Mealey's
Product Liability & Risk

Volume 2, Issue #1
September, 2002

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NEW PUBLICATIONS

Mealey's To Launch Employer Liability Insurance Report

Monthly report on insurance coverage arising from employment issues begins this month

Other new reports to focus on auto product liability, employee compensation, silica injuries

PREEMPTION

Dow Granted Summary Judgment 

Florida federal judge says FIFRA preempts claims alleging defects in pesticide Dursban 

Nebraska Supreme Court affirms FIFRA preemption for herbicide claims

EXPERTS

Partial Summary Judgment Granted On Grinding Machine Claims

U.S. judge allows expert testimony on design defect claims, dismisses failure to warn claim

Biomechanics expert limited in testimony alleging shoelace defect in Nike shoes

CLASS ACTIONS

JPML Denies Centralization Of Seat Belt Buckle Cases

Request by DaimlerChrysler to consolidate Georgia, Massachusetts cases fails

Louisiana appeals court affirms class certification in action against ICON manufacturer

Ford opposes motion to remand in Pennsylvania Crown Victoria case

Meridia MDL created, sent to Ohio court; 25 federal cases reported

Missing tire leads to dismissal of case in Ford/Firestone MDL

NEW COMPLAINTS / SETTLEMENT

Evenflo Co. Faces Suit In Child's Death

Plaintiffs claim defective child restraint seat led to infant death

Cleveland sues Ford over problems with Crown Victorias used by police

$3.2 million settlement reached in Kentucky state ATV action

SPOLIATION OF EVIDENCE / RULINGS

3rd Circuit Affirms Dismissal Of Trailer Manufacturer

Pennsylvania high court would not create distinct cause of action for spoliation of evidence

Federal judge dismisses 1 defendant, leaves 1 defendant in defective winch suit

Federal judge holds defendant proper party in suit alleging defect in yacht that sank

PRODUCT LIABILITY EXTRAS

Insurers Had Duty To Defend Suit

Liability insurers had duty to defend claims arising from insured's defective product

PRODUCT WATCH

Playskool Toy Chests Recalled 

Screws in lid support hinges can loosen, pose risk of collapse

CASES IN THIS ISSUE                                      

N.D. N.Y.         Beneway v. Superwinch Ind.
                               Judge dismisses, retains defendants

S.D. Ind.          Bridgestone/Firestone Tire Prod. Lia., In Re
                         Henry v. Ford Motor Co.
                               Henry case dismissed for lack of tire

3rd Cir.            Caleb v. CRST Inc.
                               Dismissal affirmed

E.D. N.Y.         Clarke v. LR Systems
                               Partial summary judgment granted

N.D. Ohio        Cleveland v. Ford Motor
                               City sues for Crown Victoria defects

JPMDL            DaimlerChrysler Corp. Seat Belt Buckle, In Re
                               JPMDL denies centralization of cases

Neb. Sup.        Eyl v. Ciba-Geigy Corp.
                               FIFRA preempts common law claims

S.D. N.Y.         Faryniarz v. Nike 
                               Biomechanics expert's testimony limited

D. Md.             Jurgensen v. Albin Marine Inc.
                               Defense summary judgment denied

N.D. Ohio        Meridia Products Liability Litigation, In Re
                               Meridia MDL created, sent to Ohio 

E.D. Pa.          Montgomery Township v. Ford Motor
                               Ford opposes motion to remand

S.D. Fla.          Oken v. The Monsanto Co.
                               FIFRA preempts Dursban claims

Ky. Cir.            Rohrer v. Yamaha Corp.
                               $3.2 million settlement reached

N.D. Ala.         Thomas v. Evenflo Co.
                               Suit alleges defective child restraint seat

3rd Cir.            West v. G&H Seed Co.
                        Class suit for ICON claims affirmed

NEW PUBLICATION

Mealey's To Launch Employer Liability Insurance Report

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Sexual harassment, age discrimination, workplace injury, wrongful termination, ADA, workplace violence, sexual preference discrimination, gender discrimination, pension and 401(k) fiduciary duty - these are just some of the risks and some of the lawsuits faced by employers today.  And insurance coverage litigation is always around the corner.

Insurance coverage litigation resulting from such employment issues will be the focus of the latest insurance litigation report from LexisNexis Mealey Publications, Mealey's Litigation Report:  Employer Liability Insurance.

This dynamic topic fits well into Mealey's proven insurance litigation reporting format, lending itself to coverage of new cases, pleadings, trials and rulings from judges in jurisdictions around the country.  Hard-to-get documents will be published, and experts will share their views in frequent commentaries.

Some recent news:

An Illinois appeals court has held that there is no duty to defend a gender discrimination lawsuit pursuant to a commercial umbrella policy that excludes liability arising out of discrimination but provides coverage for liability resulting from sexual misconduct.

An employee dishonesty protection rider to a fidelity insurance policy does not insure against legal liability to third parties incurred as a result of an employee's dishonesty, a federal judge has ruled.

The monthly report begins publication in September and is priced at $700.  For details, call our Customer Service Department at 1-800-MEALEYS or (610) 768-7800 or e-mail us at info@mealeys.com.  It can also be purchased online on LexisNexis with e-mail delivery and immediate access to court documents, including opinions, appellate briefs, complaints, etc.

As a bonus, with their paid order, charter subscribers will receive Mealey's Special Report:  Employer Liability Coverage Disputes - a value of $395.  The special report tracks more than five years of employment coverage developments reported by Mealey's.  To receive it, order by Dec. 31.

W. Thomas Hagy

Vice President & General Manager

 FIFRA Preempts Claims Alleging Dursban Defect

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FT. LAUDERDALE, Fla. - A federal judge on Aug. 26 granted summary judgment in favor of Dow Agrosciences, holding that the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA) preempted claims alleging a defect in the pesticide Dursban (Wayne Charles Oken v. The Monsanto Co., et al., No. 01-7360-CIV, S.D. Fla.; 2002 U.S. Dist. LEXIS 16456 Shepardize).

(Opinion available.  Document #49-020912-108Z.)

Pesticide Injury

Wayne Oken sued several entities, including Dow Agrosciences, in the U.S. District Court for the Southern District of Florida for negligence, strict liability and failure to warn regarding the formulation and manufacture of Ortho Dursban Lawn & Garden Insect Control, which contains the chemical chloropyrifos.  Oken contended that he used the product for his garden as intended but that it caused him severe neurological, physical and psychological injury.

Dow filed a motion for summary judgment, seeking dismissal of all claims based upon preemption by FIFRA.

FIFRA Preemption

Dow argued that the term "requirements" in FIFRA includes state law actions for damages, while Oken contended that it did not preclude such actions.

The Supreme Court has not answered the question in the FIFRA context, but it has found in other cases that claims based upon labeling are preempted by the related act.  Also, the 11th Circuit U.S. Court of Appeals has held that state common law claims for negligence and strict liability that require a showing that the label or packaging caused an injury are preempted by FIFRA, Judge William P. Dimitrouleas said.

The court is bound to follow the 11th Circuit law, the judge said, noting that several other courts that also have considered the issue as it relates to FIFRA have found for the defendants.  The plaintiff can bring claims for strict liability and negligence for design defect or manufacturing defect of a product that is unreasonably dangerous provided that the issue of warning to consumers is not implicated, Judge Dimitrouleas said.

The judge agreed with Dow's argument that the issue of warning is implicated in Oken's remaining theories of liability because Florida law looks to consumer expectations or a risk-benefit test to analyze strict liability claims and under either test.  As Dow pointed out, under either test, the jury would necessarily need to determine whether the label or package warning was reasonable to the ordinary consumer, Judge Dimitrouleas said in finding the design defect claim preempted by FIFRA.

Oken also argued that separate from any failure to warn issues, the defendants could be liable for designing and manufacturing an unreasonably dangerous product and that because FIFRA does not preempt Florida state law from banning a product outright, the defendants could be liable for tort damages.

The argument fails, however, because such a claim suggests that a manufacturer would not have to produce Dursban at all, or at least not sell it in Florida, to avoid liability because extra warnings to people with chemical sensitivity are not allowed under state law, Judge Dimitrouleas said.

Manufacturing Defect

Dow also argued that it had submitted evidence regarding the quality control in the Dursban manufacturing process that would rebut any claim of negligence or strict liability.

Oken argued that he did not have the opportunity to discover facts that supported more than an inference of the manufacturing defects claims, but he had over nine months to discover such facts.   Because Oken has not provided sufficient reasons for a continuance of the summary judgment motion, Dow's motion will be granted as a matter of law that no genuine issue of material facts exists as a manufacturing defect, Judge Dimitrouleas said.

A summary judgment motion is pending against defendant Home Depot.  Defendants The Monsanto Co., the Solaris Group and Scotts Co. have not filed motions for summary judgment, but any such motion should indicate whether those defendants stand in the same position, factually and legally, as Dow, Judge Dimitrouleas said.

Ian G. Osur of Miami and Stuart Calwell of the Law Offices of Stuart Calwell in Charleston, W.Va., represent Oken.

Douglas Joseph Chumbley of Carlton Fields in Miami represents Monsato.  Samuel Alberto Danon and Alejandra Hernandez Pennie of Hunton & Williams in Miami represent Scotts.  Daniel Jay Gerber of Rumberger Kirk & Caldwell in Orlando, Fla., and Joseph G. Eaton and Dean T. Barnhard of Barnes & Thornburg in Indianapolis represent Dow.

Nebraska Supreme Court Affirms FIFRA Preemption

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LINCOLN, Neb. - The Nebraska Supreme Court on Sept. 6 sustained its 1997 ruling that the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA) preempts common law strict liability failure to warn claims against the manufacturer of herbicides (Harold D. Eyl, et al. v Ciba-Geigy Corp., No. S-00-219, Neb. Sup.).

The court ordered the reversal of a $2.1 million judgment for the plaintiff and dismissal of all claims.

(Opinion available.  Document #15-020920-101Z.)

Pesticide Injury

In 1993, Harold Eyl spent one day hauling pea rock to a playground area that recently had been treated with the herbicide Pramitol 5PS by an employee of the City of Wisner.  His feet became red and swollen and later developed ulcers.  Eyl now is permanently disabled because of his feet.

Eyl sued Ciba-Geigy Corp., the herbicide manufacturer, and Northeast Cooperative, the seller, in the Cuming County District Court, claiming that he was a bystander who should have been warned that Pramitol had been applied.

Only Eyl's strict liability claim for failure to warn against Ciba-Geigy was submitted to the jury, according to the record.  A jury awarded Eyl $2,146,000.

The Nebraska Supreme Court granted the defendants' motion to bypass and accepted the case on appeal.

The defendants argued that Eyl's claims are labeling claims based on and preempted by FIFRA.

Eyl argued that FIFRA did not preempt his claims and asked the Supreme Court to overturn its decision in Ackles v. Luttrell (252 Neb. 273 [1997] Shepardize, cert. denied 522 U.S. 928, 118 S. Ct. 329, 139 L. Ed. 2d 255).

Eyl based his argument on an amicus brief filed by the Environmental Protection Agency in Etcheverry v. Tri-Ag (22 Cal. 4th 316 Shepardize, 993 P.2d 366, 93 Cal. Rptr. 2d 36 [2000]) that contained the agency's opinion that FIFRA did not preempt common law claims.  The Montana Supreme Court adopted the EPA's position in Sleath v. West Mont Home Health Services (304 Mont. 1 Shepardize, 16 P.3d 1042 [2000] cert denied 122 S. Ct. 40, 151 L. Ed. 2d 13 [2001]).

Eyl also argued that even if FIFRA preempts failure to warn claims, it does so only for labeling-based claims in which there is a failure to warn the user and that because he was a bystander and not a user, his claims are not label-based.

FIFRA Preempts Claims

Since this court's decision in Ackles, a majority of courts continue to hold that FIFRA preempts labeling-based failure to warn claims, Justice William Connolly wrote for the court.

"We decline to adopt the position taken by the Montana Supreme Court.  First, we have already considered the effect of Medtronic Inc. [v. Lohr, 518 U.S. 470 Shepardize (1996)] on the issue of FIFRA preemption in Ackles and determined that FIFRA preempts failure-to-warn claims," the court said.  "Second, we give no deference to the EPA's position in the amicus brief filed in Etcheverry."

Also, the Eighth Circuit U.S. Court of Appeals recently rejected the same arguments asserted by Eyl in Netland v. Hess & Clark Inc. (284 F.3d 895 Shepardize [8th Cir. 2002]; See 4/11/02, Page 5), the court said in declining to overturn Ackles.

Label-Based Claims

Eyl also argued that FIFRA preempts only claims that are labeling-based and directed to the actual user, but he was not a user of the product.  He argued that his claims sought damages for failure to warn that the product had been applied and were not labeling-based on the existing label.

The overwhelming majority of courts have held that FIFRA preempts plaintiffs' claims that the lack of point-of-sale signs or consumer notices are not related to labeling and packaging.  This court, too, holds that warning flags, posters or signs supplied by the manufacturers and aimed at warning that a pesticide has been applied or of its danger are part of the labeling under FIFRA, the court said.

Ely's argument that Ciba-Geigy should have provided notice of the dangers of Pramitol to the general public is off the mark because the majority of jurisdictions have held those types of warnings to be label-based, the court said.

There is a difference between regulating the use of a product by requiring the applicator to provide warnings and a preempted labeling-based claim when a manufacturer is required to provide warnings, the court said.

Ely cited cases in which applicators or pesticides were being regulated, and ordinances can require an applicator to provide warnings that a product has been applied without imposing additional labeling requirements that would be preempted, the court said.

Requiring a manufacturer to provide warning signs, flags or other devices constitutes "labeling" under FIFRA, the court said.

"Because Eyl predicates his failure-to-warn claims on the quality of the warning, his claims are preempted against both the manufacturer and the distributor," the court said.

William J. Brennan and Gerald L. Friedrichsen of Fitzgerald, Schorr, Barmettler & Brennan in Omaha, Neb., represented the appellants.  Susan E. Fieber of Nolan, Olson, Hansen, Fieber, Lautenbaugh & Geren in Omaha represented the City of Wisner.  David E. Copple and Jim K. McGough of Copple, Rockey & McGough in Norfolk, Neb., represented Eyl.

Partial Summary Judgment Granted On Grinder Claims

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BROOKLYN, N.Y. - A federal judge on Sept. 6 granted partial summary judgment to a defendant charged with defectively designing a machine used for grinding plastic, dismissing a failure to warn claim and continuing the defective design claims (Walter Clarke v. LR Systems and Lasits Rohline Service Inc., No. CV-99-5219, E.D. N.Y.; 2002 U.S. Dist. LEXIS 16635 Shepardize).

(Opinion available.  Document #49-020912-009Z.)

Grinder Injury

Walter Clarke was operating a plastic grinding machine, called a grinder or granulator, when he tried to push the V-belt with his palm to unstick a jam and his right hand was pulled into the blades of the grinder.  Clarke lost the top part of his thumb and injured the top parts of his third, fourth and fifth fingers.

Clarke sued LR Systems and Dayton Electronic Manufacturing Co. in the Kings County Supreme Court, alleging negligence and strict products liability and breach of implied and express warranty.  The case was removed to the U.S. District Court for the Eastern District of New York when Clarke's employer, Favorite Plastics Inc., was joined as a third-party defendant.

Dayton Electronic and Favorite Plastics have been voluntarily dismissed.

Clarke alleges that LR Systems is liable because warning stickers on the grinder failed to adequately warn users that users should not try to clear jams by grasping and pulling on the V-belts and that granulator should not be operated without the blue cover removed and that the absence of an electric interlock on the blue cover that would prevent the machine from operating with this cover removed constituted a design defect.

LR Systems filed a motion for summary judgment.

Failure To Warn

LR Systems argued that it was not liable because the danger was open and obvious and because Clarke was fully aware of the hazard.

Clarke acknowledged several times that he knew it was dangerous to put his hand on the V-belt without first turning off the power, and it does not matter from which part of the machine the harm would be, Judge David G. Trager said.

Because Clarke was aware of the danger, it is not necessary to determine whether the danger was open and obvious, Judge Trager said in dismissing the failure to warn claim.

Design Defect

LR Systems did not address the legal elements of Clarke's design defect claim but attacked the admissibility of his expert, arguing that if the expert's testimony and report were excluded, Clarke would be unable to prove the elements of any design defect claim.  However, an expert is not necessary to prove the causation element of a defective design in all cases, Judge Trager said.

LR Systems argued that Neal Growney's testimony was unreliable and inadmissible because he did not apply the principles and methods reliably to the facts of the case.

However, Growney's report and deposition show that his methodology for reaching the conclusion that the grinder's design was defective is sufficient for his testimony to be admitted, Judge Trager said.

Growney appears to have performed some version of the risk/utility analysis necessary to determine if a product is defective and observed that LR Systems knows how to interlock guard doors, that the company had equipped other models with interlocks and had interlocked certain covers on other grinders, Judge Trager said.

LR System's argument that the blue cover on the grinder's motor and belt drive comported with the American National Standards Institute (ANSI) is also insufficient to exclude the expert's evidence.  Simply because the grinder was in compliance with the ANSI standard does not make Growney's conclusion unreliable, Judge Trager said in denying summary judgment on the design defect claims.

Richard S. Vecchio of Worby Borowick Groner in White Plains, N.Y., represents Clarke.  Elizabeth A. Weill and William J. Ricci of Lavin, Coleman, O'Neil, Ricci, Finarelli & Gray in New York represent LR Systems.

Biomechanics Expert Limited In Testimony Against Nike

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NEW YORK- A biomechanics expert may not testify that that a sneaker's lacing system and pull tab design caused a doctor to fall and injure her wrist, a federal judge held Aug. 23 (Deborah Faryniarz v. Nike Inc., No. 00-Civ. 2623 [NRB], S.D. N.Y.; 2002 U.S. Dist. LEXIS 15825 Shepardize).

Dr. Keith Williams may testify about perceived flaws in the defense expert's tests and the availability of alternate lacing systems, U.S. Judge Naomi Reice Buchwald of the Southern District of New York held.

(Opinion available.  Document #30-020920-004Z.)

Deborah Faryniarz alleges that a design defect in Nike's Air Certitude shoes caused her to fall while running.  Her wrist injury will impair her career as an orthopedic surgeon, she asserts.  Faryniarz contends that the long lace on one shoe caught on the rigid rear pull-tab of the other shoe.

Nike moved to exclude Williams' testimony.

Qualifications

The judge noted that Williams is an associate professor in biomechanics and kinesiology and has a doctorate in biomechanics.  He has published numerous articles and testified in more than a dozen lawsuits, including several involving footwear.

Faryniarz planned to call Williams to rebut the testimony of defense expert Dr. Mark Grabiner, whose tests and simulations showed that Faryniarz could not have fallen the way she contends.  The judge held that Williams' discussion of the flaws in Grabiner's study are admissible and that he may testify about his opinion that an accurate study is not feasible.

In concluding that Faryniarz could have caught her lace on her other shoe as claimed, Williams applied his experience and his observation of the shoes.  He also relied on Nike's specifications and the generally accepted fact that a protruding material may catch a long shoelace.

"Williams' conclusion that plaintiff could have fallen in the manner she alleges is not predicated upon any scientific or technical analysis of either the plaintiff or the shoes in question.  Instead, Williams states that 'My opinion is based on experimental studies I have done over the past 25 years that have examined running mechanics for a variety of runners, with a variety of footwear, and in varying conditions and speeds,'" the judge said.

Testing

Williams admitted that his conclusions cannot be tested or challenged.  The judge said this type of testimony was what Rule 702 was intended to exclude.

"While plaintiff correctly argues that an expert may rely on his experience as the basis for his opinion, that expert must explain how that experience leads to his proffered conclusion and why it provides a sufficient basis for it," the judge said.

Judge Buchwald also said Williams cannot use his testimony that Faryniarz's causation theory is untestable as the basis for his conclusion that the very same theory is credible.

Regarding the alternative design, the judge said Williams has sufficient knowledge of the industry to testify about various lacing schemes and pull-tabs.  However, because he cannot testify about the cause of Faryniarz's fall, he cannot testify about what alternate designs could have prevented the fall.

Finally, the judge held that a Daubert hearing was unnecessary because she reviewed Williams' declaration.  She said cross-examination would not be useful.

Counsel to Faryniarz are James P. Kreindler and Jacqueline James of Kreindler & Kreindler in New York.  Stephen D. Straus and Gerard Benvenuto of Traub Eglin Lieberman Straus Hawthorne in New York represents Nike.

JPMDL Denies Centralization Of Seat Belt Buckle Cases

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WASHINGTON, D.C. - The Judicial Panel on Multidistrict Litigation (JPMDL) on Aug. 12 denied a motion requesting the transfer of two actions alleging defective seat belts in DaimlerChrysler vehicles to the MDL (In Re DaimlerChrysler Corp. Seat Belt Buckle Product Liability Litigation, MDL No. 1480, JPMDL; See 6/27/02).

(Order available.  Document #49-020912-107R.)

DaimlerChrysler had asked that actions pending in the U.S. District Court for the Northern District of Georgia and the U.S. District Court for the District of Massachusetts be centralized in the MDL (Linda Hiller, et al. v. DaimlerChrysler Corp., No. 02CV10533, D. Mass.; Beatrice Coker, et al. v. DaimlerChrysler Corp., No. 1:02-CV-903, D. Ga.).

DaimlerChrysler had also asked that a similar case pending in Ohio federal court be included in the MDL transfer, but the case was remanded to state court before the JPMDL made its decision (See 8/14/02, Page 5).

DaimlerChrysler had suggested that the cases be consolidated in the U.S. District Court for the Northern District of Ohio.

Accidental Release

DaimlerChrysler is a defendant in several actions actions, alleging that the Gen III buckle is "dangerously prone to accidental release" and was not designed to minimize the possibility of such release.

A "transfer would neither serve the convenience of the parties and witnesses nor further the just and efficient conduct of the litigation," Judge Terrell Hodges wrote for the panel.

"Given the number of minimal actions involved in this docket, movant has failed to persuade us that any common questions of fact are sufficiently complex to warrant Section 1407 centralization," the court said.

The plaintiffs had opposed to transfer to the MDL because they want the suits transferred to the state courts in which they originally were filed.

Alan L. Kovacs of the Law Office of Alan J. Kovacs in Boston, William R. Edwards and William R. Edwards III of The Edwards Law Firm in Corpus Christi, Texas, and Steven A. Kanner and Douglas A. Millen of Much Shelist Freed Denenberg Ament & Rubenstein in Chicago represent the Massachusetts plaintiffs.

Lance A. Cooper, Andrew W. Jones and Scott B. Cooper of Cooper & Jones in Marietta, Ga., represent the Georgia plaintiffs.

Louisiana Appeals Court Affirms Class Against ICON Manufacturer

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LAKE CHARLES, La. - A Louisiana appeals panel on Aug. 28 affirmed the class action status of a suit with three subclasses against the manufacturer and distributors of insecticide-treated rice seed for allegedly damaging pond-grown crawfish across the state (Craig West, et al. v. G&H Seed Co., et al., No. 2001-1453, La. App., 3rd Cir.; 2002 La. App. LEXIS 2676 Shepardize).

(Opinion available.  Document #49-020912-006Z.)

Crawfish Damage

Louisiana crawfish farmers alleged that they sustained damage to their pond-grown crawfish crops because of contamination from rice seeds treated with Fipronil, an insecticide with the trade name ICON 6.2 FS.

Aventis Crop Science USA manufactures the pesticide, which is sold in liquid form to seed distributors/applicators, who, pursuant to contracts with Aventis, applied ICON to rice seed before planting.  The chemical is used to combat rice water weevil.

The statewide crawfish harvest declined by millions of pounds from 1999 to 2000, and the plaintiffs allege that the ICON-treated rice seed in certain ponds caused the devastating effect.  Some farmers experienced total loss of their crops, and others experienced a commercially damaging decline.  Rice and crawfish often are conjunctively farmed, either in the same pond or in close proximity to one another.

Aventis conducted a study and concluded that the crawfish mortality resulted from misapplication of ICON, was unrelated to ICON or was attributable to a severe drought in 1998.

Class Suit Initiated

The farmers sued Aventis and several seed distributors/applicators who sold ICON-treated seed in the 27th Judicial District Court, Parish of St. Landry, alleging theories of product liability, redhibition, negligence, negligent misrepresentation, fraudulent concealment, intentional misrepresentation, fraud and breach of contract.  The plaintiffs sought class action status.

The trial judge certified three subclasses of plaintiffs but denied to certify a class of defendants.

In addition to filing respective motions for appeal of the class certification, several defendants also sought supervisory writs, which were granted and converted into an appeal.

Class Appropriate

The trial judge did not abuse his discretion in granting class action status or defining the three subclasses, Judge Ulysses Gene Thibodeaux wrote for the Third Circuit Louisiana Court of Appeal.

The class meets the requirements of numerosity, commonality, typicality and adequacy, objectiveness and predominance, superiority and manageability, the court said.

More than 1,000 crawfish farmers were in Louisiana in 1999.  Many of them also farmed rice, and of those who farmed rice, many purchased ICON-treated seed.  The farmers allege that they were injured by ICON, and the appeal is not the time to determine whether the claims are true because to do so would improperly require the court to consider the merits of the case, which is disallowed at this stage, the court said.

Also, the subclass definitions are not worded such that the numerosity requirement is defeated because the subclass definitions do not reference any one particular seed distributor defendant or require that putative members stake claims against one particular seed company, the court said

Commonality

The commonality test is met in that even with individual farming practices or the possible effects of the drought, ICON is still alleged to be a common potential cause of the destruction, the court said.

"Proof of the ill-effects of ICON is essential to all claims, creating a common character among groups.  Since class members were allegedly harmed on different dates and sustained different amounts of alleged injury, individual issues may present themselves, but such would not defeat commonality," the court said.

Also, typically and adequacy requirements are met because the eight representatives who were appointed cover all relevant variations of class members, there is no evidence that the representatives have conflicting claims with class members or that they do not have a sufficient interest in the outcome or that the plaintiffs' attorneys are not competent, the court said.

The subclass definitions are "neither amorphous, vague, nor indeterminate, and therefore 'provide a sufficient basis upon which to determine the scope of the class and the propriety of permitting plaintiffs to represent all or part of it,'" the court said in finding that objectiveness had been met.

Further, class treatment will effectuate substantive law, judicial efficiency and individual fairness, the court said.

Plaintiffs' counsel also stipulated that they could not prove a claim for certification against Terral Seed Inc., so the appeals court reversed the claim against the company and dismissed it from the suit.

Counsel

Plaintiffs Craig West, Troy West and W. B. Farms Inc. are represented by Dawn M. Barrios and Bruce S. Kingsdorf of Barrios, Kingsdorf & Casteix in New Orleans; Patrick C. Morrow and John Michael Morrow of Morrow, Morrow, Ryan & Bassett in Opelousas, La.; Gano Lemoine and Vance R. Andrus of Andrus, Boudreaux, Lemoine & Tonore in Lafayette, La.; Melanie M. Piech, Lori E. Andrus and Elizabeth J. Cabraser of Lieff, Cabraser, Heinmann & Bernstein in San Francisco; and William Neblett and Richard Arsenault of Neblett, Beard & Arsenault in Alexandria, La.

Carl Duhan and Ike Huval of Duhon Law Firm in Lafayette and Elwood Stevens Jr. of Kleinpeter, Schwartzberg & Stevens in Morgan City, La., represent plaintiffs Patrick E. Phillips Jr. d/b/a Phillips Seafood and Atchafalaya Processors Inc.

Arthur W. Landry of Plauche, Maselli, Landry and Parkerson in New Orleans represents defendants G&H Seed and Crowley Grain Drier Inc.  Homer Ed Barousse of Barousse & Craton in Crowley, La., represents G&H Seed.

Gary A. Bezet, Robert E. Eille, Gregory M. Anding and Craig M. Freeman of Kean, Miller, Hawthorne, D'Armond, McCowan & Jarman in Baton Rouge, La., represent Aventis.

Donald R. Smith of Smith & Davis in Baton Rouge represents defendant Terral Seed Inc.  Peter F. Caviness of Dauzat, Falgoust, Cainess & Bienvenue of Opelousas and J. Wendel Fusilier of the Law Office of J. Wendel Fusilier in Ville Platte, La., represent defendants Mamou Rice Driver & Warehouse and Nolan J. Guillot.

Ford Opposes Remand In Pennsylvania Crown Victoria Case

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PHILADELPHIA - Ford Motor Co. on Sept. 3 opposed a motion to remand to a Pennsylvania state court a lawsuit seeking class action status for its claims that the company designed defective gas tanks in Crown Victorias used by law enforcement (Montgomery Township, et al. v. Ford Motor Co., No. 2:02CV5815, E.D. Pa.; See 7/18/02, Page 16).

Ford removed the case to the U.S. District Court for the Eastern District of Pennsylvania from the Montgomery County Common Pleas Court on July 29.  The plaintiffs filed a motion to remand on Aug. 14.

(Ford's Opposition Brief available.  Document #49-020912-105B.)

Montgomery and East Norriton townships have been leasing or purchasing Ford's Crown Victoria automobiles for use by the police since 1995.  The townships sued Ford for strict liability, breach of warranty and negligence, alleging that implied warranties made by Ford were breached by the design of the vehicle and location and design of the gas tanks and that Ford manufactured and sold the vehicles in a defective condition that was dangerous to users.

Remand Inappropriate

The case is one of at least 15 lawsuits across the United States alleging that the fuel tank placement in the vehicle constitutes a safety-related defect.  Many of the cases have been removed to federal court, and Ford has asked the Judicial Panel on Multidistrict Litigation (JPMDL) to transfer each of the cases to a single district and consolidate them for pretrial proceedings.

Ford says it believes the JPMDL will grant its request and asked the District Court to postpone its decision until the panel rules.

Still, if the MDL request is not granted, removal to federal court is appropriate because diversity jurisdiction exists and because the amount in controversy exceeds $75,000, Ford says.

Federal jurisdiction diversity exists because even though the plaintiffs purport to seek relief only under Pennsylvania law, they complain of a safety-related defect as the term is defined under the federal National Traffic and Motor Vehicle Safety Act, Ford says.

Resolution of the plaintiffs' question would necessitate a safety-related recall under the Safety Act, meaning their state law claims are preempted by the Safety Act, Ford says.

Also, the claims asserted by the plaintiffs would exceed more than $75,000 per named plaintiff, meeting the amount-in-controversy requirement for removal to federal court, Ford says.

Edward Rubin and Doug Zeiders of Hamburg, Rubin, Mullin, Maxwell & Lupin in Lansdale, Pa., represent the plaintiffs.

C. Scott Toomey of Campbell, Campbell, Edwards & Conroy in Turnersville, N.J., and John H. Beisner, Brian C. Anderson, Teresa E. Dawson, Kelly J. Riordan and Garrett W. Wotkyns of O'Melveny & Myers in Washington, D.C., represent Ford.

Meridia MDL Created, Sent To Ohio Court; 25 Federal Cases Reported

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WASHINGTON, D.C. - The Judicial Panel on Multidistrict Litigation (JPMDL) on Aug. 13 approved creation of a Meridia MDL in the U.S. District Court for the Northern District of Ohio (In Re:  Meridia Products Liability Litigation, MDL Docket No. 1481, JPMDL, No. 02-8000, N.D. Ohio).

The new MDL was assigned to Judge James S. Gwin.

(Order available.  Document #28-020905-103R.)

The panel made its decision based on two actions:  Holly Cardwell v. Abbott Laboratories, et al. (No. 02-2183, N.D. Ill. and Carol Rothenberger v. Abbott Laboratories, et al. (No. 02-1419, D. N.J.).

The order said it was notified of 23 potentially related actions in 16 federal district courts:  the Middle, Eastern and Western districts of Louisiana, New Jersey, the Middle District of Alabama, the Western District of Arkansas, the Southern District of California, the Northern District of Illinois, the Northern District of Indiana, the Eastern District of Kentucky, Minnesota, Nebraska, Nevada, the Eastern District of Pennsylvania, the Western District of Wisconsin and the Northern District of Ohio.

Defendants are Abbott Laboratories, Knoll Pharmaceutical Co., SmithKline Beecham Corp. and BASF Corp

Courts Suggested

Creation of an MDL was supported by all parties.  The plaintiffs initially suggested transferring the cases to New Jersey, the Western District of Arkansas, the Eastern District of Kentucky, the Eastern and Middle districts of Louisiana, Nevada, the Northern District of Ohio and the Eastern District of Pennsylvania.  Most plaintiffs at a July hearing supported the Eastern District of Kentucky.

Noting that the litigation has no geographical focal point, the panel said it looked for a judge "with the time and experience to steer this complex litigation on a prudent course."

Public Citizen this year petitioned the FDA to ban the Meridia brand sibutramine diet drug based on "29 deaths and hundreds of serious adverse reactions since it was introduced in 1998."  The advocacy group said Meridia's effectiveness in lowering obesity is "meager."

An FDA medical officer who reviewed Meridia recommended against approving it because of the potential for heart problems, but an advisory committee approved it on a 5-4 vote.

Deaths Reported

Italian officials banned sibutramine earlier this year after two deaths in that country, where it is marketed as Reductil.  Abbott Laboratories has admitted that 34 people around the world have died after taking sibutramine, according to Reuters.  The Department of Health in Britain, where two deaths occurred, announced that it would examine the Italian data but had no immediate plans to take the drug out of circulation.  The European Medicines Evaluation Agency is also planning a review of the drug.

The company said that in addition to the Italian and British deaths, it found 28 deaths in the United States, one in South Africa and one in Switzerland, according to the Reuters report.  The company said both of the British deaths occurred in people with severe cardiac disease.  Details of the other deaths have not been released.

Judge Gwin, 47, was appointed by former President Bill Clinton and has presided over a union trust fund tobacco trial and litigation against "supermax" prisons.  He was confirmed in 1997.

Since 1989, he has been an Ohio Court of Common Pleas judge.

Missing Tire Leads To Case Dismissal

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INDIANAPOLIS - The federal judge overseeing the Ford/Firestone MDL granted summary judgment Aug. 1 to Bridgestone/Firestone North American Tire after a plaintiff could not produce the tire believed to have caused the accident (In Re Bridgestone/Firestone Inc. Tires Product Liability Litigation, MDL 1372, No. 00-9373-C-B/S; Jill RaeAnn Henry v. Ford Motor Co., et al., No. IP 01-5318-C-B/S, S.D. Ind.).

(Opinion available.  Document #49-020912-011Z.)

Tire Blowout

In 1998, Jill Henry was involved in a serious accident with another vehicle driven by Daryl Mitchell.  Mitchell was driving his Ford Explorer and lost control when a tire blew, forcing him to go into the center divider and causing Henry to take evasive action.  She also lost control of her vehicle.

Mitchell took his tire to a local gas station to dispose of after the accident but before receiving notice that the tires were being recalled.

Henry sued Ford and Bridgestone in an Oklahoma state court, and the matter was removed to federal court before being transferred to the MDL.

Bridgestone filed a motion for summary judgment, saying that because Henry could not produce the tire and had failed to preserve the tire for examination, she could not establish causation.

Causation Not Shown

Although the absence of the tire is not necessarily fatal to a plaintiff's claim because Oklahoma law allows plaintiffs to prove causation using circumstantial evidence, it is in this case, U.S. Judge Sarah Evans Barker of the Southern District of Indiana said.

Mitchell testified that he visually inspected the tire before and after the accident and that he could not see any foreign objects or other possible causes for the tread separation that had occurred.  An accident reconstructionist testified that Henry did not contribute to her losing control of the vehicle.

However, the information is insufficient to fend off a motion for summary judgment because Mitchells' information, although relevant, does not support a conclusion that the alleged defect was a reasonably certain explanation for what happened, Judge Barker said.  Also, Henry's expert could not say what caused her injuries, only that she did not, Judge Barker said in granting summary judgment.

Gregory G. Meier of Meier Cole & O'Dell in Tulsa, Okla., represents Henry.

Mark Merkle of Krieg Devault in Indianapolis, Mark Herrmann of Jones Day Reavis & Pogue in Cleveland, Colin P. Smith of Holland & Knight in Chicago, John H. Beisner of O'Melveny & Myers in Washington, D.C., Randall Riggs of Locke Reynolds in Indianapolis and Harris A. Phillips III of Niemeyer Alexander Austin & Phillips and Curtis L. Smith of Chubbuck Smith Rhoes Stewart & Elder, both in Oklahoma City, represent the defendants.

Plaintiffs Claim Defective Child Restraint Seat Lead To Infant Death

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BIRMINGHAM, Ala. - Plaintiffs suing Evenflo Co. Inc. for allegedly designing a defective car seat that led to the death of an infant removed the case to federal court on Aug. 15 (Edwin L. Thomas, as the personal representative of the estate of James Edwin Thomas, a minor, deceased v. Evenflo Co. Inc., et al., No. 2:02CV2001, N.D. Ala.).

(Complaint available.  Document #49-020912-104C )

Defective Child Seat

Edwin L. Thomas was given a child restraint seat - an Evenflo On My Way - as a gift.  The seat was manufactured by Evenflo and sold by Babies "R" Us, a subsidiary of Toys "R" Us Inc.  On Jan. 16, 2001, James Edwin Thomas, a minor, was placed in the child restraint seat on the floor of his caretaker's home.  The child was strangled by the harness straps of the seat and died.

Thomas sued Evenflo, Toys "R" Us and up to 27 fictitious parties whose correct names are unknown in the Jefferson County Circuit Court, alleging that the seat was so defectively designed, manufactured and assembled that it caused James' death.  Thomas removed the case to the U.S. District Court for the Northern District of Alabama.

Complaints

Thomas alleges that the child restraint seat and its component parts were not reasonably safe when being used in a foreseeable manner but were defective and unreasonably dangerous because, among other things, they failed to prevent the death of an infant while the seat was detached from its base and resting on the floor.

The defendants should have known that the child restraint seat was unreasonably dangerous when being used in a foreseeable manner, Thomas says.

Thomas alleges that the negligent, wanton and/or wrongful conducts of the defendants were approximate cause of James' death.  The defendants negligently and/or wantonly designed, manufactured and sold the child restraint seat, he says.

Thomas states claims for negligence, wantonness, breach of contract, breach of warranties and violation of the Alabama Extended Manufacturers and/or Strict Liabilities Doctrine and other wrongful conduct.

He also alleges that the seat and its component parts were not reasonably fit and suitable for the purposes for which they were intended to be used and that the defendants violated express and/or implied warranties.

Jeffrey C. Rickard and Dennis E. Goldasich Jr. of Marsh, Rickard & Bryan in Birmingham represent the plaintiffs.  S. Allen Baker Jr., Teresa G. Minor and Sean Shirley of Balch & Bingham in Birmingham represent the defendants.

Cleveland Sues Ford Over Problems With Police Crown Victoria

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CLEVELAND - Cleveland became the latest city to accuse Ford Motor Co. of designing defective gas tanks in Crown Victoria vehicles used by police when it filed a class action lawsuit Aug. 28 in federal court on behalf of law enforcement agencies across Ohio (City of Cleveland v. Ford Motor Co., No. 1:02CV1692, N.D. Ohio).

Similar lawsuits have been filed in states including Texas, Pennsylvania, New Jersey and Arkansas.

(Complaint available.  Document #49-020912-103C.)

Lawsuit Filed

Cleveland sued Ford in the U.S. District Court for the Northern District of Ohio, Eastern Division, as a representative of a class of plaintiffs consisting of all the municipalities, counties and other political subdivisions within Ohio that own or have owned a Ford Crown Victoria Police Interceptor, model years 1992 through 2002.

The city alleges that the vehicles were designed to have a vertical gas tank within the vehicles' rear "crush zone," where the tank is exposed to crushing forces and sharp metal objects that could puncture the tank, allowing fuel leakage.  Because of this design, the vehicles have an unreasonably dangerous tendency to explode during rear-impact collisions, the city alleges.

Ford's advertising campaign and its cover-up of the problem have induced the purchase of thousands of the vehicles within Ohio at a price far in excess of that which consumers would have otherwise paid had the design problems been disclosed, the city says.

Many governmental entities continue to own the vehicles, which threaten law enforcement officers with undue risk of physical injuries and death, the city says.

The city seeks to recover damages, restitution, refunds and/or for equitable, injunctive and declaratory relief against Ford.

Claims

The city alleges that Ford has been aware of the problem since the early 1970s but continued to manufacture and sell vehicles with such a design, despite knowing that the problem could have been prevented by a simple shield.

It says two Ohio officers died in 2000 from accidents involving the penetration of the thin sheet metal of the trunk and fuel tank.

The State of Florida presented Ford with a study in which it requested Ford's assistance in reducing or eliminating the hazard, but for approximately 18 months Ford took no action and deaths and injuries across the United States continued to mount, the city says.

The city states claims for breach of contract, unjust enrichment, breach of express warranty, breach of implied warranty, Ohio Deceptive Trade Practices Act and conversion.

R. Eric Kennedy of Weisman, Goldberg & Weisman in Cleveland, Don Barrett of Barrett Law Office in Lexington, Miss., and Pat McGroeder of Gallagher & Kennedy in Phoenix filed the complaint.

$3.2 Million Settlement Reached In ATV Case

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MAYFIELD, Ky. - Yamaha Motor Corp. USA has agreed to pay $3.2 million to settle a suit alleging that a defectively designed steering system on an all-terrain vehicle (ATV) led to an accident that left a Kentucky teenager with paralysis from the waist down, according to an Aug. 28 release (Rohrer v. Yamaha Corp. USA, No. 99-CI-361, Ky. Cir., Graves Co.).

Yamaha denies any defects in the ATV or any liability for lack of warnings.

Parties reached the agreement in September 2001 but did not release the information until Aug. 28 because of other negotiations.

Steering Column Snapped

Jacob Rohrer, then 17, was injured in 1997 while riding as a passenger on a 1995 Yamaha Timberwolf ATV Model YFB250FWG four-wheel all-terrain vehicle.

The steering column snapped, causing the back end of the ATV to come off the ground, and the vehicle flipped end-over-end, throwing Rohrer and the driver off.  Rohrer fractured his back, causing a severe injury to his spinal cord that left him a permanent paraplegic.

The Rohrer family sued Yamaha Motor and Yamaha Motor Co. LTD in the Graves County Circuit Court, alleging that the ATV had a defective steering system, an unreasonably dangerous high center of gravity and poor lateral stability.

The Rohrers also contended that Yamaha failed to warn consumers that similar accidents of steering system failures had occurred before this accident.  Attorneys for the Rohrers uncovered 20 prior similar accidents involving similar steering shaft failures before Rohrer's accident, according to the release.  Despite knowing of the defect, Yamaha failed to recall the defective product or warn consumers of the dangers, the Rohrers contended.

In September 2001, Yamaha agreed to pay the Rohrer family $3.2 million, but Yamaha denies any defects in the ATV or any liability for lack of a warning.  The settlement agreement came before one week before an October 2001 trial date.

Documents Turned Over

Plaintiff's attorney Robert S. Bennett of the Bennett Law Firm in Houston, with the help of Parents Against the Production of Unsafe ATVs (PAPA), has turned over to the Consumer Products Safety Commission (CPSC) the documents linking the defective steering shaft to more than 20 accidents across the United States.

Bennett said in the release that he hopes the new data will help the CPSC pressure Yamaha to make its four-wheel vehicles safer for the public and provide further pressure on the industry to recall all three-wheeled ATVs in use.

Bennett played a key role in investigations into the ATV industry in the 1980s, which led to the CPSC General Counsel Office pressuring the ATV industry to voluntarily ban three-wheeled vehicles, according to the release.

Plaintiff Experts

Plaintiff experts were Rahn M. Huffstutler, P.E., metallurgical engineering, Rossford, Ohio; William Kitzes, Ph.D., safety analysis and product safety, Boca Raton, Fla.; Gilbert L. Mathis, Ph.D., economics, life care plan, Murray, Ky.; Michael B. Mazis, Ph.D., safety analysis and advertising, Potomac, Md.; Susan McDowell, M.D., physical medicine and rehabilitation with a subspecialty certificate in spinal cord injury medicine, Lexington, Ky.; Robert R. Wright, Ph.D., metallurgy and accident reconstruction, Granville, Ohio; Terry Winkler, M.D., life care planning, Springfield, Mo.; and Tom L. Wagner, Ph.D., vocational rehabilitation, Murray.

Defense Experts

Defense experts were Kris Kubly, Ph.D., accident reconstruction, Madison, Wis.; Kevin Breen, Ph.D., product safety and accident reconstruction, Ft. Myers, Fla.; Gary Fowler, Ph.D., accident reconstruction, Gardena, Calif.; Harry Smith, M.D., Ph.D., biomechanics and accident reconstruction, San Antonio; Donald Marty, P.E., product testing and design analysis, Madison; John Griffin, M.D., psychiatry, Nashville, Tenn.; and Luca Conte, Ph.D., vocational rehabilitation, Louisville.

Bennett of the Bennett Law Firm in Houston, Jeffrey A. Roberts of Jones and Roberts Law Office in Murray and Robert E. Sanders of Sanders & Associates in Covington, Ky., represented Rohrer.

Linsey W. West of Woodward, Hobson & Fulton in Lexington, Ky., and D. Craig York of Woodward, Hobson & Fulton in Louisville represented Yamaha.

3rd Circuit Affirms Dismissal For Trailer Manufacturer

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PHILADELPHIA - A Third Circuit U.S. Court of Appeals panel on Aug. 28 affirmed in an unpublished opinion the dismissal of a case alleging negligence and product liability against a trailer manufacturer, but for different reasons than those found by the district court (Tameka Caleb, an incapacitated person, by Brenda Caleb v. CRST Inc., No. 01-2218, 3rd Cir.; 2002 U.S. App. LEXIS 17893 Shepardize).

The Third Circuit held that the Pennsylvania Supreme Court would not create a distinct cause of action for spoliation of evidence brought outside an existing personal injury or product liability action and affirmed the dismissal for the plaintiff's failure to state a cognizable claim.

(Opinion available.  Document #49-020912-101Z.)

Missing Part

In 1996, Tameka Caleb drove into the rear of a parked trailer manufactured by Strick Corp. and owned by CRST Inc, seriously injuring herself.  Caleb sued CRST in the Philadelphia County Court of Common Pleas for negligence and Strick for negligence and product liability.

In Strick's answer, the company asserted that CRST "may be legally responsible" for spoliation of evidence and included a cross-claim against CRST seeking contribution and indemnification.

The underlying action went to trial, and a jury found in favor of the defendants.  Caleb filed a writ of summon in the Court of Common Pleas against CRST, asserting "economic loss" resulting from CRST's spoliation of evidence that impaired her ability to prove a product liability action against Strict and a negligence action against CRST.

CRST removed the case to the U.S. District Court for the Eastern District of Pennsylvania and filed a motion to dismiss.

The District Court dismissed, holding that under the two-year statute of limitations, the claim was time-barred.  The District Court held that the statute of limitations began to run when Caleb filed the underlying action.

Caleb appealed.  Caleb argued that the statute of limitations began to run on her spoliation claim in June 1999, when she discovered the rear under-ride protection bar/ICC bar was missing.  She held that under her theory, the statute did not expire until June 2001, well after she filed suit.

CRST contended that the statute of limitations began running on Sept. 23, 1996 - the date of the accident - or August 1998 - when Caleb filed her complaint.

Wrong Limitations

The District Court erroneously held that "the facts are so clear that reasonable minds cannot differ" that Caleb should have been aware of her injury when she filed her suit, Judge Anthony J. Scirica wrote for the Circuit Court.

Although Caleb should have investigated the bar and the component trailer parts earlier, it is unclear whether the ICC bar and component parts had been disposed of by August 1998.  Because there is no allegation or evidence when the ICC bar "spoliated," it is not indisputable that Caleb should have been aware of her claim in August 1998, the court said.

Caleb was put on notice that the bar may have been disposed of when Strick filed its answer, so it would appear the statute of limitations would run from the date - Nov. 19, 1998, the court said.  Because the suit was filed within two years of the date, the dismissal based on the statute of limitations was inappropriate, the court said

Separate Cause

However, the dismissal of the case will be affirmed on the grounds that Pennsylvania courts have not recognized "spoliation" of evidence as a distinct cause of action, the court said.

Although the Pennsylvania Supreme Court has not addressed the issue, the Pennsylvania Superior Court has provided some guidance, and based on existing law, this court can predict that the Supreme Court would not create a distinct cause of action for spoliation of evidence brought outside an existing personal injury or products liability action, the court said.

Daniel J. Siegel and Sol H. Weiss of Anapol, Schwartz, Weiss, Cohan, Feldman & Smalley in Philadelphia represent Caleb.  Thomas J. Wagner of the Law Office of Thomas J. Wagner in Philadelphia represents CRST.

1 Defendant Dismissed, 1 Defendant Remains In Defective Winch Claims

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ALBANY, N.Y. - A federal judge on Aug. 21 dismissed one defendant but held that issues of fact existed as to another defendant's liability for an accident in which a ramp from a trailer fell onto a man, rendering him a paraplegic (Gilbert W. Beneway v. Superwinch Inc., et al., No. 00-CV-0337, N.D. N.Y.; 2002 U.S. Dist. LEXIS 16126 Shepardize).

(Opinion available.  Document #49-020912-102Z.)

Winch Failure

In 1999, Gilbert W. Beneway was opening the rear door on a trailer so he could lower the ramp, using a Superwinch Husky 10 winch, manufactured and sold by Superwinch Inc.  When he opened the doors, the ramp fell, severely injuring him and leaving him a paraplegic.  The accident was caused by slack that developed in the wire rope and allowed the hook to work free from the D-ring.  The ramp remained upright, held in place by the trailer's rear doors until Beneway opened the door.

Beneway sued entities including Superwinch and Superwinch LTD (collectively called Superwinch) and Kulkoni Inc. in the U.S. District Court for the Northern District of New York.  Beneway amended his complaint in July 2000, October 2000 and December 2001, asserting causes of action for negligence, strict liability and breach of warranty.  Superwinch filed a third-party complaint against Beneway's employer, Associated Delivery Service Inc.

Superwinch and Kulkoni moved for summary judgment.

Kulkoni Dismissed

Beneway asserted a cause of action for failure to warn against Kulkoni.  Beneway contended that the company, which manufactured the hook, had a duty to properly warn the ultimate user of its hook of the dangers of using the hook in conjunction with overhead lifting.

Kulkoni argued that it had no such duty because as a component manufacturer, it is not liable for failure to warn of inherent dangers in the completed product.

Absent proof that the component designs were defective, that the parts were wrongfully manufactured or that the component parts manufacturer was aware of some inherent danger in the design of the ultimate product, "no public policy can be served by imposing liability," Judge David N. Hurd said.

The hook was manufactured in accordance with Superwinch's specifications and nothing inherently dangerous exists about a slip hook.  Also, Kulkoni did not assist in designing the Husky 10 and was not aware of how Superwinch planned to market the finished winches, Judge Hurd said.

Additionally, it was not foreseeable to Kulkoni that its hook would be used for overhead lifting because the blueprint provided by Superwinch said the winch would not be used for overhead lifting, Judge Hurd said in granting Kulkoni's motion to dismiss.

Superwinch Claims Remain

Beneway asserted strict product liability, negligence and breach of express and implied warranty claims against Superwinch.

Beneway asserted that the Husky 10 was defective because the hook lacked a safety latch and failure to warn.  Superwinch argued that the Husky 10 was properly designed and safe for intended and foreseeable uses and that there was no duty to warn because the danger was open and obvious.

Superwinch said the Husky 10 was sold with a hook that lacked a safety latch but said safety-latched hooks were available as an option.  Manufacturers cannot be held liable when purchasers are injured using their product without optional safety equipment in certain circumstances, but in this case, genuine issues of material fact exist regarding all of those elements, Judge Hurd said.

Questions exists as to whether it was foreseeable that the Husky 10 would be used for raising and lowering objects, as to whether the hook met warning standards and as to whether Superwinch adequately informed consumers that installation of the Husky 10 required a safety-latched hook, Judge Hurd said in denying the motion for summary judgment on the strict product liability claim.

Issues Of Fact Exist

Because genuine issues of material fact exist regarding whether the Husky 10 was being used in a foreseeable manner, the motion for summary judgment for the breach of warranty claim also must be denied, Judge Hurd said.

Summary judgment for the negligence/failure to warn claims also are not warranted, Judge Hurd said.

Given that some of Superwinch's other winches have safety-latched hooks and that a competing manufacturer offers a safety-latched hook on a winch similar to the Husky 10, a reasonable jury could conclude that the safety-latched hook should be standard equipment, Judge Hurd said

Also, a question exists as to whether lifting objects overhead was a reasonably foreseeable use of the winch and whether a limitation that the winch should not be used for overhead lifting was communicated to Beneway's employer, Judge Hurd said.

John Scarzafava of the Law Firm of Scarzafava & Basdekis in Oneonta, N.Y., represents Beneway.  Peter J. Camp of Friedman, Hirschen, Miller & Campito in Schenectady, N.Y., represents Superwinch.  Steven Ward Williams of Smith, Sovik, Kendrick & Sugnet in Syracuse, N.Y., represents Kulkoni.

Defense Summary Judgment Denied For Claims Alleging Defect In Yacht That Sank

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BALTIMORE - A federal judge on Aug. 27 found that A&S Development was a proper defendant in a suit seeking compensation for a defective yacht because a reasonable jury could find that the company remained in the distribution chain for the vessel (Karen M. Jurgensen, et al. v. Albin Marine Inc., et al., No. AMD 01-340, D. Md.; 2002 U.S. Dist. LEXIS 16138 Shepardize; See 8/14/02, Page 14).

(Opinion available.  Document #49-020912-010Z.)

Involvement Denied

Karen M. Jurgensen and William Leary's Albin 33+3 Express Trawler sank in the Chesapeake Bay.  The two sued Albin Marine Inc. and Albin Manufacturing, Albin on the Chesapeake Inc. (AOC), Brent Albright and A&S Development d/b/a Chesapeake Motoryacht Sales in the U.S. District Court for the District of Maryland, alleging claims of products liability, breach of contract and breach of warranty.

Albin designed and manufactured the boat.  AOC was a dealer for the boat, and Albright owned AOC.

A&S filed a motion for summary judgment, contending that the plaintiffs' claims fail as a matter of law because even though A&S allowed its letterhead to be used in the transaction, it was not materially involved.

Business Connections

Arthur and Susan Malsin are the principals in A&S.  In 1997, A&S purchased from Chesapeake Motoryacht Sales the right to act as a dealer for Albin.  Along with dealership rights, the Malsins also acquired the trade name Chesapeake Motoryacht Sales, and A&S registered the name.  A&S commissioned Albright as a salesman.

Albright later became a principle of AOC, but the facts surrounding the formation and ownership of AOC are disputed.

Albright executed the consignment sales agreement to the plaintiffs as an authorized representative of AOC, but the agreement does not establish as a matter of law that A&S transferred its right to act as an Albin dealer to Albright or to AOC, Judge Andre M. Davis said.

Decision Proper For Jury

Based on evidence, including the plain language of the agreement, a reasonable juror could accept the plaintiffs' characterization of the agreement - a wholesaler's contract, under which A&S acted as a wholesaler, purchasing vessels from Albin and then selling those vessels to AOC for further sale to retail customers, Judge Davis said.

There is no dispute that AOC was never granted a Maryland dealer's license and was never designated an authorized Albin dealer by Albin, Judge Davis said.

A&S contended that because AOC did not have a license, it allowed AOC to use its letterhead and to register and sell Albin vessels in that name.  A&S also contended that with the exception of receiving a dealer's handling fee paid by state taxing authorities, it derived no income, remuneration, profit or other economic benefit from the sales of vessels by AOC.

A reasonable juror could conclude that A&S remained in the distribution chain of Albin products, Judge Davis said.  Such information includes an invoice showing that the vessel was sold to A&S and shipped to Albright and AOC, that Albright prepared a settlement summary stating that the seller was Chesapeake Motoryacht Sales/Albin on the Chesapeake and that Albright executed two bills of sale on letterhead of Chesapeake Motoryacht Sales, Judge Davis said.

Jury Questions

The case involves products liability allegations and breach of warranty allegations against the manufacturer and sellers, and it seems clear that whether A&S was involved in the sale as an actual seller, as the distributor or the dealer are questions properly to be submitted to a jury, Judge Davis said in denying summary judgment.

H. Allen Black III of Ober Kaler Grimes and Shriver in Baltimore and Eugene R. Fidell of Feldesman Tucker Leifer Fidell and Bank in Washington, D.C., represent the plaintiffs.

Dale B. Garbutt of Whiteford, Taylor and Preston in Baltimore represent Albin.

Randell Hunt Norton and Tamkia L. Taylor of Thompson O'Donnell Markham Norton and Hannon in Washington represent Albin on the Chesapeake and Albright.  Brooke Pinkerton of Thompson O'Donnell Markham Norton and Hannon in Washington also represents Albin on the Chesapeake.

Kevin M. Murphy and James P. Steele of Carr Maloney in Washington represent Chesapeake Motoryacht Sales and A&S.

Product Liability Extras

[Editor's Note:  The following briefs are taken from Mealey publications covering insurance, lead, emerging drugs and devices, Baycol and latex.  For more information, call 1-800-MEALEYS (1-800-632-5397).]

Insurers Had Duty To Defend Liability Suit

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SAN FRANCISCO - Liability insurers had a duty to defend claims arising from an insured's defective product where the underlying complaint raised the possibility that coverage would attach, the Ninth Circuit U.S. Court of Appeals held Sept. 5 (Anthem Electronics Inc. v. Pacific Employers Insurance Co. and Federal Insurance Co., No. 01-16402, 9th Cir.).

The appellate panel reversed summary judgment in favor of the insurers, holding that at the time of tender, there was a possibility for a covered occurrence and property damage and that an exception to an exclusion would apply.

(Opinion available.  Document #03-020910-108Z.)

Judge Sets Trial Date For Paint Case

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SAN FRANCISCO - A state judge presiding over a lead-poisoning case brought by two minors against the former makers of lead paint has set a possible trial date for October 2003, a source told Mealey Publications Aug. 28.  A follow-up status conference is scheduled for January (Carletta Justice, et al. v. Sherwin-Williams, et al., No. 314686, Calif. Super., San Francisco Co.).

(Complaint available.  Document #14-020904-001C.  Sherwin-Williams answer available.  Document #14-020904-002B.  Lead Industries Association answer available.  Document #14-020904-003B.  Glidden answer available.  Document #14-020904-004B.  Dutch Boy answer available.  Document #14-020904-005B.)

The judge in the case will establish the guidelines for discovery in the near future, the source said.

Norplant MDL Court Dismisses 3,000 Claims

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BEAUMONT, Texas - The Norplant MDL Court on Aug. 14 entered final judgment in all remaining cases, granting summary judgment to Wyeth on the learned intermediary doctrine and lack of causation for "exotic" claims in all but 10 cases (In Re:  Norplant Contraceptive Products Liability Litigation, MDL Docket No. 1038, E.D. Texas, Beaumont Div.).

U.S. Judge Richard A. Schell of the Eastern District of Texas in Beaumont granted summary judgment for Wyeth against 2,970 plaintiffs in 710 cases.  Summary judgment was denied against 10 plaintiffs, whose cases will be remanded.

(Opinion and order available.  Document #28-020905-104Z.)

Oklahoma State Court Approves Baycol Class

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SHAWNEE, Okla. - In the first decision of its kind, an Oklahoma state judge on July 16 granted certification of a statewide class action of consumers injured by Baycol (Norma Cafky, et al. v. Bayer Corp., et al., No. C-2001-713, Okla. Dist., Pottawatomie Co.).

(Class action certification order available.  Document #53-020821-102R.  Amended petition available.  Document #53-020821-103C.)

Pfizer's Summary Judgment Denied

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NEW YORK - New York's consolidated Rezulin court on Aug. 7 denied Pfizer's motions for summary judgment on failure to warn and on preemption (Frances Beck, et al. v. Warner-Lambert Company, et al., No. 121762/00, N.Y. Sup., N.Y. Co., Comm. Div.).

(Summary judgment opinion available.  Document #28-020905-101Z.  Preemption opinion available.  Document #28-020905-102Z.)

New York County Supreme Court Justice Helen E. Freedman said that although Frances Beck's treating physician said she was aware of the risk of liver damage from Rezulin and believed the benefit to outweigh the risk, summary judgment was justified only when warnings were clear cut and uncontroverted.

Jury Finds For Defense In Latex Glove Case

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PHILADEPHIA - A Philadelphia jury last month decided that although manufacturers' warnings were not adequate on latex glove packaging, it was unlikely that a latex-allergic nurse would have heeded them, thus finding for the defense (Dorothy Patzek, et al. v. Aladan Corp., et al., No. 0409, Pa. Comm. Pls., Philadelphia Co.).

(Verdict sheet available.  Document #33-020828-110V.)

CryoLife Faces 15 Suits, May Shut Down

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ATLANTA - CryoLife Inc. announced Sept. 4 that it faces 15 product liability lawsuits stemming from its orthopedic tissue and human heart valves.

Faced with an Aug. 13 FDA order recalling most tissue products processed since October 2001, an FDA recommendation for heart surgeons to use heart valves from other suppliers and technical default on a credit line, the company said in its delayed Form 10-Q report to the Securities and Exchange Commission that it "may be unable to continue operations."

Failure To Report Defect Leads To Fine

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WASHINGTON, D.C. - Aerus LLC of Dallas, formerly known as

Electrolux LLC, has agreed to pay a $250,000 civil penalty to settle allegations that the company failed to report serious defects with certain vacuum cleaners, the U.S. Consumer Product Safety Commission (CPSC) announced Aug. 29.

Under the Consumer Product Safety Act (CPSA), manufacturers, importers, distributors and retailers must immediately report information about potentially hazardous products to the commission.

CPSC alleged that Aerus had information that reasonably supported the conclusion that its Ponytail Top-Corded Handle Upright Vacuum Cleaners created an unreasonable risk of serious injury or death to consumers or contained a defect that could create a substantial product hazard.  CPSC alleged that Aerus failed to report, as required by law, that certain models of its Ponytail vacuums presented a shock and/or burn hazard to consumers.

The power cord on this vacuum extends out of the top of the handle, and the cord is often used as an extension of the handle.  The power cord can break inside the handle, or the casing around the cord can break and cause shocks or burns to the user's hand.  Even when there is no apparent breaking of the casing around the cord, these vacuums can still cause injuries.

Electrolux Corp., a predecessor of Aerus, received about 75 reports of the cords on these vacuums breaking or the wires within the cords breaking through the casing.  About half of these incidents resulted in burns or shocks.  Of these reports, there were 11 serious injuries, including second-degree burns, third-degree burns and shock.

In agreeing to the settlement, Aerus denied the CPSC's allegations and denied that it violated the CPSA or any other laws administered by CPSC.

In November 1998, Electrolux recalled about 226,000 of the Ponytail vacuum cleaners, which were sold between May 1991 and September.  The recalled vacuums sold for between $150 and $550 under the following model names:  Genesis, Prolux S/R, Genesis LX, Prolux Warehouse, Genesis LXE, Regency, Prolux, Special Edition and Prolux Plus.  Consumers who have not participated in the Electrolux recall should contact Aerus LLC at (800) 243-9078 between 8 a.m. and 6 p.m. ET Monday through Friday.  Consumers also can log on to the company's Web site at www.callprocess.com/locator/elux/elux_zip_search.htm to use the Electrolux Dealer Locator.

Trial Brief For Settlement Available

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ST. PAUL, Minn. - The plaintiff's trial brief is now available for a case in which a $123,500 settlement was reached for a man whose hand was crushed in a "bending roller" machine (Peter Guggisberg v. Rockwell International Corp., No. 00-1384, D. Minn.; See 8/29/02, Page 32).

Peter Guggisberg reached the settlement with Rockwell International Corp., the parent company of Allen-Bradley, the manufacturer of the control box that caused the injury.

The case was settled Aug. 20 and had been scheduled for a Sept. 3 trial.

As part of the settlement, the comp carrier waived its subrogation claims and is being released from indemnity, sources told Mealeys.

In the trial brief, the plaintiff said the control panel was defective and unreasonably dangerous in that it was not properly designed and was not properly guarded so that it could prevent the wrong control from being unintentionally activated.

The company was aware of the defect because it sold guards beginning as early as 1958 - at least seven years before the subject control box was manufactured - and advertised that the guards were "essential to guard against accidental switching," the plaintiff says.

The plaintiff also says the control panel was defective for reasons including a failure to warn because Allen-Bradley provided no warnings or instructions and no warning were on the product itself.

(Trial brief available.  Document #49-020912-012B.)

Invacare Responds To Recall Allegations

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ELYRIA, Ohio - Invacare Corp. Chairman and Chief Executive Officer A. Malachi Mixon III on Sept. 3 outlined steps the company has had in place since 2000 to recall its power wheelchairs, fix potential problems, make engineering design improvements and communicate those actions to its customers, according to a story in Business Wire.

The steps were taken after several reports reached the company in 1999 of some safety problems related to its power wheelchairs.  Mixon's remarks came after a Sept. 1 story in the Cleveland Plain Dealer challenging the company's responsiveness and effectiveness in conducting a power wheelchair call following problems several years ago, which allegedly included two deaths, the Business Wire said.

In the Business Wire article, Mixon said the company has commenced a wide-ranging recall of the affected wheelchairs, directly communicating in writing nine times with almost 6,000 power wheelchair dealers, conducted a significant direct mail campaign to consumers and posted information pertaining to the recall on the company's Web site.

Product Watch

XL Machine Recalls Playskool Toy Chests

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WASHINGTON, D.C. - XL Machine Ltd. of Eden Prairie, Minn., is voluntarily recalling about 3,300 toy chests because screws in the chests' lid support hinges can loosen over time and come out from the base of the toy chests, the U.S. Consumer Product Safety Commission (CPSC) announced Sept. 4.

If this happens, the lids of the toy chests can collapse suddenly, possibly causing injuries to children's head, neck, fingers or hands.

CPSC and XL have received one report of screws in the lid support hinge of a toy chest coming out, resulting in one injury, a bruise to the neck.

These blue toy chests measure 18.5 inches by 12 inches by 12 inches and were sold under the Playskool brand name.  On the toy chest lid top are depictions of "Mr. and Mrs. Potato Head" characters and the "PLAYSKOOL" logo.  The front panel has a "Glow Worm" figure and a dog.  The bottom of the toy chests contains "DISTRIBUTED BY: XL MACHINE LTD, MINNEAPOLIS, MN 55347."  The chests were made in China.

Target stores sold the toy chest nationwide from October 2001 through December 2001 for about $50.

Consumers should take these toy chests away from young children immediately and return them to the Target store where they were purchased for a refund or store credit.  For more information, call XL Machine toll-free at (866) 746-8097 or go to Target's Web site at www.target.com.

Leifheit International Recalls Apple Slicer / Corer

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WASHINGTON, D.C. - Leifheit International USA Inc. of Melville, N.Y., is voluntarily recalling about 31,000 apple slicers/corers because the cutting blade can separate from the center-coring ring during use, causing cuts to consumers' hands and fingers, the U.S. Consumer Product Safety Commission announced Aug. 29.

Leifheit has received two reports of the blades separating, resulting in minor cuts to the user's fingers.

The recall includes Pro Line apple slicers/corers.  The slicers/corers are made of shiny chrome metal with two handles.  "Leifheit" is printed on the top of one handle.  A symbol code on the underside of the slicer/corer shows a number and dot sequence indicating

the date of manufacture.  Any product with a "1" or those with a "2" accompanied by one or two dots are included in the recall.

Houseware and gourmet cooking stores sold the slicers/corers nationwide from January 2001 to July 2002 for about $18.

Consumers should stop using these apple slicers/corers immediately and return them to the place of purchase or the company.  Consumers will have their choice of receiving a replacement or a refund.

For more information, call Leifheit at (866) 695-3434 or visit the firm's Web site at www.leifheitusa.com.

Todson Recalls Tire Floor Pumps

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WASHINGTON, D.C. - Todson Inc. of Foxboro, Mass., is voluntarily recalling about 10,000 floor pumps used for bicycle tires because the pressure gauge lens can separate from the pump and strike a consumer, causing injury, the U.S. Consumer Product Safety Commission announced Aug. 28.

Todson has received one report of a pressure gauge lens detaching and striking a consumer, who suffered an eye injury.

The recalled Topeak Joe Blow Comp Floor Pumps are black (with gray or silver trim) and stand about 26 inches tall.  The plastic pumps have the following date codes, which are under the pressure gauge:  200003 through 200012 and 200101 through 200108.  The words "Made in Taiwan" and "Joe Blow COMP" are printed on the side of the pump.

Independent bicycle retailers nationwide sold these pumps between March 2000 and August 2001 for about $40.

Consumers should stop using this pump immediately and call Todson at 1-800-250-3068 or visit the company's Web site at www.Topeak.com to receive a replacement pump.

Eastman Kodak Co. Recalls Digital Cameras

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WASHINGTON, D.C. - Eastman Kodak Co. of Rochester, N.Y., is  voluntarily recalling about 75,000 DC5000-model Shepardize  digital cameras worldwide because consumers using these cameras can suffer an electrical shock due to a manufacturing defect, the U.S. Consumer Product Safety Commission announced Sept. 9.

Kodak has received 12 reports, including six in the United States, of consumers who experienced an electrical shock while changing batteries or installing or removing the memory card or USB cable.  There have been no reports of serious injury.

These are Kodak DC5000-model cameras.  The brand name and model number are written on the front of the camera at the bottom right corner.  All DC5000 cameras carry a plate on the bottom of the camera containing the Kodak product identifier reading "KJCAA" followed by an eight-digit serial number.  The serial number range is 01800001 through 11700825.

Department, electronic, computer and camera stores, as well as mail order and Web retailers sold these cameras nationwide from June 2000 through August 2002 for between $600 and $700.

Consumers should immediately stop using the Kodak DC5000 Zoom Digital Camera and contact Kodak.  The company will cover the cost of inspection, any necessary repair and shipping to and from Kodak repair centers.  To receive a postage-paid mailer to return your camera, or for more information, contact Kodak online at www.kodak.com.  Consumers also can call Kodak toll-free at (888) 793-2977 between 9 a.m. and 8 p.m. EST Monday through Friday.

This recall includes the DC5000 model only. No other Kodak cameras are affected by this recall.

Huffy Sports Co. Recalls Hoops

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WASHINGTON, D.C. - Huffy Sports Company of Sussex, Wis., is recalling about 70,000 portable basketball systems, the U.S. Consumer Product and Safety Commission (CPSC) announced Sept. 9

The basketball hoops can have a sharp protruding bolt on the player's side of the pole that can cause serious leg or body lacerations to consumers.  Basketball players can be cut when they collide with the pole as they drive toward the basket or when they fall or are pushed into the pole.  CPSC and Huffy Sports have received 11 reports of injuries from

protruding bolts that include scrapes and lacerations.  Ten consumers required stitches for their injuries.

These are portable, vertically mounted Huffy brand basketball systems that come unassembled with a plastic base that is weighted down by either sand or water that is added during assembly.  The basketball poles are painted black, and the Huffy brand name appears on the backboard, main pole or plastic base.  The protruding bolt on the player side of the pole is about 20 inches from the ground.

Sporting good, department and toy stores sold the Huffy brand portable basketball systems from November 2001 through May 2002 for between $100 and $200.

Consumers should examine their units immediately.  If there is a protruding bolt in the area of play, contact Huffy Sports to receive free bolt covers.  Consumers can call Huffy Sports at 1-800-558-5234 or visit the firm's Web site at www.huffysports.com.

Clarification

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A story in the Aug. 29 issue should have said that a $123,500 settlement was reached Aug. 20 in a case in which a man's hand was crushed in a "bending roller" machine (Peter Guggisberg v. Rockwell International Corp. v. New Ulm Concrete Product Inc., No. 00-1384, D. Minn.).  We regret any confusion this may have caused.

New Publications

Mealey's Litigation Report: Automotive Product Liability Set For September Launch

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Mealey's Litigation Report:  Automotive Product Liability, a monthly publication devoted to covering all aspects of this dynamic litigation, will debut in September.

This offering from LexisNexis Mealey's will not only cover crashworthiness litigation but also focus on tire separation defect cases and the ever-increasing claims involving air bag deployment.   Mealey's team of reporters will hunt for the latest news involving settlement negotiations and insurance-related matters as well.

In the first issue alone, readers will find stories on:

The Crown Victoria class action, including related briefs.

A new proposed tire separation class action complaint filed in California.

A lawsuit alleging defective seat belts in Chrysler vehicles heading back to Ohio court.

Triable issues raised on consumer expectation of air bag deployment in a California court.

Ford seeking to appeal a $290 million punitive damage award.

It is Mealey's goal to offer subscribers the same intensive litigation-specific coverage that readers of Mealey's litigation reports on topics such as asbestos, tobacco, toxic torts, lead paint and drugs and medical devices have come to rely on.

Hard-to-find filings, new complaints, national news roundups, breaking news, concise summaries and trial updates all will be included in Mealey's well-known litigation report format.

The monthly report is $700 for one year.  It is available for a special limited time introductory offer of $600.  For details, call the Customer Service Department at 1-800-MEALEYS or (610) 768-7800 or e-mail info@mealeys.com.  It can also be purchased online through LexisNexis on www.lexis.com with e-mail delivery and immediate access to court documents, including opinions, appellate briefs, complaints, etc.

Mealey's Announces Launch Of Employee Compensation Report

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Overtime pay, exemptions, record keeping, reporting, minimum wage, independent contractors, hazard pay, retaliation, medical leave, back pay, "off the clock" work, training time, family leave, meal periods, leave for military duty - these are just some of the issues faced by employers today.  And related lawsuits are being filed in record numbers.

Litigation resulting from such employment issues will be the focus of the latest litigation report from LexisNexis Mealey Publications, Mealey's Litigation Report:  Employee Compensation.

The report will feature timely coverage of new cases, pleadings, trials, settlements and rulings from judges in jurisdictions around the country.  Hard-to-get documents will be published.

Covered in the report will be litigation involving federal laws, including the Fair Labor Standards Act (FLSA), the Family and Medical Leave Act (FMLA) and state wage and hour and leave laws.

Some recent news:

A federal appeals court has rejected a delivery driver's argument that he falls outside the motor carrier exemption for FLSA's overtime payment rules because his employer is primarily a beverage wholesaler, rather than a transporter.

The U.S. Supreme Court will hear oral arguments this fall on whether a state worker can sue his employer under the family medical care provision of the FMLA.

Perdue Farms Inc. has agreed to pay $10 million to settle a "donning and doffing" dispute in addition to a settlement reached with the U.S. Department of Labor for similar claims of lost wages.

The monthly report begins publication in September and is priced at $700.  For details, call our Customer Service Department at 1-800-MEALEYS or (610) 768-7800 or e-mail us at info@mealeys.com.  It can also be purchased online through LexisNexis on www.lexis.com with e-mail delivery and immediate access to court documents, including opinions, appellate briefs, complaints, etc.

Silica Litigation Report Begins Publication In September

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The number of cases alleging personal injury from silica exposure is on the rise.  In suits in several states, experts have testified that exposure to crystalline silica causes scleroderma, silicosis and possibly other respiratory diseases.

This recent spike in litigation has caused concern among blasting equipment corporations, foundry companies, respirator manufacturers and insurers.  Recent jury awards to victims of silicosis give credence to the idea that the upswing in cases may continue.

Consider the following:

Some 30 personal injury complaints were filed in Pennsylvania state court recently alleging that the manufacturers of crystalline silica, respirators, blasting equipment and foundry mold material sold defective products that injured the workers at a foundry and their families.

A Texas jury recently awarded $7.5 million to a deceased sandblaster and his wife for his workplace exposure.

A Delaware Superior Court has affirmed a state Industrial Accident Board's decision to grant workers' compensation benefits, finding that an expert's testimony proved a causal link between silica exposure and scleroderma.

Lung disease, mainly caused by exposure to asbestos particles or silica dust, remains one of the most common work-related fatal ailments in British Columbia, according to the province's Workers' Compensation Board.

To help counsel on all sides of the issue track this growing area of litigation, we will launch Mealey's Litigation Report:  Silica in September.

Hard-to-find filings, new complaints, national news roundups, breaking news, concise summaries and trial updates will be included in Mealey's well-known litigation report format.

The monthly report is $700 for one year.  For details, call the Customer Service Department at 1-800-MEALEYS or (610) 768-7800 or e-mail info@mealeys.com.  It can also be purchased online through LexisNexis on www.lexis.com with e-mail delivery and immediate access to court documents, including opinions, appellate briefs, complaints, etc.

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© 2002 LexisNexis, Division of Reed Elsevier Inc.