The Subrogation Strategist

On November 25, 2024, in Pickard v. Amazon.com, Inc., No. 5:20-cv-01448, 2024 U.S. Dist. LEXIS 215377, the United States District Court for the Western District of Louisiana (District Court) ruled that Amazon.com, Inc. (Amazon) could be liable for manufacturer-seller liability under the Louisiana Products Liability Act (LPLA) for a defective product sold by a third-party seller through the “Fulfillment by Amazon” program (FBA). The court also dismissed two tort claims against Amazon as follows: (i) Amazon does not qualify as a “seller” for purposes of non-manufacturer seller liability (because passing title is required for that claim); and (ii) there is insufficient evidence to prove the decedent, Archie Pickard (Pickard), relied on Amazon’s safety practices when purchasing the defective product, precluding a claim for negligent undertaking.  Continue Reading

In State Farm Fire & Cas. Co. v. Coway USA, Inc., No. 22-cv-3516, 2024 U.S. Dist. LEXIS 192849, the United States District Court for the Eastern District of Pennsylvania (District Court) considered whether the plaintiff produced sufficient evidence to establish that the defendant sold and/or marketed a product and, thus, could be held liable for an alleged defect in the product. The plaintiff, a subrogating insurance carrier, brought strict product liability and breach of warranty claims against the defendant—the installer of a bidet in its insured’s home—claiming that the defendant also marketed and sold the bidet. The sole evidence to support a finding that the defendant sold the bidet was the homeowner’s testimony that she bought the product from the installer. The court found that the insured’s testimony, without any documentation or other corroborating evidence, was insufficient to establish that the defendant sold the product. Since proof of a sale is a required element for strict product liability and breach of warranty claims, the District Court granted the defendant’s motion for summary judgment, dismissing the case. Continue Reading

In subrogation cases where the insured’s damages were caused by a defective product, the fact that the Consumer Product Safety Commission (CPSC) issued a warning about the product at issue may help to establish that the product was defective when it left the manufacturer’s possession and control. On September 5, 2024, the CPSC issued a warning urging “consumers of micromobility products—including e-bikes, e-scooters, self-balancing scooters (hoverboards), and e-unicycles—not to use chargers that are marketed as “universal” or suitable with general ... Continue Reading

In subrogation cases where the insured’s damages were caused by a defective product, the fact that the Consumer Product Safety Commission (CPSC) issued a warning about the product at issue may help to establish that the product was defective when it left the manufacturer’s possession and control. On September 5, 2024, the CPSC issued a warning urging consumers to “immediately stop using SafPow SPC-42020 and AMPOWSURE ASP-C10S42020 battery chargers because they pose a risk of serious injury and death.” According the CPSC, “[u]sing these chargers with an incompatible ... 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 August 15, 2024, the CPSC announced the following recalls related to products that present fire hazards:

1. Trader Joe's Company Recalls Mango Tangerine Scented Candles Due to Fire Hazard. According to the CPSC’s website, “[t]he candle flame can spread from the ...

In L’Oreal USA, Inc. v. Burroughs, 372 Ga. App. 30, 2024 Ga. App. LEXIS 250, the Court of Appeals of Georgia (Appellate Court) considered whether Georgia’s ten-year statute of repose for products liability precluded strict liability and/or negligence claims where the product, allegedly causing injury, was first purchased more than 10 years ago, but new containers of the same product were purchased within the last 10 years. The Appellate Court found that the “first sale” triggers the products liability statute of repose.

In Burroughs, Kiara Burroughs (Burroughs) alleged that she continuously used chemical hair relaxers from the age of six to twenty-five. In 2018, Burroughs was diagnosed with uterine fibroids, which caused her significant health problems. In October 2022, a scientific health study was released finding an association between chemical hair relaxers and uterine cancers. On October 27, 2022, Burroughs filed her original complaint, including claims for strict liability, negligence, and failure-to warn against L’Oreal USA, Inc. and others (collectively, Defendants). Defendants filed a Motion to Dismiss based, in part, on the statute of repose.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 July 11, 2024, the CPSC announced the following recalls related to products that present fire hazards:

1. Best Lighting Products Recalls High Bay LED Light Fixtures Due to Fire Hazard. According to the CPSC’s website, “[p]lastic pins securing the LED board can ...

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 June 27, 2024, the CPSC announced the following recalls related to products that present fire hazards:

1. Baseus Magnetic Wireless Charging Power Banks Recalled Due to Fire Hazard; Imported by Shenzhen Baseus Technology. According to the CPSC’s website, “[t]he ...

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 June 20, 2024, the CPSC announced the following recalls related to products that present fire hazards:

1. myCharge Recalls POWER HUB All-In-One Portable Chargers Due to Fire and Burn Hazards; Sold Exclusively at Costco. According to the CPSC’s website, “[t]he ...

In Johnson v. Amazon.com, Inc., No. 4:22-CV-04086, 2024 U.S. Dist. LEXIS 59196, the United States District Court for the Southern District of Texas held that Amazon.com, Inc. (Amazon) can be liable for negligent undertaking claims when products sold on its website are defective.

In Johnson, the Plaintiff, Joshua Johnson (Johnson), purchased a bathmat on Amazon. The bathmat was designed, manufactured and sold by Comuster, a Chinese entity. Nine months after purchasing the bathmat, the bathmat shifted while Johnson was taking a shower and caused him to fall. Johnson sustained a severe cut on his arm that required surgery and left significant scarring.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 April 11, 2024, the CPSC announced the following recalls related to products that present fire hazards:

1. Johnson Health Tech North America Expands Recall of Matrix T1 and T3 Commercial Treadmills Due to Fire Hazard (Recall Alert). According to the CPSC’s website ...

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 December 28, 2023, the CPSC announced the following recall related to a product that presents a fire hazard:

BlendJet Recalls 4.8 Million BlendJet 2 Portable Blenders Due to Fire and Laceration Hazards.

According to the CPSC’s website, “[t]he recalled ... Continue Reading

In Sullivan v. Werner Co., No. 18 EAP 2022, 2023 Pa. LEXIS 1715 (Dec. 22, 2023), the Supreme Court of Pennsylvania (Supreme Court) clarified that in light of its decision in Tincher v. Omega Flex, Inc., 628 Pa. 296 (2014), evidence that a product complied with industry standards is inadmissible in an action involving strict product liability.

In Tincher, the Supreme Court overruled prior case law and reaffirmed that Pennsylvania is a Second Restatement Jurisdiction. As stated in Sullivan, discussing Tincher, under the Restatement (Second) of Torts § 402A, a “seller of a product has a duty to provide a product that is free from ‘a defective condition unreasonably dangerous to the consumer or [the consumer’s] property.’ To prove breach of this duty, a ‘plaintiff must prove that a seller (manufacturer or distributor) placed on the market a product in a “defective condition.””Continue Reading