BIG BOX RETAILERS CAN BE SUED IN FAILURE TO WARN LITIGATION
In a typical failure to warn claim, plaintiffs' attorneys go after a product's manufacturer, usually claiming some kind of product defect that rendered the product hazardous to consumers and that the manufacturer failed to warn consumers of the dangers associated with the product. Defendants' attorneys usually counter that the product is not hazardous (or that the hazard is open and obvious) and, therefore, any warning they provided (or failed to provide) was either adequate or unnecessary. Plaintiffs' lawyers who only sue the manufacturer may be missing an important target in their litigation: the big box retailer who actually sells the product to the ultimate consumer of the product. The theory behind my proposition is that large retailers are basically in the real estate business. Instead of selling buildings, they are selling (or renting) shelf space, the availability of which is limited, for obvious reasons. So, just like a potential home buyer or renter must narrow their choices down from possibly several attractive housing choices, so does a large retailer have to choose among potentially hundreds (or more) of available products to put on their shelves. How do they do this?
If an actress wants a role in a Broadway play, they must audition for the part, usually in front of producers, directors, casting directors, writers, etc. who look for certain characteristics or traits in the actress to help them make their decision. Such is also the case when a manufacturer wants to convince a large retailer (e.g., Home Depot, Best Buy, Walmart's, Bed Bath and Beyond, or even Amazon...who has digital shelves) to put their product(s) on their shelves. The manufacturer basically auditions for the retailer's space by trying to convince decision makers for the retailer that their product meets the criteria set by the retailer and made available to the manufacturer typically in a guide book that contains lists of such criteria (e.g., profitability, availability, speed of delivery, product safety and product packaging requirements, among others). Some retailers even have separate product safety guidebooks and even employ their own staff who decide about safety issues, including what warnings are adequate as to their content, visibility and location.
Some large retailers may initially try to use "the dropped shoulder technique" as their defense: "Don't blame me, it's the manufacturer's responsibility to provide adequate warnings; we just pass on their warnings." If you're a plaintiff's lawyer, don't buy into that defense. Perhaps a couple examples may help.
In one case, I was working for a plaintiff's lawyer in Houston who sued the manufacturer of a work light that reached extremely high temperatures when used as intended, and in this case, the use was to illuminate the interior of a ship's hull while the plaintiff was sandblasting to remove rust from the hull. Shortly after the light was turned on inside the hull, the heat from the light ignited combustible fumes found in the interior, killing one worker and severely injuring another. The manufacturer of the light, in my opinion, had virtually no conspicuous warning to alert consumers of the very real danger of the light reaching temperatures approaching 1200 degrees F. The retailer, one of the nation's largest home products' big box retailers, at first claimed they just passed on the manufacturer's warnings. However, during discovery which included document production and deposition testimony, it became readily apparent that the retailer had not only a manufacturer's handbook containing many paragraphs describing their expectation that the manufacturer must follow all product standards and regulations relating to warnings and packaging, but also must meet the retailer's own standards (outlined in detail in a separate safety guide they made available to all auditioning manufacturers, which even included graphics appropriate for any warnings....all devised by their own full-time safety employees. Their goose was cooked when I testified that this retailer was actually "in the warnings business" and could prevent a product from reaching their shelves which didn't meet their standards. Ironically, a few years later in a separate case involving a different product, a ladder, sold by the same retailer, the retailer tried the same dropped shoulder defense, and even produced a ladder expert from their company who denied knowledge of such guidebooks or safety experts within the company. It may be that this ladder expert was being truthful in her ignorance rather than deceptive. I call this a case of "the left side didn't know what the right side was doing." Nevertheless, their goose was also cooked when I produced the documentary evidence.
Finally, even large digital retailers are vulnerable to claims of failure to warn about hazards found in products they sell on their digital shelves. Such was the case when a plaintiff purchased a dangerous pet that required a metal cage to avoid having the pet get loose and cause potential damage not only to home furnishings but also to humans. When the plaintiff conducted a search within the digital retailer's website for a cage to house this pet, a mesh cage appeared as one possible (and inexpensive) option. The plaintiff bought this product, resulting in the pet easily chewing through the mesh and seriously injuring the plaintiff's infant. There were no warnings on the digital retailer's website about this very hazardous possibility, and immediately after the lawsuit was filed, the retailer attempted to pull the product by deleting it from being listed as appropriate for this particular pet...but not before my client, the plaintiff's attorney, had procured a screen shot of the product listed for sale on the digital retailer's "shelf." Their goose was also cooked, and, no, the pet was not a goose.
The lesson both for big box retailers and their attorneys, as well as for eager plaintiffs' lawyers looking to add defendants to their lawsuits is quite simple. The retailer may indeed be a ripe target in a failure to warn claim, and should pay attention to the adequacy of the manufacturers' warnings BEFORE renting or selling their valuable shelf space to them. It's not just about the profitability of the product. More importantly, it's about the safety of the consumer.
Recent budget cuts at the Health and Safety Science Services (HSSS) have sent shockwaves through the scientific and public health communities, threatening the very infrastructure designed to protect us from disease outbreaks, food contamination, and medical crises. These cuts have affected food inspectors, vaccine scientists, Alzheimer’s researchers, and experts studying bird flu, among others—positions that are essential to ensuring public safety and advancing critical medical research. The consequences of these decisions will be dire, potentially reversing years of progress and exposing society to increased health risks.
As Elon Musk's Department of Government Efficiency (DGE) pushes for sweeping reforms and cost-cutting across federal agencies, concerns are mounting over the impact on critical public safety roles. Among the most alarming areas affected is the Federal Aviation Administration (FAA), where staff reductions may threaten the lives of millions of air travelers. The DGE, established with a mandate to streamline government operations and reduce bureaucratic waste, has come under fire for its aggressive downsizing tactics. Critics warn that essential safety personnel, including air traffic controllers, are being cut under the guise of efficiency, leaving the nation's airspace dangerously understaffed.
Biden Administration former Surgeon General, Vivek Murthy, on his way out of office, issued a Surgeon General's Advisory calling for new warnings on alcoholic beverages related to the cancer risk from consuming alcoholic beverages. Given that most individuals are unaware of the connection that consumption of alcoholic beverages can increase the risk for at least seven types of cancer, Murthy said in his advisory: "Given the conclusive evidence on the cancer risk from alcohol consumption and the Office of the Surgeon General's responsibility to inform the American public of the best available scientific evidence, the Surgeon General recommends an update to the Surgeon General's warning label for alcohol-containing beverages to include a cancer risk warning."
In my best-selling book, Murder, Inc.: How Unregulated Industry Kills or Injures Thousands of Americans Every Year...And What You Can Do About It , I propose a safety triad consisting of three components: manufacturers, regulators and consumers. All three must function properly in order to keep us safe. Manufacturers must produce and market safe (or safe as possible) products and warn us about any potential hazards so that we can make informed choices about whether or not to purchase their product and/or how to use it safely. Regulators , by imposing and implementing necessary rules and regulations, should hold manufacturers accountable for the above stated actions and to endure that they engage in "principled disclosure" by warning us about any potential hazards and dangers associated with their products. And, finally, Consumers , especially in the absence of well-meaning manufacturers or competent, well-intentioned regulators, must be highly diligent by researching products and learning about potential hazards prior to buying and/or using them. All three, manufacturers, regulators and consumers, must perform their jobs or the safety triad may fail to protect us and our loved ones. Think of a three-legged stool that distributes the weight of a person sitting on the stool, equally among the three legs. But what would happen if we leaned heavily to one side of the stool, essentially spreading the weight that was once borne by three legs to the two legs remaining braced to the floor. Unfortunately the third leg is no longer contributing to the stability of the stool, which may actually collapse because the two remaining legs may not be able to handle the amount of weight that was intended to be equally distributed among all three legs.
If you or anyone in your family has used, uses or plans to use such over the counter (OTC) remedies for the flu or common cold as Theraflu, Robitussin, NyQuil, DayQuil, Mucinex, Sudafed or even some versions of Tylenol or Advil, you may want to read this newsletter very carefully.
In an unprecedented, but, according to many social scientists and parents, a long overdue action, Surgeon General Vivek Murthy, in a June editorial in the New York Times, called for a warning label to be placed on all social media platforms. In the words of the Surgeon General:
If you are one of the millions of Americans who recently purchased one of several Boar's Head Deli Products, you may have bought a product containing deadly listeria bacteria. At least nine people have died and 57 have been hospitalized from a listeria outbreak linked to deli meat, according to the Centers for Disease Control and Prevention. In late July, Boar’s Head, a deli meat and cheese company, expanded a previously announced recall to include at least 7 million pounds of deli products the company says may have been contaminated by listeria amid a nationwide outbreak. The recall spans 71 products and includes meat meant to be sliced at retail delis along with prepackaged meat and poultry products sold at retail locations, according to the U.S. Department of Agriculture.
In my best-selling book, Murder, Inc.: How Unregulated Industry Kills or Injures Thousands of Americans Every Year...And What You Can Do About It (Hartford, Ct.:PYP Press, 2020), I discuss the need for "principled disclosure" from corporations about potential hazards that could hurt or kill us. I also discuss the role we as consumers play by seeking information about those hazards and finally, the role various regulatory agencies must play to initiate and enforce meaningful regulations on industry so that they do, indeed, engage in "principled disclosure" (i.e., tell the truth). In order to carry out its mandate, any regulatory agency or department charged with the responsibility of protecting the general public or consumers or workers and so on, must be empowered to both set the safety and hazard warnings rules and take aggressive, impactful action when they are not followed. Unfortunately, the U.S. Supreme Court, in a landmark 6-3 vote last month, overturned a 60-year old decision, colloquially known as "Chevron", which has the potential to undermine our government's regulatory agencies' ability to hold corporations accountable. What is the Chevron Decision and how could it impact your safety and well-being? In a unanimous ruling, the Supreme Court ruled against energy giant, Chevron, who challenged the Clean-Air Act, and instructed lower courts to defer to federal agencies when laws passed by Congress are not crystal clear. The 40-year-old decision has been the basis for upholding thousands of regulations by dozens of federal agencies, but has long been a target of conservatives and business groups who argue that it grants too much power to the executive branch, or what some critics call the administrative state. In the decades following the ruling, Chevron has been a bedrock of modern administrative law, requiring judges to defer to agencies’ reasonable interpretations of congressional statutes. But the current high court, with a 6-3 conservative majority has been increasingly skeptical of the powers of federal agencies. With a closely divided Congress, presidential administrations have increasingly turned to federal regulation to implement policy changes. Federal rules impact virtually every aspect of everyday life, from the food we eat and the cars we drive to the air we breathe and homes we live in. For example, the Biden administration has issued a whole host of new regulations on the environment, including restrictions from emissions at power plants and from vehicle tailpipes. Those actions and others could be opened up to legal challenges if judges are allowed to discount or disregard the expertise of the executive-branch agencies that put them into place. When you consider who was advocating for the overturn of Chevron, it does not bode well for consumers and their safety: groups representing the gun industry and other businesses such as tobacco, agriculture, timber and homebuilding, were among those pressing the justices to overturn the Chevron doctrine and weaken government regulation. Can you imagine the FDA being defanged by Chevron-influenced lawsuits to the point where tobacco could sell their products to teens or resume advertising on television, a practice banned by Congress since 1970. Or imagine OSHA (Occupational Safety and Health Administration) regulations being stripped away that protect worker safety? Or a CPSC (Consumer Product Safety Commission) challenged on its stringent toy regulations that are aimed at infant choking hazards? Or a Department of Agriculture no longer able to inspect meat with the rigor that industry now faces? Or a NHTSA (National Highway Traffic Safety Administration) no longer able to regulate the safety of our automobiles, especially now as we address the feasibility and safety of self-driving vehicles?
CNN recently featured its medical expert, neurologist Sanjay Gupta, narrating a very thorough documentary entitled "The Last Alzheimer's Patient" which, over a 5 year period, collected data on the latest research related to dementia, highlighting advances in new medications as well as in lifestyle changes, both of which offer promising developments that may, in some cases, reverse or, at least stop the advance of Alzheimer's, the most common form of dementia. What is Alzheimer's Disease (AD)? According to the Yale School of Medicine, AD "is a progressive disorder that damages and destroys nerve cells in the brain. Over time, the disease leads to a gradual loss of cognitive functions, including the ability to remember, reason, use language, and recognize familiar places. It can also cause a range of behavioral changes."
The following story is from one of my cases. I have changed the names to protect my client's identity.
