Under the Restatement (Third) of Torts: Products Liability § 5, Comment b (1998), the supplier of a product generally must warn about only those risks associated with the product itself, not those associated with the “products and systems into which [it is] integrated.”
However, in Air and Liquid Sys. Corp. v. DeVries, 139 S. Ct. 986 (2019), the Supreme Court created a different rule in the context of maritime asbestos claims. In that case, the defendants produced “bare-metal” equipment, such as pumps, blowers, and turbines, for Navy ships that required asbestos insulation or asbestos parts to function as intended. The manufacturers delivered the equipment to the Navy without asbestos, and the Navy later added asbestos to the equipment. Two Navy veterans were exposed to asbestos on the ships and developed cancer. The district court granted summary judgment for the manufacturers, finding no duty to warn. In reversing, the Third Circuit Court of Appeals adopted a “more plaintiff-friendly” foreseeability rule, rejecting the “more defendant-friendly” bare-metal defense.
The nature of advocacy makes it hard sometimes for lawyers to focus solely on the outcome and the bottom line result. How a court gets there may not matter much to the prevailing party in the dispute as they celebrate the win, but it may have an impact on later cases. A recent example is the opinion in Burton et al. v. E.I. DuPont de Nemours and Co., Inc., 2021 WL 1422814 (7th Cir. Apr. 15, 2021). The court found the winner’s circle, but it dented the car a bit along the way.
[Disclosure/disclaimer: The author filed an amicus brief in support of defendants in the case.]
Our language around settlements connotes war and peace – in settling we are “buying our peace” or “ceasing hostilities.” The old saw is that a good settlement leaves no one satisfied, but in truth, a good settlement leaves nothing significant left to do in the dispute. In abandoning claims or defenses, we seek a measure of closure. And in obtaining a durable settlement our client can live with, we necessarily rely, to some extent, on the regularity of the underlying proceedings, candor to the court, and some minimal level of good faith in the negotiations.
What happens when that reliance is upended and those expectations are dashed? A recent unpublished California decision provides a cautionary tale. It also stirred memories of a flawed settlement from three decades ago, inspiring this reverie.
The U.S. Consumer Product Safety Commission (CPSC) and Peloton Interactive, Inc. (Peloton) are clashing over whether the media, technology, and fitness company should issue a recall of its treadmill, the Peloton Tread+. The disagreement came to a head on Saturday, April 17, when the CPSC and Peloton issued competing statements after failing to agree on language to be used in a joint announcement regarding the Tread+. This dispute raises the question, “What now?”
The United States District Court for the District of New Jersey has announced proposed amendments to its Local Civil Rules, including a new rule – Civ. Rule 7.1.1 – regarding “Disclosure of Third-Party Litigation Funding.”
As we previously observed on this blog earlier this year, the exact dollar amount that third-party investors infuse into U.S. lawsuits each year is unknown, but conservative estimates begin at approximately $2.3 billion. Currently, the District of New Jersey’s Local Civil Rules are silent as to litigation funding, but the District is focused on the importance of understanding the parameters of outside litigation funding and a mechanism for requiring disclosure.
The Fifth Circuit held that the 15-year Texas statute of repose barred a family’s claims regarding the rollover of a truck. The court was required to interpret the statutory language “date of the sale of the product,” finding that the repose period started when the automaker transferred the truck to the dealership, and not when it was first sold by the dealer to a customer. The court also held that the Texas tolling exception for minors does not apply to the product liability statute of repose.
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