Recently in Products Liability Category

California ATV Accidents on the Rise: What to do if You Have Been Injured in an ATV Accident

July 7, 2011, by Thomas Lewellyn

atv.jpegSummertime means vacations and outdoor fun. Over the years all terrain vehicles (ATV's) have steadily increased in popularity as recreational vehicles. Unfortunately, most consumers are unaware of the hidden dangers of these vehicles and the number of deaths and serious personal injuries associated with their use.

The Consumer Product Safety Commission reports that over the 2010 Memorial Day weekend alone, there were a reported 28 deaths related to ATV use. That's an average of 7 deaths per day over that one holiday weekend. Between 2004 and 2006, deaths of children under the age of 16 increased more than 65%.

In California the number of reported deaths is staggering. Between 1982 and 2009, there were 560 fatalities associated with ATV's. 101 of the deaths between 1982 and 2006 were children under the age of 16.

California has passed various ATV laws to help reduce the number of injuries and deaths associated with these recreational vehicles. Operators are required to wear helmets on public lands at all times. All operators under the age of 18 must possess a safety certificate or be with an adult with a safety certificate if operating on public lands. Passengers may not be carried while on public lands, except one passenger may be carried if the particular ATV is designed to carry a passenger. The ATV may not be used on highways, except to cross highways. Click here to obtain more information about ATV training.

Obeying the safety laws however, does not prevent serious ATV injuries and accidents. There has been many wrongful death and personal injury lawsuits alleging that the design of particular ATV's are contributing factors to these accidents. These product liability claims often look at whether the center of gravity of these vehicles is too high causing them to be unnecessarily top heavy. The Yamaha Rhino 450 and 650 have been widely criticized. Critics claim that the vehicles were involved in numerous slow speed rollovers on flat terrain. Safety experts say the high center of gravity and narrow tires for these vehicles make them especially prone to rollover accidents.

Yamaha issued a safety recall of these vehicles in 2007. Owners of 2004 through 2007 models can have their vehicles modified. The safety modifications are free of charge.

Because ATV's, unlike cars, do not have doors or rollover protection, occupants can becoming easily trapped if the ATV turns over. This can result in crush injuries resulting in amputation of the limb. Other injuries often associated with ATV accidents involved permanent brain trauma, and spinal cord injuries resulting in paralysis.

As an Alameda personal injury lawyer, I know that litigation in this area is challenging. In order to be successful in these type cases, you need an experienced products liability lawyer to review the case. Due to the complex nature of these case, they can be extremely expensive to litigate. The products liability lawyer must be familiar with and have access to the types of experts needed to prove not only the design defect, but the causation issues in the case, i.e. how did the design defect contribute to cause the accident in questions. Typically, experts used in these cases include biomechanical engineers, mechanical and design engineers, accident reconstructionists, handling and safety stability professionals.

As with any personal injury case, acting promptly after an injury occurs is extremely important. It is vitally important that the scene of the accident be investigated and photographed. The ATV in question should immediately be stored for preservation of evidence and inspection by experts. Interviews of potential witnesses should be done immediately before witness's memories fade.

Resources:

CPSC, CPSC Warns Memorial Day Weekend Among the Deadliest Holidays for ATV Riders, May 27, 2011

California Court Protects Rights of Uninjured Spouse

May 28, 2011, by Thomas Lewellyn

rings.jpegWhen a married person is seriously injured, the non-injured spouse often pays a large toll as well. While the couple may still love each other just as much, there is no doubt that the marital relationship has been harmed. In the law, this is what as known as a loss of consortium claim. A recent California appellate court decision reaffirms this important legal right of the uninjured party to sue for loss of consortium.

In the case of Mealy v B-Mobie, Inc., the Mealys had been married for over fifty years. Mrs. Mealy was afflicted with polio in 1952 and was confined to a wheelchair after that. Nevertheless, she was able to drive a car and work outside the home. She and Mr. Mealy had five children together and she worked over thirty years as a counselor for Catholic Social Services. After she retired, she began to lose strength in her arms and her mobility worsened. In order to get in and out of bed, the Mealy's used a Guldman lift system. In 2008, while using the system, a belt broke causing Mrs. Mealy to fall to the floor and break her hip.

Following the fall, Mrs. Mealy filed a products liability lawsuit against the manufacturer of the lift for her personal injuries. Mr. Mealy joined in the suit claiming a loss of consortium. The evidence at trial showed that after the fall Mrs. Mealy required help with almost every aspect of her daily living. She was unable to groom herself as she could before her injury; she was now incontinent, and she was unable to do other household chores and participate in leisure activities that she could do before. Her husband now became her round the clock caretaker.

At trial Mr. Mealy testified that his relationship with his wife was as strong as ever. In fact he testified he loved his wife more than ever. Incredibly, the defense in this case tried to use this testimony to argue that there were no damages to Mr. Mealy and therefore no basis for a loss of consortium claim. The defendant argued that since the loss of consortium was not complete, but only partial there should be no recovery at all for Mr. Mealy's loss.

The Second District of the California Appellate court soundly rejected this argument. The court wrote that "consortium" refers to the non-economic aspects of the marriage relation, including conjugal society, comfort, affection, and companionship. It includes sexual relations, moral support and household services. The court noted that moral support is an important part of the claim. In this case, the evidence clearly showed that Mrs. Mealy suffered a serious hip fracture that completely changed her life, and thus impacted her husband as well. The fact that he still loved his wife as much as he did before the injury should not, and did not bar his claim.

As an Alameda lawyer specializing in personal injury and wrongful death claims, I see claims where spouses have suffered life changing injuries such as traumatic brain injury injuries or spinal cord injuries. In these difficult cases, the marriage is often tested. The impact on the relationship is real, and as this California case holds, it is compensable--even if the parties still love each other!!!

Resources:

Mealy v B-Mobile, California Court of Appeal, Second

Car Safety Tip for California Motorists

May 9, 2011, by Thomas Lewellyn

recall.jpegHere's a safety recommendation for you to keep your car running safely. Every year the National Highway Transportation Safety Administration recalls cars for a variety of reasons. Frequently, the consumer has no way of knowing whether their car has been recalled or not. Now NHTSA has a on-line system which you can enroll in so you can be instantly notified if your vehicle is subject to a voluntary or compulsory recall.

It's simple. You just go to the NHTSA website. Then you specify the year, make and mode of your call and give them your e-mail address. You will then receive notifications of any government recalls of your vehicle electronically.

The NHTSA website also provides other valuable information. You can file a complaint about a vehicle. You can research other consumer safety complaints about any make or model or safety recalls which have occurred. You can also obtain information about any defect investigations which are ongoing.

NHTSA also maintains a Five-Star Safety rating system for any vehicle. This includes NHTSA's evaluation of the crash resistance of the front driver's side, front passenger's side, side driver's side, and side passenger's side, along with a rollover assessment.

As a personal injury lawyer in Alameda, a large part of my legal practice concerns automobile accidents. Therefore, vehicle safety is of the utmost importance to me. Often safety defects in vehicles can be a significant contributing cause to serious personal injury accidents. For example, in recent years, there has been a substantial amount of product liability litigation involving rollovers, especially with sport utility vehicles.

The California product liability laws hold automobile manufacturers strictly liable for manufacturing and design defects which are present in the cars and trucks that they sell. They are also responsible for any known danger inherent in their vehicles which they have failed to warn the consumer about. When a person is injured as a result of a defectively designed car or truck, that person is entitled to recover legal damages for the injuries caused by the manufacturer's conduct.

NHTSA's recall system has been instrumental in helping to identify defective automobiles and to get these cars fixed or off the roads. By use of the recall system, and enforcement of the California product liability laws, we can reduce the number of personal injuries caused by defective cars and trucks. Therefore, I would strongly recommend that you check out NHTSA's website for information about the vehicles you drive or own.

California Distributor Recalls Pogo Sticks Due to Risk of Serious Injury

March 28, 2011, by Thomas Lewellyn

11172a.jpgPogo Sticks manufactured by a Chinese company and distributed in the United States by Bravo Sports of Santa Fe Springs, California have been recalled. The hazard identified by the Consumer Product Safety Commission involves a defect in the frame of the stick. The bottom of the pogo Stick's frame tube may break and a pin holding the spring in place can also break. The manufacturer has received numerous reports of the pogo sticks breaking and causing personal injuries.

The products being recalled include the Rocket Stick Pogo, Pop Stick Pogo, Monster Stick Pogo and Twin Stick Pogo. Only sticks with manufacturing dates between April 1, 2010 and October 31, 2010 are involved in the recall. The manufacturing date code can be found on a white label underneath the foot pedal or on the stem of the pogo by the foot pedals. Retailers and on-line web sites sold the pogo sticks nationwide.

Anyone owning one of these pogo sticks should stop using it immediately. Consumers may contact Bravo at (877) 992-9905 for a full refund.

If you know of anyone injured as a result of the frame breaking they should report the injury to the CPSC at 800-638-2772. Injured parties may also have a claim for personal injuries under California's product liability laws. A manufacturer, wholesaler or retailer of a defective product is strictly liable for damages caused by the defects in its products. This is true whether the product was defectively designed or defectively manufactured. A product may be deemed defectively designed if it fails to meet ordinary consumers' expectations as to safety or if the risk of harm inherent in the design outweighs the potential benefits of the design.

Sellers of defective products are responsible for personal injuries caused by defects in their products even if they were not negligent in the manufacture or design of the product. This reasoning behind this was first expressed by our Supreme Court in the case of Escola v Coca Cola Bottling Co over fifty years ago. Justice Traynor at that time stated that public policy demands that sellers of products be responsible for the quality of their products regardless of whether negligence is involved.

As a California product liability lawyer, I have seen the curative affect that product liability claims have on industry. For example, product liability lawyers led the way in the early 70's against manufacturers of asbestos products. Now the dangers of these products are well known and have been removed from the marketplace. Similarly, we have taken on the drug industry where it knowingly sold medications to consumers that it knew were unsafe. Product liability laws not only compensate those who have been injured by dangerous products but protect the public against the dangers of unsafe products being placed on the market.

Resource:

News from CPSC, Pogo Sticks Recalled by Bravo Sports Due to Risk of Serious Injury, March 16, 2011

A Simple Way to Reduce Serious Injuries in Big Rig Truck Accidents: Stonger Underride Guards

March 3, 2011, by Thomas Lewellyn

chevy_left2.jpgNew studies by the Insurance Institute for Highway Safety (IIHS) show the importance of strengthening underride guards on the rear of tractor trailers. Underride guards are the iron bars that you see coming down from the back of tractor trailers. They are the main safety measure to prevent personal injuries caused by cars sliding under the rear of tractor trailers in rear end type car accidents.

The study showed that in roughly 1,000 truck accidents studied by the Institute, 78% of the rear end crashes with trucks involved underride. When this occurs there is a heightened risk of head trauma, traumatic brain injury, or even decapitation. According to the National Highway Traffic Safety Administration (NHTSA) 423 people die annually, and 5,000 people are seriously injured when the front end of the car slides beneath a truck trailer in a rear end type accident.

Improvements in the safety of the underride guard can and should be made. One study showed that 11% of fatalities and 30% of serious personal injuries could be prevented if trucks were equipped with an energy absorbing system, instead of a rigid type system. Canada has stricter requirements than the United States with regard to the strength and energy absorption of these guards. According to the Institute's studies these stronger requirements help prevent underride and the serious injuries that result from that.

As a Alameda personal injury lawyer, I represented a woman who ran into the back of a truck in the late 80's near Castro Valley on Highway 580. As a result of her car underriding the trailer, she suffered severe permanent brain damage and has been in a skilled nursing facility with full time care since that time. I think of her every time I drive past that spot on Highway 580 where the collision occurred. Stronger standards, such as those already promulgated in Canada, are needed to help prevent injuries like those suffered by my client. I am glad to see that the IIHS is studying the issue and making appropriate recommendations to NHTSA.

Resource:

Insurance Institute for Highway Safeway, Underride guards on big rigs often fail in crashes; Institute petitions government for new standard, March 1, 2011

California Court Finds Maker of Motrin May be Liable for Punitive Damages

February 22, 2011, by Thomas Lewellyn

pills.jpegA California Appellate Court has ruled that a jury may decide whether Johnson and Johnson should be liable for punitive damages for injuries and deaths associated with its drug Motrin (ibuprofen).

The case involves a fifteen year old boy who had a severe reaction to the over the counter drug, motrin. Motrin is a non-steroidal anti-inflammatory drug that may be purchased without a doctor's prescription. The drug may cause a serious and sometimes fatal skin disease knows as Stevens-Johnson Syndrome (SJS) and a variant of that disease, Toxic Epidermal Necrolysis (TEN). The symptoms may include shedding of skin, blisters, hives, facial and tongue swelling, and skin pain. The boy claimed in his case, that the manufacturer of the drug failed to warn him of the risks and dangers of developing these diseases.

The young man had presented evidence to the court that the manufacturer knew of these risks but failed to warn consumers. He showed that Johnson and Johnson warned of these risks in foreign countries, but not here in the United States. In Germany, the company warned "of the side effects associated with this OTC product of rare but serious skin reactions, such as reddening and blister formation ... which is bullous EM/SJS."

In California, a drug manufacturer is responsible for the content of its label at all times. It must ensure that its warnings adequately warn of dangers associated with its drug as long as the drug is on the market. When there is a failure to warn of these dangers, the manufacturer can and should be held liable for the person injuries caused by its neglect.

As an Oakland personal injury lawyer, I applaud the court's ruling. When manufacturers do not inform the consumer of the risks associated with its products, which it knows about and which can cause severe personal injuries, juries should be empowered to assess punitive damages to prevent such reprehensible conduct from recurring.

Resource:

Johnson and Johnson v Superior Court, Court of Appeal Second District, January 20, 2011

California Court Holds Land Rover Responsible for Rollover Accident

February 15, 2011, by Thomas Lewellyn

rollover.jpegAs an Alameda personal injury lawyer, I am constantly reviewing California case law as it pertains to consumer safety and the driving public. Sport utility vehicles have a spotty safety record and can be dangerous if they have a high center of gravity and if not adequately protected against rollovers. Recently, the California Court of Appeals upheld a judgment against Land Rover arising out of a 2003 rollover highway accident.

In 2003, Sukhsagar Pannu was driving his 1998 Discovery, manufactured by Land Rover when he was involved in a rear end collision. The collision caused Mr. Pannu's Discovery to roll over several times, finally coming to rest on its roof. The roof crush caused a spinal cord injury to his neck, resulting in his being paralyzed.

At trial, evidence was produced that the Discovery would tip under evasive steering maneuvers, but with slight alterations to the track width of the vehicle and center of gravity, the rollover resistance would be greatly improved. There was also expert testimony that by adding steel tubing and foam filling at a cost of $116.00 per vehicle, the crush resistance of the vehicle was dramatically strengthened. As a result the trial court found Land Rover responsible for Mr. Pannu's injuries and awarded compensation in the amount of $21 million dollars.

California products liability laws hold auto manufacturers liable if their vehicles fail to meet consumer expectations as to safety or if the manufacturer fails to warn consumers as to safety defects inherent in their products. Verdicts based on the product liability laws, such as that against Land Rover, send a message to the auto industry: Public safety should come first when it comes to designing and manufacturing vehicles.

Resource:

Pannu v Land Rover North America, Inc. et. al, California Court of Appeal, Second Appellate District, January 19, 2011

Oakland Injury Alert: Drop Side Cribs Banned

December 17, 2010, by Thomas Lewellyn

drop side crib.jpegOver the past several months, I have written about the dangers of injuries to children caused by drop side cribs. Finally, the Consumer Product Safety Commission has banned these dangerous products. At least 32 infant deaths are attributable to the dangerous cribs and they are the suspected cause of death in at least 14 other cases.

Drop side cribs are dangerous because the drop side rails can become detached. When this occurs, the baby may be trapped between the mattress and the side of the crib causing the infant to be injured or suffocated. The CPSC also announced new standards for cribs which require that the cribs have fixed sides. It is considered to be one of the strongest standards in the world.

As an Oakland personal injury attorney, I advocated for a ban on these dangerous products which can cause serious injuries or death to our children. See "Pottery Barn Pulls Drop Side Cribs: Infant Safety Must Come First." I am glad to say that the CPSC has made the right decision in taking these defective products off the market.

Resources:

Associated Press, After dozens of deaths, drop-side cribs outlawed, December 15, 2010

Hayward Woman Badly Burned in Auto Accident Fire on San Mateo Bridge

December 15, 2010, by Thomas Lewellyn

car fire.jpegA young Hayward woman was severely burned in an auto accident fire on Sunday, December 12, 2010. The fire occurred after her 1991 Honda crashed into the center divide on the San Mateo bridge. Her passenger also suffered major burns. The California Highway Patrol is still investigating this San Mateo car crash.

Many car fires can and should be prevented by proper design of the automobile. According to the United States Fire Administration one in every four fire department responses is to a vehicle fire. Mechanical and design problems are the leading causes of such fires. Fires following car accidents are the leading cause of death in auto accidents. Each year auto accident fires result in an average of approximately 515 deaths, 3,000 injuries, and 1.1 billion dollars in property damage.

When an automaker puts a car out on the market that catches fire because it is defectively designed or manufactured, it is legally responsible for personal injuries and wrongful deaths caused by fires. Under California product liability laws, any manufacturer of a defective product, including an auto manufacturer is legally liable for damages caused by defective products sold to the public. In the past we have seen poorly designed gas tanks, filler caps, and locations of gas tanks as among the leading causes of such fires.

As an Oakland personal injury lawyer, I've witnessed the good that comes from our product liability laws. Starting with the Ford Pinto back in the 70's, personal injury lawyers representing victims of auto fires have taken on the auto industry in an effort to make cars safer for the driving public. Keeping the auto industry accountable is one of the most effective ways to improve the safety of our cars.

Resources:

Oakland Tribune, Hayward woman still critical after San Mateo bridge crash, December 15, 2010

United States Fire Administration, Highway Vehicle Fires, March 2002

Notice to Alameda Families: Recall of Children's Clothes Due to Choking Risks

November 1, 2010, by Thomas Lewellyn

infant.jpegAs a personal injury lawyer in Alameda, I am concerned about clothes that can pose a risk of injury for children. Recently, there have been two recalls of children's clothing due to choking risks.

On October 19, 2010, the Consumer Product Safety Commission announced the voluntary recall of Infant's Overalls. They are distributed by Lollytogs, Ltd. Of New York, New York. The overalls have snaps which can loosen and come off posing a choking hazard for young children. The clothes are manufactured in India.

On October 30, 2010, The Consumer Product Safety Commission announced another voluntary recall of white ruffle outdoor vests imported by The Children's Place Services Co. of Secaucus, N.J. and sold online at www.childrensplace.com. The metal snaps on the vest can detach posing a choking hazard.

Each year children sustain approximately 18,000 suffocation injuries. Deaths from choking injuries continue to escalate annually. If you are aware of an unsafe product or risk posed by clothing, you can report the matter directly to the Consumer Product Safety Commission on-line to help reduce the occurrence of these preventable injuries. When choking injuries are caused by defective clothing the manufacturers of these products and the retails who sold them are legally liable for the personal injuries they cause.

Resources:

Safekids USA, Suffocation and Choking Safety

PR Newswire, Infant's Overalls Recalled by Lollytogs Due to Choking Hazard, October 19, 2010

UPI.com, The Children's Place vests recalled, October 30, 2010

Child Injury Prevention: More Drop Side Cribs Recalled

October 25, 2010, by Thomas Lewellyn

drop side crib.jpegIn July, I reported on a recall of drop side cribs by Pottery Barn. On October 22, 2010, the Consumer Product Safety Commission announced a voluntary recall of Heritage Collection 3 in 1 drop side cribs.

About 34,000 of these drop side cribs were imported into the country from Vietnam. The cribs were sold only in Kmart stores between 2007 and 2008. The company had received 17 reports of the drop side rails detaching from the cribs. Three of these caused injuries to children as a result of being entrapped by the rail.

Consumers are urged to stop using the cribs and call 866-499-2099 for a repair kit.

As an Oakland product liability lawyer, I am concerned about the safety of products put on the market. In particular, I want parents to be aware of the dangers of drop side cribs to prevent their children from serious injury or death associated with these products. California product liability law can compensate for injuries and expenses caused by these defective products. More importantly, safer designs and manufacturer's concern for safety can hopefully prevent these injuries from happening in the first place. If you own one of these cribs, I urge you to call the above number to make the appropriate repairs.

Resource:

UPI.com, Heritage Collection 3-in-1 cribs recalled, October 22, 2010

Alameda County Parents Alert: Baby Strollers Recalled Due to Risk of Injury

October 24, 2010, by Thomas Lewellyn

stroller mother.jpegAs an Oakland personal injury lawyer, I am concerned about the safety of our children. In particular I am concerned about the risk of injury to babies from defective strollers and other baby products such as defective drop down cribs.

Recently, 2 million strollers were recalled by Graco Children's Products, Inc. The Consumer Product Safety Commision had received reports of four deaths of babies in the Graco Quattro Tour and MetroLite model strollers. Children under the age of one year old are especially susceptible when they are unstrapped and their heads can become stuck between the stroller tray and set bottom.

The strollers being recalled were sold by Sears, Toys R Us and Target, among others. Consumers who purchased the strollers can call for a free repair kit at 877-828-4046. See the list of recalled strollers here. If you own one of these strollers, I urge you to contact the manufacturer and take all steps necessary to make your stroller safe.

Baby strollers which are unsafely designed and cause injury are considered defective products under California law. When a manufacturer places a dangerous stroller on the market that causes injury or death, it is strictly liable for the damages caused, including damages for medical bills, pain and suffering, and for losses caused by the wrongful death of children trapped in these strollers. These product liability laws are designed to keep the children of our communities safe and to keep manufacturers accountable when they place dangerous products on the market.

Resources:

Bloomberg, Graco Recalls 2 Million Strollers After Four Babies Strangled, October 20. 2010

California Parents--Beware of Using Baby Sleep Positioners

October 6, 2010, by Thomas Lewellyn

baby.jpegTwo United States Safety Agencies and a leading Pediatrics Group has warned parents that baby sleep positioners can trap and suffocate babies. The products often have foam bolsters on the sides that help keep a baby in one position. However, the babies can wriggle or roll and become trapped and suffocate.

These products appeal to safety conscious parents concerned about SIDS (Sudden Infant Death Syndrome). These products however have not been shown to reduce the incidence of SIDS. The Sleep Positions can be added to the list of dangerous products such as drop side cribs which can endanger infants. The products have been linked to at least a dozen deaths over the past 13 years. FDA officials state the products are "illegal devices" because none has ever been approved by the FDA, which must approve all products which make medical claims.

According to Kids in Danger, parents should know the safest crib is a bare one that has never been recalled, with a snug-fitting mattress with tight fitting crib sheets and nothing else. Babies should be put to sleep on their backs with footed sleepers and sleep sacks should replace loose blankets.

As an Oakland personal injury attorney, and a father of four children myself, I am particularly concerned about the safety of products designed for our kids. Unsafe products designed for our children should be taken off the market. Under California product liability law, manufacturers of unsafe products should be held strictly liable in damages for injuries caused by defective products.

Resources:

Los Angeles Times, Stop Using Baby Sleep Positioners, Safety Groups Warn, September 29, 2010

Defective Lawn Mowers Recalled

October 6, 2010, by Thomas Lewellyn

First it was suddenly accelerating cars; now it's suddenly acceleratilawn mower.jpegng lawn mowers. The Consumer Product Safety Commission recently announced a voluntary recall of Black and Decker cordless electric lawn mowers. The mowers have been reported to start unexpectedly even after the safety key has been removed.

There have been 34 reports of unexpected start-ups and two of those incidents included injuries to the consumer. The Black and Decker mowers involved in the recall include model numbers CMM1000 or CMM1000R. The Craftsman mowers have model number 900.370520. Over 160,000 mowers have been recalled.

California law covering products liability holds that both the manufacturer and the sellers of defective products are strictly liable for injuries caused by defective products. A product is defective if it fails to meet ordinary consumers expectations as to safety. Therefore, any California resident who is injured by a defective lawn mower has legal rights to recover for their injuries against any company in the chain of distribution of the defective product.

As an Oakland personal injury lawyer, I have represented many consumers who have been injured by defective products, including defective power products such as lawn mowers. If a defective lawn mower or other defective product has caused you injuries you should contact an experienced products liability lawyer in your area to be fully advised of your legal rights.

Resources:

Consumer Product Safety Commission, Black & Decker Recalls Cordless Electric Lawnmowers Due to Laceration Hazard, September 29, 2010

California Asbestos Law: The Consumer Expectation Test

September 8, 2010, by Thomas Lewellyn

asbestos.jpegA recent court case, Saller v Crown Cork & Seal Company, reaffirms a product liability law that protects California asbestos victims and other victims of defective products. California has long been the leader in establishing products liability law. For many years, the courts have held that a product is defective if the design fails to meet consumers expectations as to safety or the benefits of the design are outweighed by safety risks inherent in the design.

In the Saller case, Mr. Saller had worked in an oil refinery for many years where he was exposed to asbestos on pipe insulation. Many years later he developed mesothelioma, a rare form of cancer, that is caused by asbestos exposure. Mesothelioma is a particularly virulent form of cancer, and Mr. Saller died within a year of his diagnosis.

The family of Mr. Saller brought a wrongful death action because of his death due to asbestos exposure. The asbestos company tried to prevent his family from applying the consumer expectation test at the time of trial. It argued that the test should not apply because there was no testimony regarding what an ordinary consumer might expect of asbestos at the time of the exposure. The appellate court rejected this analysis and followed other asbestos cases which held that the use of insulation products are within the understanding of the ordinary consumer and therefore the consumer expectation test was appropriate.

When I first started practicing as a personal injury lawyer in Oakland in 1983, the asbestos litigation was first starting up. I remember representing shipyard workers and pipe insulators who were suffering from asbestosis and lung cancers such as mesothelioma. I'll never forget the suffering of these clients who were unsuspecting victims of this deadly product. I am glad to see our California courts are continuing to protect these asbestos victims by upholding the consumer expectation test in asbestos cases.

Resource:

Saller v Crown Cork & Seal Co. (2010)