In August 2008, President Bush signed into law the Consumer Product Safety Improvement Act of 2008 (the "CPSIA" or the "Act") to enhance the powers of the Consumer Product Safety Commission (the "CPSC") in its protection of American consumers from unsafe consumer products. Among other aspects, the Act directs the CPSC to establish a means by which the public can be made aware of allegedly harmful incidents involving consumer products. Specifically, Section 212 of the CPSIA requires the CPSC to create and maintain a publicly available database to track reports of consumer product safety incidents. The database is slated to be fully operational in March 2011.
The database is to include reports of injury, illness, or death - or the risk of such harms - involving consumer products. Section 212 permits the following groups to submit reports to the CPSC for inclusion in the database: (1) consumers; (2) local, state, or federal government agencies; (3) health care professionals; (4) child service providers; and (5) public safety entities. The CPSC is given the task of monitoring these reports under the CPSIA and may, at its own discretion, correct, modify, or decline to post the data.
To the extent practicable, the CPSC must turn over an incident report to the manufacturer of the involved product within five business days of receiving the report. The manufacturer is then permitted to respond to the allegations contained therein. Within 10 days of receiving the incident report, the CPSC must post it on the database - affording very little time for manufacturers to respond or for the CPSC to investigate the accuracy of the alleged incident report and the manufacturer's response.
In September 2009, the CPSC submitted a report to Congress outlining its plan to create and maintain the database to track consumer product safety incidents. The report noted that the CPSC hoped to have a fully functional database - tentatively named SaferProducts.gov - by March 2011. This would be achieved in various phases wherein the CPSC would launch an awareness campaign, using such means as social networking sites, and solicit thoughts and feedback from key interested groups, including governmental entities, manufacturers/retailers, public interest groups, and consumers. The CPSC also explained that the database itself is to be user-friendly, in an effort to effectively and efficiently communicate information regarding products to consumers. Additionally, the CPSC noted its desire to have a technologically sophisticated database capable of allowing statistical analysis, among other tools, that would aid the CPSC itself in consolidating and assessing incident reports.
On April 15, 2010, the CPSC decided by a 3-2 vote to press forward with launching the database. The website, now accessible at SaferProducts.gov, is currently operational though not yet fully functional. Additionally, as part of its awareness campaign, the CPSC has launched certain interactive features, including its own blog, a Twitter account, and an associated Facebook page. As the CPSC pushes forward with launching a fully functional database, consumers will have greater power to publish their alleged accounts of product safety incidents and will have access to other self-described accounts of related claimed incidents. Despite the legitimate concern that the website poses a substantial risk for dissemination of inaccurate, premature, or incomplete reports of consumer product safety incidents, the CPSC has nonetheless voted to proceed.
The database may also ultimately prove to be a resource for use by plaintiffs' counsel. Accordingly, manufacturers and retailers must take care to respond in a timely fashion and with careful forethought to notices of pending safety incident reports provided by the CPSC. A manufacturer's and retailer's written response to notice of a pending safety incident report is potentially its first opportunity to explain or refute the nature and/or cause of allegedly harmful product safety incidents, as appropriate in the circumstances. While the CPSC is still determining how to best synthesize manufacturers' and retailers' responses and present them as part of consumer product safety incident reports available on the database, manufacturers and retailers should promptly seek the advice of counsel when confronted with notice of a pending consumer product safety incident report notice by the CPSC.
Jonathan Handler and David Lieberman wrote an article, "Citizenship of LLCs and Subject Matter Jurisdiction in the Federal Courts: A Serious Concern Begging for Resolution," for Bloomberg BNA's Securities Regulation & Law Report. The article is about how many practitioners fail to understand a key legal distinction between LLCs and corporations as it relates to their state of citizenship.
John Cerreta wrote an article, "Design Defects at the Connecticut Supreme Court: A Doctrine in Flux," for The Connecticut Law Tribune.
Paul D. Williams and Jennifer Shukla updated the Q&A guide "Initial Civil Appeals: Connecticut" for Practical Law. This Q&A addresses starting an appeal (as of right or by permission), obtaining a stay pending appeal, completing preliminary requirements (like mediation), submitting a factual record or appendix, briefing the appeal, arguing the appeal and requesting rehearing.
Jim Rotondo and Jennifer Shukla wrote an article, "Conn. High Court Modifies Design Defect Standards," for Law360. The article is about the significance of the decision in Izzarelli v. R.J. Reynolds Tobacco Co., 321 Conn. 172 (2016) (officially released May 3, 2016) nicknamed by the media as the "Good Tobacco" litigation. With the decision, the Connecticut Supreme Court altered the legal landscape in Connecticut for design defect product liability claims. The authors describe the case as "Connecticut Supreme Court’s attempt at finding a middle ground in a national debate about the best standard to use in design defect product liability cases." The plaintiff sued R.J Reynolds for allegedly intentionally manipulating the additives and nicotine content in its Salem brand of cigarettes to make the cigarettes more addictive and consequently more carcinogenic and won the first trial. The case established that the modified consumer expectations test, which involves balancing several risk and utility factors and will generally require expert evidence, is the default and primary standard for design defect cases in Connecticut. The case fits squarely within a national trend of moving away from the ordinary consumer expectations test in design defect cases.
Day Pitney Alert
John Cerreta was quoted in an article, "John Cerreta Talks Clerking for Alito, Commercial Litigation Changes" in the Connecticut Law Tribune.
Michael Furey was quoted in an article, "NJ Panel Grills Hospitals Over Discovery In Horizon Row," in Law360. Day Pitney is representing five New Jersey hospitals in a lawsuit against Horizon Healthcare, relating to its new, multi-tiered health plan called OMNIA. Furey advocated on behalf of the five hospitals on Wednesday before a New Jersey appeals court that Horizon should turn over a consultant's report and certain agreements relating to how Horizon categorized hospitals under its controversial OMNIA Alliance program and the impact of OMNIA on the hospitals. These Tier 2 hospitals are alleging various claims, including breach of contract and citing concerns that being ranked in the lower tier of the program will cost them business. Horizon contends the sought-after materials, including a financial analysis, strategic alliance agreements and rate agreements between the insurer and OMNIA network hospitals, contain trade secret and confidential information. "If we're going to prove our hospitals should be Tier 1 alliance members, we need the documents and the information," Furey said.
Ernie Mattei was recently re-elected to the Connecticut Bar Association's House of Delegates, the primary decision making and policy making body of the CBA, for a third term. In his role, Ernie will address recommendations to the judges with respect to amendments to the Code of Professional Responsibility, recommendations regarding the organization of the courts, and any changes to the Connecticut Practice Book. Mattei has been involved in the CBA for over 35 years, and is also a member of the Executive Committees of the CBA’s Insurance Litigation and Litigation Sections.
Boston, Mass., January 20, 2016 – Day Pitney is pleased to announce Jillian Hirsch, a partner in Day Pitney’s Litigation Practice, has been selected as one of Massachusetts Lawyers Weekly’s 2015 Lawyers of the Year. Honorees were nominated by their colleagues, clients and other legal professionals for their outstanding professional accomplishments.
Jonathan Handler was quoted in an article, "Injunction Secures Internet Access for Nonprofits" in the Fairfield County Business Journal. In the article, Handler describes the ongoing effort by Day Pitney to prevent Sprint Corporation from shutting off broadband access to more than 300,000 low-income and disadvantaged users plus schools, libraries, and other non-profits across the country. The Massachusetts Superior Court granted a 90-day preliminary injunction requiring Sprint to continue to provide broadband service, among other pre-judgment relief. Handler states "there is a notion out there that we're all out there at high speed. But large portions of the population, for financial reasons, are not." Those who rely on the services of the nonprofits the firm represents would be at "a real disadvantage" if broadband does not remain available.