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Law Offices of Jonathan M. Cooper

New York Noncompete, Trade Secret & School Negligence Blog

This blog by the six-time published author Jonathan Cooper, is intended to educate the general public about issues of interest, particularly innovations and changes in the law, in the areas of non-compete agreements, breach of contract matters, school negligence (and/or negligent supervision), construction accidentsslip and/or trip and fall accidentsauto accidents, and, of course, defective or dangerous products

For additional information on any of these topics, readers are encouraged to download these FREE e-books:

 


8/13/2009
Jonathan Cooper
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Earlier today, the U.S. Consumer Products Safety Commission issued a press release reminding everyone in the chain of distribution of children's products, from manufacturers and distributors to resellers and retailers that many of the provisions of the Consumer Product Safety Improvement Act become effective tomorrow.

Interestingly, one of the provisions of the Act that has received the least attention (most of the Act is focused on the lead level in children's toys) may have the most promise in terms of its likelihood to improve product safety: new labeling requirements.

Under the Act, manufacturers are now required (unless manifestly impractical) to put permanent tracking labels on any consumer product that is targeted for use by children aged 12 and younger. These tracking labels must identify the name of the manufacturer and its location, the date the product was manufactured, and must specify information from the manufacturing process itself, including the lot or batch number.

The immediate and practical benefits to this provision are twofold:

  1. At the first hint that a product may be defectively designed, and a recall may be needed, it will be far easier to identify which specific products need to be recalled, and concurrently, to track where the recalled products were sold. As a natural consequence, it should make product recall efforts far simpler and more effective.
  2. It will help claimants who have been injured by a defective product to identify with greater specificity the potentially responsible parties, and thereby reduce the litigation costs borne by parties with no real connection to the products at issue.


Category: Keyword Search: manufacturer

7/28/2009
Jonathan Cooper
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The 5 Ways To Prove Your Defective Products Claim Under New York Law

In this blog article, published author of Why There Are So Few Successful Defective Products Lawsuits, and Long Island, New York products liability lawyer Jonathan Cooper explains the 5 essential causes of action, or claims, that are typically brought in lawsuits involving a dangerous product that caused personal injuries. For additional information, please visit www.JonathanCooperLaw.com

Category: Keyword Search: manufacturer

6/18/2009
Jonathan Cooper
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Zicam Recall Highlights Difficulties in Pursuing Defective Products Claims in New York

In this article, New York consumer product recall and defective product lawyer Jonathan Cooper discusses why the mere fact that a product was recalled does NOT mean that the company issuing the recall concedes that the product was, or is, defective, or that their product was responsible for causing damage or harm to any particular consumer. For additional information on this important topic, and how it may affect your potential products liability case under New York law, please order or download a copy of Jonathan Cooper's FREE guide to New York products liability claims at www.ProductsLiabilityBook.com.

Category: Keyword Search: manufacturer

5/15/2009
Jonathan Cooper
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In the wake of numerous defective product recalls, particularly regarding defective food products such as salmonella-tained peanut butter and pistachio nuts that were unprecedented in their scope or magnitude, the Grocery Manufacturers Association has published its proposals to improve the efficiency and efficacy of defective product recalls under the title Prevention, Partnership and Planning: Supply Chain Initiatives to Improve Food Safety.

This is not their first initiative; it is their third initiative since 1997, and their second this year. Unfortunately, that begs the question: does this new initiative mean that they are to be lauded for being responsive, or does it mean that their proposals and initiatives either have been, or are, inadequate, ineffective and untimely?

A brief review of the GMA's proposals indicates that they are focused in 3 primary areas:

  1. Bringing Product Recalls Into the 21st Century: The Food Marketing Institute (FMI) and GS1US have jointly created  a centralized internet-based product recall database in order to help assure that defective product recall information is more easily shared across the chain of distribution for these recalled products, from the manufacturers and distributors, all the way down to retailers. In this fashion, it is hoped that hazardous or defective products can be taken off the store shelves, and removed from the marketplace more quickly and efficiently.
  2. Using Accredited Third Parties to Audit Food Safety: The report urges the adoption of universal food safety criteria that will be put together by a recognized entity, such as the American National Standards Institute (ANSI), to reduce the occurrence and risk of tainted food reaching consumers.
  3. Updating the Good Manufacturing Practices (GMPs) for Food: The Food and Drug Administration is currently updating its regulations as to the proper handling, storage and preparation of food products.

While none of these proposals are particularly bad, my concern is that they share an important common denominator: each proposal passes the buck onto someone else, whether the FMI, third-party auditors or the FDA. Moreover, these proposals would not appear to have any real chance of success in assuring compliance by smaller downstream retailers who are neither memebers of the GMA, nor technologically adept. And I suspect that a significant amount, if not the majority, of retailers fall into this category. Unfortunately, I think these proposals are doomed to fail before they leave the starting gate, and fall far short of the hope I had expressed in New Report Finds Government Recalls of Defective Products Ineffective.


Category: Keyword Search: manufacturer

5/1/2009
Jonathan Cooper
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KXAN of Austin, Texas recently reported on the Consumer Products Safety Commission's issuance of a recall of this dangerous home gym equipment which poses a major safety hazard to users of the defective product, as there is a risk of suffering serious personal injuries, particularly amputated fingers.

Category: Keyword Search: manufacturer

4/26/2009
Jonathan Cooper
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After a trial that recently took place in Brooklyn's federal court, a jury found that Black & Decker, which manufactured the lawnmower, was liable to the plaintiff, who lost his fingers in the cutting blades of one of its lawnmowers, because the lawnmower was defectively designed. The significance of this case lies in the second part of the jury's finding, however: although the jury held that the lawnmower was defectively made, in that the Black & Decker lawnmower's on/off switch was too readily turned on, which was a safety hazard, and further held that this defect was a significant factor in causing the plaintiff's personal injuries, they also held that by forgetting to unplug the mower before performing maintenance on the machine, the plaintiff was 90% responsible for his own accident. Consequently, despite finding that the plaintiff's loss of his fingers was worth $2 million, the plaintiff was only awarded $200,000.

So, why is case is blog-worthy? Because it provides one of the clearest demonstrations of how New York's comparative negligence doctrine works in a practical way. More importantly, I believe that this case shows the wisdom of some facets of our judicial system, in this case, the comparative negligence doctrine.  Although some might be inclined to side with Black & Decker in this case, and might even go so far as to say that the plaintiff should never have brought this lawsuit, especially considering the high degree of culpability that the plaintiff bore for his own accident (I admit that I probably would have rejected this case had it come to my office for this very reason) I think that this attitude is wrong both on public policy grounds, as well as for this specific case and plaintiff. Simply put, had this case never been brought, Black & Decker would have had no incentive to make their lawnmower safer for consumers by making it more difficult to accidentally engage the power switch, even though it is apparently a relatively simple modification. And without this case, the plaintiff would have been denied monetary compensation that Black & Decker owes him for their share of the fault for his accident.


Category: Keyword Search: manufacturer

4/23/2009
Jonathan Cooper
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After reviewing the Consumer Products Safety Commission's progress reports regarding 25 recalled products and finding that several of the reports were either completely lacking critical information or internally conflicted, non-profit group Kids In Danger concluded in its annual report that the CPSC could not effectively determine whether these recalls were in fact successful or effective. In addition, the report opined that the CPSC's oversight of its product recalls was insufficient, because not enough was or is being done to notify consumers of the product recalls, as a result of which many of these dangerous products are remaining in consumer's homes or school facilities, rather than being taken out of circulation.

The CPSC's response to this report, which predictably defended their record on the recalls, also contained a somewhat interesting claim: according to their spokesman,  the primary method by which the CPSC  determines if its recalls are working is by waiting to see whether they are still receiving reports of problems with the product.

From this statement, it seems like the CPSC's follow-up on any one of its product recalls is largely, if not purely, reactive. Thus, theoretically, the CPSC would determine that one of its recalls failed only after someone suffered a tragic accident or traumatic personal injuries.

I, for one, would have hoped that this massive governmental agency, whose mission statement accepts responsibility for assuring the safety of our children from unsafe toys and other recreational and household products, would have a far more scientifically sound and proactive method for assessing the success of a product recall.



Category: Keyword Search: manufacturer

3/8/2009
Jonathan Cooper
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As noted in our news section, a New York jury recently held that the manufacturer of a conveyor system was not liable for the personal injuries suffered by a man whose hand was caught in the machinery. Although the plaintiff's personal injuries in this particular case were severe, it certainly seems - at first blush - like the plaintiff pursued the wrong defendant.  Here's why:

In this case, the plaintiff claimed that the manufacturer should be held responsible for the serious injuries he sustained because the manufacturer should have warned against setting up the machine in close proximity to a table and offloading tray, since such a setup posed a risk of his hand getting caught in the gap between them. To say the least, this is a weak theory of liability, and the jury apparently concurred.

In rendering their verdict, the jury agreed with the defendant manufacturer's assertion that the defendant should not be held liable in negligence or otherwise, because there was no evidence that the product they manufactured was defective, and they should not be held responsible to warn against a dangerous condition that was created by the user (i.e., plaintiff's employer) rather than them.

This raises an important question: presumably, the plaintiff knew there was a weak case against the manufacturer. So why did plaintiff sue the manufacturer rather than what was presumably a much stronger case against his employer? The answer lies in the Workers' Compensation Law, which bars a claimant from suing his employer for work-related personal injuries unless he sustains one of the specifically delineated categories of  "grave injury" set forth in Workers' Compensation Law §11. Realizing the limitations imposed by the law, the plaintiff elected to pursue the only other potentially liable defendant - the manufacturer.

Category: Keyword Search: manufacturer

2/15/2009
Jonathan Cooper
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As noted in the News and Small Business sections of our site, a small construction materials supplier by the name of Screws and More has decided to go after one of the nation's largest construction materials manufacturers, Powers Fasteners, claiming that some of the parts Powers provided did not meet specs, and cost Screws a large line of business. Although the contracts between the manufacturers and suppliers are often slated in the manufacturers' favor, and expressly limit the manufacturers' liability, there are certain elementary steps that a small commercial supplier should take to assure that it does not lose any important jobs due to the failure of its manufacturer's products. To read more on this topic, click here.

Category: Keyword Search: manufacturer