OSHA Inspections Can Get Costly; Manufacturer Hit With $1.7 Million In Proposed Penalties
Posted on Feb 19, 2015
While inspecting an injury at a furniture manufacturing plant in Wisconsin, OSHA expanded its inspection to the full facility and identified 12 alleged willful, 12 repeated, and 14 serious safety violations that carry a $1.76 million proposed penalty. OSHA also placed the company in the Severe Violator Enforcement Program. Specifically, OSHA cited the company for failing to take steps to protect workers from being injured by moving machine parts, failing to prevent machinery from unintentionally starting when workers were performing tooling and blade changes, and failing to provide...
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Federal Court Applies New Pennsylvania Test For Product Defects Retroactively
Posted on Feb 18, 2015
Following injuries sustained while using a table saw, the product user (plaintiff) sued the manufacturer for design defect alleging that the removable blade guard design was defective without active mitigation flesh detection technology. The U.S. District Court for the Middle District of Pennsylvania ruled yesterday that the design defect claims could go to the jury. In November 2014, the Pennsylvania Supreme Court adopted a new standard of proof to determine whether a product is defective. Specifically, a plaintiff can meet the consumer expectations test (showing that the danger is...
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Know What It Takes For Contract Clauses To Be Conspicuous Where Required
Posted on Feb 17, 2015
Company A’s predecessor entered into a contract with Company B’s predecessor to build a water pipeline and A promised B indemnity for claims resulting from A’s work. While building the water pipeline, Company A accidentally hit a methanol pipeline and caused a leak that was not discovered for more than 20 years when the owner of the methanol pipeline had to pay for the cleanup and then sought to recover expenses from Company A and Company B. Although A and B prevailed, Company B incurred more than $2 million in legal fees and sought to invoke A’s indemnity promise,...
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Eighth Circuit Upholds Exclusion Of Engineer’s Testimony On Ultimate Causation In Derailment Cases
Posted on Feb 17, 2015
Following train derailments in 2007 and 2010, a railroad brought suit against a services company alleging that the services company negligently reconditioned certain railcar axles, which caused the axles to fail and the resulting derailments. At trial, the jury found in favor of the services company and the railroad appealed. Before the trial started, the district court had granted part of a motion in limine to exclude one opinion of the railroad’s expert, specifically the ultimate opinion that the service company’s negligence caused the derailments. Last week, the Eighth...
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Claims For Willful And Wanton Conduct Against Railroads Not Precluded By New Jersey Law
Posted on Feb 13, 2015
Yesterday, the U.S. District Court for the Eastern District of Pennsylvania concluded that the New Jersey Railroad Immunity Act does not preclude claims for willful and wanton conduct. In the case brought by two plaintiffs struck by a moving train, they alleged that the train failed to stop immediately after recognizing that they were on the trucks. The court concluded that this allegation sufficiently alleged wanton conduct (i.e., recklessness) under New Jersey law: “If Defendant’s employees saw a person on the tracks and made the conscious decision not to stop the train,...
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Adjuster’s Only Duty To Insurer And Not To Insured Manufacturer Following Workplace Incident
Posted on Feb 12, 2015
An employee of a staffing agency was critically injured while working at an assembly plant when he was pulled into a laser cutting machine. The worker brought suit against the plant owner (the “Insured”). The Insured forwarded the complaint to its Insurer. The Insurer then assigned the task of handling the complaint to its Adjuster. The Adjuster notified the Insured that it had received the complaint and despite several assurances by the Adjuster that it was handling the claim, the Adjuster did not retain counsel to defend the Insured against the worker’s claims. On...
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Memorandum Prepared By Company President On Afternoon Of Deadly Incident Deemed Privileged
Posted on Feb 9, 2015
In litigation arising out of a worker’s death in a drilling rig incident, a party sought to withhold as privileged a memorandum prepared on the afternoon of the incident by the company’s president based on interviews and notes he conducted at the site of the incident. He addressed the memorandum to the company’s current counsel and to its former counsel. The other party to the litigation brought a motion to compel on grounds that the memorandum was not privileged and should be disclosed in response to the discovery request for “All documents which evidence, arise...
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