Subject: Georgia

Ethylene Oxide Alert: Where Is Your Warehouse?

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For over a year now, the U.S. Environmental Protection Agency (EPA) has been focused on reducing or eliminating ethylene oxide (EtO) emissions from industrial sites, commercial sterilizing facilities, and even hospitals. After a brief extension, the comment period for new proposed Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) and National Emission Standards for Hazardous Air Pollutants (NESHAP) regulations closed at the end of June with over 1,000 unique written comments.  It is anticipated that EPA is going to take some time to sort through those comments before issuing final rules, which are expected in March 2024.  At the same time, EPA has forecasted releasing a proposed rule specific to hospital sterilizers in early 2024.

Next up on EPA’s agenda appears to be warehouses that store products sterilized with EtO.  The looming question appears to be “where is your warehouse?”  Onsite warehouses are the first to be in EPA’s crosshairs, but in classic agency style they are leaving the option to expand that focus open for the time being.  Meanwhile, environmental groups are asking EPA not to wait to expand that focus, and states like California and Georgia are taking matters into their own regulatory hands.

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Snapchat’s ‘Speed Filter’: Georgia Supreme Court Revives Negligent Design Claim

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On March 15, 2022, the Georgia Supreme Court revived a negligent design claim that had been brought against Snapchat, Inc. (n/k/a Snap, Inc.) involving Snap’s “Speed Filter.”  As one of the few decisions across the country addressing products liability law in the context of platform “products” (more accurately categorized as services) such as Snapchat, the opinion provides a glimpse of the sort of issues that other courts may soon be required to address.

The Factual & Procedural Background:

Plaintiffs Wentworth and Karen Maynard alleged that Defendant Christal McGee was using Snapchat’s “Speed Filter” and driving over 100 miles per hour when she rear-ended them, causing severe injuries.  The “Speed Filter” is a feature that allows the user to record their real-life speed on a photo or video and share it with other users.  Plaintiffs sued Snap as well, alleging that Snap had negligently designed the “Speed Filter” because the filter promoted unsafe driving and encouraged dangerous behavior.

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Georgia Supreme Court Will Address the Problem of Abusive “Apex” Depositions

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A frequent and vexing issue for corporate defendants, in products liability and other cases, is the demand for a deposition of the company’s CEO or depositions of other senior executives. Even when these executives were not involved in the relevant events and have no relevant personal knowledge, plaintiffs push for their depositions to gain leverage for settlement or for other illegitimate reasons.

Many federal courts provide protection from these demands by applying the “apex doctrine,” a rule that usually shields high level officers if they have no unique personal knowledge or involvement and the relevant information is available from other sources.  These courts have recognized that corporations may be involved in many lawsuits and forcing busy executives to testify when they have no significant personal knowledge or involvement would impair their ability to manage the corporation’s business.

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A Component Part Supplier’s Duty to Warn Following the U.S. Supreme Court’s Maritime Asbestos Decision

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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.

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