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Articles Posted in Product Liability

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Gone are the days of smoke-filled restaurants and most smoke-filled public places. In part because of the well-known surgeon general warning labels on cigarette packages, TV commercials warning about emphysema and lung cancer, and large judgments against the tobacco industry, an increasing number of cigarette smokers have turned to electronic cigarettes (“e-cigarettes”) as an alternative to smoking tobacco. Many consumers likely expected the e-cigarette to be a harmless, or at least safer, option. Surprisingly however, some e-cigarettes have proven to be extremely dangerous and have caused severe and permanent injuries. This has caused an increase in product liability litigation across the country.

A recent Associated Press article reported that there has been a steep increase in e-cigarette explosions in the last few years. The article reports that the explosions have likely been caused by the batteries which were manufactured in China. One of the injured victims sustained severe third-degree burns to her leg. Another victim was a boy who suffered from partial loss of sight. The article also discusses a victim who sustained permanent burns after an e-cigarette explosion in 2015 won a verdict of $2 million from a California court.

Another recent article reported that a group of four injured victims have filed suit in New Jersey against the sellers of e-cigarettes that exploded “like a rocket.” One person who was injured by an e-cigarette explosion suffered third degree burns, has been unable to work for several months, and needs surgery to implement skin grafts. These instances and others have caused major liability problems for the companies producing and selling the e-cigarettes. While the lawsuit names the manufacturers as defendants, the plaintiffs realize the difficulty of a successful claim against the manufacturers as they are located in China.

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Apple likely expected to profit at the expense of their rival Samsung’s recent misfortunes with the Galaxy Note 7 smartphones, yet they recently found themselves to be the target of a lawsuit due to an allegedly overheated iPhone 6. Stacie Reasonover, a woman from Nashville, Tennessee, has sued Apple due to burns and scarring she suffered when she fell asleep with an iPhone 6-Plus on her chest and the phone overheated. According to the Complaint, the woman suffered permanent scars, including a scar on her right breast, as a result of this incident. The product liability complaint against Apple, filed in the United States District Court for the Middle District of Tennessee, alleges (1) strict liability for defective design and (2) negligent design and/or maintenance.

Given how inseparable people and their phones have become, it is not surprising that some people would fall asleep with a phone on top of them. Furthermore, it is not unusual for a person talking on a phone for a long period of time to feel the phone warming up, just as people with laptop computers in their laps for prolonged periods may feel the computer heat up. That a cell phone, especially while not in use, would overheat to the extent of causing burning and scarring, however, is much more serious and can cause highly visible and permanent injuries, including scarring.

When projecting the outcome of a product liability lawsuit like this, it would be helpful to know additional facts such as (1) how long the plaintiff had been using the phone before falling asleep, (2) how long she was asleep with the phone on her chest, (3) if she had experienced any problems with her phone overheating prior to this instance, and (4) how severe and/or permanent her injuries actually were.

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Unfortunately, tens of millions of vehicles of numerous makes and models have been recalled due to the defective manufacture of airbags by Takata Corporation. These defective airbags are highly dangerous and can be deadly when deployed. They may rupture upon impact, spraying pieces of metal and shrapnel into drivers and passengers. While it is easy to see how traumatic injuries have been sustained in heavy T-bone and rollover car or truck accidents, these airbags can be just as dangerous in low impact wrecks and fender benders.

The airbag recall has affected vehicles manufactured by Acura, BMW, Ford, Honda, Mazda, Mitsubishi, Toyota, and Infiniti, among others. In May 2016, The National Highway Traffic Safety Administration (NHTSA) expanded and accelerated the recall of the Takata air bag inflators when investigators confirmed the root cause behind the rupture of these airbags that has been linked to the degradation of the ammonium nitrate propellants in the inflators.  To date, nearly 70 million Takata airbag inflators are or will be under recall by 2019, making this the largest auto safety recall in the history of the United States.

On October 20, 2016, the NHTSA confirmed another crash fatality linked to the rupture of the recalled Takata airbag inflator, this time involving a 2001 Honda Civic.  The victim, 50 years old, died after sustaining serious injuries in a September auto accident. According to the NHTSA, certain Honda and Acura brand vehicles have been included in a higher risk category of Takata airbags, which means they are categorized as having a “substantially higher risk” of exploding after being deployed.  These vehicles’ airbags include a specific manufacturing defect which greatly increases the chance for a dangerous rupture.  Many people across the United States have sustained traumatic and life altering injuries, including permanent disfigurement, as a result of these airbags.

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Cell phone users may want to think twice before leaving their cell phones on while boarding a flight. A recent article from USA Today reported that passengers had to evacuate a Southwest Airlines plane before takeoff in Louisville, Kentucky because of a smoking cell phone. One of the passenger’s cell phones overheated, and then started smoking, causing the evacuation. Thankfully, there were no reported injuries among the flight crew or the 75 passengers.

This latest incident with the Samsung Galaxy Note 7 smartphone follows other issues Samsung has had, prompting recalls because of safety hazards. Though Samsung did not confirm whether the phone in question on the Southwest plane was a new one, consumers may be wary of all Galaxy Note 7 phones due to this incident and a recent recall by the Consumer Product Safety Commission. Given the ubiquitous nature of cell phones and the exponential growth in recent years of cell phone users, the potential for products liability claims could pose a serious problem for Samsung if the issues with the Galaxy Note 7 are not quickly resolved.

Four important factors in product liability cases are (1) whether the product in question was used as intended, (2) whether the product’s potential danger was obvious, (3) whether there was an adequate warning about the potential danger (particularly, if the danger was not obvious), and of course (4) whether there were injuries resulting from the defective product.

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On October 27, 2016, a St. Louis, Missouri jury awarded over $70 million in damages to a California woman who developed ovarian cancer after using a Johnson & Johnson product that contained talcum powder. The plaintiff, a 62-year-old woman, used Johnson & Johnson baby powder for over 40 years. In 2012, she was diagnosed with ovarian cancer. Recent studies have linked talcum powder to ovarian cancer. While the plaintiff has undergone surgery, radiation, and chemotherapy in efforts to recover, the plaintiff’s doctors believe her odds of surviving the next two years are just 20%.

In this case, the jury assessed damages against two defendants, Johnson & Johnson and Imerys Talc America, the company that supplied the talc to Johnson & Johnson. Of the total damages awarded, $2.5 million is for the plaintiff’s medical bills and pain and suffering. This amount will be split between the two defendants. The remainder of the verdict is for punitive damages, with $65 million to be paid by Johnson & Johnson and $2.5 million by Imerys.

Punitive damages are a special class of damages, and they are different from compensatory damages.  Compensatory damages, such as medical bills, lost wages, and pain and suffering, are designed to make the plaintiff whole from injuries sustained as a result of another’s negligence. On the other hand, punitive damages are designed to punish the defendant for their conduct and can be awarded when a defendant exhibits egregious conduct. By assessing punitive damages, the goal is to put others on notice that a defendant’s conduct is not acceptable and to deter others from committing similar misconduct in the future.

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