Category Archives: Consumer products

Federal Discovery and Admissiblity of Evidence of Prior Incidents in Product Liability Cases

Plaintiffs may achieve higher verdicts in product liability trials when there is evidence of prior claims establishing that the manufacturer had notice of the alleged defect in design, manufacture, or warning.  Therefore, in product liability litigation, most plaintiffs request discovery concerning prior claims, or incidents that did not give rise to formal claims, that are in any way related to the product.  For instance, a plaintiff’s lawyer might issue a broad discovery request for anything concerning prior incidents of any kind related to the model of product at issue or any version of that model.  Even more common and problematic are so-called “product line” requests that seek evidence of prior claims related to a broad range of allegedly similar products or similar models.

Requests for production concerning prior incidents might be routine for large companies that have large, sophisticated in-house legal teams and are likely to have storage, retrieval, and document retention policies, but such requests can be a terrible disruption for small businesses that may not have systems in place to handle aggressive discovery in litigation.

But no matter what size your client is, you should be prepared for a request for production seeking evidence of prior incidents and prior claims.  You should have discussions with your product liability clients early on in the case about the product’s incident and claim history, as well as potential discovery requests.

The first part of this article will discuss whether requests concerning prior incidents are actually discoverable.  We will discuss defense tactics for responding to requests for discovery concerning prior incidents, as well as representative cases from different U.S. federal court jurisdictions concerning discovery.

The second part of this article will discuss whether, even if discoverable, the evidence concerning prior incidents is ultimately admissible.  We will discuss strategies for preventing admission of evidence concerning prior incidents, as well as representative cases from different U.S. federal court jurisdictions concerning admissibility.    

Finally, the third part of this article will discuss strategies for assisting clients with the difficult process of discovery requests for evidence of prior incidents.

I. Whether requests concerning prior incidents are actually discoverable.

A. Defense tactics for responding to requests for discovery concerning prior incidents.

There is no single method for successfully defending against discovery requests for evidence concerning prior incidents.  Unfortunately, U.S. federal courts treat each case differently and, as explained below, various jurisdictions have different standards for the discovery of evidence of prior incidents.

That said, the facts and circumstances of each case are important, and any good defense will involve distinguishing the specific facts of your case from cases where the court allowed discovery.  Consider, for example, the distinguishing facts of the products, conditions, and intended uses at issue, particularly if you have a technical case.

Consider hiring an expert as early as possible and using your expert to assist you with defending against discovery requests.  Your can submit an affidavit from your expert explaining the differences between the incident involved in your case and the prior incidents.  The more technical your case, the more likely your expert will be useful and will be able to draw distinctions that the plaintiff is not prepared for.  An example of this might be important engineering differences in the product at issue versus the products involved in the discovery that plaintiff requests.

B. Representative cases from different U.S. federal court jurisdictions concerning discovery.

1) Discovery of evidence concerning prior incidents is generally allowed in                           federal court under Federal Rule of Civil Procedure 26(b)(1).

Federal Rule of Civil Procedure 26(b)(1) is broad and provides that discovery may be obtained as long as it is “relevant” and “reasonably calculated to lead to the discovery of admissible evidence.”  The advisory committee notes to Rule 26 provide that, “A variety of types of information not directly pertinent . . . could be relevant to the claims or defenses raised in a given action.  For example, other incidents of the same type, or involving the same product, could be properly discoverable . . . .”  Fed. R. Civ. P. 26 advisory committee’s note, 2000 amend., subdiv. (b)(1).

In Kozlowski v. Sears, Roebuck & Co., 73 F.R.D. 73, 75 (D. Mass. 1976), the court underscored how broad discovery can be in federal products cases when it noted that, “most courts have held that the existence and nature of other complaints in product liability cases is a proper subject for pretrial discovery.”

2) Some jurisdictions (the Eighth Circuit, the Northern District of California, Kansas,       the Southern District of Indiana, Maryland, and the Western District  of                 Pennsylvania) require a threshold showing of relevance before the discovery is                   permitted.  After a threshold showing of relevance, the burden shifts to the                           defendant to demonstrate that any relevance is outweighed by the harm that would             result from the evidence being admitted. 

The ambiguous nature of the term “relevance” illustrates the problematic nature of the discovery phase of a lot of product liability claims.  Plaintiffs will make requests for “other incidents of the same type” or “other incidents involving” the product (or products, i.e., “all washing machines manufactured by defendant”) at issue or prior incidents with “similar circumstances”.

Some jurisdictions will require a “threshold showing of relevance” before evidence of prior incidents will be discoverable.  See, e.g., Hofer v. Mack Trucks, Inc., 981 F.2d 377, 380 (8th Cir. 1992) (“Some threshold showing of relevance must be made before parties are required to open wide the doors of discovery and to produce a variety of information which does not reasonably bear upon the issues in the case.”); Barcenas v. Ford Motor Co., 2004 WL 2827249, *2 (N.D. Cal. Dec. 9, 2004) (quoting with approval Hofer’s requirement of the threshold showing of relevance); McCoy v. Whirlpool Corp., 214 F.R.D. 642, 643 (D. Kan. 2003) (requiring that the discovery appear “relevant on its face”); Chavez v. DaimlerChrysler Corp., 206 F.R.D. 615, 619 (S.D. Ind. 2002) (the discovery must first appear to be relevant, and then “the party resisting the discovery has the burden to establish the lack of relevance by demonstrating that the requested discovery is of such marginal relevance that the potential harm occasioned by discovery would outweigh the ordinary presumption in favor of broad disclosure.”); Tucker v. Ohtsu Tire & Rubber Co., 191 F.R.D. 495, 497 (D. Md. 2000) (“even though it relates to a light truck tire, not a passenger tire as is at issue here, the plaintiffs have established threshold relevance, as required by Fed. R. Civ. P. 26(b)(1) and Fed. R. Evid. 401.”); Swain v. General Motors Corp., 81 F.R.D. 698, 700 (W.D. Pa. 1979), (where the plaintiff met the “prima facie showing” of relevance to support his discovery request for evidence “concerning prior motor mounts” that allegedly failed in his vehicle).

3) Some jurisdictions (the Western District of Michigan, the Eastern District of                     Louisiana, and the Southern District of New York) require that prior incidents be “similar” to the incident that gave rise to the underlying case before allowing the discovery of evidence of prior incidents.  Whether the prior incidents are “similar” depends on the particular court and the facts and circumstances. 

Most jurisdictions generally do not apply the “substantially similar test”—requiring that the conditions of past incidents be substantially similar to those in the underlying case—until the admissibility phase.  However, some jurisdictions do require some amount similarity between the prior incidents and the incident that gave rise to the underlying case before allowing discovery.

For example, in Lohr v. Stanley–Bostitch, Inc., 135 F.R.D. 162, 164 (W.D. Mich. 1991), the court explained that, at the discovery phase, the circumstances surrounding prior incidents must be “similar enough”.  By contrast, at the admissibility phase, “Evidence of similar accidents is admissible so long as the conditions in effect during the past incidents are ‘substantially similar’ to those at the time of the incident in question and the two events arise from the same cause.”  Id. (internal citation omitted).

In State Farm Fire & Cas. Co. v. Black & Decker, Inc., 2003 WL 103016, *4 (E.D. La. Jan. 9, 2003), the court applied a “sufficiently similar” test and explained that, “In product liability actions it is frequently difficult to judge which of a manufacturer’s products are sufficiently similar to the allegedly defective product to be subject to discovery.”  As in Lohr, the Eastern District of Louisiana court in State Farm distinguished the less-stringent similarity standard for the discovery phase from the “substantially similar” standard applied to the admissibility phase.  State Farm, 2003 WL 103016 at *4 (quoting Lohr, 135 F.R.D. at 163).

In Fine v. Facet Aerospace Products Co., 133 F.R.D. 439, 441, 443 (S.D.N.Y. 1990), the Southern District of New York explained that the prior incidents must be “sufficiently similar” in order to meet the “threshold showing of relevance”.  The court explained that, if the models of product in the prior incidents are different from the one at issue in the underlying case, discovery may be allowed if the models involved in the prior incidents “share with the accident-causing model those characteristics pertinent to the legal issues raised in the litigation.  For example, where a plaintiff alleged that three-wheel all-terrain vehicles are inherently unstable, he was entitled to discovery with respect to each of the manufacturer’s models.”  Id. (citing Culligan v. Yamaha Motor Corp., 110 F.R.D. 122, 124, 126 (S.D.N.Y. 1986)).

A court may require expert testimony to support the showing that the prior incidents were “sufficiently similar”, particularly when there are technical issues that require more knowledge than a lay person.  In Fine, the court explained that the plaintiff may have been allowed discovery if it had proffered “the affidavit of an expert in aviation engineering.”  Id. at 443.  Because plaintiff did not proffer any such expert testimony, the court denied the plaintiff’s motion to compel discovery concerning alternative designs for planes.  Id. at 443.

4) In the discovery phase, a few of jurisdictions (the Northern District of                               California, the Northern District of Illinois, and the District of New Mexico)                             have applied the more stringent “substantially similar” test that most courts do                     not apply until the admissibility phase. 

In a few jurisdictions, the plaintiff bears the burden of showing that prior incidents involving different products are “substantially similar” before discovery will be allowedFor example, not only has the Northern District of California required a threshold showing of relevance before allowing discovery concerning prior incidents, but it has also required plaintiffs to show “that the different products are substantially similar . . . .”  Barcenas, 2004 WL 2827249 at *3

In Piacenti v. General Motors Corp., 173 F.R.D. 221, 225-26 (N.D. Ill. 1997),  the court held that the plaintiff failed to establish that a different model of vehicle was “substantially similar” and denied the plaintiff’s motion to compel.  The court explained that, “allowing discovery of models that are not substantially similar to the model at issue is truly the equivalent of comparing apples and oranges where there are differences between the other models and the model at issue in terms of wheelbase, width, and center of gravity.”  Id. at 225.  The court further stated that discovery concerning similar models should only be allowed if “the similar models have the same component parts or defects”.  Id.

In Gonzales v. Goodyear Tire and Rubber Co., the court noted that the “substantially similar” test applies if the plaintiff “seeks to discover or to introduce evidence of the design, testing or performance of other similar products . . . . .”  No. CIV 05–941 BB/LFG, 2006 WL 7290047, slip op., *7-9 (D.N.M., Aug. 10, 2001) (italics added).

Expert testimony may be helpful for both sides in these cases, but such testimony must be more than “conclusory.”  For example, in Piacenti, the court denied the plaintiff’s motion to compel answers to interrogatories and its supplemental request for production concerning evidence regarding other vehicle models manufactured by the defendant.  173 F.R.D. at 222.  The denial was without prejudice so that an expert opinion could be filed stating that the models “are sufficiently similar to the Suzuki Samurai [so] that tests performed on the Samurai would be relevant in determining liability with respect to the Geo Tracker [the plaintiff’s vehicle].”  Id.  Although the plaintiff submitted expert affidavits, the court found that they consisted of only “conclusory” statements as compared to the defendant’s expert affidavits, which were more detailed.  Id. at 225.  Therefore, the court ultimately disallowed discovery relating to models other than the one at issue in the lawsuit.  Id. at 225-26.

II. Whether, even if discoverable, the evidence concerning prior incidents is ultimately admissible.

A. Strategies for preventing admission of evidence concerning prior incidents.

As with requests for discovery, there is no silver bullet to fight against requests for the admissibility of evidence concerning prior incidents.  However, because the requirements for admissibility can generally be more stringent than the requirements for discovery, it is almost always worth fighting the admissibility of evidence of prior incidents.

You will be better prepared to fight against the admissibility of prior incidents if you hire your expert early in the case.  Prepare your expert to distinguish your case from evidence of any prior incidents that plaintiff might seek to admit at trial.  Expert testimony will almost always be helpful to distinguish your case from the prior incidents.  A good plaintiff’s lawyer will have an expert who will try to show that the prior incidents are similar to the case at issue.  Prepare for this early by ensuring that your expert is familiar with the product and with any evidence of prior incidents that plaintiff will seek to admit.  Make sure that your expert’s opinions are based on detail and technical knowledge and that they are not conclusory.

The value of the case may be significantly affected if the evidence of prior incidents is admitted.  It is always beneficial to know early on in the case whether the evidence will be admitted and the ways in which that can affect the case value.  Therefore, try to file your motions in limine early on in the case to prevent the admissibility of evidence of prior incidents.  Litigators generally wait too long to do motions in limine, e.g., we wait until the federal court deadline, just prior to the trial.  Consider filing motions in limine early on, especially in a technical case or if you feel that the evidence of prior incidents could really hurt you in front of the factfinder.

B. Representative cases from different U.S. federal court jurisdictions concerning admissibility.    

1) In most jurisdictions, evidence of prior incidents is generally admissible as long as the other incidents are “substantially similar” to the incident in the case at hand. 

Evidence of prior incidents is generally admissible as long as the plaintiff demonstrates that the other incidents are “substantially similar” to the incident in the case at hand.  Cooper v. Firestone Tire & Rubber Co., 945 F.2d 1103, 1105 (9th Cir. 1991).  See also Albee v. Contl. Tire N.A., Inc., 2010 WL 1729092, *6 (E.D. Cal. Apr. 27, 2010) (internal citations and some quotation marks omitted) (“The Ninth Circuit has repeatedly held      that . . . ‘substantial similarity is required when a plaintiff attempts to introduce evidence of other accidents as direct proof of negligence, a design defect, or notice of the defect.’  Minor or immaterial dissimilarity does not prevent admissibility.” ); Steede v. General Motors, LLC, 2013 WL 142484, *9 (W.D. Tenn. Jan. 11, 2013) (“the Sixth Circuit has recognized the substantial similarity doctrine and held, for example, that evidence of prior accidents is admissible to prove a defect so long as the prior accidents involved the same model, design, and defect, and occurred under similar circumstances”).

What is “substantially similar” will be determined on a case-by-case basis, depending on your jurisdiction.

For example, in Ramos v. Liberty Mut. Ins. Co., 615 F.2d 334, 338 (5th  Cir.), modified on other grounds, 620 F.2d 464 (5th Cir. 1980), the plaintiff sought to admit evidence of a prior incident involving the collapse of an oil rig mast.  The court ultimately found that the prior incident was substantially similar.  It explained that, “Evidence of similar accidents might be relevant to the defendant’s notice, magnitude of the danger involved, the defendant’s ability to correct a known defect, the lack of safety for intended uses, strength of a product, the standard of care, and causation.”  Id. at 338-39.  The court found that evidence of the prior collapse could be relevant to show “notice of the defect, its ability to correct the defect, the mast’s safety under foreseeable conditions, the strength of the mast, and, most especially, causation.”  Id. at 339.

The court also stated that the admissibility of evidence of prior incidents concerning a product “depends upon whether the conditions operating to produce the prior failures were substantially similar to the occurrence in question.  The requirement that the prior accident not have occurred at too remote a time is a special qualification of the rule requiring similarity of conditions.”  Id. (internal citations and quotation marks omitted).

A plaintiff may use expert testimony to assist with its burden to show that the prior incidents are “substantially similar” and a defendant may use expert testimony to show that the prior incidents are substantially dissimilar.  Id. at 339-340.  See also Haynes v. Am. Motors Corp., 691 F.2d 1268, 1271–72 (8th Cir. 1982) (the defendant’s expert testified concerning dissimilarities between two different models of Jeeps and the court ultimately excluded evidence from the operator’s manual of the non-subject model).

Evidence concerning prior incidents may also be admissible because it is relevant “to show a culpable state of mind on the part of the defendant, e.g., persevering in a refusal to provide available safety features on a product despite knowledge of other similar accidents.”  Gonzales, 2006 WL 7290047 at *6 (citing Smith v. Ingersoll–Rand Co., 214 F.3d 1235, 1250 (10th Cir. 2000)).

2) In the Fourth Circuit and the Tenth Circuit, the substantially similar rule may    be             relaxed if the evidence of prior incidents is used to prove notice or awareness                     of a dangerous condition (rather than causation). 

The Fourth Circuit and the Tenth Circuit may relax the “substantially similar” rule if the evidence of prior incidents is used to prove notice or awareness of a dangerous condition rather than causation.  For example, in Benedi v. McNeil–P.P.C., Inc., 66 F.3d 1378, 1386 (4th Cir. 1995), the court explained that, “When prior incidents are admitted to prove notice, the required similarity of the prior incidents to the case at hand is more relaxed than when prior incidents are admitted to provide negligence.  The incidents need only be sufficiently similar to make the defendant aware of the dangerous situation.”  (Internal citations omitted.)

In Ponder v. Warren Tool Corp., the court noted that, “When evidence of other accidents is used to prove notice or awareness of a dangerous condition, the rule requiring substantial similarity of those accidents to the one at issue should be relaxed.”  834 F.2d 1553, 1560 (10th Cir. 1987).

III. Strategies for assisting clients with the difficult process of discovery requests for evidence of prior incidents.

     Clients often feel strongly that the prior incidents are not relevant and should have no bearing upon their lawsuit.  As any experienced lawyer knows, extensive requests for production can lead many clients who are less experienced with such requests to anxiously perceive that their entire brand, company, or even their own personal judgment is being put on trial.

Client resistance to production of evidence concerning prior incidents may be mitigated with repeated early discussion of discovery practice and relative risks.  Engage in detailed discussions before the requests are actually made.  If you practice in a jurisdiction with very liberal discovery rules, and if you have a particularly unsophisticated or reluctant client, you may even want to discuss the potential for sanctions in the event that discovery is wrongly withheld.

As soon as possible, you should have a discussion with your client concerning issues such as the assigned judge, the jurisdictional tendencies, whether or not production or admissibility of the evidence would be damaging, and whether the prior incidents may show prior notice of an alleged defect.

Discovery and Admissiblity of Evidence of Prior Claims in Oregon Product Liability Cases

Olson Brooksby handles a wide variety of product liability cases involving products such as helicopter engines, heavy equipment, steel, toys, tools, household appliances and chemicals, paints, and solvents.  We frequently work with clients who have had prior claims involving allegedly defective products.  In product liability litigation, plaintiffs’ lawyers almost always ask for documentation involving prior claims.  Usually, plaintiffs issue a broad request for documents regarding all prior incidents of any kind related to the model of product at issue or any version of that model.

The Standard for Discovery of Prior Claims

In Oregon, evidence regarding prior claims is generally discoverable.  ORCP 36 B(1).  In order for an opposing or other party to obtain discovery, the evidence should simply be relevant and reasonably likely to lead the discovery of admissible evidence.  Therefore, on a motion to compel, product liability defense counsel should expect that documentation concerning prior claims will be discoverable, particularly in cases concerning home appliances and other mechanical products.

An objection to a discovery request on the basis that the evidence may not be admissible at trial is not proper.  Oregon trial courts will allow discovery of evidence of prior claims if the products, conditions, or uses are merely “similar” as opposed to “identical.”

By way of a hypothetical example, suppose Large Bike Manufacturing Company manufactured a number of bikes during the past few months or years and the front rim of the tire was bending when bumps were hit that similar bikes were able to withstand.  Also suppose that a bicyclist was injured when the front rim on one of the bike models struck a speed bump even though the bicyclist was riding cautiously and reasonably.  On a motion to compel, most Oregon state court trial judges would order the production of all prior incidents of injury regarding other bike models with the same wheel, not just the model of bike that the bicyclist was riding.  The court would also likely order production of other claims of injury on all bikes, even if such injuries were caused by other mechanical failures.

The Standard for Admissibility of Prior Claims

The admissibility of evidence of other claims is governed by Oregon Evidence Code (“OEC”) 401, which defines relevant evidence; OEC 402, which provides that relevant evidence is generally admissible; and OEC 403, which provides for the exclusion of relevant evidence in the event prejudice, confusion, or undue delay associated with the admission of the disputed evidence, in this case of prior claims, outweighs the probative value or helpfulness to the trier of fact.  Whether evidence of prior claims is discoverable and whether such evidence is admissible are two distinct issues.

With respect to the admissibility of evidence of prior claims, as opposed to the mere discovery of prior claims, OEC 401 generally provides that evidence of similar prior conduct, events, accidents, or even negligence, is generally held to be inadmissible to prove negligence or lack of negligence in the case being litigated.

However, evidence of prior similar acts, conduct, or events, which Oregon courts universally have ruled includes prior claims, is often held admissible to prove causation, danger, knowledge, intent, or the existence of a particular defect.  One of the seminal cases on this issue is Benjamin v. Wal-Mart Stores, Inc., 185 Or App 444 (2002), rev den, 335 Or 479 (2003).  Admissibility of the allegedly similar act will depend on whether prior conduct or events occurred under “similar conditions and circumstances,” although identical circumstances are not required.  Lakin v. Senco Products, Inc., 144 Or App 52, (1996), aff’d, 325 Or 438 (1997).

Whether the conditions and circumstances are substantially similar enough to allow admission of the evidence of prior claims is a decision for the court and will be reviewed on appeal under an abuse of discretion standard, which is a high standard.  As noted above, identical circumstances or an identical product is not necessary for admission of such evidence. Generally, unless there is clear prejudice, evidence of prior claims will be admissible.  The judge will usually comment that defense counsel is free to engage in cross-examination on the differences in the claims and argue that they go to the weight of the evidence.

In a product liability case, regardless of what the product may be, defense counsel should be prepared for a ruling that evidence of prior claims is discoverable.  Counsel should also be prepared for a ruling that evidence of prior claims is admissible.  Therefore, it may be advantageous to file a motion in limine to exclude evidence of prior claims on the grounds that they are either dissimilar, or that there is insufficient information to even determine whether they are dissimilar.  The motion in limine should be filed before trial, so that even if the court admits evidence of prior claims, experts and witnesses can be prepared to address the prior claims in a way that minimizes any perceived wrongdoing.  Counsel should also consider the possibility that any product design changes may be considered “subsequent remedial measures” and should plan any motions in limine accordingly.

 

The Single Test for Product Liability in Oregon

Olson Brooksby Has Extensive Experience With Product Liability Work in Oregon

Olson Brooksby defends product liability (including consumer products regulated by the CPSC such as lead toys and non-consumer products such as aircraft) and personal injury cases, with an emphasis on the defense of high exposure cases.

Both Kristin Olson and Scott Brooksby have tried product liability cases to verdict.  Their product liability practice includes, but is not limited to: aviation (aircraft and components), heavy equipment (including tractors, forklifts, loaders, logging equipment, and scissor-lifts), and industrial equipment used in the fabrication of raw steel and metals (including rollers, punch-presses, laser torches and other sample burners and test equipment).

Kristin Olson and Scott Brooksby also have experience with the following kinds of cases:

– Aviation, aircraft and their component parts.

– Paints, solvents, coatings, detergents, and pesticides, including benzene and toluene cases which resulted in liver and kidney transplants.

– Toys and recreational products, including paint ball guns, toys containing battery fire hazards, pogo sticks, pools, lead toys imported from India that were swallowed by children, toys allegedly containing lead paint, and inflatable and other recreational towables pulled behind boats.

– Tempered glass and conventional glass.

– Foreign objects or other alleged dangerous defects in food and drink products and packaging.

– Drug and medical device cases, including fraudulent vitamins and device replacements for hips, knees, ray cages and pedicle screws.

– Home appliance cases involving allegedly defective washers, dryers, stoves, heaters and heating equipment, green technology, and water heaters.

– Chemicals that resulted in a fatal automobile fire, burning a family of five, including fatal burns to two children.

The Consumer Expectation Test

Three types of product defects are recognized in Oregon: design defects, manufacturing defects, or failure to warn.  In any of these cases, to prevail on a product liability claim, the plaintiff must prove that the product was unreasonably dangerous.  In design defect cases, risk-utility proof is not required to make a prima facie case.

Although Kristin Olson and Scott Brooksby have defended cases involving countless different types of consumer and other products, the test for liability in each case in Oregon is “the consumer expectation test” and this test is always the same.  It applies regardless of whether the case is a negligence case or a strict liability action.

Under the consumer expectation test, the question is whether the product was “dangerous to an extent beyond that which would be contemplated by the ordinary consumer who purchases it, with the ordinary knowledge common to the community as to its characteristics.”  McCathern v. Toyota Motor Corp., 332 Or 59, 77 (2001) (quoting RESTATEMENT (SECOND) OF TORTS §402A comment I (1979)).  The plaintiff has the burden of proving that a product is unreasonably dangerous.

The consumer expectation test is objective.  Jurors may not consider their own personal subjective views as to whether the product contained conditions that they themselves would expect.  Similarly, they may not put themselves in the position of the injured plaintiff to make such a determination, but must apply the views of the community as a whole.  The McCathern decision also made clear that the consumer expectation test is the only test properly given to the jury in a strict product liability case.  For a good overview of Oregon product liability law, the McCathern decision is worth reading.

Who are Proper Defendants?

Strict tort liability applies to any person engaged in the business of selling or leasing products for use or consumption.  This includes manufacturers, wholesalers, retailers, distributors, lessors, or in short, any person in the “stream of commerce”.  For a party to be held strictly liable in tort, that party must have sold or leased a product under the statute.  The Oregon product liability statute, codified at ORS 30.900 et. seq. provides that, “a manufacturer, distributor, seller or lesser of a product” may be subject to an action for a product that is unreasonably dangerous.  The Oregon Legislature did not adopt the caveat to RESTATEMENT (SECOND) OF TORTS §402A caveat 3 (1965), which contains the caveat for component-part manufacturers.  The Oregon
Supreme Court has ruled that component part manufacturers can be subject to strict liability for the sale of defective components.  However, the manufacturer of a component part is not the subject of strict liability if the component was misapplied rather than defectively designed.

Important Considerations When Defending Products Cases in Oregon

One of the most important considerations at trial is jury selection.  What are the perspective jurors’ views of governmental regulation of the product involved and products generally?  Does the jury have preconceived attitudes and experiences that will make them favorable opinion leaders during jury deliberations, or do they have negative attitudes and opinions toward manufacturers or corporations that make them predisposed to award plaintiffs large verdicts no matter what the evidence?

Does one of the many defenses, including statute of limitations, statute of ultimate repose, alteration or unforeseeable misuse or modification apply?  Was the danger of the product so open and obvious, and an alternative unavailable such that the utility and necessity of the product outweighed any danger?  These and many other defense questions will require further analysis well before trial begins, and often before discovery begins.  Disciplined defense strategy formation and execution, exhaustive development of potential defenses, and jury research are all be valuable in attempting to obtain defense or low verdicts.

 

 

 

Federal Government Regulation of Consumer Product Safety and Mandatory Reporting of Consumer Product Defects to the CPSC

Olson Brooksby frequently counsels local and national clients on whether or not the consumer products they manufacture or sell contain a safety defect that they would be required to report to the Consumer Product Safety Commission.

Federal Regulation

The Congress of the United States established the Consumer Product Safety Act (“CPSA”), codified at 15 U.S.C. §§2007-2089.

Complete analysis of the CPSA is beyond the scope of this article.  Pursuant to the CPSA, Congress established the Consumer Product Safety Commission (“Commission”) to regulate consumer product safety in the United States.  Under the CPSA, the Commission has the power to develop regulations related to the safety of consumer products, which are generally contained in the Code of Federal Regulations.

Under 15 USCS § 2052(5), a “consumer product” means “any article, or component part thereof, produced or distributed (i) for sale to a consumer for use in or around a permanent or temporary household or residence, a school, in recreation, or otherwise, or (ii) for the personal use, consumption or enjoyment of a consumer in or around a permanent or temporary household or residence, a school, in recreation, or otherwise…”

Specifically excluded from regulation by the CPSC are tobacco, motor vehicles, pesticides, aircraft and aircraft components, boats, drugs and medical devices and food.  Even if these excluded products are purchased for consumer use, they are not subject to regulation or jurisdiction by the CPSC.   The Commission does tend to heavily regulate consumer products, especially children’s items, such as: car seats, children’s pajamas, strollers, cribs, toys, some recreational products, certain home appliances, and tools.  The CPSC has passed specific regulatory acts such as the “Children’s Flammable Pajamas Act” associated with consumer products that target vulnerable users, primarily children and vulnerable adults.   A link to the CPSC website, which contains useful product safety information, including information for manufacturers such as current product recalls, is found at http://www.cpsc.gov/.

The Requirement of Reporting Consumer Product Defects to the CPSC

Although complete analysis of reporting requirements are beyond the scope of this article, Section 15(b) of the CPSA establishes reporting requirements (“Section 15(b) reports”) for manufacturers, importers, distributors and retailers of consumer products.  In summary, each must notify the commission (generally within 24 hours) if they obtain information that “reasonably supports the conclusion” that a product (1) fails to comply with an applicable consumer product safety rule or with a voluntary consumer product safety standard, (2) fails to comply with any other rule, regulation, standard or ban under the CPSA or any other Act enforced by the Commission such as the Children’s Gasoline Burn Prevention Act, Refrigerator Safety Act or Flammable Fabrics Act, (3) contains a defect which could create a substantial product hazard, or (4) creates an unreasonable risk of serious injury or death.

Under the CPSA, a private right of action exists for any person injured by violation of a consumer product safety rule promulgated by the Commission.  Manufacturers should be aware that the CPSA contains some sharp teeth and courts may award attorney fees as part of the injured person’s recovery.  15 U.S.C. §2072.  Under the CPSA, the CPSC has broad enforcement powers and a number of tools to ensure the safety of consumer products.  However, under the CPSA, the CPSC is also charged with assisting manufacturers, distributors and retailers of products with known defects in the development of a “Corrective Action Plan” (“CAP”), and although the CPSC enforcement powers have sharp teeth, the CPSC is also focused on working to develop voluntary corrective action plans and engaging in cooperation during corrective action plan implementation.

Olson Brooksby frequently counsels manufacturers on whether to pass along reports they have received or internally-developed information that suggests that a product may contain a defect that would require reporting under Section 15(b) of the CPSA.  While comprehensive analysis of the Section 15(b) reporting requirements are beyond the scope of this article, the Commission has published a useful abbreviated publication that discusses reporting and product recalls.

Why Familiarity And Compliance With CPSC Mandatory Reporting Requirements Matters

Although it should go without saying, manufacturers, especially those focused on products for babies, children and household consumers (such as cleaning products, flammable products, etc.), must be aware of whether the Commission is considering or has established specific rules governing their products.  Manufacturers, distributors and retailers should be aware of the basic reporting requirements to the CPSC under Section 15(b) if they become aware of information that reasonably supports the conclusion that their product contains a defect and should voluntarily report.

The Commission has the power to require mandatory recalls, but will typically offer a manufacturer the option of conducting a voluntary recall before issuing a recall order.  Prudent manufacturers of consumer products, especially those for which the Commission has promulgated specific rules or standards, should have a recall plan developed in advance because, whether voluntary or mandatory, the Commission will expect the company to commence the necessary recall action plan quickly and such plans are typically very involved.  Any action taken by the Commission, whether in the form of corrective action or a recall can have serious consequences for manufacturing cycles and the costs associated with a recall can be very high.  For more on this issue, please feel free to contact our office.