This posting deals with a number of product liability issues including preemption, limitations, choice of law, and disclosures See the page on human factors for info on that topic.
Product Defect Cases and Federal Preemption
The Preemption Doctrine states that where the U.S. has passed laws or has intended to occupy a field then the 50 states cannot step in. In other words the states cannot pass laws that might step on the toes of what the U.S. is doing. The logic is that you do not want the 50 states passing laws that impede what the U.S. is doing.
Harris
In January 2012 the U. S. Supreme Court in the case of National Meat Association v. Harris dealt with this issue. There had been a number of exposes about slaughterhouse practices. U.S. regulators issued a massive beef recall. Also the feds proposed new rules to remove from the market any products that came from what are called downer animals. These are animals not able to move. These animals possibly had mad cow disease or other types of serious illness.
California Overreached
The state of California chose to impose a ban on the slaughter of any non-ambulatory animals for human use. This included pigs. Also they required these downers be dealt with in a certain way.
Within the Federal Meat Inspection Act there is language that precludes the 50 states from passing laws or rules related to slaughterhouse premises, facilities and operations. There is also a part of the Act that states that it does not preclude any state from taking other action consistent with the Act.
U.S. Supreme
The Supreme Court concluded that California’s action imposed certain duties in conflict with the U.S. mandates. California should have stopped at the slaughterhouse gates. Inside the gates the U.S. was supreme. The states could not meddle. The doctrine is called federal preemption or federal supremacy. Call, or contact us for a free consult.
This case affirmed the practice that where the U.S. has acted and intended to occupy a field then the states cannot intervene.
Medical Devices
Many claims against medical device makers involve this concept. As a result they may be barred due to the fact that the U.S. has dominated the field through rule making. That control gives much weight to any federal action on the product. The chance of preemption applying to these devices is a function of the danger posed. The greater the danger posed by the product the greater the chance of FDA involvement. The more FDA involvement the greater the chance of preemption.
Supremacy
In the case of Gross v. Stryker Corp., 2012 WL 876719 (W.D. Pa. 2012) the plaintiff sued under state law theories alleging a defect in a medical device. The Medical Device Amendments to the Federal Food Drug and Cosmetic Act (FDCA) contain language that no state may set any requirement for a medical device, relating to safety or effectiveness, that is different from or in addition to anything required by the FDCA.
The Court decided in Gross that the plaintiff’s claim was barred. However the plaintiff could have based the claim on the theory that the maker breached the U.S. rules. By alleging such there would be no inconsistency between the state claim and the U.S. rules.
However the plaintiff in Gross did not do so.
The Statute of Limitations For Product Defect Cases
Product liability statute of limitations in Virginia is two years in most cases. There may be some exceptions.
A different statute may apply where the claim is based on breach of warranty. However Virginia looks to the date of damage as being the trigger to the limitation. In other words the statute does not begin to run based on the cause of action. It begins to run when the plaintiff suffers some damage.
For more information on statutes of limitations and a review of Virginia case law on statutes of limitations see the highlighted sections. Call, or contact us for a free consult.
Choice Of Law Provisions Need To Be Analyzed
Many contracts contain clauses that require you to arbitrate any dispte you have with the other party. Also most contracts have choice-of-law clauses. These clauses state what law will be used by a court if the contract is subject to dispute.
Any injury lawyer handling product defect matters needs to be attuned to this language. A choice of law clause may seem innocent. However they can be deadly. Although we live in the United States we also live in 50 different states. All of those states have different laws. When it comes to product liability and the ability to pursue class action claims the choice of law can be fatal.
Consumer Contracts
Many courts have taken a closer look at these choice-of-law clauses in consumer contracts. These clauses may appear in warranties for products. In other words the warranty card that needs to be sent in may contain a choice-of-law clause.
Many states apply a rule that is found in the Restatement (Second) of Conflict of Laws. This legal treatise states that even though there may be a choice-of-law clause it is not going to govern where the chosen state has no substantial relation to the parties or to the product. Likewise if there is no reasonable basis for the choice of that state or the law of that state is contrary to the policy of the state where the suit is pending then the choice may be voided.
As a result consumers need to be wary of any contract that contains a choice of law clause. These are most often designed to protect sellers and not consumers. Call, or contact us for a free consult.
Product Defect Disclosures
Corporations that are publicly traded on the stock market may be obliged to disclose to their shareholders known defects in their products. In Matrixx Initiatives v. Siracusano the U. S. Supreme Court reviewed the issue of when a publicly traded company has a duty to inform stockholders of a problem with its product that is likely to cause the stock prices to fall.
In Matrixx, the company failed to disclose claims that its nasal spray Zicam could cause the loss of sense of smell. When this was disclosed the stock price dropped over $3.00 per share.
Shareholders Have A Right To Know
Shareholders maintained that Matrixx had been warned about this claim many years before. Matrixx said the number of complaints about the product was small compared to the number of times that the product was used without event.
Justice Kagan posed the example of where a particular product caused blindness in 10 people. She asked if that would be subject to disclosure even though the number is small. She answered her own question by stating she would stop using the product and probably would sell her stock.
A unanimous decision written by Justice Sotomayor on March 22,2011 was that investors may proceed with their lawsuit. The trial court would have to decide if the maker should have disclosed this problem. To prevail in the case the investors must prove that the maker did not disclose in order to deceive or manipulate the market.
For more information on product liabilyt matters see the other posts on this site:
personal injury product liability
product defect specific cases
