, but because of an uneasy feeling, he decided to inspect what lay under the bun. The slimy substance he encountered was later analyzed by a lab and determined to be the saliva of a Burger King employee. He claimed the discovery caused him emotional stress that resulted in ongoing vomiting, nausea, food anxiety and sleeplessness. The court, in a 6-3 decision Thursday, said state law permits relief for emotional distress damages, in the absence of physical injury, caused by being served a contaminated food product, if the emotional distress is a reasonable reaction.
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bankruptcy_court-300x187.jpgThe U.S. Court of Appeals for the Second Circuit ruled April 10 that suits against Pfizer over the Insulag product, which was produced by Quigley Co., are not barred by a preliminary injunction. What this means is that Pfizer is not protected from asbestos-related lawsuits that have been filed by more than 160,000 plaintiffs against the now-bankrupt Quigley. In 1968, Pfizer bought out Quigley, a company that is alleged to have sold asbestos-containing products, creating a health hazard. Even though Quigley stopped most operations in 1992, and filed for bankruptcy in 2004, these suits are still an issue for Pfizer. Parent Companies, or companies that have purchased in part or in whole a second company have often sought to escape liability for the actions of the acquired company. What are a parent’s liabilities???. For Pfizer, along with the financial rewards of the acquisition, the were found culpable.

This order is the latest in what seems to be an endless ping pong volley of appeals in the determination of liability in asbestos cases. Quigley’s bankruptcy court imposed a preliminary injunction in 2004 that prevented all parties from filing claims against Pfizer while Quigley’s chapter 11 case was pending. The injunction was modified in 2007, preventing claims against Pfizer over its ownership or management of Quigley. The case is In re Quigley Co., 04-15739, U.S. Bankruptcy Court, Southern District of New York (Manhattan). The appeals case is 11-2635, 11-2767, 2nd U.S. Circuit Court of Appeals (Manhattan).

Pfizer.gifPfizer is known to be the world’s largest research-based pharmaceutical company and the world’s biggest drug-maker by revenue. They are not the typical defendant in an asbestos case. Although the company never actually manufactured the product, the Pfizer logo was clearly placed on the Quigley Insulag packaging. This fact played no small part in the court’s decision to uphold a previous ruling at the district level. Now Pfizer has again been ordered to face culpability for the damage this asbestos containing product has done. Pfizer continues to argue that they are not responsible for products manufactured by Quigley, but they cannot deny that they profited from its sales and the courts could not ignore the bright blue PFIZER logo that donned the asbestos containing Quigley products.
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Michigan legislation currently under consideration would allow any company that merged with another prior to the 1972 regulations, and as a result became mired in legal liability over asbestos production, to treat the acquired company as a separate subsidiary. Lawsuits would then be capped at the total value of the subsidiary company, rather than the value of the parent company.

bill.jpgHouse Bill 4601, from the state of Michigan, is a reintroduction of legislation introduced in the 2007-2008 (SB 591) and 2009-2010 (HB 5167) legislative sessions and would address the situation one successor corporation has experienced since acquiring a company that at one time made, sold, and installed asbestos insulation. The bill would limit the liability of a successor corporation that acquired or merged – before 1972 – with a predecessor corporation that had engaged in asbestos-related activities.

Currently, under the rule of successor liability, a successor corporation (one that acquires or merges with another) can be held liable for any civil actions filed against the business acquired (predecessor corporation), up to the total value of the successor corporation, even if it did nothing to create the liability or the liability had been created before the merger or acquisition.

CCS logo.gifOne company who would benefit from such legislation would be Pennsylvania-based Crown Cork and Seal. Crown did not manufacture any products that contained asbestos. They did acquire another company in 1963, Mundet Cork, which did manufacture products containing asbestos. Mundet Cork’s products that contained asbestos include the following;

  • Mundet Mineral Wool Finishing Cement
  • Mundet Mineral Wool Insulating Cement
  • Mundet Cork 85% Magnesia Asbestos Insulation
  • Mundet Block Insulation
  • Mundet Pipe Covering

This company DID install asbestos and was liable to pay a significant number of claims related to asbestos exposure – unless they convinced state lawmakers around the country to pick up the tab. Crown has paid out more than $700 million in asbestos claims and seen its bond rating reduced to junk status. The company that in 1998 employed 12,000 nationwide now has just 4,000 workers remaining.

Backers of the bill pointed to Halliburton, the energy company famously run by Dick Cheney before he became vice president, to make their case. In the 1990s, Halliburton acquired a company subject to lawsuits as a result of asbestos claims, but Halliburton kept its acquisition — Dresser Industries — as a separate subsidiary, ensuring that when Dresser went into bankruptcy, it didn’t affect its parent company’s books. The only people to actually speak in favor of this bill in the House Judiciary Committee were the company’s General Counsel and Rep. Joe Haveman (R-Holland), who sponsored the bill and said it shows that Michigan is “open for business.”

The bill was not voted on in the House Judiciary Committee and it is probable that the Committee Chair will hear more testimony in the weeks to come.

Similar legislation has passed in 15 other states.

What does this type of legislation mean to asbestos victims? Significantly less funds available to compensate those stricken with Mesothelioma, Asbestos related Lung Cancer and other asbestos related diseases. The is a limited about of funds available to compensate the numerous victims of asbestos exposure. Taking away or reducing the responsibility of a parent company reduces the drastically diminishing pool of funds available. In the case of Bill 4601, not only does it create a special exemption for one company, but it would force individuals (in this case, Michigan residents) suffering from asbestos poisoning who don’t have sufficient means or insurance into the state’s worker compensation system, Medicaid or Medicare, forcing Michigan taxpayers to assume all the risks for one out-of-state corporation failing to do sufficient research before approving a merger.

Asbestos victims are speaking out. The International Association of Heat and Frost Insulators made a public appeal for justice in a press release by President James E. Grogan dated November 30, 2011 declaring their opposition to the bill. The question remains…Can their voices be heard over the cacophony created by big business, insurance companies and the like trying only to protect their own interests?
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finger right.jpgfinger left.jpgThere are two major types of asbestos lawsuits filed: Premises liability asbestos lawsuits, and products liability asbestos lawsuits.

A products liability asbestos lawsuit is filed against a person or company who made the product that exposed a person to asbestos. For example, if a plaintiff in a mesothelioma lawsuit was a bricklayer for a construction company and often worked with a cement that was made with asbestos in it, the case against the manufacturer of the asbestos containing cement would be a products liability case.

In civil court lawsuits for damages, legal responsibility for injuries caused by asbestos exposure is sometimes determined under the law of product liability. A product liability case arises when someone uses, or is exposed to, a dangerous product that injures them. Liability is usually based on one of three theories:

  • breach of warranty
  • negligence
  • strict liability

Breach of Warranty: There are two types of warranties: 1) implied warranties; and 2) express warranties. In an asbestos exposure case, you might be able to recover for a breach of an implied warranty under your state’s implied warranty statutes, which are usually found in a state’s commercial code. Implied warranties accompany the sale and use of many types of products, including those containing asbestos. To all intents and purposes, implied warranties present that a product will be safe and fit for its premeditated purpose. Liability for a breach of express warranty may exist if the supplier or seller of a product containing asbestos made a claim about the product that ultimately caused someone to buy or use the product, and that claim later turned out to be false. For example, if a supplier claims that using a particular asbestos product is safe, but the product is in fact unreasonably dangerous, the supplier may be liable to a person who relied on the supplier’s statements and was injured by the product.

Negligence: This means that the defendant knew of the physical hazards involved in working with the substance, yet failed to issue adequate warnings to or provide suitable protection for those workers expected to handle the material in the course of their assigned tasks. In order to prove negligence, the plaintiff must demonstrate that there was a legal standard required and that the defendant owed a duty of protection to the defendant. Fortunately, in cases where a supplier’s negligent conduct may be difficult to prove, courts have developed an alternative theory of liability to allow plaintiffs to recover. That alternative theory is called strict product liability.

Strict Liability: Like negligence, the strict product liability theory requires the plaintiff to prove four elements: (1) a strict duty to supply a safe product; (2) a breach of that duty; (3) causation; and, (4) damages. However, strict liability differs from negligence in two key ways. First, under a strict liability theory, the existence of a duty is shown when there is a commercial supplier that manufactures or retails the product — not just a casual seller. Second, under a strict liability theory, the plaintiff does not need to show that the breach of duty is the result of any negligent action. The mere fact that the product was dangerous or defective is enough to establish a breach of the supplier’s duty. Of the four elements in negligence and strict product liability asbestos cases, causation can often be the most difficult to prove.

Causation or proof of fault in a mesothelioma lawsuit requires that the plaintiff prove that exposure to asbestos caused his or her illness and that the defendant both was aware, or should have been aware, of the existence of an asbestos-related hazard and failed to implement protective measures. The plaintiff must first establish some threshold exposure to the defendant’s defective asbestos-containing products, and must further establish in reasonable medical probability that a particular exposure or series of exposures was a ‘legal cause’ of his injury. One major issue in asbestos litigation is exposure to the defendant’s product. The plaintiff bears the burden of proof on this issue. If there has been no significant exposure, there is no causation. Plaintiffs may prove causation in an asbestos case by demonstrating that the plaintiff’s or decedent’s exposure to defendant’s asbestos-containing product in reasonable medical probability was a substantial factor in contributing to the aggregate dose of asbestos the plaintiff or decedent inhaled or ingested, and hence to the risk of developing asbestos-related cancer. In most lawsuits, defense attorneys will attempt to present scientific reports and studies to try to dispute that asbestos can cause the injury alleged. The latency period for an asbestos-related disease is anywhere from ten (10) to fifty (50) years. This results in a substantial amount of time between exposure to asbestos and the appearance of an injury. Defendants may use that passage of time to argue the injury was caused by exposure to another toxic substance, or a product manufactured by someone else. Therefore, in order to prove causation, the plaintiff must show that the asbestos-containing product can cause the injury claimed, that the plaintiff was exposed to the asbestos in a quantity large enough to cause the injury claimed, and that the plaintiff was not exposed to some other toxic substance or product that could have caused the injury. Additionally, the plaintiff is forced to remember details of work history and exposure from as much as fifty (50) years ago.
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KENT.pngKENT is a brand of cigarette manufactured by Lorillard Tobacco Company. The cigarette was actually named after Herbert Kent, a former company executive.

From March of 1952 until at least May of 1956 Kent Cigarettes featured a “Micronite Filter” that contained carcinogenic blue asbestos. In response to a series of articles published in Readers Digest referring to cigarettes as “cancer by the carton” Lorillard Tobacco Company marketed its first filtered cigarette; KENT with Micronite Filter. During this time period an estimated 13 billion KENT Micronite filtered cigarettes were sold in the U.S. and actually boasted to be “the greatest health protection in U.S. history. 1950s Kent Cigarette Advertisements KENT AD.pngdescribed “a pure, dust-free, completely harmless material that is so safe, so effective, it actually is used to help filter the air in hospital operating rooms.” “perfect for smokers who were unusually sensitive to tars and nicotine”. Medical experts have since identified the “completely harmless” secret ingredient used in Kent Micronite cigarettes as crocidolite asbestos (also called “African blue” asbestos), a known carcinogen which some experts believe is the most hazardous of the six types of asbestos. In a study performed on the filter at the Queensland lab, Fibers comprising the web between crepe paperlayers were of two types, organic and inorganic. The inorganic fibers were confirmed by polarizing light microscopy to be crocidolite asbestos; a single filter contained 10 mg of crocidolite. On the basis of a fiber length of 5 µm, a diameter of 0.1 µm, and a density of 3.2 gm/cm3, 1 filter could contain as much as 80 billion crocidolite asbestos fibers.

Although only about five out of every twenty cases against Lorillard Tobacco regarding their asbestos containing filter has resulted in a favorable decision for the plaintiff, there have been several noteworthy victories.

  • $2 million award in smoking lawsuit: Baltimore County man, Charles M. P. Connor, wins against makers of Kents, asbestos filter. April 30, 1999
  • Mr. Lenney was awarded 1.36 million dollars by a San Francisco jury. He had been diagnosed with mesothelioma in November 2009 and in 2010, he had to have a lung removed. Lenney v. Armstrong International Inc. et al., No. CGC-10-275529, verdict returned (Cal. Super. Ct., S.F. County Mar. 3, 2011).
  • A San Francisco Jury Awarded $1,048,100.00 in Kent Micronite Asbestos Cigarette Filter Case. The plaintiffs were Donna Traverso and Paul Bucedi for the Decedent Daisy Bucedi (nee Daisy Hammer).

The difficulty with this type of case and the reason why victories are so hard to come by is CAUSATION. What actually caused the onset of the disease? If one was exposed to asbestos in the work place or as a bystander and smoked, the proof regarding causation is very difficult to establish. What percentage, if any, of the exposure was a result of occupational or environmental exposure or from the use of the cigarettes?
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