Randy Barnhart

Listeria Liability - The Denver Post

State laws vary governing who has liability for bad products. Some states, such as California, allow more companies in a food chain to be targets for claims, with few limits on awards.

Colorado law makes it harder to sue stores in addition to the producer where the defect started, attorneys said. Plaintiffs must show a retailer contributed to the flaw in the food.

In the listeria cases, attorneys may try to show retailers contributed by not demanding tougher farm audits, by failing to test for pathogens themselves, or by failing to wash the fruit one more time before sale.

via www.denverpost.com

STIHL Recalls Yard Power Products Due to Burn and Fire Hazards

WASHINGTON, D.C. - The U.S. Consumer Product Safety Commission, in cooperation with the firm named below, today announced a voluntary recall of the following consumer product. Consumers should stop using recalled products immediately unless otherwise instructed. It is illegal to resell or attempt to resell a recalled consumer product.

Name of Product: Gas powered STIHL trimmers, brushcutters, KombiMotors, hedge trimmers, edgers, clearing saws, pole pruners, and backpack blowers that utilize a toolless fuel cap

Units: About 2.3 million

Manufacturer: STIHL Inc., of Virginia Beach, Va.

Hazard: The level of ethanol and other fuel additives can distort the toolless fuel cap, allowing fuel to spill, posing a fire and burn hazard.

Incidents/Injuries: STIHL has received 81 reports of difficulty installing and/or removing the fuel caps and fuel spillage. No injuries have been reported.

via www.cpsc.gov

Defective Strollers Recalled - Risk of Amputation

From the CPSC website:

WASHINGTON, D.C. - The U.S. Consumer Product Safety Commission, in cooperation with the firm named below, today announced a voluntary recall of the following consumer product. Consumers should stop using recalled products immediately unless otherwise instructed. It is illegal to resell or attempt to resell a recalled consumer product.

Name of Product: Maclaren Strollers
Units: About one million
Distributor: Maclaren USA, Inc., of South Norwalk, Conn.
Hazard: The stroller's hinge mechanism poses a fingertip amputation and laceration hazard to the child when the consumer is unfolding/opening the stroller.
Incidents/Injuries: The firm has received 15 reports of children placing their finger in the stroller's hinge mechanism, resulting in 12 reports of fingertip amputations in the United States.
Description: This recall involves all Maclaren single and double umbrella strollers. The word "Maclaren" is printed on the stroller.
Sold at: Babies "R" Us, Target and other juvenile product and mass merchandise retailers nationwide from 1999 through November 2009 for between $100 and $360.
Manufactured in: China
Remedy: Consumers should immediately stop using these recalled strollers and contact Maclaren USA to receive a free repair kit.
Consumer Contact: For additional information, contact Maclaren USA toll-free at (877) 688-2326 between 8 a.m. and 5 p.m. ET Monday through Friday or visit the Maclaren firm's web site.

Clip-on Chairs - Defective!

Consumer Products Safety Commission Launches Interactive Database

The firm keeps tabs on government agencies which play a role in consumer safety relative to defective products. This just came over the wire (okay, in my inbox):

"WASHINGTON, D.C. - Today, the U. S. Consumer Product Safety Commission (CPSC) goes live with the SaferProducts.gov database mandated by Congress, as part of the Consumer Product Safety Improvement Act.

Beginning today, consumers are encouraged to visit www.SaferProducts.gov to submit Reports of harm or risks of harm, and to search for safety information on products they own or may be considering buying.

Reporting product safety incidents through this new, easy-to-use site will help CPSC identify product hazards quicker and provide consumers with safety information on products in and around the home.

"CPSC stayed on time and on budget in building this new database," said Chairman Inez Tenenbaum. "Through SaferProducts.gov consumers will have open access to product safety information that they have never seen before and the information will empower them to make safer choices."

Following procedures set up by the law, CPSC will review all online Reports and have five business days to transmit qualifying Reports to the manufacturer, where practicable. Manufacturers then have 10 business days during which they may respond and provide comments and/or claims. At the end of the 10 day period, if all requirements are met, the Report and the manufacturer's comments will be posted on SaferProducts.gov

It is important that consumers provide CPSC with information that is true and accurate to the best of their knowledge. Reports lacking required information will not be published. Similarly, information in a report of harm determined to be materially inaccurate within the 10 days provided to manufacturers to respond will not be published. Reports that potentially contain confidential information will have such information taken out before the report is posted.

'I believe that an informed consumer is an empowered consumer,' added Chairman Tenenbaum. 'The ability for parents and consumers to search this database for incidents involving a product they already own or are thinking of purchasing will enable them to make independent decisions aimed at keeping their family safe.'

On January 24, CPSC began registering businesses online, and accepting Reports though SaferProducts.gov to test the system. Since then, about 1500 Reports have been filed by consumers online. About 1400 manufacturers have signed up on the Business Portal, so they can receive a copy of a Report about their product in a timely manner via e-mail. Reports accepted during this test period will not be visible to the public but are being processed internally by CPSC as has been done with all Reports in the past.

"We will continue to accept written, phone and fax Reports, as we have for decades," said Chairman Tenenbaum. "What is new and significant today is that we are launching an up-to-date system for letting consumers review safety reports alongside manufacturer comments about those Reports."

Reports received today will be visible and searchable by consumers around the beginning of April. Until then, only CPSC's recall information will be searchable within the database. For more information, go to SaferProducts.gov".

Junk Science Versus Junk Doubt - Part 1

Lawyering is not just reading cases, briefs, contracts and other documents. My practice invites, if not compels, me to remain abreast of wider social, political and regulatory policies which impact not only the public, but the specific rights and rules implicated in a lawsuit for personal injury or death arising from defective products, whether it be defective autos and tires or dangerously defective drugs and workplaces.

Hence, the recent book, Doubt Is Their Product: How Industry's Assault on Science Threatens Your Health, by David Michaels, {amazon, barnes&noble} is important and should be widely read and discussed. Consider the Table of Contents from the book, which shows the range and depth of the social and political problems caused by the self-interested manufacture of wrongful doubt:

Introduction: "Sound Science" or "Sounds Like Science"?
The Manufacture of Doubt
Workplace Cancer before OSHA: Waiting for the Body Count
America Demands Protection
Why Our Children Are Smarter Than We Are
The Enronization of Science
Tricks of the Trade: How Mercenary Scientists Mislead You
Defending Secondhand Smoke
Still Waiting for the Body Count
Chrome-Plated Mischief
Popcorn Lung: OSHA Gives Up
Defending the Taxicab Standard
The Country Has a Drug Problem
Daubert: The Most Influential Supreme Court Ruling You've Never Heard Of
The Institutionalization of Uncertainty
The Bush Administration's Political Science
Making Peace with the Past
Four Ways to Make the Courts Count
Sarbanes-Oxley for Science: A Dozen Ways to Improve Our Regulatory System

In the introduction, the author relates a maddening instance of manufacturers' callous disregard of public, that is, human, safety. The "aspirin manufacturers delayed the FDA's regulation [requiring a warning on the link between aspirin intake by children and Reye's syndrome] by arguing that the science establishing the aspirin link was incomplete, uncertain, and unclear." Before the regulation was enforced, many children died; after the regulation was enforced, "less than a handful" of cases are reported in any given year.

In this series of posts, I will be considering the author's facts and arguments, putting them in the context of a trial lawyer's practice focused on product defect and the liability for injury by those defective products. The legal system, and your rights to recover for injury caused by negligent and reckless conduct, is in may ways shaped by wider concerns such as the use--rather, the misuse or abuse--of science by irresponsible and profit-hungry manufacturers.

For many years now, the big corporate interests have made a concerted effort to paint the proofs of defective products by trial lawyers as junk science, but the real story is the junk doubt that these corporate interests have manufactured and instilled on the part of policy-makers, legislators and judges. Time to expose the doubt and uncertainty for what it really is - JUNK.

Manufacturers Whine About Consumer Complaint Internet Tools

The federal government is ramping up its internet tools for consumers who have issues and problems with products, especially defective products, and, not surprisingly, manufacturers and their trade groups are "concerned about smear campaigns and lawsuits." See report here. 

In effect, and ironically,  manufacturers are whining about "defects" in the consumer complaint sites being built and maintained by the government:

[I]ndustry associations have expressed concern that baseless or inaccurate complaints could taint reputations. They have also raised the specter of class-action attorneys using the safety commission database to get new lawsuit ideas.

Id.  I say ironically, and laughably too, because big corporations and manufacturers are quick to point and complain about possible shortcomings or concerns (defects!) in consumer empowerment tools - the new internet tools being built by the government (both state and federal), but then take umbrage when ordinary folks (consumers who pay for their products), and their attorneys, point to the defects in their own products by way of lawsuits for damages personal injury and wrongful death.

 From the website of the US Consumer Product Safety Commission, we learn the following:

The Consumer Product Safety Improvement Act (CPSIA) became law on August 14, 2008. Through CPSIA, Congress gave the U.S. Consumer Product Safety Commission (CPSC) powerful new tools to protect consumers and their families. Our Commissioners, staff, and stakeholders are engaged in the implementation of CPSIA through a process we call the Consumer Product Safety Risk Management System (CPSRMS). CPSRMS will help us bring together consumer advocates, manufacturers, retailers, and the general public to create dialogue and track our progress.

CPSIA requires CPSC to create a public portal and a publicly accessible, searchable database of consumer product incident reports. Through the public portal, consumers will be able to report potential product safety hazards to CPSC in ways that improve the quality, value, and accuracy of the data collected. Manufacturers will be able to investigate and respond to product hazard reports more quickly, and to share information with both CPSC investigators and with the public through the public database. By working together, we will provide the American public with faster and more effective responses to product safety hazards. And consumers and researchers will be able to use the public portal and database to find more information about hazards in order to keep their families safe.

We are engaging the public in our efforts to implement CPSIA by holding hearings and public workshops and attending consumer and industry conferences. At our November 10, 2009 hearing, the CPSC received feedback from manufacturers, retailers, consumer advocates, and data experts. In January, 2010, we held staff workshops to engage interested parties in more detailed questions about how our searchable consumer database will function. Key participants included manufacturers, retailers, applications providers, community groups, and other groups that have a stake in the future of consumer safety.

I urge all good people to learn more about these new initiatives and to actively participate in making products we all use much safer. 

2011 Resolution: Add Safety to Your New Car Criteria

The Insurance Institute for Highway Safety has published a useful brochure - easy to read - regarding safety as a factor or criteria which should play an important role in your decision to purchase a new vehicle in 2011. 

The information contained in the brochure correctly states that safety factors are numerous and can thus "add up" in different ways; still, some vehicles are much safer than others all things considered. 

Safety criteria are typically broken down into two broad categories: (1) crash avoidance and (2) protection in a crash. In the former category are things like electronic stability control, but coming soon to a dealer near you are cars with sensors which alert you if you stray from your lane or are too close to the car in front of you. In the latter category are features such as protective "occupant compartment (safety cage)" and "crumple zones to absorb the force of a serious crash." What's called "roof crush" is also an important feature of safety once an accident has occurred, especially those accidents involving a vehicle rollover, either in multi-vehicle or single vehicle accidents. The IIHS states: "To earn a good rating, a roof must withstand a force 4 times the vehicle’s weight before reaching 5 inches of crush. A roof this strong reduces injury risk in a single-vehicle rollover by about 50 percent, compared with a roof meeting only minimum safety requirements."

See the entire brochure here.

So, resolve to add safety to your new car buying criteria, and consider that style, color, power and mpg should not trump safety.

Toyota Fined Again by NHTSA

On December 20, 2010, NHTSA announced new and larger fines against Toyota for its failure to handle recalls properly:

WASHINGTON, D.C. - U.S. Transportation Secretary Ray LaHood today announced that Toyota Motor Corporation has agreed to pay an additional $32.425 million in civil penalties as the result of two separate investigations into the automaker's handling of auto recalls. Toyota will pay the maximum fines allowable under the law - $16.375 million in one case and $16.050 million in the other - in response to the Department's assertion that it failed to comply with the requirements of the National Traffic and Motor Vehicle Safety Act for reporting safety defects to the National Highway Traffic Safety Administration (NHTSA).

...

The second investigation completed today resulted in a $16.050 million fine. In that case, NHTSA investigated whether Toyota properly notified the agency of a safety defect in several Toyota models that could result in the loss of steering control. In 2004, Toyota conducted a recall in Japan for Hilux trucks with steering relay rods prone to fatigue cracking and breaking, causing the vehicle to lose steering control. At that time, Toyota informed NHTSA that the safety defect was isolated to vehicles in Japan and that the company had not received similar field information within the United States. In 2005, however, Toyota informed NHTSA that the steering relay rod defect was present in several models sold in the U.S. and conducted a recall for nearly one million vehicles. Then, in May 2010, NHTSA was alerted to additional information, including complaints from U.S. consumers, that Toyota had not disclosed when Toyota initially notified NHTSA that a U.S. recall was unnecessary.

But what is human safety really worth to Toyota? Compare the $32 million in fines thus far with Toyota's quarterly profits: for example, "the world's largest auto maker by sales, posted a net profit of 153.2 billion yen ($1.68 billion) in the three months through December" of last year! {source}

For Toyota, loss of and injury to human life is easily affordable.

Not too soon to check the hazardous toys list

Here's a sample: 

• Rocking Horse Depot Recalls to Repair Rocking Horse Toys Due to Strangulation Hazard
• Big Ideas Marketing Recalls to Repair Horse-on-a-Stick Toys Due to Strangulation Hazard
• Bathtub Toys Recalled by Munchkin Due to Risk of Injury
• Fisher-Price Recalls Infant Toys with Inflatable Balls Due to Choking Hazard 
• Fisher-Price Recalls Little People Wheelies Stand 'n Play Rampway Due to Choking Hazard 
• Giant Starbuilders and Giant Stars Building Sets Recalled by Edushape Due to Choking Hazard 
• Chuck E. Cheese’s Recalls Light-up Rings and Star Glasses Due to Ingestion Hazard 
• Fun Stuff Recalls Children's Toys Due to Choking Hazard 
• The Land of Nod Recalls Toy Vegetables Due to Laceration Hazard 
• Step2® Recalls Children's Transportation Station Toys Due to Choking Hazard

More here...

NHTSA Re-Issues 15 Passenger Van Danger Alert

On October 14, 2010, NHTSA yet again issued a safety/danger/risk alert on the defective 15-passenger van.

"As the fall and winter driving seasons get under way, the National Highway Traffic Safety Administration is urging users of 15-passenger vans to take specific steps to keep occupants safe. Two recent fatal crashes, in New York and Georgia, involving 15-passenger vans that rolled over and resulted in 10 deaths give urgency to this reminder.

The agency warns that tire maintenance is paramount to preventing tragedies, such as these recent rollover crashes, from occurring. Users of 15-passenger vans need to make sure the vehicles have appropriately-sized tires that are properly inflated before every trip. The agency also points out that tires degrade over time. For this reason, NHTSA recommends that spare tires not be used as replacements for worn tires. In fact, many tire manufacturers recommend that tires older than 10 years not be used at all.

NHTSA said that it is directing this advisory to church groups, other non-profit organizations and colleges that may be keeping older 15-passenger vans in service longer than usual because of tight transportation budgets. Pre-primary, primary and secondary schools should not use 15-passenger vans for transporting school children, as they do not provide the same level of safety as school buses. It is also against federal law for schools to buy new 15-passenger vans for school transportation purposes.

Here are some safety tips for anyone planning a trip in 15-passenger vans:

• If you are an owner, make sure the vehicle is properly maintained.
• Owners should make sure drivers are fully trained and experienced in operating a 15-passenger van and are properly licensed.
• 15-passenger vans are very sensitive to loading and should not be overloaded under any circumstances. Agency research shows overloading not only increases rollover risk but makes the vehicle more unstable in any handling maneuvers.
• Owners should make sure that properly sized tires are being used on their vehicles.
• Before every trip, drivers should check the tires for proper inflation, and make sure there are no signs of wear. Correct tire size and inflation pressure information can be found in the owner’s manual.
• If you are a passenger, make sure you buckle up for every trip."

NHTSA forgot the most important safety tip: avoid these death traps like the plague.

Consumer Protection Act - Opposing Summary Judgment - Part 2

The intent and public policy of the Colorado Consumer Protection Act  should also be borne in mind. “The CCPA was enacted for this very purpose, to protect vulnerable consumers and the consuming public as a whole.” Crowe v. Tull, 126 P.3d 196, 209 (Colo. 2006). Moreover, the “availability of ‘other statutory or common law causes of action based on the same set of facts does not affect the plaintiff's right to assert a claim under the CCPA.’” Crowe, 126 P.3d at 210. “The purpose of the CCPA is to provide ‘consumers who are in a position of relative bargaining weakness with protection against a range of deceptive trade practices.’” Curragh Queensland Min. Ltd. v. Dresser Indus., Inc., 55 P.3d 235, 240 (Colo. App. 2002).

One way to show that your CCPA allegations are sufficiently stated with particularity is to compare them with allegations which the Colorado court of appeals has already found to be sufficient. In State ex rel. Suthers v. Mandatory Poster Agency, Inc., 09CA0253, 2009 WL 4981891 (Colo. Ct. App. Dec. 24, 2009), cert. dismissed (Mar. 10, 2010), the court held that the CCPA allegations in the complaint satisfied both the statutory elements of the CCPA and the procedural requirements of Rule 9. While your claims under the CCPA may differ, see if there is a correspondence to the sufficient allegations in Mandatory Power:

• “Defendant MPA is a Michigan corporation, and its principal place of business is located in Michigan.”
• “Defendant conducted business in Colorado under the assumed names Colorado Food Service Compliance Center and The Colorado Labor Law Poster Service.”
• “Defendants listed a Colorado address for both entities that was nothing more than a mail drop.”
• “Defendants did not maintain an office, or conduct any business operations, in Colorado other than mailing flyers from Michigan to Colorado.”
• “Defendants’ solicitations violated the CCPA.”
• “Defendants’ misrepresentations included misleading consumers into believing that MPA was a Colorado company or a government or government-affiliated company dedicated to compliance with governmental regulations when defendants are a Michigan company engaged in selling posters available for free through true governmental entities.”

Good luck ...

Consumer Protection Act - Opposing Summary Judgment - Part 1

Defendants always file a a motion for dismissal or for summary judgment on Colorado Consumer Protection Act claims. One typical defense strategy is to misconstrue the claim in the papers for summary judgment motion. Classic misdirection to bamboozle the court.

By misconstruing a CCPA claim, however, defendants fail to carry their initial burden on summary judgment. It is firmly stated in case law that the “moving party has the burden of establishing the nonexistence of a genuine issue.” Briggs v. Am. Nat. Prop. & Cas. Co., 209 P.3d 1181, 1185 (Colo. App. 2009) cert. denied, 09SC324, 2009 WL 3720172 (Colo. June 22, 2009). Plaintiffs too often overlook this first step in opposing summary judgment.

If a defendant fails to carry its burden, no burden shifts to the plaintiffs, and summary judgment can and should be denied on that basis alone. At least ask the court to so rule.

It is always prudent, however, in opposing summary judgment to show that a host of genuine issues, some undisputed, some disputed, exist either of which precludes summary judgment.

As courts should knows, “[w]hen the pleadings and affidavits show material facts are in dispute, it is error to grant summary judgment. The facts must be viewed in the light most favorable to the non-movant.” Mullen v. Allstate Ins. Co., 232 P.3d 168, 171 (Colo. App. 2009). On motions to dismiss, “the court considers the facts alleged in the pleadings, taking them as true and viewing them in the light most favorable to the plaintiff, as well as documents attached to, incorporated by reference in, or otherwise referred to in the complaint.” Gen. Steel Domestic Sales, LLC v. Hogan & Hartson, LLP, 230 P.3d 1275, 1279 (Colo. App. 2010).

Moreover, a “motion to dismiss . . . is looked on with disfavor and should not be granted unless it appears beyond doubt that the plaintiff can prove no set of facts that would entitle him or her to relief.” Sweeney v. United Artists Theater Circuit, Inc., 119 P.3d 538, 539 (Colo. App. 2005).

 More later ...

Evolving Crash Test Ratings

CTLA 2010 Presentation - Attack, Deny, Delay: Industry’s Playbook for Avoiding Consumer Justice

NHTSA - 47,000 Auto Complaints/Year Divided by 21 Staff = Disaster

I subscribe to Google alerts about Sean Kane, who was recently quoted in a news report by 10news.com reporting San Diego:

"They clearly have a job that's nearly impossible," said auto safety expert Sean Kane.

He's talking about the National Highway Traffic Safety Administration, the federal agency in charge of tracking complaints. ...

10News discovered in the past five years, NHTSA received more than 235,000 complaints detailing problems about vehicles on the market and on the road.

But there are only 21 people working on in the agency's Office of Defects to investigate the complaints.

Do the math: 235,000 complaints over 5 years equals 47,000 complaints per year, divided by 21 staffers at the ODI (Office of Defects Investigation)  equals over 2,200 complaints per staffer per year.

No wonder far too many ODI "investigations" are little more than calling the auto manufacturer and saying "Hello, we got a complaint.  Please send us any info?" The typical big auto response: "Must be driver error."

Call your congressional representatives and senators!

Colorado Consumer Protection Act - Update

Know your rights! Two recent cases from the Colorado appellate courts elaborate Colorado's Consumer Protection Act.

The 2 cases are deceptive “advertising” cases, not deceptive “services” cases. Even if an ad is deceptive, consumers are not necessarily deceived by it.  But is a deceptive service deceptive per se?

For example, a deceptive service by a car dealer and/or its associated auto manufacturer? And how is the necessary "public impact" component shown?

In Gen. Steel Domestic Sales, LLC v. Hogan & Hartson, LLP, 230 P.3d 1275, 1279 (Colo. App. 2010), the court addressed the "CCPA’s Public Impact Element":

A claim brought pursuant to the CCPA must allege, inter alia, that the defendant’s actions have a significant impact upon the public. Hall v. Walter, 969 P.2d 224, 234 (Colo.1998). To adequately make this allegation, plaintiffs’ complaint must meet the low burden of setting forth facts that, if proved, could establish a public impact “upon any theory of the law.” Rosenthal v. Dean Witter Reynolds, Inc., 908 P.2d 1095, 1100 (Colo.1995)(quoting Hinsey v. Jones, 159 Colo. 326, 329, 411 P.2d 242, 244 (1966)) (emphasis omitted).

Thus, we must evaluate whether the facts, as presented by plaintiffs and taken in the light most favorable to them, could establish the requisite public impact element. Factors relevant to this evaluation include “the number of consumers directly affected by the challenged practice”; “the relative sophistication and bargaining power of the consumers affected by the challenged practice”; and “evidence that the challenged practice has previously impacted other consumers or has the significant potential to do so.” Rhino Linings USA, Inc. v. Rocky Mountain Rhino Lining, Inc., 62 P.3d 142, 149 (Colo. 2003)(citing Martinez v. Lewis, 969 P.2d 213, 222 (Colo.1998)).”The Gen. Steel court noted that “Plaintiffs did not allege that they were unsophisticated in relation to Hogan & Hartson, or that they lacked bargaining power when the parties negotiated their representation agreement.”

The following case, citing Walter and reiterating the Rhino factors cited in Gen. Steel, has a better, direct quote from Walter:

“To obtain relief under the CCPA, a claimant must prove, inter alia, that an unfair or deceptive trade practice ‘significantly impact[s] the public as actual or potential consumers.” Hall v. Walter, 969 P.2d 224, 234 (Colo.1998). Three factors must be considered in determining  public  impact:

(1) The number of consumers directly affected by the challenged practice, (2) the relative sophistication and bargaining power of the consumers affected by the challenged practice, and (3) evidence that the challenged practice has previously impacted other consumers or has the significant potential to do so in the future. Rhino Linings, 62 P.3d at 149.”

So, to suggest an answer to the question posed above, the quote from Walter can be used to construe the Rhino factors, especially the first Rhino factor, as follows: allege that the “number of consumers directly affected” by the dealership's deceptive practice are “potential consumers” of the dealership’s deceptive service, that is, the dealership's future customer-owners.

Does that make sense?