Products Liability

August 26, 2020

Salmonella Outbreak Related to Bagged Peaches May Result in Indiana Product Liability Claims

by Parr Richey Frandsen Patterson Kruse LLP

Warmer weather also means an increase in the availability of fresh summer fruit. When grocery shopping, many consumers will pick up watermelons, ripe peaches, and fresh berries in celebration of the seasonal harvest. However, no one expects for the produce they bring home to cause them to become seriously ill. When something you purchased at the store causes you to feel sick or causes hospitalization, it is crucial that the store where you purchased the item is informed so the relevant authorities can identify the source of the issue. You may also be eligible for compensation through an Indiana product liability lawsuit.

According to a recent news article, the Food and Drug Administration (FDA) is investigating bagged peaches as a potential source of a salmonella outbreak. A total of 68 people across nine states have fallen ill, with 14 hospitalized. According to authorities, the peaches were packaged and sold in two-pound, clear plastic bags starting June 1. All peaches that were bagged by the packing company in question have been recalled.

The peaches had been solely supplied by this particular packing company and had been shipped to stores in 16 states including Massachusetts, New York, Kentucky, Iowa, and Minnesota. The FDA is still conducting an investigation in order to gather more information about the source of contamination and how widely the produce was distributed.

August 6, 2020

FDA Recall of Hand Sanitizers May Be the Basis for an Indiana Product Liability Claim

by Parr Richey Frandsen Patterson Kruse LLP

When the COVID-19 pandemic first hit the United States earlier this year, many Americans flocked to the stores to stock up on hand sanitizers, disinfectant wipes, soaps, and other household cleaning supplies. Major retailers such as Walmart, CVS, and Target were out of these products for weeks due to the increased demand. Many Indiana residents probably found themselves buying these products to prepare for an unknown future with the virus. However, recent recalls have made clear that some of these products may have caused Indiana residents to fall ill, and may be implicated in future Indiana products’ liability suits.

According to a recent article by the Washington Post, federal regulators have recalled dozens of hand sanitizers because they contain dangerous and potentially deadly levels of wood alcohol, also called methanol. Many of these products have been available in mainstream retailers like Wal-Mart. The Food and Drug Administration has identified at least 77 products since June that consumers should avoid due to their methanol levels. Methanol can be toxic when it is absorbed through the skin, and can cause blindness, causing great concerns since hand sanitizer is applied to the skin and has been applied in large quantities since the beginning of the pandemics. The products are mislabeled, meaning consumers cannot tell which hand sanitizers contain methanol and which ones do not.

It is thought that the increased demand for hand sanitizer and other household cleaning or disinfectant supplies led to the unsafe products. In response to the demand, many companies began to increase their production, but failed to ensure the quality of the product would remain the same. As a result, hand sanitizers that were unsafe for consumers made it into the market. The Washington Post reported that at least seven people have died and dozens of others have been hospitalized as a result of the unsafe hand sanitizer.

June 10, 2020

Recovering Through an Indiana Product Liability Case

by Parr Richey Frandsen Patterson Kruse LLP

As the weather warms up and summer rolls in, flocks of people will begin to make their way to water parks around Indiana where they can enjoy time with family and cool off, or seek the thrill of a roller coaster or a water slide. While most of these trips are packed with fun memories, these parks are often unable to guarantee visitors’ safety, and should be held accountable if a ride or attraction causes a visitor’s injuries.

According to a recent appellate opinion, a plaintiff brought a products liability suit against a local water park after he was injured while going down a water slide. The plaintiff inadvertently slipped from a seated position on an inner tube onto his stomach, and when he entered the pool below, his feet hit the bottom and he fractured his pelvis and hip. Despite the evidence of injury presented by the plaintiff, the trial court ruled in favor of the defense on the products liability claim.

On appeal, the defense argued that the plaintiff’s product liability claims should fail because the water park provides its patrons with a service, rather than a product. The park argued that guests pay admission to obtain a “service” involving the use of water slides rather than paying a fee to primarily use the water slides. Thus, according to the defendant, the plaintiff’s product liability claim was not a viable theory of recovery.

April 13, 2020

Zantac May Be Threatening Indiana Residents’ Health, FDA Calls for the Drug To Be Taken Out of the Market

by Parr Richey Frandsen Patterson Kruse LLP

Zantac is an over the counter drug used by many for acid reflux and heartburn. However, new research suggests that it may be causing cancer. According to a recent article, the United States Food and Drug Administration, responsible for regulating drugs across the country, is requesting that manufacturers pull Zantac from the market immediately because an ongoing investigation has found a human carcinogen in it. Apparently, the carcinogen—N-Nitrosodimethylamine or NDMA—can increase in the medication over time, posing a serious risk to public health and Indiana residents who may take the drug.

The FDA has sent letters to manufacturers asking them to withdraw the products from the market. Consumers are advised to stop taking any of the medication that they currently have, and to not buy any more. Additionally, consumers are asked to dispose of their unused Zantac, following the instructions in the medication guide or on the FDA website. If consumers need to continue taking medication for acid reflux or heartburn, they can take another approved medication that has not been found to have NDMA in it.

Although the announcement from the FDA was just made recently, concerns have been present for months. CVS, Walgreens, and Walmart all announced in September that they would no longer sell Zantac, and drugmaker Sanofi voluntarily recalled the drug in October.

March 26, 2020

Appellate Court Addresses Statute of Repose in Indiana Products Liability Lawsuits

by Parr Richey Frandsen Patterson Kruse LLP

In a recent opinion, the Indiana Supreme Court addressed the amount of time a plaintiff has to bring a product liability lawsuit against a company. The case originated after a plaintiff suffered injuries while working on his employer’s machine. The employer purchased the new device from the defendant in 2003, about 11 years before the plaintiff’s injuries. The plaintiff filed a product liability lawsuit against the manufacturer, alleging that the machine was defective. The parties agreed that the ten-year statute of repose barred the plaintiff’s lawsuit, but they recognized a judicial exception to the statute. The appeals court acknowledged the exception, but because of “questionable provenance,” certified the question of whether the statute of repose can be extended by post-sale repair/refurbishment/reconstruction of a product, to the high appellate court.

Under the Indiana Products Liability Act, plaintiffs must bring a claim of this nature within two years after the action accrues or within ten years after the delivery of the product to the purchaser. Nevertheless, if the cause of action comes more than eight years but less than ten years after the original delivery, the action may begin any time within two years after the initial cause of action. The statute provides exceptions for asbestos-related claims. In this case, the court found that the law is unambiguous, and the exception does not apply in the plaintiff’s lawsuit. The plaintiff acknowledged that he suffered his injuries eleven years after his employer acquired the product; however, he asked the court to interpret the statute to include an additional exception.

The plaintiff argued that a further exception exists for products that undergo a significant change, thereby creating a new product and restarting the statute of limitations. Although some courts have addressed this issue, Indiana courts have not applied it as an exception to the statute of repose. The court reasoned that the law requires them to look at the plain meaning of the statute. However, they did address the implications of a “new product” exception. This exception would require the court to identify what properties define a product, and what change is necessary to create a new product. The court ultimately found that because the legislature is silent on the issue, there is no reason to go beyond the plain meaning of the statute. Therefore, they found that his lawsuit was barred due to the statute of repose.

February 6, 2020

Expert Witnesses in Indiana Product Liability Lawsuits

by Parr Richey Frandsen Patterson Kruse LLP

Witnesses are an integral part of almost every Indiana personal injury lawsuit; however, in most cases, the law limits this testimony to what the individual personally saw or experienced. In instances where a witness attempts to answer a question beyond the scope of their experience, the opposing party will likely object. However, expert witnesses, serve as an exception to this rule and are an essential part of Indiana product liability lawsuits.

Under the Indiana Products Liability Act, plaintiffs almost always need to produce expert testimony to meet their evidentiary burden. These experts provide professional insight into whether a defendant was the actual or proximate cause of the plaintiff’s injuries. This is especially important in product hazard, recall, insufficient labeling and warning, and defect lawsuits. If a plaintiff does not meet this burden, the court will likely dismiss their case and grant summary judgment in favor of the defendant.

For example, in a recent opinion, a state appellate court recently affirmed an appellate court’s decision to grant summary judgment in favor of Johnson & Johnson, Consumer Inc. (JJCI), in a product liability case. In that case, the plaintiff alleged that she developed Mesothelioma after long-term use of JJCI’s cosmetic and baby powders. The woman filed a lawsuit against the company alleging, amongst other issues, that they were liable for negligence, intentional failure to warn/concealment, and loss of consortium. She argued that she developed Mesothelioma from asbestos in the company’s products. JJCI provided an expert witness who testified that the mines that JJCI sourced their talcum powder from did not contain asbestos. The court ruled in favor of the defendant because the plaintiff did not present any countering expert testimony to rebut the defendant’s expert.

January 29, 2020

Officials Determining if Tesla’s Autopilot Function was Activated During Fatal Indiana Accident

by Parr Richey Frandsen Patterson Kruse LLP

The National Highway Traffic Safety Administration (NHTSA) is beginning its investigation of whether a vehicle manufactured by Tesla had its autopilot function activated immediately before an Indiana car accident. According to a local news report, the Tesla driver and his wife were driving on 1-70 when they slammed into the rear of a firetruck that was stopped with its emergency lights on in the passing lane. No firefighters suffered injuries in the accident; however, the driver sustained critical injuries, and his wife died as a result of the accident.

According to Tesla, their autopilot system is an advanced driver-assistance tool that allows vehicles to center lanes, self-park, automatically change lanes, autonomously navigate road conditions, and summon the car. Tesla representatives advise drivers to remain alert, keep their hands on the steering wheel, and prohibit the use of this system if the vehicle presents a warning symbol. Tesla’s CEO, Elon Musk, claims that the company’s data suggests that drivers using their autopilot system remain safer than those who do not. However, there have been conflicting reports on the efficacy of their system and data. For example, although the CEO claims that drivers should keep their hands on the wheel, he has posted videos depicting users operating this feature without their hands on the wheel. Moreover, the NHTSA has investigated several accidents that occurred during the use of this system. Officials urge drivers to use extreme caution when using this system because many accidents were a result of user error and the system’s design.

Determining liability after an Indiana Tesla autopilot accident is complicated because accidents involving autonomous cars are an evolving area. For example, there may be several parties that are liable for these types of accidents depending on who was operating the vehicle, what went wrong, and whether there were any other contributing factors. For instance, if the accident was a result of faulty technology, the manufacturer of the car or technology may be liable. If the accident was because of driver error, such as the failure to read or follow by the operating manual, the driver could be responsible for damages related to the accident. Further, in some cases, the at-fault party may argue that the injured person somehow contributed to their losses. It is essential that injury victims consult with an Indiana attorney to ensure that their rights and remedies are addressed.

January 20, 2020

Failure to Warn Lawsuit Draws Attention to Indiana Products Liability Claims

by Parr Richey Frandsen Patterson Kruse LLP

The state of New Mexico has recently filed suit against major company Johnson & Johnson, alleging that the company misled consumers about the safety of its baby powder and other talc-based products. According to a New York Times article covering the lawsuit, the Johnson & Johnson products are allegedly contaminated with carcinogenic asbestos, but the company has continued to market them, especially to children and Black and Hispanic women, without any warning. Although the suit was filed by New Mexico, the allegations of Johnson & Johnson’s contaminated products have important implications for Indiana consumers as well.

The attorney general of New Mexico, who is leading the suit on behalf of the state, accused Johnson & Johnson of concealing the dangers of talc products, which are associated with lung disease, ovarian cancer, and mesothelioma. Companies, including Johnson & Johnson, have a legal duty to warn consumers about the dangers posed by their products. If they conceal potentially harmful information, or even just fail to disclose it, they can be held liable—sometimes in multi-million, or even billion, dollar lawsuits. Because the stakes are so high, companies typically invest significant resources into legal teams to help them avoid liability. Johnson & Johnson, for instance, reportedly set aside $190 million in the second quarter of 2019 to defend specifically against talc-related litigation. That money does not even include money spent on non-talc-related suits.

While it is helpful for those injured by Johnson & Johnson or other products to have a state bring suit on their behalf, such a case is incredibly rare. Typically, if a plaintiff wants to recover against a large company, they have to file a suit themselves. When the company spends millions on legal teams to squash such lawsuits, filing suit can be intimidating, and a plaintiff may even feel hopeless. However, with the assistance of a dedicated personal injury attorney, plaintiffs may be able to recover against negligent, fraudulent companies who caused them harm, leveling the playing field between plaintiffs and multi-million-dollar corporations. If successful, the company may owe the plaintiff money for lost wages, past and future medical expenses, pain and suffering, loss of companionship, and more.

August 27, 2019

Federal Court Overseeing Indiana Rules on Validity of Expert Testimony in Products Liability Action

by Parr Richey Frandsen Patterson Kruse LLP

Recently, the Seventh Circuit Court of Appeals issued a ruling on a case stemming from an Indiana motorcycle accident. The two plaintiffs were embarking on a cross-country trip on their Harley-Davidson motorcycle. While going through Nebraska, the couples’ bike tire sustained a puncture and deflated. The quick deflation resulted in the husband losing control of the motorcycle and crashing into a median. The husband slid across the highway, and his wife was thrown off the bike. Unfortunately, although both people were wearing helmets, they sustained severe injuries, including traumatic brain injuries.

A few months after the accident, the couple received a recall notice for their helmets. The couple filed a products liability lawsuit against the companies that sold them their helmets, the motorcycle manufacturer, and several other entities. The couple alleged that that the helmets and tires had design and manufacturing defects. The couple did not provide any experts for their helmet claim, and the district court entered summary judgment in favor of the defendants. However, the plaintiffs did provide expert testimony for their defective tire claim. The tire defendants filed motions to exclude the plaintiffs’ expert testimony based on a lack of reliability under the Federal Rules of Evidence. The plaintiffs challenged this ruling; however, the appeals court ultimately affirmed the lower courts finding.

Indiana follows the Federal Rules of Evidence 702 and the Daubert standard. Under Daubert, a trial judge is responsible for ensuring that evidence is “reliable and relevant.” Typically, courts assess the reliability prong on a case-by-case basis; however, there are certain factors that courts analyze. Some general things that courts look to are whether the expert’s theory has been tested and peer-reviewed. Further, the court will examine whether the method they are putting forth has general acceptance in the relevant community.

August 6, 2019

Federal Circuit Court Overseeing Indiana Addresses Expert Witness Requirements

by Parr Richey Frandsen Patterson Kruse LLP

Recently, an appellate court issued an opinion in a case dealing with an evidentiary issue that is applicable to many Indiana personal injury lawsuits. According to the court’s written opinion, the case stemmed from an accident after an employee was injured when he was operating a car-crushing machine. The plaintiff sued the car manufacturer and the company that leased the machine to his employer. The plaintiff argued that the parties were liable under a defective design theory. The lower court granted summary judgment in favor of the defendants based on a finding that the plaintiff’s expert witness testimony was not admissible. The plaintiff appealed the granting of the defendant’s summary judgment motion.

The court explained that the threshold criteria for an expert witness is that the “expert can reliably apply the principles and methods to the facts of the case.” In this particular case, the plaintiff presented the opinion of a professor of mechanical engineering. Although the professor had a Ph.D., had published articles, and had over three decades of experience, the court found that his testimony did not meet the basic expert witness requirements.

Typically, Indiana requires expert testimony be based on “scientific, technical, or specialized knowledge.” Expert witnesses can be used to understand complex issues, strengths, and weaknesses of a case, and to oppose adverse experts. Indiana product liability lawsuits often require expert witnesses. An expert witness must meet a threshold requirement under the Federal Rules of Evidence. The witness must be able to “reliably apply the principles and methods to the facts” of a case. Moreover, they must possess the training, education, skills, and knowledge to assist the trier of fact in determining an issue.