Georgia’s product liability statute of repose requires actions to be commenced within 10 years of “the date of the first sale for use or consumption” of the product at issue. OCGA § 51-1-11(b)(2) (emphasis added). While the concept of “first sale” is clear and intuitive in the context of a product that may be sold and then later resold, it may be somewhat less clear as applied to a consumable product that is purchased repeatedly over a lengthy period of time. Is the “first sale” of such a product the earliest transaction by which the plaintiff ever obtained the product, or does “first sale” merely refer to the initial purchase of each individual unit of the product as opposed to any subsequent resales? The Georgia Court of Appeals recently clarified that it is the former – “first sale,” for purposes of the statute of repose, refers to the “first sale” of any unit of the product to the plaintiff. Thus, subsequent purchases of a new unit of the product do not come with their own fresh repose periods.
Category: Affirmative Defenses
Washington Appellate Court Holds Statute of Repose Constitutional and Applicable in All Cases Applying Its Product Liability Act
Statutes of repose serve as substantive outer limits on product liability claims after a certain time period following the product’s sale or use, potentially providing a complete defense in some jurisdictions and a rebuttable presumption of non-defectiveness in others. But for a statute of repose to provide a viable defense, it must apply to the case at hand and survive constitutional scrutiny. A recent appellate decision from Washington State provides good news on both fronts for defendants facing claims brought under the Washington Product Liability Act (WPLA).
In Erickson v. Pharmacia LLC, – P.3d –, 2024 WL 1905209 (Wash. Ct. App. May 1, 2024), three former teachers alleged injury from chemical exposure in middle school buildings built in the 1960s. In 2018, the teachers filed product liability claims under the WPLA alleging that the chemicals at issue were not reasonably safe as designed and led to various adverse medical effects. Because the plaintiffs had filed under the WPLA and the defendants did not contest that selection, the WPLA provided the substantive law governing the claims. When the defendants moved for summary judgment on grounds that the claims were time-barred under the statute of repose contained in the WPLA, the plaintiffs argued that Missouri law (which has no statute of repose for product liability claims) should apply. The plaintiffs pointed to the fact that the chemicals were manufactured in Missouri and the manufacturer also had its principal place of business in Missouri. The trial court agreed, and the case proceeded to a nine-figure jury verdict in the plaintiffs’ favor.
California Appellate Court Upholds Federal Preemption of Negligent Undertaking Claim Under the Medical Device Amendments of 1976
Federal preemption can be a very powerful defense. For example, claims concerning Class III medical devices requiring pre-market approval are generally preempted by the Medical Device Amendments of 1976, 21 U.S.C. § 360c, et seq. (“MDA”). In Regwan v. Abbott Laboratories, Case No. B319606, 2023 WL 8818748 (Cal. App. 2d Dec. 21, 2023), the California Court of Appeal relied on that principle in holding preempted a negligent failure to warn claim premised on a sales representative’s intraoperative communications and presented as a “negligent undertaking” claim. This holding continues a California trend that federal law may preempt negligence-based claims regarding Class III PMA medical devices even if they are not presented as traditional design defect or failure to warn claims.
In Regwan, the plaintiff alleged she suffered serious injuries following implantation of a MitraClip that the defendant manufactured. During the procedure, the saline bag ran dry, causing the plaintiff to allegedly suffer an air embolism and brain injuries. The plaintiff asserted negligence and products liability causes of action against the defendant after discovering a defendant representative attended the surgery and was allegedly “responsible for the flow of saline.” The defendant demurred, arguing federal law preempted the plaintiff’s products liability claims.
Michigan Repeals Pharma Immunity Provision
Michigan recently signed into law a repeal of the immunity provision under its Product Liability Act, presenting a new litigation risk in Michigan for pharmaceutical companies. The provision had granted near-complete immunity to pharma for the past 30 years, as the only of its kind nationwide. Michigan’s new law—Senate Bill 410 (SB 410)—removes this immunity, leaving intact a rebuttable presumption of non-liability and caps on non-economic damages.
SB 410 goes into effect on February 13, 2024, and is likely non-retroactive, meaning alleged injuries would have to occur after that date for the new law to apply. Commentators predict increased Michigan litigation relating to opioid use, insulin price gouging, and Medicaid fraud.
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Indiana Court of Appeals Holds Product Misuse Unforeseeable in Light of Product Warnings, Reverses Denial of Summary Judgment
Key Takeaway: In Superior Oil Company, Inc. v. Labno-Fritchley, 207 N.E.3d 456 (Ind. Ct. App. 2023), the Indiana Court of Appeals reversed a trial court’s denial of summary judgment in a product liability case. The court held that summary judgment should have been granted because the defendant’s designated evidence related to the product’s warning label established the affirmative defenses of misuse and incurred risk as a matter of law. Notably, the opinion illustrates how failure to heed the warnings that accompany a product can amount to unforeseeable product misuse.
Background: Plaintiff’s decedent attempted to remove the top of an empty 55-gallon metal drum with a cutting torch when it exploded, resulting in his death. The top of the drum – at which the decedent had to have been looking as he cut – bore an 8” x 12” warning label that, among other things, warned of the dangers of an empty metal drum and advised “[d]o not flame cut, braze, or weld empty container.” Although not emphasized by the Labno-Fritchley court, a picture of the label in the court’s opinion suggests that this language comprised only a very small portion of the label and was not in boldfaced or underlined font.