Fact Patterns and Accident Recreation

Posted on March 13, 2012 01:51 by Clinton Fletcher

Doctors rely on a patient's medical history, origin of pain and symptoms to diagnose a patient's illness and create a plan for treatment.   Home builders rely on measurements, mathematical equations and soil types to identify structural stress points and create design specifications.   Athletic coaches rely on an opponent's game tendencies, player skill sets and team strengths to identify play schemes and create successful game plans.   Similarly, defense attorneys evaluate facts, law and contract terms to identify liability risks and create a strategy for defense.

In particular, Michael Pangburn of Thor Industries will address the methodologies and tools that defense attorneys use to evaluate facts, law and contract terms to identify risks.  Mr. Pangburn will explain more at the SLG breakout session about how outside counsel should go about such responsibilities and assist in-house counsel.

In addition to Mr. Pangburn, Kevin Breen of Engineering Systems, Inc. will explain the art and processes that go into recreating motorcycle accidents.  Lastly, Glenn Fencl of Johnson & Bell will discuss recent case law involving recreational products.  
Please plan to attend the 2012 DRI Products Liability Conference, April 11-13th, at the Venetian Palazzo Hotel in Las Vegas.  More specifically, please stop by the Recreational Products' Specialized Litigation Group Workshop ("SLG"), which will take place on Friday, April 13, 2012, at 8:30 a.m.  The SLG will discuss issues relevant to those attorneys that represent companies who manufacture recreational products.  

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As required by the Consumer Product Safety Improvement Act of 2008 (“CPSIA”), the Consumer Product Safety Commission published ANSI/SVIA 1-2007 as a mandatory consumer product safety standard for ATVs.  The standard became effective on April 13, 2009.  ANSI/SVIA has since issued a 2010 version of the standard.  The Commission issued a notice of proposed rulemaking on July 25, 2011 and is soon expected to issue a final rule amending the mandatory standard to reference the 2010 version. 

The Commission found that though most of the changes in the 2010 version are relatively minor, merely enhancing the standard’s clarity and consistency, the Commission thought it best to incorporate all of the provisions of ANSI/SVIA 1-2010 in order to avoid any confusion with two slightly different versions of the standard, the current mandatory standard and the revised voluntary standard. 

The most substantive of the changes noted by the Commission in the 2010 version are as follows: (1) elimination from the scope section of a provision calling for expiration of the definition and requirements for the Y-12+ youth ATV age category on July 28, 2011; (2) a change in how to calculate the speed for the braking test of youth ATVs; (3) a change in the force applied to passenger handholds during testing; (4) the addition of a requirement that youth ATVs shall not have a power take-off mechanism; (5) the addition of a requirement that youth ATVs shall not have a foldable, removable, or retractable structure in the ATV foot environment; (6) additional specificity concerning the location and method of operation of the brake control; (7) tightening the park brake performance requirement, by requiring the transmission to be in “neutral” during testing, rather than in “neutral” or “park”; and (8) the requirement that tire pressure information be on the label, when the previous requirement could be interpreted to allow tire pressure to be either on the label, the owner’s manual, or the tires. 

If the Commission issues a final rule, the 2010 standard will become effective 60 days after publication of the final rule in the Federal Register.  The rule will apply to all ATVs manufactured or imported on or after that date.


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Bad Mouthed Baby Doll

Posted on October 4, 2011 02:22 by Michael Walker

We must be doing our jobs as products defense attorneys if this is what the plaintiffs' bar is beginning to resort to. This story was featured in the ABA Journal and I found it quite amusing. It appears that Arkansas attorney, Joey McCutchen, is on a campaign against Toys R Us due to the store's decision to sell a talking children's doll that Mr. McCutchen claims speaks profanity. As part of his campaign against the store he has produced a YouTube video that he alleges is "proof" that the doll speaks the phrase "crazy b-tch", as opposed to the "realistic baby sounds" the doll is advertised to be able to make. The dolls were being sold in Arkansas, Alabama and Tennessee. In the video he urges Toys R Us to cease selling the dolls. While the article does not mention whether Mr. McCutchen plans on commencing suit, if the viewers' comments on the video provide insight as to a potential jury pool, let's hope for his sake he does not. 

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Sometimes in the hospitality industry, you can’t win for trying.  Hilton Hotels is learning this lesson the hard way.  Last week, a former guest commenced a class action suit in federal district court in California against the Hilton hotel group based on the fact that he was charged $.75 for a newspaper he received, but did not request.  The suit alleges that the newspaper charge was fraudulent because it was disclosed in small print on the key-card sleeve, which he admittedly received upon check-in, and because the paper charge was not itemized on his bill at check out.  The plaintiff, Rodney Harmon, asserts claims of Unfair Business Practices, Violation of the Consumer Legal Remedies Act,  and Unjust Enrichment. 

Of course the only winners in the suit, which seeks an injunction, monetary damages and legal fees, are the plaintiff’s attorneys who will seek huge class action counsel fees for a case that involves only nominal damages and questionable liability for the putative class.

It seems quite plausible that Hilton, in an attempt to accommodate guests who did not want a paper, came up with the system of providing a $.75 credit for those guests who affirmatively asked not to receive one.  The deed has not gone unpunished as now Hilton must defend claims that it was intentionally deceiving customers by not itemizing the paper charge bill.   It is these unique issues faced by the Hospitality industry that will be covered in depth at the upcoming Hospitality Seminar, Sept 22-23 in Scottsdale. Download the brochure describing the full breadth of topics covered and sign up today!

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Consortium Without a Cause?

Posted on June 2, 2011 08:57 by Richard Crites

Can a spouse recover for loss of consortium if he testifies that the marital relationship actually improved after the accident?  He can in California.

On May 26, 2011, the California Court of Appeal issued its decision in Mealy v. B-Mobile, Inc. (2011 DJDAR 7497). 


Plaintiffs Donald Mealy and Adelaide Mealy were born in 1925 and 1927, respectively.  In 1952, Adelaide suffered nearly complete paralysis in both legs and was confined to a wheelchair after battling polio. Nevertheless, she lived an active life, driving a car, working outside the home, and having five children with Donald.  Id.

Beginning in 2000, Adelaide used a lift system to transfer her between her bed, the bathroom, and her wheelchair.  She fell from the lift in 2006, suffering a broken hip.  After a year of recovery, she resumed an independent lifestyle including household chores, cooking, gardening, and travelling.  Id.

In 2008, Adelaide fell from the sling of a replacement lift system.  Unfortunately, her recovery was not as successful as it was in 2006.  Thereafter, Adelaide was unable to perform household services or enjoy leisure activities, and her husband became her fulltime caretaker.  Id.


During trial, Donald testified that he spent more time with his wife after the accident.  He testified that they love each other even more than they did before the accident.  Finally, he testified that the accident did not hurt his relationship with his wife—“Not a bit.”  Id. at 7497-7498.

Based on this testimony, defendants moved for entry of judgment.  In deciding the issue, the court examined whether partial loss of consortium was a recognized legal theory (discussing Park v. Standard Chem. Way Co. (1976) 60 Cal.App.3d 47, 50-51).  Id. at 7498-7499.  After a brief discussion, the court ruled that partial loss of consortium was like “being a little bit pregnant.”  Finding that plaintiff did not establish complete loss of consortium, judgment was entered in defendants’ favor.  Id.

Analysis on Appeal

The Court of Appeal dismissed the Park Court’s statement regarding partial loss of consortium as dicta.  The court instead relied on the California Supreme Court’s holding in Rodriguez v. Bethlehem Steel Corp. (1974) 12 Cal.3d 382 which “expressly recognized the right to recover damages for the ‘loss or impairment’ of the plaintiff’s rights of consortium, and we see no basis to conclude that a loss of consortium must be so extensive as to be considered complete in order to be compensable.”  Id. at 7499.  

As for Donald’s trial testimony that he and his wife loved each other more after the accident, the Court of Appeal concluded that they were understandable comments of a loving husband.  “Those supportive comments do not negate the tangible impact of his wife’s injury on Donald Mealy and the inevitable loss of conjugal society, comfort, affection, moral support and other noneconomic elements of the marital relationship resulting from his becoming virtually a full-time caregiver for his wife.”  Id.  As such, the trial court was overturned and the case was remanded for a limited trial on damages for loss of consortium.  

About the author, Richard Crites.



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