Defective Products

Court Discusses Caterer’s Liability in Recent Food-Poisoning Case

Published on: September 19, 2018 | by Friedman, Rodman & Frank, P.A.

When a customer consumes food prepared by a restaurant or caterer, the customer is placing a significant amount of trust in those who are preparing the food. However, in many cases each year, diners are made ill by improperly stored or prepared food. These Florida food poisoning cases are brought under the theory of product liability.

In a recent state appellate opinion, a court discussed a caterer’s potential liability in a case brought by a couple who claimed that they suffered food poisoning after consuming food prepared by the defendant caterer. Specifically, the case required the court to determine the burden a food-poisoning plaintiff has to meet to survive a defendant’s motion for summary judgment.

The Facts of the Case

The plaintiffs were wedding guests who were made ill after consuming food at the wedding rehearsal dinner. The plaintiffs filed a product liability lawsuit against the catering company, seeking compensation for the injuries they sustained. Specifically, the plaintiffs claimed that the food was “defective, pathogen-contaminated, undercooked, and negligently prepared.”

Court Precludes Expert Testimony in Recent Product Liability Case

Published on: September 17, 2018 | by Friedman, Rodman & Frank, P.A.

Recently, a state appellate court issued an opinion in a personal injury case discussing the admissibility of the plaintiff’s proposed expert-witness testimony. The case raised an important issue that many Florida personal injury plaintiffs face when dealing with concepts that are beyond the scope of the common understanding of jurors and require an expert’s testimony.

The Facts of the Case

The plaintiff and her infant son were involved in an accident when a northbound semi-truck made a left in front of the plaintiff’s southbound vehicle. The plaintiff’s car crashed into the side of the semi-truck, and became wedged underneath the truck. The plaintiff filed a product liability lawsuit against the manufacturer of the trailer, arguing that her injuries were made worse by the fact that the truck did not have a side-underride guard. One of the elements the plaintiffs needed to establish to prove their case was whether there was “an alternative safer design” that was “practical under the circumstances.”

The plaintiff arranged to have two experts testify that, had the manufacturer installed telescoping side-underride guards, her vehicle would not likely have been wedged underneath the truck. While side-underride guards have existed for some time, telescoping side-underride guards have not yet been manufactured and have only been tested through computer simulations. Notably, due to the nature of the accident, the opinion of the plaintiff’s experts was that only a telescoping side-underride guard would have prevented or reduced the plaintiff’s injuries. This was due to the positioning of the truck’s rear axle at the time of the accident.

Failure-to-Warn Claims Under Florida Product Liability Law

Published on: September 4, 2018 | by Friedman, Rodman & Frank, P.A.

Ideally, all products would be safe; however, the reality is that society has a need for products that can be very dangerous. For example, it would seemingly be impossible to manufacture a safe chainsaw. But the mere fact that society has a need for a product that is inherently dangerous does not absolve the manufacturer of that product from the responsibility of providing an adequate warning.

Warnings are important, even on products society recognizes as dangerous. A proper warning will inform users of the appropriate way to use the product, the potentially avoidable dangers involved when the product is used for its intended purpose, as well as what can occur if the warning is not followed. Additionally, manufacturers should warn users against foreseeable misuses of the product. A manufacturer’s failure to provide an adequate warning on their product may be the basis of a Florida failure-to-warn claim.

A recent federal appellate court issued a written opinion in which the court discussed the plaintiff’s failure-to-warn claim.

Used-Car Dealer May Be on the Hook for Injuries Related to Missing Muffler

Published on: June 5, 2018 | by Friedman, Rodman & Frank, P.A.

Earlier this month, a state appellate court issued an opinion in a personal injury case that raises interesting issues for Florida product liability plaintiffs who have been injured as a result of an improperly designed or maintained vehicle. The case required the court to determine if a used-car dealer could be held liable for injuries caused by carbon monoxide poisoning that was a result of the car being sold without a muffler. Interestingly, although the plaintiffs purchased the car “as-is,” the court concluded that the dealership may still be liable.

The Facts of the Case

The plaintiffs purchased a used car from the defendant dealership “as-is.” Given that there were 180,000 miles on the vehicle and that the asking price was $1,500, the plaintiffs were aware that some mechanical work was needed. However, they were not told that the vehicle’s muffler was missing.

The plaintiffs noticed a gasoline smell in the vehicle and had the oil changed, but the smell persisted. The mechanic who changed the oil noted several issues with the vehicle, but again, the lack of muffler was not noted. The plaintiffs took their minor son to see an apartment to which they were considering moving. However, the landlord was late, and the plaintiffs were forced to wait in their car for 45 minutes.

Negligent Infliction of Emotional Distress Claims in Florida

Published on: March 21, 2018 | by Friedman, Rodman & Frank, P.A.

Psychological trauma can be devastating, whether it stems from being involved in a Florida car accident or witnessing a loved one suffer serious injuries themselves. Unfortunately, the legal field has been slow to come around to the idea that psychological trauma can have a lasting impact on those who suffer from it. However, with research in this area of medicine continuing to evolve, courts are beginning to accept the concept that witnessing a traumatic event can cause serious harm to an individual.Thus, in 1995, the Florida Supreme Court clearly outlined the elements of a relatively new cause of action called negligent infliction of emotional distress (NIED). An NIED claim is based on the physical injuries sustained by witnessing a very traumatic event. In the 1995 case referenced above, the court set forth the following requirements for an NIED claim:

The plaintiff must suffer some physical injury;
Which was a result of a psychological trauma;

E-Cigarette Use May Be Linked to Cancer and Heart Disease

Published on: February 5, 2018 | by Friedman, Rodman & Frank, P.A.

Over the past decade, e-cigarette use has skyrocketed, with it being the most commonly consumed tobacco product among U.S. youth. The move toward e-cigarette use was due in large part to the fact that e-cigarettes were believed to be a safe alternative to smoking traditional cigarettes. Indeed, according to a report by the U.S. Surgeon General, a significant portion of e-cigarette users classify themselves as “former smokers” who picked up the habit again once e-cigarettes became prevalent.According to a recent study, however, e-cigarettes may pose a significant risk to users’ health. The study was conducted by a group of researchers at the New York University School of Medicine. The researchers exposed lab mice to a vapor that contained nicotine, similar in both content and amount to the vapor that is released by e-cigarettes.

At the conclusion of the study, researchers discovered that the DNA contained in the lungs, hearts, and bladders of the exposed lab mice suffered DNA damage. What’s more, the normal DNA repair processes were hindered. After conducting further analysis on human lung and bladder cells, the researchers confirmed that the vapor had the same halting effect on the DNA repair processes.

State Court Rejects Risk-Utility Test in Product Liability Case Against Auto Manufacturer

Published on: October 19, 2017 | by Friedman, Rodman & Frank, P.A.

When courts consider a product liability lawsuit, they will instruct the jury on one of two available tests to determine whether the plaintiff has established their case against the defendant manufacturer. In Florida, courts use the consumer-expectation test to evaluate a plaintiff’s Florida product liability claim.The consumer-expectation test is fairly straightforward and requires jurors to ask themselves whether the product at issue performed as a consumer would expect it to perform under the circumstances. This test is generally preferred by product liability plaintiffs to the other predominant test, the risk-utility test.

Under a risk-utility analysis, jurors are asked whether the risks of the design chosen by the defendant manufacturer outweighed the utility, or benefit, the design provided. The risk-utility test also requires that the plaintiff establish that there was a reasonably safe alternative design that the defendant manufacturer could have used. Since this test places a burden on the plaintiff to establish that a reasonably safe alternative exists, this is generally a more difficult test for product liability plaintiffs to meet.

Evidence of Similar Incidents Involving an Alleged Defect May Be Admissible in Some Product Liability Lawsuits

Published on: July 10, 2017 | by Friedman, Rodman & Frank, P.A.

When someone is injured due to a negligently designed or defectively manufactured product, they may be able to pursue compensation for their injuries from several parties, including the manufacturer, distributor, and retailer. These product liability lawsuits often are brought under a theory of strict liability, which does not require a plaintiff to prove that the defendant was negligent. However, it may benefit a plaintiff to establish that a defendant did know about the alleged defect because this may increase the damages that they are entitled to obtain.One way that product liability plaintiffs can establish a defendant’s knowledge of an alleged defect is through “other similar incident” (OSI) evidence. OSI evidence, often presented through an expert witness, tells of other incidents in which the same product caused an injury or was defective in a manner which is similar to that which the plaintiff alleges. A recent case issued by a federal appellate court discusses OSI evidence and when it may be appropriate.

The Facts of the Case

The plaintiffs were stopped at a red light at the end of a highway off-ramp when a 1996 Toyota Camry traveling at 75 miles per hour rear-ended them. At the time, the driver explained that he tried to brake, but the car instead began to accelerate. It was not until several years later that Toyota announced a recall of 1996 Toyota Camrys, based on several other reports that the vehicles were randomly accelerating and could not be stopped by applying the brakes.

Court-Imposed Sanctions for Failing to Comply with Discovery Requests

Published on: May 10, 2017 | by Friedman, Rodman & Frank, P.A.

When a party files a personal injury lawsuit against a defendant, the case proceeds through several stages before ultimately going to trial. One of the most important and most contentious phases in a personal injury lawsuit is the pre-trial discovery phase.During the pre-trial discovery phase, parties make requests for certain evidence from the opposing party. A party can only request relevant evidence or evidence that may give rise to the discovery of additional relevant evidence. Once a party makes a request for certain evidence, the judge will rule on the request. If the judge orders that the requested material be released, the party in possession of the evidence must comply. A failure to comply can result in sanctions.

Sanctions for violating pre-trial discovery vary, depending on the type and severity of the violation. It is not unheard of for a court to dismiss a plaintiff’s case if he or she withholds evidence from the defense. If a defendant withholds evidence, the court can prevent the introduction of other evidence or issue a fine. However, any fine imposed can only be for the amount of money the plaintiff had to expend due to the defendant’s bad faith. A recent U.S. Supreme Court case illustrates this principle.

Plaintiff in Defective Tire Wrongful Death Case Will Not Have Evidence Excluded for Spoliation

Published on: January 4, 2017 | by Friedman, Rodman & Frank, P.A.

The plaintiff in a wrongful death case that had been filed after the death of her husband received some good news last month when an appellate court affirmed a district court’s ruling not to bar the plaintiff from introducing certain evidence at trial. Because of the recent appellate ruling, the case will be remanded to the district court to proceed toward a settlement or trial.

The Plaintiff’s Husband Dies from a Tragic Accident

The plaintiff in the case of Cooper v. Koch is a woman whose husband died in the intensive care unit of a hospital from injuries he suffered about three months before in a single-vehicle accident that was allegedly caused by a catastrophic tread separation involving tires made by the defendant. The vehicle driven by the plaintiff’s husband was totaled. It was towed from the scene of the accident by a towing company that was storing the vehicle for a daily fee. The plaintiff agreed to give the vehicle to a scrapyard after removing the blown tire to keep for evidence in the event of legal action against the defendant. The three other tires and remaining parts of the vehicle were broken up and scrapped or destroyed. At the time, the plaintiff had not filed a case against the defendant.