The Subrogation Strategist

In subrogation cases where the insured’s damages were caused by a defective product, the fact that the product at issue is or was subject to a recall announced by the Consumer Product Safety Commission (CPSC) may help to establish that the product was defective when it left the manufacturer’s possession and control. On February 24, 2021, the CPSC announced the following recalls related to products that present fire-related hazards:

1. Urban Outfitters Recalls Margo Taper Candle Holders Due to Fire Hazard. According to the CPSC, “[t]he candle holders can catch on fire if they come ...

Many subrogation claims involving fire losses rely heavily on expert testimony. Expert testimony is admissible under Federal Rule of Evidence 702 if it is both relevant and reliable. In Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), whose standard has been incorporated into Federal Rule of Evidence 702, the Supreme Court instructed federal trial courts to act as a “gatekeeper” of expert testimony, giving them the power to exclude expert testimony that is not supported by sufficient evidence. In Maria Fernanda Elosu and Robert Luis Brace v. Middlefork Ranch Incorporated, Civil Case No. 1:19-cv-00267-DCN, 2021 U.S. Dist. LEXIS 14449 (D. Idaho Jan. 22, 2021) (Brace), the United States District Court for the District of Idaho exercised its gatekeeper role when it granted in part and denied in part the defendant’s motion to exclude expert testimony pursuant to Daubert and Federal Rule of Evidence 702.Continue Reading

In subrogation cases where the insured’s damages were caused by a defective product, the fact that the product at issue is or was subject to a recall announced by the Consumer Product Safety Commission (CPSC) may help to establish that the product was defective when it left the manufacturer’s possession and control. On February 12, 2015, the CPSC announced the following recall related to a product that presents a fire hazard:

NZXT Recalls H1 Computer Cases Due to Fire Hazard.

According to the CPSC, “[m]etal screws that attach the PCIe riser assembly to the chassis can cause a short ... Continue Reading

In Kenney v. Watts Regulator Co, No. 20-2995, 2021 U.S. Dist. LEXIS 4539 (E.D. Pa. Jan. 11, 2021), the United States District Court for the Eastern District of Pennsylvania considered whether to exclude the plaintiff’s liability expert’s testimony regarding the sufficiency of the defendant’s product maintenance instructions. The plaintiff offered the testimony in support of his failure-to-warn product defect claim. The District Court excluded the testimony because the facts of the case did not support the plaintiff’s failure-to-warn claim, which rendered the testimony irrelevant. This case establishes that expert testimony can be excluded if there is an improper fit between the testimony and the underlying claim.Continue Reading

In subrogation cases where the insured’s damages were caused by a defective product, the fact that the product at issue is or was subject to a recall announced by the Consumer Product Safety Commission (CPSC) may help to establish that the product was defective when it left the manufacturer’s possession and control. On February 3, 2021, the CPSC announced the following recalls related to products that present fire hazards:

1. Victory Innovations Recalls Electrostatic Sprayers with Lithium-ion Battery Packs Due to Fire and Explosion Hazards. According to the CPSC, “[t]he ...