November 22, 2007

Admissibility of CPSC Regulations Is Like Rolling Dice When It Comes To Complex Product Liability Cases

Article reprinted with permission from the September, 1995 Interbike Show Edition
Bicycle Retailer and Industry News

A Legal Viewpoint

By Steven W. Hansen

As I walk around Interbike meeting with various people, I am hearing much discussion about the Fiorito v. Mongoose case. And rightly so. As you may recall, a Northern California rider, Mark Fiorito, claimed that the front wheel suddenly fell off his mountain bike. He was badly injured. Fiorito successfully sued the distributor, Mongoose; the bike’s manufacturer, Merida; the fork's manufacturer, Spinner; and the Tiburon, California, retailer who sold him the bike. Manufacturers and legal experts are concerned by a decision the California judge made to exclude any reference at trial to federal regulations pertaining to quick-releases and positive retention features.

What Is the Regulation? Before discussing why the judge kept the jury from hearing about the federal regulations, let's take a look at what the Consumer Product Safety Commission (CPSC) has to say about wheel fasteners: The agency requires that wheels be secured with a positive lock device. Front hubs not equipped with lever-operated quick-release devices must have a positive retention feature to assure that when the locking devices are released the wheel will not separate from the fork. The term "positive retention feature" is undefined. But one section of the regulations indicates that the positive retention device must retain the front wheel after locking nuts have been loosened and a separation force of at least 25 pounds is applied to the hub on a line along the dropout slots.

The problem in the Fiorito case was that the bike was equipped with a quick-release front hub and a safety washer as opposed to forged tips or recessed dropout faces, which are harder to remove than the washers. On Fiorito's bike, which was bought second-hand, the devices had been removed or lost. The manufacturers argued that the CPSC does not require positive retention features on quick-release hubs. But Fiorito's counsel argued that the rule only states that they must be provided on nutted hubs, not on quick-release hubs.

Compliance Is No Defense. The most serious obstacle for the manufacturers was the judge's reliance upon a federal rule that provides, in part, that compliance with consumer product safety rules shall not relieve any person from liability at common law or under state statutory law. This does not mean that the quick-release provisions must be kept from the jury. Fiorito's attorney argued that allowing the jury to hear of the regulations would have prejudiced the jury in favor of the manufacturers. The jury may have thought the federal regulations were the last word on the subject and that liability could not be imposed if the manufacturer had complied with them. The soundness of this argument may be subject to attack on appeal.

Other Cases Shed Light. In Ramirez v. Plough, the California Supreme Court found that federal and state regulations governing the labeling of non-prescription drugs essentially required the court to adopt the standard set down by the legislature. Thus, the plaintiff had no cause for action against a drug manufacturer for failing to provide Spanish language warnings of an adverse reaction. The case did not address the issue of admissibility before a jury. The industry could avoid these types of arguments by enacting standards, such as those promulgated by ISO and ASTM.

Specific and up-to-date standards, with test results and certification to back them up, would help experts and attorneys defend these cases. In some cases, the admission of standards will make a difference in the outcome. But we need to create and use the standards first.

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