Over the last few years, as the U.S. Consumer Product Safety Commission (CPSC) has moved slowly in its rulemaking efforts to address tip-overs of dressers. Without a final rule, the agency has sought to use other methods to address dresser incidents, specifically its authority to investigate potentially hazardous products and its ability to request – and even compel – recalls. The agency’s process has been straightforward: It has obtained samples of countless brands and models of dressers, tested them against the relevant voluntary standard, and, where testing suggested the samples did not meet the standard, sent letters requesting recalls. Continue Reading Regulation-by-Enforcement: CPSC Targets Adult Portable Bed Rail Industry Company-by-Company
In a rare move, the U.S. Consumer Product Safety Commission (CPSC) has asked the Department of Justice (DOJ) to pursue and potentially litigate a civil penalty matter. In an even rarer move, the CPSC has publicly disclosed the request. Acting Chairperson Bob Adler has released a statement announcing that the Commission has voted – on a bipartisan basis – to refer a case to the DOJ, and although his statement does not identify the targeted company, its industry, or even the nature of the possible violation, the vote and announcement are certain to raise eyebrows across the CPSC-regulated community. Continue Reading Rare CPSC Penalty Referral to Department of Justice May Signal a More Aggressive Agency in the Biden Era
In Illinois, the collateral source rule bars defendants from submitting evidence that plaintiffs received compensation for their injuries from a collateral source. For example, if a plaintiff is injured in a car accident due to someone else’s negligent actions, often the plaintiff’s insurance company will cover part of the plaintiff’s medical expenses even before the plaintiff files a lawsuit against the tortfeasor. In that example, the defense is prohibited from submitting evidence regarding that compensation. The purpose of this rule is to prevent defendants from reducing or eliminating the amount of damages they are liable for. On May 21, 2020, the Illinois Supreme Court defined the outer limits of this rule in Mary Lewis, et al. v. Lead Industries Association, et al. (Atlantic Richfield Company, et al.), holding that plaintiffs cannot use the collateral source rule to establish the injury element of a cause of action. The Lewis plaintiffs argued that the cost of the lead testing, which had been covered entirely by Medicaid, should be recoverable pursuant to the collateral source rule. The Court was unconvinced and ruled that pure economic loss claims in which a plaintiff cannot establish actual out-of-pocket expenses will fail and the collateral source rule will not provide the necessary support to overcome that hurdle in Illinois. Continue Reading Lewis Court Rejects the Use of the Collateral Source Rule to Establish Injury-in-Fact
Now that we know that Joe Biden will take over the White House in January, the near future for the U.S. Consumer Product Safety Commission (CPSC) is a little clearer. Part one of this series previewed the remaining weeks of 2020. Part two looks at what we can expect once the 117th Congress convenes and President Biden takes office. Continue Reading A Little Less Fuzzy: What to Expect from the CPSC During the Biden Era
Now that we know that Joe Biden will take over the White House in January, the near future for the U.S. Consumer Product Safety Commission (CPSC) is a little clearer. While there are still a couple key unknowns, namely what will happen in the rest of 2020 and how the Senate runoff elections in Georgia will turn out, we can now get closer to answering what the CPSC of 2021 and beyond will look like. Part one of this two-part series looks at what we expect to happen during the transition, including the “lame duck” congressional period. Part two explores what roles we foresee for each of the players: the Biden administration, the agency, and Congress. Continue Reading A Little Less Fuzzy: What to Expect from the CPSC Before the Biden Era
Several state and federal courts have recently addressed a hot-button issue in product liability law: whether the manufacturer of a product that has an asbestos-containing replacement part that causes injury may be liable even if the manufacturer itself did not manufacture or supply the replacement part. Consider this example: a manufacturer produces a steam trap or boiler that contains an asbestos gasket that needs to be replaced from time to time. Third parties supply the replacement gaskets. Is the original product manufacturer liable for injuries allegedly caused by the asbestos-containing replacement gaskets? Continue Reading Whelan v. Armstrong Int’l, Inc.: Latest Asbestos Ruling Expands Manufacturer Liability for Injuries
As we recently wrote, the presidential and congressional elections will affect both the leadership and policy of the U.S. Consumer Product Safety Commission (CPSC), but we won’t have a clear picture of what the future will look like until the results come in. There’s one thing, though, that we already knew: Barring a surprising shift in U.S. Senate priorities before the end of the year, the next President will have at least three opportunities to appoint a CPSC commissioner.
We now know something else: At least two of those seats will have to be filled by new people, and perhaps all three. This impending turnover creates further uncertainty for an agency whose recent history has been defined by instability. More troublingly, as noted below, if the next White House and Senate cannot find some common CPSC ground, the agency could lose its authority to act. Continue Reading Outgoing Adler: Acting CPSC Chair Will Not Seek Re-Nomination, Adding to Agency’s Leadership Uncertainty
In yesterday’s post, we described a scenario involving a simple traffic accident, asking you to estimate the average exposure at trial.
What is the average exposure at trial in this case, based on your counsel’s estimates of these various possible outcomes?
- $1.4 million
- $3.3 million
- $5.5 million
- $8.1 million
Legal success is driven by the correct perception of risk. Plaintiffs don’t want to leave emptyhanded, and defendants don’t want to pay more than necessary. Sometimes the facts favor only one side, but most of the time a party’s legal risks fall on a spectrum between these extremes.
Managing that spectrum effectively is critical. But when cases get complex, even great lawyers have a hard time placing values on them. We have a solution to this: MagnitudeSM, our new artificial intelligence tool that takes the good advice of your preferred lawyers about the merits of a claim and translates it into dollars. Continue Reading How to Value Important Cases: Introducing Magnitude
Recently, we wrote about how the impending presidential election might affect the U.S. Consumer Product Safety Commission (CPSC), and specifically what might happen with the Commission’s current vacancy and the two more (at least) that will arise during the next presidential term. Now we’ll take a look at how the upcoming congressional elections may also affect the CPSC and the companies it regulates. Continue Reading Safety on the Hill: Prospects for CPSC Overhaul in the 117th Congress