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As the lawsuits on behalf of the families of victims killed by metal shrapnel from defective Takata airbags mount, it is interesting to read about the strategy of plaintiff’s counsel in these cases.  The most recent Takata lawsuit was filed in Texas against Honda, TK Holdings (the U.S. division of Takata), the car dealership that sold the vehicle, and other defendants.

Under Virginia products liability law and in many other jurisdictions, parties who may be liable for an unreasonably dangerous product include but are not limited to manufacturers, component part manufacturers, retailers and distributors.  Generally speaking, the causes of action in a products liability case will be based upon theories of negligence and/or breach of warranty.  In Virginia, under either a negligence or a warranty theory, the plaintiff must show (1) that the product was unreasonably dangerous either for the use for which it would ordinarily be put or for some other reasonably foreseeable purpose, (2) and that the unreasonably dangerous condition existed when the goods left the defendants’ hands.   In states with similar products law, it often makes sense to sue only for breach of express and/or implied warranties and leave out the negligence count.  The reason has to do with the claims that are available against certain defendants and the legal defenses available to all defendants.

Distributors and retailers of a product typically have nothing to do with the design, manufacture or testing of the product.  The product is often received by them having already been packaged in a sealed container by the manufacturer.  In such instances, distributors and retailers are generally not subject to negligence claims.  In states whose warranty standards derive from the Uniform Commercial Code, however, all sellers of a product- including distributors and retailer – may be liable for breach of express and/or implied warranties.  The anticipated defenses to the case will often dictate whether to include counts sounding in negligence.  Negligence theories focus of the behavior of the parties while warranty theories focus on the condition of the property.  For example, in Virginia and in many states whose warranty law derives from the UCC, contributory negligence is not an available defense in a case involving breach of express or implied warranty.  In such states, it makes no sense to plead a negligence count if contributory negligence is a concern.  Similarly, in Virginia, the defense of “open and obvious” is arguably applicable only to a failure to warn claim.  While open and obvious should not be applicable to an airbag case, it is an example of reassons to be creative and strategic with one’s pleadings.  You may be able to take open and obvious out of the case by limiting the allegations to design or manufacturing defect and staying away from failure to warn.  The same analysis applies in Virginia and other states to the defense of “sophisticated user,” a defense which arguably is only relevant to the claim of failure to warn.  The author recently resolved a firearm accessory case by pleading the case so that the only available defense was “unforeseable misuse” of a vertical fore grip designed to fit on any standard firearm Picatinny rail.  The defense thought that the use by our client of the grip on a particular firearm was a misuse.  The issue was whether the use was foreseeable.

The recent Texas case focuses on Takata’s use of ammonium nitrate in its Takata airbag inflator assembly.  Takata is the only airbag manufacturer that uses this chemical compound in its inflators.  Various root cause analyses, including one funded by Takata and the auto industry, have concluded that ammonium nitrate is an unstable compound, particularly when exposed to high temperatures and humidity.  The attorney for the family of the Texas teen who died in a minor auto crash in March when metal shards shot out from her Honda Civic’s  airbag into her neck was quoted by a local Houston newspaper as saying,

Every time you expose ammonium nitrate to 90 degrees Farenheit or higher and then it goes below 90 degrees, it decomposes and breaks down-the same process every time.  Extensive exposure to such eventually causes it to become so degraded that when subjected to a shock, instead of simply releasing the gas, the compound detonates.

Sounds like a straight forward design defect case, which could be brought against the car manufacturer (Honda, which is a major shareholder in Takata), the airbag manufacturer (Takata), and all sellers in the chain, including the car dealership.  Takata has known about the problem with its inflators for a long time and has allegedly been manipulating test results to cover up the problem since about 2000.  See recent Legal Examiner articles on Takata manipulating data and the cause of Takata airbag failures.


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