In 1989, the Back to the Future franchise made several fanciful predictions about 2015.  One prediction may now be coming true: hoverboards have hit the streets — sort of.  The currently-available hoverboards, as opposed to the Hollywood fantasy ones, are more properly described as hands-free, self-balancing scooters.  Fueled by viral videos and celebrity social media posts, these battery-powered scooters are quickly becoming the must-have gift of the holiday season.

As the popularity of these hoverboards increases, however, so too does the potential for claims against manufacturers and sellers.  Over the last three months, the Consumer Product Safety Commission (“CPSC”) has reportedly learned about nearly 20 separate injuries from hoverboard-related accidents, ranging from sprains and contusions to broken bones and at least one head injury.  
Continue Reading Oh What Fun It Is To Ride . . . A Hoverboard? This Year’s Must-Have Holiday Gift Poses Potential Litigation Risks for Manufacturers

Last night, Texas-based Blue Bell Creamery announced a full, nationwide recall of all its products. This is a significant expansion of the recall Blue Bell began earlier this month after three deaths in Kansas from listeria – the first recall in the company’s 108-year history. The initial recall was limited to specific products, but was expanded to all products after two samples of cookie dough ice cream tested positive for listeria. The CDC traced the Kansas cases of listeria to Blue Bell plants in Texas and Oklahoma, but it is still not clear how the contamination began.

Listeria monocytogenes can cause severe, sometimes fatal illness in children, elderly people, and people with weakened immune systems. Symptoms include high fever, nausea, abdominal pain, and stiffness. Currently, ten reported listeria cases are linked to Blue Bell. Five people have been diagnosed in Kansas, one in Oklahoma, three in Texas, and today, the CDC announced an Arizona case.

Continue Reading Grocery Freezers Empty as Blue Bell Conducts Massive Ice Cream Recall

Legal decision-makers are used to seeing other departments employ analytics to understand their customers and be more successful. Many legal departments use software or processes to control costs, but these have little to do with the ultimate outcome of particular cases or investigations. It is past time for those same tools to be put to work in improving and predicting legal outcomes.
Continue Reading Using Analytics to Solve Product Liability Problems

The Third Circuit Court of Appeals will soon be deciding an issue that could dramatically impact the liabilities aircraft product manufacturers may face.  Specifically, the court will address the question of whether a certificate issued by the FAA precludes design defect claims against aircraft product manufacturers. 

The appeal stems from the U.S. District Court for the Middle District of Pennsylvania’s dismissal of certain product liability claims in Sikkelee v. AVCO Corp.  The district court relied on the 1999 case of Abdullah v. American Airlines, Inc., a passenger-injury case against American Airlines, in determining that the claims are preempted by the Federal Aviation Act. 
Continue Reading Manufacturers Await Decision on Whether Federal Aviation Act Precludes Design Defect Claims

Earlier this month, the Connecticut Supreme Court affirmed summary judgment in favor of an auto manufacturer holding that the plaintiff cannot save his claim by relying on an unspecified product defect under the “malfunction theory” of product liability.  In White v. Mazda Motor of America, Inc., et al., the plaintiff asserted a personal injury and property damage claim against the defendants after his Mazda3 caught fire one month after his purchase of the new vehicle.  The plaintiff alleged a specific defect in the design of the vehicle’s fuel system, but his only expert witness “declined to offer an opinion about whether the plaintiff’s vehicle was defective.” The trial court, therefore, granted defendants’ motion for summary judgment.

A malfunction claim must be pled and cannot be used as a fallback after a plaintiff’s claim of a specific defect fails. 

On appeal, plaintiff claimed he could prove his case by claiming the existence of some unspecified product defect under the malfunction theory of product liability.  The Appellate Court determined that the plaintiff had not raised the malfunction theory in trial court and thus did not preserve the issue for appellate review.  The Connecticut Supreme Court held that a malfunction claim must be pled and cannot be used as a fallback after a plaintiff’s claim of a specific defect fails.  Without pleading the facts necessary to support a malfunction claim, plaintiff did not put defendants on notice and as a result, “[n]either the defendants nor the court had any reason to believe that the plaintiff also was raising a malfunction theory claim.”
Continue Reading Alleged Unspecified Defect Not Sufficient to Prevent Summary Judgment in Fire Case