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Highlights of the latest product liability cases from around the country.
Secretary of the Department of Homeland Security ("DHS") Michael Chertoff told the U.S. Chamber of Commerce that the DHS is seeking to shield more anti-terror research companies from product liability suits. Since January 2005, the DHS has overcome its reluctance to limit product liability for many research and development companies that manufacture anti-terror technology. There is still, however, debate over liability protections afforded by legislation to shield manufacturers of bioterrorism vaccines.
The first part of this article discussed the case law of both state and federal courts with regard to the admissibility of child testimony and the suggestibility of child witnesses. The conclusion discusses whether the child witness understands that he or she can affect the outcome of the litigation, as well as other issues related to the reliability of the child's testimony.
For years, a consistent front-runner on the best-seller list has been Steven Covey's, "<i>The Seven Habits of Highly Effective People</i>." Failure to be "highly effective" in managing risk can imperil drug and device manufacturers. Today's litigation is formidable. Personal injury attorneys are well connected, constantly seeking "The Next Big Thing" in product liability litigation. Many firms specialize in suing drug and device companies. There are networks on Internet forums and at legal conferences built around "how to" workshops on suing specific devices, drugs or manufacturers.
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The issue of causation is at the core of most product liability trials. The challenge for litigants, particularly defendants, is that jurors often find common-sense notions of causation more persuasive than those based on complex or scientific evidence, even though the latter may be more accurate or correct. Common-sense causation arguments are simple arguments that are consistent with lay jurors' everyday experiences. Indeed, common-sense notions of causation are correct in most of our day-to-day activities. Accordingly, jurors come to trust their common-sense notions of causation and find it disconcerting when those notions are challenged by trial counsel. The result is that jurors who are presented with competing theories of causation are often likely to prefer the common-sense theory, even if it is not correct or plausible from the perspective of science or engineering. This is especially true of jurors who are not motivated to consider and integrate a large volume of complex evidence carefully and thoughtfully.
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In a case of first impression, the Nebraska Supreme Court has rejected arguments that the state's product liability statute of repose should be tolled for minors. <i>Budler v. General Motors Corp.</i>, 689 N.W.2d 847 (Neb. 2004). The ruling was en banc and unanimous. The court's decision was the result of thoughtful analysis and application of well-established principles of statutory interpretation. The impact of the ruling is significant, however, given the state's long-standing public policy of preserving a minor's cause of action until he/she reaches the age of majority.
The issue of obesity in the American population has become a hot national topic. While there has been some dispute among interested groups as to the extent of the problem, it seems clear that obesity causes health conditions that include diabetes, heart disease and sleep apnea. Indeed, authorities as established as former Surgeon General Dr. David Satcher have stated that the problem of obesity may eventually cause as much preventable disease and death as cigarette smoking. The sparkplug event on the issue in the legal community was the filing of the <i>Pelman v. McDonald's Corp.</i> action in a New York state court in August 2002, which was removed to federal court a month later. In that action, two girls, as members of a putative class action of minors, alleged that their obesity and other health problems were caused by their heavy diet of McDonald's products. The noise on the issue was amplified by the Second Circuit's decision in <i>Pelman v. McDonald's Corp.</i>, 396 F.3d 508 (2d Cir. 2004), reversing the district court's dismissal of the action.
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Due process in the Information Age means leveling a dynamic playing field. As courtrooms are being wired for computer access, jurors and litigants are opening the courthouse doors just enough to allow the Internet inside. These online excursions are challenging current notions of fair trial and equal justice.
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In commerce, as we Americans are more or less reminded on our paper currency, transactions are divided into two domains: Those that are government-controlled, and those that are privately controlled. Depending on the type of transaction that is involved between parties, different constitutional rights are applicable. <br>That said and established, let's consider that growing alchemy of the ether realm that mixes expression and the maintenance and control of the Internet. In particular, if the Internet is nongovernmental, then it may generate terms-of-use agreements to prohibit political speech. But if the Internet is governmentally controlled, then Internet users have a First Amendment right to use it for public speech.