Archive for the tag 'Products Liability Defense'

Appellate Division rejects application of collective liability to claim related to oral polio vaccine.

SteveK July 16th, 2010

On June 12, 2010, in Mereno v. American Home Products, Inc., the New Jersey Appellate Division affirmed the dismissal of a claim by Mark Moreno and his mother of defectively manufactured oral polio vaccine (OPV) which had been administered to plaintiff resulting in a brain tumor and permanent disabilities. It was claimed that the vaccine used was defective because the manufacturer failed to screen for infective Simian Virus 40 (SV40).  Since plaintiffs were unable to identify the responsible manufacturer, they named all the companies licensed to manufacture OPV at the relevant time. The Court affirmed that summary judgment was appropriate even though discovery was not complete, because the plaintiff could not show that the outstanding discovery would supply information relevant either to lead to the identity of the manufacturer or to any theory of collective liability.

In analyzing the plaintiffs’ claims of collective liability, the court first considered whether the law of New Jersey or the law of New York applied as evidence indicated that the OPV was administered in New York; however, the plaintiffs have resided in New Jersey for over 35 years. The Court reviewed the various theories of collective liability and concluded that under the laws of both states, they could not be applied in this case.  The court distinguished a New York decision applying market-share liability to the manufacturers of another drug, DES, because the injury did not result from the defective design of the drug, as with DES, but was due to the failure of a manufacturer to comply with federal regulations relevant to screening and neutralization of SV40 and “and produced a defective or deviant vaccine.” The Appellate Court, therefore, concluded that the failure of a single manufacturer to comply with proper manufacturing processes and procedures did not warrant imposition of liability on all the manufacturers of the same product.

This decision continues to reinforce the requirement of proper product identification, and the need for the plaintiff to prove causation-in-fact, and further reviews the limited grounds where a court will shift the burden to defendants to distinguish their product or actions from that of other defendants.

DiFrancesco, Bateman, Coley, Yospin, Kunzman, Davis & Lehrer, PC ( www.dbnjlaw.com ) is a full service law firm in New Jersey which provides a broad range of legal services, including the representation of clients in environmental and defense of toxic exposure matters. For additional information about the matters in this bulletin or in the firm’s environmental practice, please contact Steven A. Kunzman, Esq. who heads our Environmental and Latent Injury Litigation Department.

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NJ App. Div. upholds $30 million mesothelioma judgment.

SteveK April 12th, 2010

On April 5, 2010 the NJ in Buttitta v. Allied Signal, Inc. et.al. the Appellate Division affirmed the largest award in an asbestos/mesothelioma case in NJ. The jury awarded the plaintiff widow and family $8,000,000 for pain and suffering, $2,000,000 for loss of consortium, $9,281,660 for loss of earnings, $2,030,544 for loss of services and $3,000,000 to each of the three children for loss of parental care and guidance. The award against Borg-Warner and the Canadian mining company, Asbestos Corporation, Ltd. (ACL), was in addition to funds collected from settling parties, General Motors, Honeywell (for Bendix brake products) and C.L. Zimmerman a distributor of ACL asbestos. (This office represented Zimmerman, which settled during trial.) Borg-Warner and ACL challenged this significant award on numerous grounds, including causation, failure of the court to exclude testimony of numerous experts, and the failure of the court to allow the defendants to submit interrogatory responses of settled parties to the jury for the purpose of allocating responsibility to those settled parties, as well as the refusal of the court to include the settled parties on the verdict sheet, also for the purpose of allocating liability. ACL also challenged the striking of its defenses based upon their inability to produce certain documents required in discovery due to Canadian laws that prohibited production of the information requested.

The decedent, Mark Buttitta, had worked as a parts picker at a GM facility in summers while a student at Colgate University. His father had also worked at the same facility while Mark was growing up. It was claimed that Mark was exposed to asbestos from the parts and the accumulated dust in the GM parts warehouse, and also from the asbestos in the dust on his father’s clothing when Mark was growing up. Mark contracted mesothelioma in his early 50’s and died leaving a wife and three daughters in their teens and early 20s. Claims were asserted against the manufacturers and distributors of asbestos containing automotive parts including brakes and clutches, as well as the companies that mined and distributed asbestos to GM for the manufacture of brakes and clutches.

The Appellate Court affirmed all of the procedural and evidentiary decisions of the trial judge and the jury award. In doing so it concluded, based upon the uncontradicted expert testimony, that mesothelioma “is associated with the ‘the smallest’ exposure to asbestos and can develop from the cumulative effects of minimal and infrequent exposure.” The Court also affirmed the ruling that the responses to interrogatories of GM, which had settled before the start of trial, were not admissible by defendants under the rules of court, which permit use of interrogatories as statements of any party, since GM was no longer a party to the litigation. Borg-Warner, the court also held, “bore the burden of presenting a basis for allocation of percentages of fault in order to reduce its individual percentages of fault, which it failed to do.” In short, there was no evidence presented at trial to support the claims against the settled parties.  Accordingly, the Court concluded that it was correct that the settling parties were not included on the verdict sheet to permit the jury to allocate percentages of liability to any party other than the remaining defendants, Borg-Warner and ACL.

A significant question raised in this decision involves the ruling prohibiting the use of the interrogatories of settled parties to prove cross-claims so that the jury can assign liability to settled defendants.  This raises questions where joint defense groups are careful not to develop independent evidence to support cross-claims. This, of course, only present a question if parties settle during or immediately prior to trial when it is too late for the remaining parties to adequately develop the necessary evidence and expert testimony. In the usual case, independent settlement is always a possibility at any time. Accordingly, defendants will need to develop a manner to develop appropriate evidence to support cross-claims in the event they become the last party in a case.

DiFrancesco, Bateman, Coley, Yospin, Kunzman, Davis & Lehrer, PC ( www.dbnjlaw.com ) is a full service law firm in New Jersey which provides a broad range of legal services, including the representation of clients in environmental matters. For additional information about the matters in this bulletin or in the firm’s environmental practice, please contact Steven A. Kunzman, Esq. who heads our Environmental and Latent Injury Litigation Department.

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District Court Affirms Duty To Train Employees Is Not the Responsibility of the Products Manufacturer

SteveK September 14th, 2009

In Kolokowski v. Crown Equipment, U.S. District Court in New Jersey recently confirmed that the duty to train employees rests with the employer, not the manufacturer.

The case involved a claim for injuries sustained by plaintiff while operating a walkie rider pallet truck.  In a decision granting summary judgment to the defendant, the Court first addressed whether the plaintiff’s expert was qualified to render an opinion on whether the product was defectively designed. The Court conducted a Daubert hearing, and after extensive analysis, concluded that the expert’s opinion did not satisfy the trilogy of restrictions on the admissibility of an expert: whether the expert is qualified, whether the methods employed in developing the opinion are reliable, and whether the proffered expert testimony fits with the facts of the case. The plaintiff, therefore, was unable to sustain its burden of proof on its design defect claim.

The plaintiffs also asserted a failure to warn claim, asserting that the defendant manufacturer had an obligation to provide training. The Court rejected this argument finding substantial support to the contrary in New Jersey. The Court relied upon Grier v. Cochran Western Corp. 308 N.J. Super 308 (App. Div. 1998) in which the obligation was placed squarely on the employer. The Court also noted that OSHA specifically places the duty to train operators of powered industrial trucks on the employer. 29 CFR Sec. 1910.178. The Court also countered the contention that employers lack the incentive to train employees by stating that the goals of an employer for increased productivity affecting the bottom line is a significant incentive and, further, that employers are better situated to conduct such training since they can discipline employees for failure to attend training coupled with the employers having more credibility with their employees than a “remote product manufacturer.” This, along with the plaintiff’s admissions that training would not have helped him avoid the accident, left no room for the claim of plaintiffs to be sustained. The Court therefore, dismissed all claims of plaintiffs.

 

DiFrancesco, Bateman, Coley, Yospin, Kunzman, Davis & Lehrer, PC ( www.dbnjlaw.com ) is a full service law firm in New Jersey which provides a broad range of legal services, including the representation of companies in defense of products liability claims. For additional information about the matters in this bulletin or in the firm’s Products Liability Practice, please contact Stephen O. Davis, Esq.

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