Articles Posted in Defective Products and Product Liability

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NHTSA and GM entered into a consent order on Friday, May 16, 2014, under which GM will pay the statutory maximum civil penalty of $35 million for its failure to comply with the notification requirements of the Safety Act — National Traffic and Motor Vehicle Safety Act of 1966 as amended and recodified, 49 U.S.C. § 30101, et seq. — for its failure to provide timely notice to NHTSA of the safety related defect in the GM ignition switch. During the investigation into GM’s conduct, a 2008 Technical Learning Symposium presentation for GM employees was uncovered that revealed a shocking list of Judgment Words for GM employees to avoid using in reports and presentations. Included on the list are:
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Per the terms of the consent order, GM has initiated efforts to improve employee training, and will expressly disavow such statements diluting the safety message.

The civil penalty does not relieve GM from civil liability for injuries caused by the defective ignition switch. GM’s liability for injuries will be governed by state law. According to Baton Rouge, Louisiana auto defect lawyer and Products Liability law professor, Scott Andrews, in Louisiana, the manufacturer-friendly Louisiana Products Liability Act (LPLA), La. R.S. 9:2800.51, et seq., provides the exclusive theories of liability against manufacturers whose products have caused injuries. The Act does not include the word “defect” anywhere within the four corners of the statutes. Rather, in Louisiana, the manufacturer of a product shall be liable to a claimant for damage proximately caused by a characteristic of the product that renders the product unreasonably dangerous when such damage arose from a reasonably anticipated use of the product by the claimant or another person or entity.
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The standard commercial general liability policy contains “work-product” exclusions. “These exclusions reflect the intent of the insurance industry to avoid the possibility that coverage under a CGL policy will be used to repair and replace the insured’s defective products and faulty workmanship.” McKenzie & Johnson, 15 La. Civil Law Treatise, Insurance Law and Practice, 3d, p.555.

I. claimant sustains damages caused by a characteristic of a product

AND

II. damages arose from a reasonably anticipated use of the product

–use or handling of a product that the product’s manufacturer should reasonably expect of an ordinary person in the same or similar circumstances

oil well pump.jpgThe Louisiana Supreme Court struck another blow to victims of allegedly defective products on February 18, 2011, when it issued the per curiam decision of Payne v. Gardner, 2010-2627 (La. 2/18/11). A child was injured after climbing onto and then attempting to ride the moving pendulum of an oil well pump. The Rapides Parish, Louisiana, District Judge granted the oil well pump manufacturer’s motion for summary judgment. The Third Circuit Court of Appeal reversed. The Louisiana Supreme Court never addressed the factual issue of whether the allegedly defective product was unreasonably dangerous because the Supreme Court found that riding the oil well pump was not a reasonably anticipated use of the product at the time it was manufactured in 1952, although the manufacturer had actual knowledge of many similar accidents after the oil well pump left its control.

The Supreme Court opinion does not discuss the nature of the alleged defect in the oil well pump, nor the cause of action alleged. Under the Louisiana Products Liability Act, La. R.S. 9:2800.51, et seq., a product can be unreasonably dangerous in one of four ways: 1) construction or composition; 2) design; 3) inadequate warning; and 4) express warranty. Whether a product is unreasonably dangerous in design or because of an inadequate warning is determined at the time the product left the manufacturer’s control. However, if the manufacturer later obtains actual knowledge or is imputed with constructive knowledge of a dangerous characteristic of the product, then the manufacturer must use reasonable care to provide a post-sale warning to users and handlers about the dangerous characteristic.

So, this commentator believes that if a manufacturer becomes aware (or should become aware) that its product is being used in an unsafe manner or is being misused, then the use becomes not only foreseeable, but forseen, and therefore is reasonably anticipated from the standpoint of the manufacturer. Once this knowledge is actually known or imputed to the manufacturer, then it must use reasonable care to provide post-sale adequate warnings. So, reasonably anticipate use is not a complete bar to recovery in a warnings claim, but rather must be determined based on the post-sale use and knowledge of the manufacturer.

Paul Due profile.jpgPaul H. Dué of the Baton Rouge, Louisiana personal injury law firm of Dué, Guidry, Piedrahita & Andrews has been selected for inclusion in Best Lawyers in America for 2012. For 2012, Dué has been recognized in four categories, including Personal Injury Litigation and Product Liability Litigation. Dué has been recognized by Best Lawyers every year since 1995.

The congressionally mandated product safety database, SaferProducts.gov, was launched on March 11, 2011 by the United States Consumer Product Safety Commission (CPSC). The site can be used to report harm or risks of harm caused by consumer products, with the reported information being searchable by persons interested in seeking safety information about consumer products.
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The Louisiana Office of the State Fire Marshal issued a News Release regarding fireworks safety issues this holiday season. Fire Marshal H. “Butch” Browning said, “Due to the fire hazard as well as the inherent risk of injury involved in fireworks, citizens are urged to use extreme caution when handling fireworks to ensure a safe, fire-free holiday”. “The few moments of pleasure consumer fireworks bring are not worth the risk of property loss, injury, or death”. “Avoid needless risks”. “When things go wrong, they go wrong very fast, and often with disastrous consequences.” “Permanent scarring, loss of vision, dismemberment – these are all too often the harsh realities of amateur fireworks use.”

The News Release reminds us that:

According to the National Fire Protection Association (NFPA), amateur firework usage endangers not only the users, but also bystanders and surrounding property and structures. Pyrotechnic devices ranging from sparklers to aerial rockets cause thousands of fires and serious injuries each year.

In recent years, fireworks have been one of the leading causes of injuries serious enough to require hospital emergency room treatment. Fireworks can result in severe burns, fractures, scars, lifelong disfigurement or even death. The thousands of serious injuries each year typically harm the eyes, head, or hands and are mostly reported in states, such as Louisiana, where fireworks are legal. Even sparklers, which are considered by many to be harmless, can reach temperatures in excess of 1200 degrees F.

The Louisiana Fire Marshal’s Office offers the following fireworks safety suggestions:

— Always read and follow the label directions carefully
— Always have a garden hose or water bucket nearby for medical emergencies and/or to douse spent or misfired fireworks.

— Adults should always supervise fireworks activity.

— Fireworks should be placed on a hard, smooth surface prior to ignition. NEVER light fireworks in your hand.

— Quickly light one firework at a time, and move away quickly after lighting.

— Never point or throw fireworks at people, pets, cars, or buildings
— Keep fireworks away from small children.

— Do not alter or make your own fireworks.

— After displays, never pick up fireworks that may be left over. Fireworks that have been ignited and fail to immediately explode or discharge can cause injury, as they may still be active. Children should always tell an adult if they find fireworks rather than picking up smoking or charred fireworks themselves.

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Scott Andrews Profile.jpgAfter teaching Insurance Law during the Fall 2010 semester at the Southern University Law Center (SULC), Baton Rouge, Louisiana product liability and personal injury lawyer, Scott Andrews, was selected to teach Product Liability at the Southern University Law Center during the Spring 2011 semester.

The Southern University Law Center is located on a bluff overlooking the Mississippi River and provides opportunity to under-represented racial, ethnic, and economic groups.

Scott Andrews joins the faculty ranks of the senior member of the firm, Paul H. Dué, who previously taught at the Southern University Law Center, and the Of Counsel to the firm, David W. Robertson, who is the W. Page Keeton Chair in Tort Law at the University of Texas School of Law.