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 August 22, 2024 and August 29, 2024, the CPSC announced the following recalls related to products that present fire hazards:

1. HALO 1000 Portable Power Stations Recalled Due to Serious Fire and Burn Hazards; One Death Reported; Imported by ZAGG; Sold by ACG, QVC and ...

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 8, 2024, the CPSC announced the following recall related to a product that presents a fire hazard:

Samsung Recalls Slide-In Electric Ranges Due to Fire Hazard.

According to the CPSC’s website, “[f]ront-mounted knobs on the ranges can be activated by ... 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 1, 2024, the CPSC announced the following recalls related to products that present fire hazards:

1. Mattress Pads Recalled Due to Fire Hazard; Violation of Federal Mattress Pad Flammability Regulation; Manufactured by Avocado Mattress. According to the ...

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 25, 2024, the CPSC announced the following recalls related to products that present fire hazards:

1. Ophanie Area Rugs Recalled Due to Fire Hazard; Violation of Federal Flammability Regulations; Sold Exclusively on Amazon.com by Ophanie. According to the ...

Working with an expert to support a product defect theory of liability is hard enough as it is. However, when the standard for strict liability is considered, properly supporting such a theory is even harder. A commonly overlooked aspect of products liability is knowing the specific state standard that needs to be met and preparing for such a standard with your expert. Upon review of a certified question from a federal appeals court, the Supreme Court of Appeals of West Virginia (Supreme Court of WV) recently addressed its standard for strict products liability.

In Judith A. Shears and Gary F. Shears, Jr. v. Ethicon, Inc., No. 23-192, 2024 W.Va. LEXIS 272, petitioners Judith and Gary Shears (the Shears) were several of more than 28,000 plaintiffs to file cases against respondent Ethicon, Inc. (Ethicon) alleging damages from the use of its Tension-Free Vaginal Tape. The Shears filed suit in the United States District Court for the Southern District of West Virginia (District Court), asserting claims that included strict liability based on a defective product design. Ethicon challenged the court’s consolidation of the case with others similarly situated, arguing that the Shears did not offer an alternative design that would have materially reduced the plaintiff’s injuries.Continue Reading

In June 2024, the Supreme Court of Louisiana held that: (1) Amazon can be considered a “seller” of defective products sold by third parties on its website; and (2) Amazon can be liable under a theory of negligent undertaking for third-party products. In Pickard v. Amazon.com, Inc., No. 2023-CQ-01596, 2024 La. LEXIS 1112, a Louisiana man, Archie Pickard, died from burns sustained in a house fire allegedly caused by a defective battery charger purchased on Amazon from a third-party seller located in China. Mr. Pickard’s family filed a lawsuit against Amazon in the United States District Court for the Western District of Louisiana alleging claims under the Louisiana Products Liability Act (LPLA) and for negligent undertaking. Amazon filed a motion for summary judgment, which prompted the federal court to certify questions to the Supreme Court of Louisiana regarding these two claims.

Amazon Can be a “Seller” Under the Louisiana Products Liability Act

Amazon does not neatly fit within the definition of “seller” under the LPLA because the LPLA was drafted in 1988, before the internet existed. The LPLA defines a “seller” as a person or entity (who is not the manufacturer) who conveys title or possession of the product to another for something of value. La R.S. 9.2800.53(s) (emphasis added). The Supreme Court of Louisiana determined that Amazon was a “seller” because it conveyed “possession” of the charger to Mr. Pickard through the “Fulfillment by Amazon” (FBA) program, which provides storage, delivery, customer service, and returns of third-party products sold on Amazon. Most products on Amazon are sold by third parties, rather than Amazon. Many third-party sellers are small or medium-size companies, and some are individuals seeking to make supplemental income. Amazon offers the FBA program to handle storage and logistics to third-party sellers. When a product is sold through the FBA program, the seller sends the product to Amazon’s warehouses, where it is stored until it is purchased. When an FBA-product is purchased, Amazon collects payment, delivers the product (often in an Amazon van), and handles the potential return of the product. The Supreme Court of Louisiana determined that Amazon was a “seller” of the battery charger even though Amazon did not pass title to Mr. Pickard because: (1) Amazon had physical custody of the charger while stored in the warehouse; and (2) Amazon controlled the transaction and logistics through its FBA program.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 June 13, 2024, the CPSC announced the following recalls related to products that present fire hazards:

1. Bambu Lab Recalls A1 3D Printers Due to Electric Shock and Fire Hazards. According to the CPSC’s website, “[w]hen the recalled 3D printer’s heatbed cable is ...

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 6, 2024, the CPSC announced the following recalls related to products that present fire hazards:

1. Kawasaki Motors USA Recalls Engines Used in Bad Boy Mowers, BigDog, Bobcat, Cub Cadet, Hustler, John Deere and Kubota Brand Lawn and Garden Equipment Due to Fire and ...

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 May 16, 2024, the CPSC announced the following recalls related to products that present fire-related hazards:

1. Electrolux Group Reannounces Recall of Frigidaire and Kenmore Electric Ranges Due to Fire and Burn Hazards; Multiple Fires and Injuries Reported

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 May 9, 2024, the CPSC announced the following recall related to a product that presents a fire hazard:

Textron Specialized Vehicles Recalls Prowler Pro and Tracker Utility Vehicles (UTVs) Due to Fire Hazard

According to the CPSC’s website, “[t]he fuel tank cap ... 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 May 2, 2024, the CPSC announced the following recalls related to products that present fire hazards:

1. True Manufacturing Recalls Commercial Refrigerators with Secop Compressors Due to Fire Hazard. According to the CPSC’s website, “[t]he recalled commercial ...

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 April 4, 2024, the CPSC issued a warning urging consumers to “immediately stop using True Brothers refillable fuel bottles sold by Shenzhen Yinglong Industrial.” According the CPSC, bottles “pose a risk of poisoning and burns to children due to lack of a child resistant ... 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 March 28, 2024, the CPSC issued a warning urging consumers to “immediately stop using Elide Fire Extinguishing Balls due to failure to extinguish fires and risk of serious injury or death.” According the CPSC, “the products can fail to effectively disperse fire retardant ... 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 March 14, 2023, the CPSC announced the following recalls related to products that present fire hazards:

1. Best Buy Recalls Insignia® Air Fryers and Air Fryer Ovens Due to Fire, Burn and Laceration Hazards. According to the CPSC’s website, “[t]he air fryers can ...

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 March 14, 2024, the CPSC issued a warning urging consumers to “immediately stop using the extension cords, and destroy them by unplugging, cutting the cord, and safely disposing in the garbage.” According the CPSC, Faddare 16.4’ extension power Cords “have undersized ... 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 March 7, 2024, the CPSC announced the following recalls related to products that present fire hazards:

1. Anker EverFrost Lithium-Ion Battery Powered Coolers Recalled Due to Battery Fire Hazard; Manufactured by Anker Innovations. According to the CPSC’s ...

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 March 7, 2024, the CPSC issued a warning urging consumers to “Immediately Stop Using EVERCROSS EV5 Hoverboards Due to Fire Hazard; Sold on Amazon.com and Walmart.com.” According the CPSC, it “has received one report of a fire, resulting in substantial property damage to a ... Continue Reading

In Homesite Ins. Co. a/s/o Adam Long v. Shenzhen Lepower Int’l Elecs. Co., Ltd., No. 6:23-CV-981, 2024 U.S. Dist. LEXIS 22002, the United States District Court for the Northern District of New York (the Court) considered whether Homesite Insurance Company (the Carrier) sufficiently pled a strict products liability claim against Shenzhen Lepower International Electronics Company Ltd. (Shenzhen). Finding that the Carrier’s complaint did not plausibly allege a strict products liability claim under any of the three available theories of liability, the Court granted Shenzhen’s motion to dismiss the Carrier’s complaint under Federal Rule of Civil Procedure 12(b)(6).

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 29, 2024, the CPSC announced the following recall related to a product that presents a fire hazard:

The Home Appliances Recalls Camplux Brand Portable Tankless Water Heaters Due to Fire Hazard

According to the CPSC’s website, “[t]he portable water ... 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 21-22, 2024, the CPSC announced the following recalls related to products that present fire hazards:

1. EVAS 20 lb. Propane Exchange Tanks Recalled by Worthington Enterprises Due to Fire Hazard. According to the CPSC’s website, “[t]he recalled propane ...

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 15, 2024, the CPSC announced the following recall related to a product that presents a fire hazard:

Ocean State Job Lot Recalls “Growing Table-Mini Greenhouse and Raised Garden Bed” Due to Fire Hazard

According to the CPSC’s website, “[t]he ... 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 8, 2024, the CPSC announced the following recalls related to products that present fire hazards:

1. GPU Angled Adapters Recalled Due to Fire and Burn Hazards; Manufactured by CableMod. According to the CPSC’s website, “[t]he adapters’ male connector ...

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 1, 2024, the CPSC announced the following recalls related to products that present fire hazards:

1. BISSELL Recalls Multi Reach Hand and Floor Vacuum Cleaners Due to Fire Hazard. According to the CPSC’s website, “[t]he vacuum’s battery pack 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 January 25, 2024, the CPSC announced the following recall related to a product that presents a fire hazard:

Pacific Cycle Recalls E-Bikes Due to Fire Hazard

According to the CPSC’s website, “[t]he wiring harness that manages the charging of the lithium-ion ... 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 January 18, 2024, the CPSC announced the following recall related to a product that presents a fire hazard:

Bokser Home Recalls Mattress Pads Due to Fire Hazard and Violation of Federal Mattress Pad Flammability Regulation.

According to the CPSC’s website ... 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 January 11, 2024, the CPSC announced the following recall related to a product that presents a fire hazard:

Daikin Comfort Technologies Manufacturing (formerly Goodman Manufacturing Company L.P.) Expands Recall of Evaporator Coil Drain Pans to Include ... 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 January 4, 2024, the CPSC announced the following recall related to a product that presents a fire hazard:

Homedics Recalls Massagers Due to Fire and Burn Hazards.

According to the CPSC’s website, “[t]he massagers can overheat while charging, posing fire and ... Continue Reading