Gadsden Personal Injury Lawyer - liability

Recent Ruling Permits Herbal Supplement Product Liability Claim

Michael Roberts — Thu, 10 Dec 2009 09:06:00 GMT

A recent Alabama Supreme Court case made a precedent-setting ruling against the retail seller of an herbal supplement. Answering a question from a United States District Court about Alabama law, the decision discussed whether the herbal supplement retail seller could successfully assert the “sealed container” defense in a claim for breach of implied warranty. Implied warranty claims are a type of product liability law based on a seller’s statutory obligation to assure that a product is “merchantable” or fit for a particular purpose. “Merchantable” means that the product or goods must at least be fit enough for the ordinary purposes for which the products or goods are used. This obligation arises from the Uniform Commercial Code (UCC), which most states, including Alabama, adopted during the 1960s. Other types of product liability law, such as “strict liability,” were adopted into law by many states during the 1960s and 1970s. Alabama courts adopted a variation of product liability law called “Alabama Extended Manufacturer’s Liability Doctrine,” which, together with negligence, wantonness, and warranty claims, are generally the basis for actions against manufacturers and sellers of defective products today.

In this recent case, the herbal supplement seller argued that, even if the product was defective, it should have no responsibility because it sold it in a “sealed container.” The court disagreed, stating that Alabama’s version of the Uniform Commercial Code did not specifically provide for such a defense in implied warranty cases. For further discussion of product liability law in Alabama, see Chapter 19, Alabama Tort Law (4th Edition Lexis Law Publishing, 2004) by Michael L. Roberts.

Originally posted at InjuryBoard by Michael Roberts

New Product Liability Decision Addresses Retailer Warranty Liability

Michael Roberts — Wed, 22 Jul 2009 11:39:39 GMT

A July 17 Alabama Supreme Court decision, by a vote of 5 to 4 of its 9 justices, decided that the retailer or seller of a dietary supplement does not have an automatic "sealed container" defense that would absolve it from liability for breach of an implied warranty of merchantability. In Sparks v Total Body Nutrition, Inc., a product liability case, the court answered questions about Alabama law posed by a federal court. The Uniform Commercial Code, enacted by the Alabama legislature over 40 years ago, provides that, generally, products or goods sold by business must at least be fit for the ordinary purposes for which such goods are to be used. In this case, the company that sold the supplement argued that it would not have known whether the manufacturer from whom it obtained the product shipped was in a defective condition and it should not be responsible for selling it. The majority opinion said that the recourse of the seller would be it’s asserting a claim against the company from whom it obtained the product, rather than absolution.

This decision is sensible and represents a commendable result in the interest of consumer protection. For further discussion of product liability law, see Chapter 19 of the book, Alabama Tort Law.

Originally posted at InjuryBoard by Michael Roberts

Chrysler Bankruptcy Will Leave Product Defect Victims Empty-handed

Jason Knowles — Thu, 18 Jun 2009 17:42:46 GMT

There is an interesting article in the June 10, 2009, issue of BusinessWeek which discusses the effect of Chrysler’s bankruptcy protection on those injured or killed by a faulty Chrysler vehicle. Under the terms approved by the Bankruptcy Court on June 1, 2009, the “new” Chrysler will not be liable for product defect claims involving any vehicles sold before it came into existence. Thus, under the Court’s order, it appears that anyone with a pending injury or death claim against Chrysler has no hope of recovery and that the “new” Chrysler is shielded from suits filed by anyone injured in a future accident involving a Chrysler vehicle currently on the roads.

My brother, Alexander City, Alabama attorney Jeremy Knowles, whose firm, Morris, Haynes & Hornsby, won a $52 million verdict against Chrysler in 2005, summed it up best when he told BusinessWeek that “people with personal injuries or life-ending injuries should be at the top of the list, not the bottom”.

The looming question now is whether General Motors will win the same kind of liability protection in its bankruptcy case. With about 31 million Chrysler vehicles on the road and about 74 million GM vehicles on the road, according to the Insurance Institute for Highway Safety, the bankruptcy courts’ decisions will profoundly affect thousands of consumers and accident victims.

Originally posted at InjuryBoard by Jason Knowles

Raptiva Withdrawn from U.S. Market

Michael Roberts — Thu, 09 Apr 2009 14:29:57 GMT

On April 8, the psoriasis drug Raptiva (efalizumab) was the subject of an announced phased voluntary withdrawal from the United States market. Its manufacturer, Genentech, made this announcement due to potential risk to patients of developing a severe, progressive neurologic disease known as progressive multifocal leukoencephalopathy. This disease is caused by a virus that affects the central nervous system. Raptiva will be no longer available in the U.S. after June 8, 2009.

A February 19 FDA Public Health Advisory warned of PML risks in taking Raptiva, after reports were received of PML disease in patients who had been taking Raptiva.

Originally posted at InjuryBoard by Michael Roberts

Mechanical Heart Pump Devices Subject Of Recall

Michael Roberts — Wed, 29 Oct 2008 14:46:55 GMT

According to recently published news accounts, Thoratec Corp. has recalled certain batches of its mechanical heart pumps. The recall was triggered by five deaths of patients, who died while using these heart pumps. This device, called the HeartMate II Pump, had been approved in April 2008 as a temporary treatment for patients awaiting heart transplants. This report states that catalog numbers 1355 and 102139 are applicable to the devices involved in the recall. It is recommended that patients contact their doctors to assess the condition of the wire that connects the heart device to the power pack.

Originally posted at InjuryBoard by Michael Roberts