The recent experience of the passengers the Carnival Triumph debacle once again raises the question of remedies sought and available for cruise passengers who suffer harms while at sea.  As with the Costa Concordia shipwreck a year ago, and with most hospitality-related providers, there are limitations on how and what guests can recover.  Forum selection clauses, of a similar type to what most of our clients use, frequently limit where suits can be brought.  For cruise passengers, who frequently travel from another location to the port city, the limitation on permissible fora can be an insurmountable hurdle to bringing suit.  For the passengers on the Triumph, any claims face the additional obstacle that recoveries are likely limited to only those individuals who suffered some physical harm as a result of the incident. 

These limitations are once again causing outrage among some who believe that the recourse of cruise passengers is too limited.  But before jumping on that bandwagon, it is important to consider the consequences of opening the floodgates to more claims.  For example, invalidating the forum selection clauses on cruise ship agreements could also open up hospitality providers like ski resorts or amusement parks, to claims far outside their operating jurisdictions. 

Extending the ability of a party to recover damages for emotional “injuries” without any physical harm could also dramatically change the legal landscape.  Would that allow individuals who claim to receive a “bad” dinner or view an “offensive” show the ability to recover damages for their claimed emotional injuries even without a physical harm?  Even with limitations for only egregious conduct, the implications could be far-reaching for those throughout the hospitality industry and beyond.

It seems as though Carnival is attempting to thwart the legal onslaught, and possibly the push for legal changes, by offering full refunds to passengers plus cash and a voucher for future travel.  We will see if it is enough.  In the meantime, I wonder if those vouchers are transferrable? 

Cynthia P. Arends, carends@nilanjohnson.com


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ON YOUR MARK…., GET SET…., SHOP!

Posted on November 15, 2012 02:17 by Philip M. Gulisano

With the start of the holiday shopping rush just a week away, retailers should be mindful of their responsibility to keep customers safe when large crowds gather to take advantage of well-advertised and highly-anticipated sales. Customers, drawn by the promise of “doorbuster savings” and warned of limited quantities, do not always act in the most courteous manner when rushing to enter the store and running toward the products they desire.  Sadly, it has become all too common for injury, whether accidental or intentional, to occur as customers dash into and through stores during these special sales, and when a customer is injured during the clamor, a retailer can be held liable.

Although the law varies from state to state, in many states, a retailer’s duty to use reasonable care to protect customers from reasonably anticipated injuries includes foreseeing that large crowds might gather due to the advertised sales and that individuals might be injured due to the overcrowding, the congestion at the door, or the unruliness of the other customers.  Consequently, a retailer may be held liable to a customer who is injured due to pushing, crowding, trampling, or jostling by other customers when the retailer conducts a promotional activity or sale that will foreseeably cause crowds to gather and push.

At least one jury has determined that reasonable care when undertaking a special promotion that might cause people to run, push, and shove includes the retailer giving warnings of the dangers involved, taking steps to control or police the crowd, using loud speakers to warn the crowd not to run over people, and warning the elderly or children to stay out of the crowd.    Given the tragedies that have occurred in the past several years during “Black Friday Sales,” it is advisable for retailers to, at the very least, implement the above measures.  However, the above measures may not be sufficient given the particular circumstances of a retailer.  That is why each retailer should conduct a careful risk assessment evaluation that is tailored to its location and history.  This assessment will allow the retailer to develop and implement a plan that keeps its customers safe and happy during this holiday season. Now go shopping!

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Although by no means a “hell hole” jurisdiction, it is difficult for a peripheral asbestos defendant to obtain summary judgment in Bridgeport Superior Court in Connecticut. Once summary judgment is denied, many asbestos defendants with questionable liability will often settle out rather than risk the financial exposure of an adverse result in a mesothelioma jury trial.  It is helpful for a company to have a well thought out appellate strategy in mind before selecting a jury in that jurisdiction.  One recent asbestos trial did not turn out well for a trade association defendant.. 

On August 24, 2012, the Bridgeport Superior Court denied post-trial motions filed by Tile Council of North America (“Tile Council”) inHannibal Saldibar v. A.O. Smith Corp. The Tile Council is a trade association that developed and patented an asbestos-containing formula for dry set mortar. This jury verdict raises the issue whether a trademark licensor may be held liable under a theory of strict liability as the “apparent manufacturer” despite having never manufactured or sold the product at issue.  The Apparent Manufacturer Doctrine seeks to hold the licensor vicariously liable for defective products manufactured by the licensee.

Over the past 50 years, trademark licensing has emerged as a preferred method of producing and marketing goods in the U.S.  According to David J. Franklyn, a professor at Northern Kentucky University, who wrote an article titled, "The Apparent Manufacturer Doctrine, Trademark Licensors and Third Restatement of Torts" in the Case Western Reserve Law Review, some $50 billion dollars of licensed goods are sold each year. 

The Bridgeport Superior Court’s decision is arguably a departure from the precedent established inBurkert v. Petrol Plus of Naugatuck, Inc., 216 Conn. 65 (1990), a well reasoned decision by the Supreme Court of Connecticut. The principal issue in Burkert was whether the distributor of an allegedly defective product, an automatic transmission fluid, was entitled to indemnification against GM, the licensor of a trademark under which the allegedly defective product was marketed. GM, the trademark licensor, did not participate in the production, marketing or distribution of the product.

In Burkert, the Connecticut Supreme Court made two significant rulings: (1) because GM did no more than allow others to use its Dexron® II trademark in the production, marketing and distribution of transmission fluid, absent any further involvement in the stream of commerce, GM could not be deemed a seller under Connecticut’s Product Liability Act; and (2) plaintiff could not rely upon Section 400 of the Restatement of Torts (Second) because that section applied only to those involved in the sale, lease, gift or loan of a product.

The Burkert court cited with approval the holdings of courts in other jurisdictions explicitly holding that liability against a trademark licensor under the Apparent Manufacturer Doctrine is appropriate only when the licensor is determined to have been significantly involved in the manufacturing, marketing or distribution of the defective product. Regardless of whether the plaintiff is proceeding on an “apparent manufacturer” or an “enterprise” theory of liability, the majority of cases emphasize the licensor’s degree of control and involvement exercised over design, manufacturer and sale.

The plaintiff in Saldibar may have raised sufficient factual issues to avoid summary judgment but arguably should not have prevailed on post-trial motions. In rejecting Tile Council’s argument that it was not a “product manufacturer” or “product seller” pursuant to the Connecticut Product Liability Act, the court found that the Tile Council was sufficiently involved in the distribution, marketing and manufacture of its products to “fall within the ambit of the product liability statute.” To add insult to injury, the trial court not only refused to set aside a $1,500,000 verdict in compensatory damages, plus $100,000 in loss of consortium damages, but also upheld an award of $800,000 in punitive damages based on the jury’s finding that Tile Council acted with “reckless disregard” for the safety of product users. Based upon this holding, a trademark licensor in Connecticut is potentially liable for punitive damages resulting from injuries caused by a product it neither manufactured nor sold.

Although the involvement of Tile Council may have been more extensive than that evidenced by GM, the trademark licensor in Burkert, it is questionable whether these factual distinctions warranted a finding of liability, let alone an award of punitive damages. In Saldibar, for example, the court relied upon testimony by a co-defendant, H.B. Fuller, that Tile Council had “developed a market for these products, based upon their formulas, based upon their trademark and hallmark, if you will, of an assurance that if you buy products that contain this logo, you can be sure that it did work.” There us absolutely no  probative value to this testimony.  On the other hand,  If the Plaintiff or Plaintiff's employer had provided testimony that he relied on the presence of the licensor’s logo for assurance that the product was safe, it may have raised a reliance issue. But The co-defendant’s testimony, cited by the trial court, is not relevant to the issue of reliance because it did not purchase the product.  Of more importance is that it does not appear Plaintiff was induced to purchase the asbestos-containing product because of the licensor's involvement. 

Arguably, the licensor should only be potentially liable (as a threshold matter) when it induces the consumer to purchase the product or where plaintiffs can prove that they reasonably relied on the trademark.

What was apparently fatal to Tile Council was the trial court's determination that Tile Council set forth detailed specifications governing “all aspects” of the product, including the percentage and grade of the asbestos fiber to be used. Moreover, in Saldibar, Tile Council drafted the product warnings that appeared on the product. On the basis of these facts, the trial court distinguished Saldibar from Burkert.

Saldibar raises some troubling concerns from a policy standpoint. Saldibar rewards conduct by a licensor that distances it from the ultimate consumer. If Tile Council was in the best position to recommend warnings for the product label, why should this activity alone become a basis for imposing vicarioius liability?  The issue in Saldibar was not whether the warnings were adequate to warn against the risks of asbestos use, but whether the warnings were sufficient to bring Tile Council under the ambit of the Connecticut Product Liability Act as a “apparent manufacturer.” There is no indication that Plaintiff ever read the warnings or that an alleged failure to warn was a proximate cause of plaintiff’s injury. As a practical matter, a plaintiff should be required to demonstrate that he saw the licensor’s logo and was induced to purchase the product on that basis. Whether there was detrimental reliance by the product purchaser was not an issue considered by the court.

Originally published in the Toxic Torts Litigation Blog

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Rent to Own Computers and the FTC

Posted on October 12, 2012 02:19 by Chad Godwin

Wired Magazine recently reported that seven rent-to-own companies and a software manufacturer are settling charges with the Federal Trade Commission.  The charges claimed that computers rented from the rent-to-own companies used pre-installed spyware to obtain a host of data from the users.  The settlement only requires the companies to stop using the spyware, known as “Detective Mode,” which has been installed on as many as 420,000 rental computers.  In addition to secretly turning on a computer’s webcam, the software was capable of logging keystrokes, and  taking screen shots of a user’s activity.  The software then transmitted the secretly gathered information to the manufacturer, DesignerWare, who forwarded the material on to the rent-to-own company, all without the user’s knowledge.  The settlement still allows the rent-to-own companies to employ the software so long as they notify the renters.  Further, the FTC lacks criminal jurisdiction, so the companies have yet to face any criminal charges.  However, the FTC acknowledged that criminal activity appears to have occurred in a nod to the potential for ongoing investigations. 

The computers at issue collected everything from addresses, photos and video of often compromising situations, to phone numbers, email and social media passwords and financial logins, begging the question of what type and how much information a user should feel comfortable entering on a computer they don’t own.  In the case of someone renting a computer, it can be easy to see how a user operates under the impression that they have unfettered access to the machine for the term of the rental.  Nonetheless, there are measures that such parties can take in an effort to secure their privacy.  There are free firewall programs, such as Zone Alarm and Windows Firewall, that allow users to designate and monitor every program that accesses and/or attempts to access outbound internet connections.  Had the renters correctly configured and employed such a program, they would have known that a program, by whatever name, was attempting to send information from the subject computer.  In the event that renters were unable to install or configure (in the case of pre-installed Windows Firewall) such programs, it should serve as a red flag to carefully consider the manner in which to employ a rental or loaner computer. 

 

 

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With the preseason underway and the regular season right around the corner, football fans are gathering in front of their TVs and crowding stadiums across the country with copious amounts of food and drink watching the big game.  Legal observers will have their own action to watch although this is likely to last several seasons.    

In 2011, several former players suffering a variety of neurological disorders sued the NFL for negligence and fraud relating to whether the NFL knew and withheld that knowledge that concussions and other head injuries incurred during the playing of football could lead to long term brain damage and related side effects (no comment).  Many of these suits received class action status and were removed to the United States District Court for the Eastern District of Pennsylvania. 

On August 13, 2012, the roster of players on this legal gridiron expanded to include the NFL’s insurance companies.  Alterra America Insurance Company, an excess insurance provider, filed suit in New York State Supreme Court in Manhattan seeking a declaratory judgment stating that Alterra
1) does not have a duty to defend the NFL against player lawsuits
2) does not have a duty to indemnify the NFL against player lawsuits

Two days later, the NFL and NFL Properties filed suit against 32 insurance companies (or nearly every major insurer in the country as reported by Reuters)  including Alterra asking the Court to require these insurers to defend and indemnify the NFL from the players’ suits.  Why so many insurers?  Because the NFL sued nearly every insurer that it has ever had regardless if a current business relationship currently exists.  This is mostly a dispute about when duty to defend triggers.  The NFL in its papers argues it’s when the injury occurs. National Football League v. Fireman’s Fund Insurance, BC490342, California Superior Court, Los Angeles County at 12.  This becomes a bit of problem because different insurers insured the NFL at different times going back to 1963. Determining which injury (if only one) caused the long term damage, when that particular injury occurred and which policy was in effect at that particular time is going to be messy to say the least. 

However, the more interesting story here takes place nearly a week later.  On August 21, Travelers’ Insurance followed “suit” and filed its own action against the NFL and the other insurance companies seeking a declaratory judgment with roughly the same arguments as Alterra.  What makes this interesting is the fine distinction that Travelers’ makes in its papers which is how the other insurance companies become involved.  

Travelers' argues that its only obligation is to NFL Properties and not to the NFL itself (both the NFL and NFL Properties have been parties to these suits).   Travelers’ argues that it never insured the NFL (whom we guess Travelers’ believes is going to take the brunt of any payout either in the form of a judgment or settlement) and therefore shouldn’t have to bear any of the NFL’s costs. Traveler’s suit against the other insurance companies is a pre-emptive strike against its peers who “may dispute Travelers’ position with respect to some or all of the foregoing matters, and make seek contribution from Travelers’ with respect to defense costs and/or indemnity paid under the policies they issued to the NFL and/or NFL Properties with respect [to the players’ law suits].” Discovery Property & Casualty Co. v. National Football League, 652933/2012, New York State Supreme Court, New York County (Manhattan) at 19.

It looks like all the players are in their respective formations… and there’s the kickoff.

[1] Ben Berkowitz, “NFL Sues Dozens of Insurers Over Player Injury Claims.“ Reuters.  08/16/12.  Accessed on 08/28/12.  Available at: http://mobile.reuters.com/article/sportsNews/idUSBRE87F0UB20120816?irpc=932.

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Since 2010, the beauty and cosmetic business was afire with the news that the “Brazilian Blowout” hair treatment released the known carcinogen formaldehyde when used. (Brazilian Blowout is the trademark of GIB, LLC (GIB) but is commonly used generically to describe keratin-based hair straightening products such as Brazilian Blowout (Acai Professional Smoothing Solution, Professional Brazilian Blowout Solution), Brasil Cacau Cadiveu, Keratin Complex Smoothing Therapy (Natural Keratin Smoothing Treatment, Express Blow Out, Natural Keratin Smoothing Treatment Blonde) and Marcia Teixeira (Advanced Brazilian Keratin Treatment, Extreme De-Frizzing Treatment).) It was a story that created a media blitz and caused consumer backlash. The treatment was exposing consumers to carcinogens and further, the Brazilian Blowout treatment was labeled “formaldehyde free,” when it was not.

In the midst of the media frenzy and for the first time, the cosmetics industry officially declared formaldehyde unsafe at any level in chemical hair straightening products, commonly referred to as keratin-based or the Brazilian Blowout. On September 21, 2011, the Cosmetic Ingredient Review (CIR), an unbiased advisory board established by the leading cosmetic manufacturers, declared that formaldehyde and methyl glycol are unsafe for use in the Brazilian Blowout and similar hair straightening or smoothing products. This came in the aftermath of several state and federal investigations, including the federal Occupational Safety and Health Administration (OSHA) and Food and Drug Administration (FDA) into the safety of these products to salon workers and consumers.

After a comprehensive review of the safety data, CIR scientists, dermatologists, pharmacologists and toxicologists evaluated the safety of methylene glycol and formaldehyde in hair straightening products on a number of factors, including the concentration of formaldehyde and methylene glycol, the amount of product applied, the temperature used during the application process, and the ventilation provide at the point of use. CIR concluded that under present practices of use and concentration, formaldehyde and methylene glycol are unsafe in hair straightening or smoothing products.

In early 2010, Brazilian Blowout and similar keratin-based hair straightening products initially came under fire when Oregon OSHA investigated a complaint from a salon worker who had nosebleeds, eye irritation, and trouble breathing while using a Brazilian Blowout product labeled “Formaldehyde-free.” After testing 100 samples of keratin-based hair straightening or smoothing products, including Brazilian Blowout, Oregon OSHA determined that many contained formaldehyde, a chemical associated with the salon worker’s complaints. Specifically, the products contain the chemical compound methylene glycol, an aqueous solution that is created when formaldehyde is hydrated. OSHA reported that when methylene glycol is heated during the product application, it reverts back into gas formaldehyde.

On October 8, 2010, Oregon OSHA published a hazard alert and alerted federal OSHA finding the hazard information listed on the products were incorrect and failed to meet federal OSHA requirements. FDA was also alerted and called into action to determine whether the products were unsafe and improperly labeled by failing to include formaldehyde as one of the products’ ingredients. Additionally, FDA acknowledged consumer complaints on its website and stated it was working with federal OSHA to determine the composition of the products and whether the products or ingredients would be likely to cause health problems. Studies by the Department of Health and Human Services, OSHA, FDA and several action groups, including the Environmental Working Group and the American Chemistry Council, began investigating the safety concerns and practices in salons.

FDA set the task of assessing the safety of formaldehyde and methylene glycol ingredients to the CIR Expert Panel, under the aegis of the U.S. Personal Care Products Council. The CIR had previously reviewed the use of formaldehyde as a preservative agent in cosmetic products in 2005 and concluded it safe in levels not to exceed 0.2 percent. However, it did not evaluate formaldehyde safety in cosmetic products intended to be aerosolized – which is precisely what occurs during the application of the hair straightening or smoothing product. The application process requires the hair to be heated and dried at high temperatures which thereby causes the product to emit formaldehyde gas into the air. The hair straightening product fumes may be inhaled by the customer or salon worker and cause harm. 

Despite complaints, investigations and media attention, Brazilian Blowout and other manufacturers continued to tout their products as “formaldehyde-free.” (Initially in 2010, Brazilian Blowout asserted that the products were formaldehyde-free since they contained methylene glycol, an organic compound wholly distinct from formaldehyde. After researchers pointed out that methylene glycol is simply formaldehyde mixed with water, Brazilian Blowout changed its position. Brazilian Blowout revised its position stating their products contained less than 0.2 percent formaldehyde, levels deemed safe for cosmetic use—a statement in line with the 2005 formaldehyde evaluation.) Called into action by consumer complaints to address concerns, FDA conducted a sample analysis of Brazilian Blowout. The results revealed contradictory information and confirmed the presence of methylene glycol at levels ranging from 8.7 to 10.4 percent. 

On August 22, 2011, FDA sent an official Warning Letter to the Brazilian Blowout manufacturer GIB citing violations of adulteration and misbranding for failing to include the presence of a “deleterious substance,” methylene glycol. Specifically, FDA cited the product adulterated by containing methylene glycol, a liquid form of formaldehyde, and misbranded by stating on its label that it does not contain formaldehyde.

Specifically, FDA noted that the product is adulterated within the meaning of Section 601 (a) of the Federal Food, Drug and Cosmetic Act [21 U.S.C. § 361 (a)] for containing a poisonous or deleterious substance that may render it injurious to users. That substance methylene glycol was found by the FDA at 8.7–10.4 percent in an analysis of 50 mg samples. 

According to the Warning Letter, formaldehyde is released into the air when the product is applied to the hair and heated by a blow dryer and a flat iron, as directed on the product's packaging. The inhalation of formaldehyde reacts with biological tissues, particularly the mucous tissues lining the respiratory tract and the eyes, which can cause a number of adverse events, including eye irritation, nervous system disorders and respiratory problems.

The product was found to be misbranded within the meaning of Section 602(a) of the act [21 U.S.C. § 362(a)]. Specifically, the product was considered misbranded for declaring on its label that it contains "No Formaldehyde and is "Formaldehyde Free." FDA found this to be a false and misleading statement, given that the product contains methylene glycol. FDA also noted that the product also is misbranded for not disclosing information on the product's label about the release of formaldehyde as a result of heating the product.

The Warning Letter gave the manufacturer, GIB, 15 days to advise the agency of steps to correct labeling and content violation, specifically the “Formaldehyde Free” claim and the unacceptable formaldehyde levels. FDA also demanded assurance of future regulatory compliance and documentation that the corrections have been achieved.

GIB broadcasted a public response to the FDA’s warning letter. On August 24, 2011, GIB sent salon owners a letter and issued a statement on its website indicating that the company would be working directly with the FDA to clear up the controversy. The statement also included GIB’s own testing analysis, which differed from the FDA sample analysis. GIB suggested that possibly the media inaccurately reported that its product contained 8–10 percent formaldehyde when “the measure of potential formaldehyde released at that level never occurs in a real world application.” GIB further stated that federal OSHA was aware of the only accurate testing method for formaldehyde exposure— “controlled air monitoring”—and that its product fell beneath even the most stringent OSHA safety standards when measured in this way. 

OSHA promptly sent a letter on September 22, 2011, to GIB refuting the manufacturer’s safety assertions as misleading. GIB’s statement was completely contrary to OSHA’s previous findings that workers using the Brazilian Blowout “were exposed to formaldehyde levels that exceeded OSHA’s 15 minute short term exposure limits of 2 ppm.” OSHA followed up and issued a revised hazard alert to hair salon owners and workers about potential formaldehyde exposure from working with certain hair straightening products, including Brazilian Blowout. The OSHA news release stated that the revised alert was prompted by the agency investigation results, FDA warning letter, and factually incorrect information sent to salons by the Brazilian Blowout manufacturer. According to the revised alert, OSHA air tests revealed formaldehyde levels above OSHA’s limits in salons using Brazilian Blowout. The revised alert further listed the various health hazards of formaldehyde and how salon workers could protect themselves while using hair straightening or smoothing products that contain or release formaldehyde.

Bolstering FDA and OSHA warnings, the CIR concluded its intensive study and made its official findings available on September 26, 2011, deeming the hair straightening products unsafe. Brazilian Blowout and other hair straightening products containing formaldehyde continue to be available in salons across the country, despite FDA warnings. FDA typically urges such manufacturers to initiate a voluntary recall, and if they do not comply, FDA has other measures at its disposal to force a recall. In order to prompt a mandatory recall, FDA must pursue action through the Department of Justice in federal court to remove the adulterated and misbranded products from the market. In addition, FDA can request a federal district court to issue a restraining order against the manufacturer to prevent further shipment of the product. However, there is no indication that this has or will occur.

Brazilian Blowout and FDA are at a stalemate with neither side making any moves towards removal of the unsafe products. Formidable cosmetic action groups such as the Campaign for Safe Cosmetics and the National Healthy Nail and Beauty Salon Alliance urged FDA to take action and initiate a mandatory recall of the Brazilian Blowout’s products. Congressional members Jan Schakowsky (D–IL), Ed Markey (D–MA) and Earl Blumenauer (D–OR) also have demanded that GIB voluntarily remove its product from the market, to no avail. Nonetheless, GIB refused to recall its product, stating “We’re going to continue to offer a product that gives people the hair of their life . . . .” 

In addition to the FDA warning letter, GIB also was sued by the state of California, where the company is headquartered. In February 2012, GIB settled and agreed to cease advertising two of its products as formaldehyde free and safe. The company also agreed to make changes to its website and pay $600,000 in fees, penalties and costs. 

To date, FDA has taken no action against Brazilian Blowout. FDA neither requested a voluntary recall of the products, nor made steps to initiate judicial intervention to remove the products from the market. Respecting its limited authority over the cosmetics industry, FDA continues to provide consumers updated safety information to reduce health risks associated with formaldehyde hair treatment products, suggesting consumers limit exposure and products labels with formaldehyde, formalin and methylene glycol. Likewise, GIB revised its product use materials to include the updated safety information. 

On March 27, 2012, the Congressional Subcommittee on Health held a hearing—Examining the Current State of Cosmetics—gathering FDA, industry trade groups and other organizations to debate whether there is a need for a national standard, preemption of state legislation and an overall renewal of FDA’s regulatory authority over the personal care and cosmetic industry. This ongoing debate comes on the heels of the proposed “Safe Cosmetics Act of 2011,” which sought to give FDA authority to demand pre-market safety assessments of cosmetics ingredients, issue recalls of unsafe products and ban the use of ingredients linked to cancer and birth defects. It also would mandate ingredient labels on cosmetics and post-marketing testing, and would allow individual states to pass their own regulatory laws. The Safe Cosmetics Act was initially proposed in 2010. It was revised and resubmitted in 2011, but has yet to be approved by Congress. The cosmetics industry would see more benefits with a nationwide safety standard for their products that would preempt state laws that could vary from state to state. It would be difficult for cosmetic companies to formulate innovative products if different standards apply in different states.

Yet, while the proposed legislation appears reasonable on its face, it arguably would impose costly and unnecessary restrictions on the cosmetics industry. There is a legislative mechanism already in place regulating cosmetics. Cosmetic companies are already bound by the existing “Food, Drugs and Cosmetics Act of 1938,” which requires manufacturers to list most of the ingredients on product labels, and to substantiate the safety of their products before marketing. 



While the Brazilian Blowout battle may seem trivial to most cosmetic manufacturers, those who already make great efforts to ensure product safety, it could have broad implications to the cosmetics industry. The obligation to assure cosmetic safety lies squarely on the shoulders of the cosmetic companies. The cosmetic industry remains largely self-regulated. In order to be effective, cosmetic companies must try to be transparent and forthcoming in providing consumers with specific information as to what their safety testing entails and standards utilized in testing. From a pragmatic perspective, cosmetic products that use known, safe ingredients will be less likely to face difficulties like those facing Brazilian Blowout. In keeping up with cutting-edge trends and science, companies may want to consider extra safety precautions when introducing innovative ingredients to their products. But most importantly, cosmetic product labeling should be comprehensive and conspicuous to allow consumers to consider the ingredients before using the product. 

For hair straightening manufacturers, many companies have considered the risks and are looking to distance themselves from their “Brazilian” roots. Many have altered their product lines to be formaldehyde free—removing methylene glycol, formol, formalin or any other substance that produces formaldehyde from their products. Some other companies have gone as far as changing their packaging to include a “Proven Safe by OSHA” stamp to verify product safety. Then again, the Brazilian Blowout treatment containing formaldehyde remains popular because consumers simply like the treatment—even with the knowledge that it contains a carcinogen. At the end of the day, consumers have the right to use any products they choose, and should be allowed to buy those products, provided they understand any potential risks. 

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T-Bones are Pink, too

Posted on March 30, 2012 02:11 by Shawn K. Stevens

And, pretty soon they'll cost less than a burger.

I've sat mostly quiet over the last few years, wondering how something as American as the hamburger could so easily become the focus of so much attack?  What in the world happened?

Over the last decade, we have heard story after story questioning the safety, efficacy and quality of this distinctly American product.  Whether you enjoy a burger on the grill, meatballs in the crock, hamburger (helper) on the stove, a quick burrito in the microwave or a family size helping of meatloaf in the oven, most Americans thoroughly enjoy -- if not cherish -- their ground beef.

But, we also have to pay for it.  In recent years, the cost of ground beef has increased substantially.  And, in the coming years, it now appears; the cost of this product will increase even more. This is because of the extraordinary amount of effort (and science) that is now required to process beef. 

From slaughter and processing to the kitchen table, billions of dollars have already been spent making ground beef as safe (and as perfect) as it can be. 

But perfect is relative, I suppose; and the onslaught of unfounded criticism continues. Set aside the occasional but continuing ramblings about whether ground beef is good for your heart (it is) or whether it increases your risk of cancer (it wont), additional heated debate persists regarding its overall safety and now -- it would appear -- its color.  And, thus, the industry is once again confronted with yet another unfortunate example of reactive sensationalism quickly outpacing reason and science. 

Will the madness ever stop?

Probably not.  So, I wont spend any time here repeating or expanding upon the expert explanations regarding what, exactly, LFTB really is.  It is beef.  And, that issue, I think, is settled.  What I will say, however, is that we should be careful not to expect ground beef to become something it is not. 

We are extremely lucky to have access to such a tasty, plentiful, safe and affordable product.  And, frankly, the health of our nation has in many ways been built on the same ground beef we now discount. 

So, back your burgers.  And, if you have any doubts, just ask your kids about how boring life would become without a virtually unlimited and affordable supply of burgers, meatballs, burritos and meatloaf. 

And, yes, we also need to think about those who struggle just to put food on the table.  We should be very careful, in the end, not to price ourselves out of our most basic needs -- like affordable protein.   As one of my readers aptly noted a few months back, if we don't get our act together soon,"maybe we'll all have to start grilling steaks on the barbecue instead of burgers [just] to save ourselves a few bucks."  

That'd be something.

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Porsche Puts Out Fires Before they Start

Posted on March 29, 2012 02:01 by Jeff Curran

Porsche AG issued a recall today for 1232 of its 2012 911 Carrera S Coupes, stating that a fuel line could become disconnected due to its proximity to a coolant line.  The result could be fuel leakage, causing the engine to stop or possibly to catch fire.  So why is this important?  Companies issue recalls every day – why should you (or anybody else) care about this one?    

I’ll tell you why.  Porsche issued this BEFORE any fires were caused, property was damaged or lives were even potentially lost.  They just thought it MIGHT happen, and they did something about it before something actually happened.  I just figured more people needed to realize that car companies aren’t  actually the greedy, heartless things they are portrayed to be.  The kicker is that car companies do stuff like this all the time – it’s just that nobody ever pays attention to these because they don’t “sell”.  I realize nobody is going to jump on this nationally, because it’s not “news” in the popular sense.  But the next time you hear somebody deride “Big Auto”, at least think of this.  Granted, there aren’t a lot of cars involved (and yes, they are very, very nice cars), but it really is the thought that counts here.  

And if you want to learn more really interesting stuff about the finer points of Automotive product litigation, come see us at the Automotive SLG Breakout session Wednesday afternoon at the DRI Product Liability Conference in Las Vegas April 11-13.   The best part? It’s 100%  free with your registration – you do not pay one extra dime for the intellectual genius that will be provided. Remember where you heard it, and we’ll see you in Vegas.  

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A prompt and thorough investigation of a fire scene is critical to any litigation arising therefrom.  Documenting the investigation plays an indispensable role to the defense of any fire case.  The National Fire Protection Association (NFPA) publishes guidelines to be followed in fire investigations to ensure effective documentation of a fire scene and to assist in determining its cause and origin.    The most recent edition, NFPA 921 - Guide for Fire and Explosion Investigations, can be used as an offensive weapon and defensive shield in all aspects of fire litigation. Some of the guidelines espoused are detailed as follows:

It is imperative that when sending a fire investigator to investigate a fire scene, he or she is equipped with the tools and knowledge to ensure that the investigation enhances your case.  For example, photographs can be the most effective demonstrative evidence a jury may see in a fire case.  The investigator must know that one of the most important aspects of photographing a fire scene is available light.  The most powerful light source is of course the sun.  However, the sun is not always available when the fire scene must be investigated.  Burned areas have poor reflective properties and as such, a knowledgeable fire investigator should come equipped with flash devices on cameras or floodlights to artificially illuminate the area.  Floodlights will need a power source to operate and the investigator must come prepared.

Not only is it imperative that your investigator understand and follow 921, but it is equally true that you, as the attorney, understand it as well. The initial investigation may make or break your case.  Absent an understanding of how that investigation should be conducted, you will not truly understand your case.  

To learn more about NFPA 921 and other valuable tips for investigating fire and explosion scenes to be used as a weapon or defense in your case, attend the Fire & Casualty SLG’s meeting at the DRI Products Liability conference at the Venetian Pallazzo Hotel in Las Vegas (April 11-13). If you have any particular questions about this topic, please feel free to post.

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In the majority of jurisdictions, to establish a claim for design defect in a product liability action, the plaintiff must present some proof of a “feasible alternative design” or “reasonable alternative design.” 

In an article published in the IADC Product Liability Committee Newsletter (February 2012), "No Other Alternative: Challenging Plaintiff's Proof of Reasonable Alternative Design",  Elbert S. Dorn, a partner at Nexen Pruet, LLC, in South Carolina, provides valuable tips to the defense practitioner concerning how to agressively press legal and factual points to test plaintiff's proof of reasonable alternative design.   
According to Dorn, legal arguments on reasonable alternative design should be included in Daubert or other motions to exclude or limit the plaintiff’s expert testimony, motions for summary judgment, motions in limine to challenge evidence of proposed design alternatives, and in oral and written motions for judgment as a matter of law at the close of plaintiff’s case, at the completion of the defense case, and after any adverse verdict. Additionally, the defense position on reasonable alternative design should be articulated clearly in proposed requests to charge (or jury instructions).

In challenging plaintiff’s proof or evidence of a reasonable alternative design, the following factors and issues should be considered:

• whether the reasonable alternative design is being presented through expert testimony, and, if so, is the expert qualified to present reliable evidence of a design alternative?
• Is the design merely conceptual or theoretical in nature?
• Has the design been reduced to scale drawings fully illustrating its dimensions, characteristics and mechanics?
• The existence of a prototype or model demonstrating or incorporating the proposed design.
• Is the alternative design subject to a U.S. or foreign patent – has the proponent or anyone else sought patent protection?
• Has the alternative design been the subject of peer-reviewed articles or treatises or otherwise reviewed in the scientific community?
• Has the proposed design ever been incorporated or utilized by another manufacturer in a real-world setting – while not a totally decisive factor, it is powerful to establish that which plaintiff proposes as an alternative design has never before been utilized in the particular industry.
• Has the proposed design been subjected to testing to measure its effectiveness, functionality, and performance?
• What is the effect of the reasonable alternative design on the utility and functionality of the product – does the proposed design compromise or diminish the utility of the product – this is an overarching issue and should be fully explored.
• What analysis has been performed of the adverse or increased safety risks of the alternative design – does it potentially affect the relative safety of other components or the overall safety of the product?
• What cost analysis or economic impact of the alternative has been performed?
• What analysis or testing supports the durability of the proposed alternative – will it require additional maintenance and repair or affect product longevity?
• The effect of the alternative design on compliance with governmental regulations and standards.
• Would the alternative design have prevented the specific harm or injury which is the subject of the case?
• Was the technology supporting the alternative design readily available to the manufacturer at the time the subject product was designed or manufactured? 

Fundamentally, the defense against plaintiff's argument that there existed a reasonable  alternative designr resonates with a basic human emotion – “don’t criticize the way I do things unless you can do it better” or “do not criticize my play-calling and execution, if you have never played the game.”  If this notion can be conveyed to judge and jury, all the better in establishing the defense to plaintiff's contentions. 

This article was originally published on The Toxic Tort Litigation Blog on March 6, 2011
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