Products Liability

November 30, 2012

Indiana Federal Court Dismisses Products Liability Claim by Worker Whose Shirt Caught Fire, Allows Negligence Claim to Proceed: Hathaway v. Cintas Corporate Services, Inc.

by Parr Richey Frandsen Patterson Kruse LLP

A welder filed a products liability lawsuit, claiming that defects in the shirt he was wearing caused it to catch fire while he was operating a plasma torch. The suit, Hathaway v. Cintas Corporate Services, Inc., also asserted causes of action for breach of warranty and negligence. The District Court for the Northern District of Indiana granted summary judgment for the defendant on the breach of warranty and products liability claims, but allowed the negligence claim to proceed.

Plaintiff Rex Hathaway worked for Quik Cut, Inc. as a welder and plasma torch operator. His employer used uniforms provided by the defendant, Cintas Corporate Services. The rental agreement between Quik Cut and Cintas provided that Cintas would furnish work clothes and provide laundry and repair services. Hathaway was operating a plasma torch, a machine used to cut various types of metal, on February 12, 2009. Sparks from the plasma torch allegedly caused Hathaway’s shirt, a 100% cotton shirt provided by Cintas, to catch fire, and he suffered severe burns over much of his body.

Hathaway filed suit against Cintas, asserting causes of action for negligence, breach of warranty, and products liability. His wife also brought a cause of action for loss of consortium. Hathaway alleged that the shirt had both a manufacturing defect and a design defect, and he claimed that Cintas was liable for failure to warn of the risk of injury.

Cintas moved for summary judgment on the negligence, breach of warranty, and products liability claims. The court first ruled that the plaintiff’s breach of warranty claim was subsumed by his products liability claims. The court held that because the plaintiff did not claim economic damage for the loss of the shirt, the breach of warranty claims were based in tort, and were therefore part of the products liability claim under the Indiana Products Liability Act (IPLA).
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November 9, 2012

Appellate Court Overturns Worker’s $30 Million Verdict in Claim for Chemical Exposure: Solis v. BASF Corporation

by Parr Richey Frandsen Patterson Kruse LLP

An Illinois appellate court overturned a $30 million verdict in favor of a chemical-flavoring plant worker who claimed that a chemical used in popcorn butter flavoring caused him permanent lung damage. The verdict in Solis v. BASF Corporation was reportedly the largest in a series of popcorn flavoring lawsuits. The appellate court reviewed the question of whether Illinois’ statute of limitations barred the plaintiff’s claim, and ruled that the trial court erred by rendering a directed verdict for the plaintiff on that issue.

The plaintiff, Gerardo Solis, began a nearly two-decade career in the flavoring industry in 1987. His job duties, according to the court’s opinion, often involved working with or near butter flavorings containing the chemical diacetyl. Solis worked at Flavorchem from 1998 to 2006. He spent two years as a compounder, which involves mixing different ingredients to create a final flavor product. He was then promoted to supervisor, but continued primarily working in the area of the plant that produced powder flavorings. He claimed that he noticed an increase in the plant’s use of diacetyl, particularly in butter flavorings for popcorn, beginning in 2000, and that he experienced significant exposure to the chemical from 2000 to 2004.

Diacetyl provides the buttery flavor and aroma in popcorn and other food products. It has been linked to respiratory problems in workers with prolonged exposure, including bronchiolitis obliterans, an inflammation of the small airways in the lungs. This can cause a permanent loss of pulmonary function in some cases. A recent study also found a link between diacetyl and a brain protein believed to contribute to Alzheimer’s disease. Solis received a diagnosis of bronchiolitis obliterans in June 2006. He allegedly suffered permanent lung damage and was eventually told he needed a lung transplant.
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October 31, 2012

More Than Forty People in Indiana Sickened in Fungal Meningitis Outbreak; State Seeks to Revoke License of Pharmacy Where Outbreak Allegedly Originated

by Parr Richey Frandsen Patterson Kruse LLP

Indiana has been one of the hardest-hit states in a nationwide fungal meningitis outbreak that has caused more than three hundred illnesses and over twenty deaths in eighteen states. Health officials believe an injectable medication from a Massachusetts pharmacy is the source of the infection. The pharmacy has recalled the medicine and ceased its facility’s operations. It is already facing lawsuits from victims alleging injury from a defective product, and Indiana state officials are seeking to suspend its license. Some victims may also be pursuing causes of action for medical negligence against the doctors and healthcare facilities that prescribed or administered the allegedly contaminated drugs.

At least forty-three reported cases, out of a national total, so far, of 328, are in Indiana. Three of the Indiana patients have died. The total death toll, as of October 25, 2012, is twenty-four. Investigations by the U.S. Food and Drug Administration (FDA) and the Centers for Disease Control and Prevention (CDC) have determined that the fungal infection came from injections of methylprednisolone acetate, a steroid-based anti-inflammatory medication used to treat back pain. Authorities traced contaminated vials to the New England Compounding Center (NECC) in Framingham, Massachusetts. They suspect that the contamination occurred during the compounding process.

Victims are suffering from fungal meningitis, an infection affecting the spinal cord. Other types of meningitis may result from communicable viral or bacterial infections, but fungal meningitis is not contagious between people. It usually develops when an infectious fungus species gets into the bloodstream, such as through an injection, and spreads to the victim’s spine. The CDC believes it has identified the fungal species Exserohilum rostratum in at least fifty-two patients. The disease can be fatal, particularly in patients with compromised immune systems, and it can cause severe headaches, nausea, light sensitivity, and disorientation.
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October 18, 2012

Federal Statute Preempts State Products Liability Lawsuit Over Asbestos Exposure, According to Supreme Court: Kurns v. Railroad Friction Products Corp.

by Parr Richey Frandsen Patterson Kruse LLP

After decades working on repair and maintenance of railroad locomotives, a man developed malignant mesothelioma. He sued multiple companies for alleged asbestos exposure, and the executor of his estate substituted in as plaintiff upon his death. After dismissal by the district court, which was upheld by the appellate court, the U.S. Supreme Court considered the matter in Kurns v. Railroad Friction Products Corp., 132 S. Ct. 1261 (2012). It affirmed the lower courts’ findings that a federal statute preempted the plaintiffs’ state tort claims.

The federal statute in question, the Locomotive Inspection Act (LIA), 49 U.S.C. § 20701 et seq., was passed by Congress in 1915. The law requires railroad carriers to maintain locomotives “in proper condition and safe to operate.” 49 U.S.C. § 20701(1). The statute generally preempts state law claims for locomotive-related injuries. In Napier v. Atlantic Coast Line Railroad Co., 272 U.S. 605 (1926), the Supreme Court reviewed the scope of the LIA’s preemption. It held that the law preempts lawsuits brought by railroad workers as well as passengers. The question presented in the Kurns case was whether it also preempted claims for injuries caused by alleged toxic exposure related to locomotive repair and maintenance, as opposed to injuries in locomotive accidents.

The decedent, George Corson, worked for the Chicago, Milwaukee, St. Paul & Pacific Railroad for about twenty-seven years as a machinist and welder, beginning in 1947. He performed locomotive repair by installing brakeshoes, and he performed maintenance on locomotive boilers by removing insulation. His last year of employment at the railroad was 1974. Several decades later, in 2005, Corson was diagnosed with malignant mesothelioma, a form of lung cancer associated with exposure to asbestos.
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