Strict Liability

News & Analysis as of

C.D. Cal. Dismisses Infusion Pump Complaint

The plaintiff in Frere v. Medtronic, Inc., 2016 WL 1533524 (C.D. Cal. April 6, 2014), was an 80 year-old woman who had an infusion pump implanted to treat her chronic low-back pain. According to the plaintiff, the device...more

Sophisticated User Defense Does Not Extend to Salesman

Richard Moran III v. Foster Wheeler Energy Corporation - Court of Appeal, Second Appellate District (April 13, 2016) - In 2008, the California Supreme Court unanimously held that the “sophisticated user” defense...more

Comment K Case by Case – Falling Out of Favor?

When we examined Restatement (Second) of Torts §402A, comment k (1965), in our 2011 research post “Comment K, Some of the Way,” we remarked about how it said “a lot of things,” including: (1) that one can’t design away...more

Passive Trademark Licensor Held Not Liable for Product Defect

Can merely licensing a trademark result in strict liability for injuries resulting from a product bearing the trademark? A decision earlier this month says no....more

Seventh Circuit Affirms District Court Ruling That TCPA Fax Regulations Are Not Strict Liability

On March 21, 2016, the Seventh Circuit issued its decision in Bridgeview Health Care Ctr., Ltd. v. Clark, Nos. 14-3728 & 15-1793, holding that agency rules apply to determine whether a fax is sent “on behalf of” a principal...more

Limited Liability Communication: Seventh Circuit Limits TCPA Liability for Communications Made by Third-Parties

On March 21, the U.S. Court of Appeals for the Seventh Circuit affirmed a lower court’s ruling that a small business had no liability under the Telephone Consumer Protection Act (TCPA) for fax advertisements sent by a...more

Think Mink, part 2: Florida Federal Court Slams Door on Parallel Claims

Last November we blogged about "specialized" preemption issues in several cases, including Mink v. Smith & Nephew, Inc., 2015 WL 7356285 (S.D. Fla. Nov. 19, 1015). The plaintiff in Mink claimed physical injuries from a...more

Mentor Case Time Barred

In 2004, North Carolina resident Melanie Cole was implanted with Mentor’s OB Tape, which is a sling device that is used to treat urinary incontinence. Three weeks after the surgery, Ms. Cole visited her surgeon and...more

Boston Scientific Prevails in North Carolina Mesh Case

The Uphold Vaginal Support System is a transvaginal mesh product used to treat pelvic organ prolapse (“POP”). Marta Carlson sued Boston Scientific Corporation (“Boston Scientific”), the maker of the Uphold Vaginal Support...more

Evidence of Industry Custom May Be Relevant and Admissible in a Strict Products Liability Action Depending on the Nature and...

In Kim v. Toyota Motor Corp., 2016 No. B247672, the California Court of Appeal, Second District, held that a jury could consider evidence of industry custom to determine whether a product was defective under the risk-benefit...more

Tort Suit Seeks to Hold Drillers Responsible for Oklahoma Earthquakes

In what may be part of a wave of litigation blaming increased seismicity on oil and gas development activities, 12 residents of Oklahoma City and its suburbs filed suit against oil and gas drillers and operators of wastewater...more

Is it the Dawning of the Age of Strict Products Liability for Contractors in California?

It was the Age of Aquarius. And everything was changing. Politically, socially . . . and legally. Through the 19th Century the doctrine of caveat emptor, literally “let the buyer beware,” was the rule of law. Under...more

Global Anti-Bribery Year-in-Review: 2015 Developments and Predictions for 2016

I. Introduction: Enforcement Trends and Priorities - Among other significant developments, 2015 saw the U.S. Department of Justice (the “DOJ” or the “Department”) document a policy priority of holding individuals...more

Blame Flows Downhill: All the Way to Sales Clerks

What if a store clerk sells a product that, unbeknownst to him, is illegal? Can the clerk be convicted of a crime, despite not knowing the product was illegal and not intending to sell an illegal product? On January 14,...more

When Product Liability Meets the Uniform Commercial Code

Clients who are first introduced to the concept of strict liability in the context of a product liability lawsuit are often shocked to learn they can be held liable for a product defect simply because they sold the defective...more

Subcontractor Performing Services may be Liable in Strict Liability For Purchasing and Installing Defective Products in Fulfilling...

Jovana Hernandezcueva v. E. F. Brady Company, Inc. - Court of Appeal, Second Appellate District, Division Four (December 22, 2015) - The doctrine of strict liability is ordinarily inapplicable to transactions...more

Five of the Top Drug & Device Developments in 2015

As 2015 winds down, we reflected on some of the year’s most significant legal developments for drug and device manufacturers. In our opinion, the bench got it right (for the most part) this year. Here is a brief recap and...more

Fifth Circuit Clarifies Claim Presentment Requirements under the Oil Pollution Act of 1990

The 1989 grounding of the EXXON VALDEZ spurred Congress to enact the Oil Pollution Act of 1990 (OPA) to remedy what it believed to be a patch-work compensation scheme where liability and damages were subject to federal...more

U.S. Coast Guard Issues Final Rule Raising OPA 90 Liability Limits

Action Item: The U.S. Coast Guard published a Final Rule increasing limits of liability for vessels, deepwater ports, and onshore facilities under the Oil Pollution Act of 1990 (“OPA 90”). The raise in liability limits also...more

Who Bears Liability For That Call Or Fax? Courts Continue To Wrestle With Direct And Vicarious Liability

Whenever more than one individual or entity is allegedly involved in the “sending” of a fax or the making of a call or text, two key questions in the litigation are: (i) what must be pleaded to state a claim against each...more

Florida Supreme Court Embraces “Consumer-Expectation” Test for Design Defect Claims

The Florida Supreme Court recently issued a significant decision that will affect all strict product liability/design defect cases litigated in Florida. In Aubin v. Union Carbide, decided October 29, 2015, the Court rejected...more

Products Liability – Raw Material Supplier – Component Parts Doctrine Requires a Showing that Raw Materials are Not Inherently...

Brady et al. v. Calsol, Inc. - Court of Appeal, Second Appellate District (October 30, 2015) - The component parts doctrine shields a supplier of raw materials from liability where the raw material component...more

When are Supervisors Liable for the Actions of Subordinates in Federal Civil Rights and Police Liability Cases?

In Federal civil rights actions under 42 U.S.C. § 1983, supervisors are frequently named as defendants, even in circumstances were the supervisor was not directly involved or did not even have knowledge of the actions of the...more

Florida Supreme Court Rejects the "Risk Utility" Test For Strict Liability Design Defect Cases

In a key products liability decision, Aubin v. Union Carbide Corp., No. SC12-2075, 2015 WL 6513924, at *1 (Fla. Oct. 29, 2015), the Florida Supreme Court rejected the Restatement (Third) of Tort's "risk utility" test which...more

The Citadel Revisited – New York’s “Thing of Danger” Privity Exception Is Obsolete (and Another New York Note)

Way back when – before Restatement (Second) of Torts §402A (1965) crystallized the concept of strict liability – courts around the country were poking around, trying to come up with viable theories of what we would now call...more

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