Showing posts with label Product Liability Cases. Show all posts
Showing posts with label Product Liability Cases. Show all posts

May 14, 2022

Why interoffice emails that discuss potential product issues are a long term land mine for businesses

While not strictly a product liability action but a Song Beverly Warranty action available to vehicle buyers in CA, Bowser v Ford Motor Co. (May 2022) exemplifies the problems with “bad” internal company emails being created as well as long threads which loop different people in and out of the thread and even loop in parties outside the corporate entity. Needless to say email is very dangerous when not used properly and our office counsels clients all the time on best practices for ensuring that internal emails do not end up becoming an damning exhibit in a case against them or even another company. These days very often employees want to text, chat or email a free flowing “discussion” which really should be conducted on the phone or conference call. Failing to heed that one simple rule creates lots of headaches down the road that cannot be “undone”. Keeping outside legal counsel active in the thread discussion of the “issue” goes a long way to defeating claims of admissibility. But there are also limits to that practice as well which is the subject of another posting. Using social media of course is even worse than email and this article only address internal company emails (not communications outside the company). We are also not delving into the courts discussion of the depositions used against Ford that were taken in another action as that is another long analysis for another post (and most entities do not run into that situation as often as the email problem). The decision (Bowser v Ford Motor Co.; decision issued May 2022) is a great read however it is 83 pages long. It is available here.

I quote liberally from the decision below but of course I have only taken out the essential parts of the ruling at issue here and tried to ensure clarity and continuity in the relevant portions of the decision.

The purchase price of the 2006 Ford truck in question was $43,084.68. Mr. Bowser (the plaintiff) reviewed literature at the dealership that said “the Ford Super Duty [was] the best in class, having the best performance, highest quality.”

Over Ford’s objections, the Bowsers introduced a number of internal Ford emails and presentations. These showed that Ford was aware that certain parts of the 6.0L engine, including fuel injectors, turbochargers, and EGR valves, were failing at excessive rates, and that Ford was struggling to find the root cause of some of these failures. Some of the emails said that this information should be kept secret.

The Bowsers sued Ford, asserting causes of action under the Song-Beverly Consumer Warranty Act (Civ. Code, § 1790 et seq. [Song-Beverly or Song-Beverly Act]) and for common-law fraud. Ford conceded liability under the Song-Beverly Act. A jury found for the Bowsers on all causes of action. It awarded compensatory damages ($42,310.17 under the Song-Beverly Act; $43,084.68 for fraud), $84,620.34 as a statutory penalty under the Song-Beverly Act, and $253,861.02 in punitive damages. The Bowsers elected to recover compensatory damages under the Song-Beverly Act rather than for fraud. The trial court awarded them $836,528.12 in attorney fees plus $94,264.99 in costs.

Ford appealed. It contended that the trial court erred by admitting the internal Ford documents, because they were inadmissible hearsay.

The Bowsers introduced a number of internal Ford emails and presentations (I am only highlighting a few for the purposes of showing the efforts to keep them secret):

In one email in the chain, dated May 29, 2002 (note how hold this email is), Freese noted that the turbocharger of a test vehicle had failed. There were “[n]ew concerns” about “loose injectors.” He requested a “[r]oot [c]ause [d]efinition,” a “[c]ontainment [p]lan,” and a “[c]orrective action plan.”

Exhibit 42 was an email chain dated November 2002 sent by Steven Henderson. Henderson’s title was Power Train Purchasing Manager. He said, “[W]e’re in the middle of 6.0L launch, and . . . things are not going well. J1 was delayed a full week for [Navistar] to work on the issues, but they are not fully resolved yet.”

Exhibit 47 was an email chain including a September 2004 email sent by Frank Ligon. Ligon’s title was Director of the Customer Service Division. He said Ford was “putting together a comprehensive strategy to bring all 6.0 up to standard.” “We are seeing a new group of concerns that range from chaffing [sic] of various wire harnesses causing drivability concerns, sensors that are failing at a high rate and turbo concerns.” “At this point we do not have a definitive repair action . . . to properly address the concern universe.” “Bottom line is we are not ‘out of the woods’ on this 6.0 and in fact may experience repeat symptoms once certain repairs are performed . . . .” The email was marked “privileged and confidential.” It added, “This is very confidential!!!” “I strongly urge that this information NOT be shared at this time until the ‘official’ action is announced.”

Exhibit 198 was a PowerPoint-style presentation dated February 2006. No author was indicated. It was entitled, “ITEC and Large Diesel Strategy Review.” It was labeled, “Ford secret draft.”

Exhibit 64 was an email chain dated February 2006 sent by Koszewnik. It said, “FYI only. Don’t forward or reference.”

The court addressed the hearsay objections to the emails (those above and many others) as follows:

There is a hearsay exception for a statement by the opposing party: “Evidence of a statement is not made inadmissible by the hearsay rule when offered against the declarant in an action to which he is a party . . . .” (Evid. Code, § 1220.) A corporation, however, can speak only through its officers and agents (employees included in “agent”). Accordingly, statements assertedly made by a corporation are not usually analyzed as party admissions under Evidence Code section 1220, but rather as authorized admissions under Evidence Code section 1222.

The court held “an assertion made by an agent in the course and scope of the agent’s employment, when offered against the principal by a party-opponent, no matter to whom the assertion was addressed.” California cases also hold that a statement by one employee to another was an authorized admission of the employer. It need only be shown that the agent’s statement “concerned a matter within the scope of the declarant’s employment and was made before that relationship was terminated.”

“Whatever is said by an agent . . . , either in the making of a contract for his principal, or at the time, and accompanying the performance of any act, within the scope of his authority, . . . of the particular contract or transaction in which he is then engaged, is, in legal effect, said by his principal, and admissible as evidence . .” Also when based on evidence of the declarant’s duties and responsibilities, it can apply to lower-ranking agents.

“In general, the determination requires an examination of the nature of the employee’s usual and customary authority, the nature of the statement in relation to that authority, and the particular relevance or purpose of the statement. A statement is “admissible as an authorized admission only where a proper foundation has been laid as to the declarant’s authorization to speak on behalf of the party against whom the statement is offered.”

The once concession made to Ford, (which did not really help them) was “The declarations of an [alleged] agent (employee) are not admissible to prove the fact of his agency or the extent of his power as such agent. [Citations.]”. “Hearsay statements in the documents themselves cannot be used to prove that they were authorized admissions.” For example, the fact that Koszewnik’s email signature described him as “Director, North American Diesel” cannot be used to prove that he actually was Ford’s Director of North American Diesel.

So clearly 20 year old emails in this case were a problem for Ford. The other problem is that email tends to exist on servers outside of your control and has backup and retention policies that don’t align with your company’s own policy. So think twice before sending that email to someone else in the company. Should you pick up the phone first rather then later on write a “better” less inflammatory open ended no resolution email?

Law Offices of Steven W. Hansen | | 562 866 6228 © Copyright 1996-2022 Conditions of Use

September 18, 2021

Amazon's new 'guarantee' policy seeks to mollify consumers, streamline claims process

Originally Published in Bicycle Retailer and Industry News 
Reprinted with permission 

August 17, 2021

Amazon just announced a new type of "guarantee" or "support" that it is calling the A-to-Z Guarantee (AZG). Actually, this is not new; it was introduced more than 20 years ago, but is now "improved." In Amazon's own words, from its full official press release:

"Now, in the unlikely event a defective product sold through causes property damage or personal injury, Amazon will directly pay customers for claims under $1,000 — which account for more than 80% of cases — at no cost to sellers, and may step in to pay claims for higher amounts if the seller is unresponsive or rejects a claim we believe to be valid."

Interestingly, in the fine print (A-to-z Claims Process Terms and Conditions), Amazon also states, "The Process is not insurance or a warranty, and it does not replace any applicable insurance or warranty that may be available to you."

As you can see there are a lot of loaded words in this AZG press release, what my contracts professor liked to call "weasel words." It's hard to imagine any personal injury or property damage claims being "resolved" for under $1,000. The other issue that is left somewhat in the dark is what would be in the release that Amazon surely would require a consumer to sign. I suspect it would be a global release barring any suit against anyone or any company from future claims. And of course, the issue of what to do with minors under 18 is not addressed. Those settlements require court approval. Further reading of the details notes that you would also have to assign all your claims rights to Amazon ... "so that we can pursue recovery from other sources in our discretion."

What is more interesting is how Amazon will fund this. One has to assume the money is not coming out of Jeff Bezos' yacht fund, given how many claims this would likely encompass. On the one hand, this is AZG is only for products sold through (presumably Fulfillment by Amazon) and apparently does not cover those items sold through any "third-party sites" (Fulfillment by Merchant). This will add confusion to the process, especially with consumers as most do not know if they are getting an FBA product or FBM product. Some aspects of the AZG cover FBM, but the new part regarding injury claims apparently does not. One has to assume this funding is being arranged through Amazon's insurance coverage, the suppliers' coverage (naming Amazon as "additional insured"), or perhaps through Amazon withholding payment to sellers for claims that it has deemed "bonafide" (or a combination of all three sources). Amazon insists this payment is at "no cost to sellers." However, upon further reading, Amazon only commits to "Pay valid claims less than $1,000 and not seek reimbursement from sellers who have valid insurance." We assume "valid" insurance would mean insurance that actually pays Amazon for the claim; if it does not pay the claim, then Amazon could go after the seller directly.

After further reading the Terms And Conditions, it states "Any offers of compensation made through the A-to-z Claims Process will be limited to (a) the purchase price of the product; and (b) compensation of up to $1 million for medical expenses, lost wages, and property damage approximately caused by a defective product. Amazon will not offer to compensate you for non-economic damages, business losses, consequential and incidental damages, attorney fees, punitive damages, or other losses." So it seems the payment limit is much higher than the $1,000 limit. But Amazon will only step in above that limit if the seller's insurance kicks in. It also appears that no "pain and suffering" amounts will be paid, which makes up the vast majority of most settlements and verdicts, and so the reality is for any sizable personal injury claims this process is not realistically going to resolve anything.

As a further restriction, you only have 90 days to make an AZG claim, whereas under most state laws, you would have 2-5 years to bring suit and typically for minors until they are 18. Also, all other terms and conditions apply to the AZG Claims process, including but not limited to choice of law and dispute resolution provisions. One would have to assume that it would be a binding arbitration proceeding and that the company providing the arbitrators would find itself out of business quickly if it were deciding against Amazon too often.

Again the more interesting part of this deal is the funding, administration and the entire claims process, which brings us to part two of the equation: liability insurance. Amazon partnered with Marsh McLennan, the largest insurance broker in the world, and a number of U.S. insurers to offer insurance to its sellers. Per the Amazon seller central site: "Effective September 1, 2021, once you reach $10,000 in gross proceeds in any month, you are required under your selling agreement with Amazon to carry commercial liability insurance with limits of at least $1 million in the aggregate and name Amazon as an additional insured" and of course the "stick" part: "If you do not obtain the required insurance, we will seek reimbursement for costs we incur in resolving claims, regardless of sales thresholds, unless we agree to waive our right to reimbursement. We may also restrict you from selling in a particular category or even suspend your account until you provide proof of insurance." Of course, Amazon sellers remain free to use their own insurance brokers and insurer to obtain the required insurance, and it remains to be seen if the Amazon consortium of brokers and insurers ends up being cheaper.

In addition to leaving out the FBM side of Amazon, the insurance program appears to be open only to U.S.-based sellers. This of course is a huge loophole in the entire process as most of what Amazon sells is from sellers outside the U.S. That of course is a much thornier problem that Amazon's AZG process does not seem to deal with at all. It's not clear what percentage of non-U.S. manufactured goods are actually sold to Amazon by third-party sellers within the U.S. on the FBA side.

Surely, the state court's assault — or rather plaintiff attorneys' assault on Amazon — in the last two years (with most of the anti-Amazon appellate rulings coming out in the last 12 months) has had some role in this new process being rolled out. As I and the courts predicted after the Bolger v Amazon case this would accelerate Amazon's process of passing the "product liability" cost along to its sellers and forcing them to get coverage. This is exactly what the courts in their rulings have stated; that a large player in the consumer products marketplace, like Amazon, has the financial clout and bargaining strength to require its millions of sellers to get the required insurance. The courts were right. Amazon is doing just what they predicted. Holding Amazon liable as a seller has forced it to push that liability back upstream.

Finally, there is Amazon's fight with the CPSC, which may also be somewhat related to this. Amazon may be using this new AZG accelerated claims process to burnish its image with the CPSC, portraying itself as a responsible company that cares about consumers and their safety. But again the recall responsibility is separate from the product liability responsibility (although the two are linked) and it remains to be seen who will win in the CPSC fight.

There are many unanswered questions on this process, and surely changes will be implemented as Amazon goes along or it might totally change the program. We also do not know to what extent the plaintiff's bar will create ancillary litigation just out of this process alone. I am sure that and other large platforms trying to compete with Amazon are watching closely. Infusing this much insurance coverage and related administration costs into the consumer goods market that was previously uninsured is not only going to cause consumer goods price inflation, as if we don't have enough already, but there will be a huge shift of money into insurance coffers. With increased prices we know who benefits. Amazon. We also do not know what percentage of FBA (or FBM) sellers are uninsured currently.

Another thing we know about Amazon is that it likes to take over many aspects related to consumer product sales (after watching third parties work in a market segment for years like FedEx). Look at Amazon Web Services and Amazon shipping for example. So the next question is when will Amazon get into the lucrative insurance brokerage market or claims administration business? Amazon has certainly upped its game in the consumer goods business. It will be very interesting to watch this play out over the next two years.

Steven W. Hansen is an attorney who represents product manufacturers, distributors and retailers in product liability and other lawsuits and provides consultation on all matters related to the manufacture and distribution of e-bikes and other consumer products. For further questions visit or email

The information in this column is subject to change and may not be applicable in your state or country. It is intended as a thought-provoking discussion of general legal principles and does not constitute legal advice. Any opinions expressed herein are solely those of the author.

Law Offices of Steven W. Hansen | | 562 866 6228 © Copyright 1996-2020 Conditions of Use

August 23, 2020

California Court rules that Amazon does have liability for a defective product (Bolger v LLC)

This article was reprinted with permission from Bicycle Retailer and Industry News  

By Steven W. Hansen, Esq. 

Update 11/19/20: The California Supreme Court on 11/18/20 denied LLC’s bid for judicial review of this case decided earlier this fall. So that mean this case is now a legally cite-able precedent and is "the law" in Calif.

An appeals court in California ruled Thursday that Amazon is not shielded from liability for defective products sold by third-party sellers through its online marketplace.

Nationally this California Appellate case is one of the first decided against Amazon holding them directly liable for a defective product sold on its marketplace. It remains to be seen what happens on somewhat similar cases pending in state and federal courts throughout the country. On a related issue, the California Legislature is considering a bill (AB-3262 Product liability: electronic retail marketplaces) that would treat “electronic retail marketplaces” like retailers for purposes of California strict liability law. The future of this bill is uncertain and most if not all of California law regarding product liability is case law not statutory law.

The plaintiff in the California case, Angela Bolger, bought a replacement laptop computer battery on in 2016.

The listing for the battery on Amazon identified the “seller” (“sold by”) as “E-Life,” a fictitious name used on Amazon by Lenoge Technology (HK) Ltd. (Lenoge). Amazon charged Bolger for the purchase, retrieved the laptop battery from its location in an Amazon warehouse, (as this was an “FBA” sale or “fulfillment by Amazon”) prepared the battery for shipment in Amazon-branded packaging, and sent it to Bolger. Bolger alleged the battery exploded several months later, and she suffered severe burns as a result.

Interestingly a month after the purchase Amazon suspended Lenoge’s selling privileges because it became aware of a “grouping” of safety reports on Lenoge’s laptop batteries and Lenoge did not respond to Amazon’s requests for documentation. Three weeks later, Amazon permanently blocked Lenoge’s account.  Bolger sued Amazon in January 2017 and several other defendants, including Lenoge, alleging causes of action for strict products liability, negligent products liability, breach of implied warranty, breach of express warranty, and “negligence/negligent undertaking.” Lenoge was served but did not appear, so the trial court entered its default. Other entities were sued as well but foreign service of process was going to take 2-3 years. Three months after suit was filed, Amazon sent Bolger an email warning her that Amazon had learned that the Lenoge replacement battery “may present a fire hazard or not perform as expected…If you still have this product, we strongly recommend that you stop using the item immediately.”

What is most interesting to us is that there is no record of any CPSC recall regarding this battery or related companies which would be required before any notification were sent to a consumer regarding a safety issue; unless of course Amazon did not consider itself a seller or in the retail chain. Ironically there is still an Amazon seller named “Lenoge” selling laptop batteries on the site as of this writing.

After almost two years of litigation, Amazon moved for summary judgment, arguing primarily that the doctrine of strict products liability, as well as any similar tort theory, did not apply to it because Amazon did not design or manufacture the product, sell or distribute the battery, set the price, provide a warranty, or control the terms of the product offer. Similarly, Amazon argued it was not involved in sourcing the subject battery from the manufacturer or upstream distributor.” Amazon also submitted a declaration from an Amazon senior manager responsible for product safety, investigations, and recalls who asserted that “E-life retained title to the battery at all times,” and “E-life was also responsible for ensuring the battery that it sold to [Bolger] was properly packaged and complied with all applicable laws.” The Amazon manager acknowledged Amazon’s A-to-z Guarantee, but she denied it was a warranty. She stated, “The only warranty provided for a product comes from the third-party seller.”

The trial court judge agreed with all of Amazon’s factual and legal arguments (even though there were likely disputed facts that could have prevented the motion from being granted), and granted Amazon’s motion, and entered judgment accordingly. 

The three-judge panel at the Court of Appeal, strongly disagreed in a very well reasoned decision. We strongly urge readers to take a look at the opinion starting at page 18 as it pretty much lays out the entire basis of product liability in California and how Amazon’s attempt to shield itself from liability was really a smokescreen for its true role in the chain of distribution.

Initially the court pointed out that “Essentially the paramount policy to be promoted by the [product liability doctrine] is the protection of otherwise defenseless victims of manufacturing defects and the spreading throughout society of the cost of compensating them.” But “the facts must establish a sufficient causative relationship or connection between the defendant and the product so as to satisfy the policies underlying the strict liability doctrine.” The court looked at older decisions where product “facilitators” had benefited from service charges in providing the product and finding liability as the “overall producing and marketing enterprise is in a better position to insure against the liability and to distribute it to the public by adding the cost thereof to the price of the product.” 

One of the key factors (although perhaps not the deciding factor) in this case was that the Lenoge supplier was participating in the FBA program with Amazon. The court painstakingly went thru the process of how the battery got from Lenoge to Amazon and from Amazon to the consumer and that Amazon was an “integral part of the overall producing and marketing enterprise that should bear the cost of injuries resulting from defective products.”. The court painstakingly went thru all of the policies underlying the doctrine of strict products liability to confirm that the doctrine should apply.

First, Amazon, like conventional retailers, may be the only member of the distribution chain reasonably available to an injured plaintiff who purchases a product on its website. 

Second, Amazon, again like conventional retailers, “may play a substantial part in insuring that the product is safe or may be in a position to exert pressure on the manufacturer to that end; the retailer’s strict liability thus serves as an added incentive to safety.”

Third, Amazon, like conventional retailers, has the capacity to adjust the cost of compensating injured plaintiffs between itself and the third-party sellers in the course of their ongoing relationship.

Amazon focused on dictionary definitions of “seller” and “distributor” and claimed it could not be held strictly liable because those definitions do not apply to it. It characterized its business as a service, i.e., a forum for others to sell their products, and therefore outside the rule of strict liability. The court felt Amazon’s arguments were unpersuasive.

First, regardless of whether Amazon selected this particular battery for sale, it chose to host Lenoge’s product listing, accept Lenoge into the FBA program, take possession of the battery, accept Bolger’s order, take her payment, and ship the battery to her. Amazon was therefore part of the chain of distribution even if it did not consciously select the Lenoge replacement battery for sale. Second, and more fundamentally, Amazon did choose to offer the Lenoge replacement battery for sale. Amazon was no mere bystander to the vast digital and physical apparatus it designed and controlled. The court reasoned Amazon made these choices for its own commercial purposes and so it should share in the consequences.

Many of the arguments Amazon asserted were contradictory. For example, Amazon argued that it did not set the price for third-party products and therefore cannot “spread the cost of defects across units sold.” But as Amazon noted, it does control its fees. If it desires, it can increase fees on high-risk products, or all products, and thereby spread the cost of compensating consumers injured by such products.  Of course, this is the problem in general with low-cost products. Costs must be cut somewhere and one of the ways to do that is by avoiding product liability and insurance costs. This is typically the case with overseas companies beyond the reach of US courts. But of course, the argument here is that Amazon does in fact have control over these overseas companies and can force them to insure Amazon.

Amazon also contended (as all internet companies do) that, regardless of its liability under California law, it is shielded by the federal Communications Decency Act (1996). The court ruled against Amazon on this issue as well as under existing case law, “while the [CDA] protects interactive computer service providers from liability as a publisher of speech, it does not protect them from liability as the seller of a defective product.” Here the liability was based on Amazon’s own conduct, as described above, not the content of Lenoge’s product listing. The court also distinguished eBay cases where eBay was not found responsible for users' false product listings.

It is important to point out that this appellate decision will almost surely be appealed by Amazon to the California Supreme court and that it could take well over a year for a final decision from that court. Once that decision comes down from the CA Supreme court (Its unclear if the US Supreme court would agree to hear this case) the case may still be sent back to the trial court for trial and appealed again from a verdict. Or the case may settle and this opinion and/or any Supreme Court opinion would stand as the law. Amazon may seek to “de-publish” the opinion so it could not be relied on as precedent. That outcome is unlikely in this case. 

The issue of Amazon’s strict liability for third-party sales has been, and continues to be, litigated in state and federal courts across the country. Some hold Amazon strictly liable while others do not.  Many of the other cases are factually distinguishable, including because the product at issue was NOT sold through Amazon’s FBA program (as in the Bolger case). Also other state statutes or case law have limited strict liability in a manner inconsistent with California law.   

So now what are the implications of the Bolger case? Well knowing Amazon and how it likes to assert its leverage over sellers, it will likely immediately start requiring very large insurance policies naming it as additional insured for all third party sellers (but especially those who use FBA) As California is such a huge market for Amazon and Amazon cannot be sure where a third party seller product may be shipped, any decision in any state holding Amazon responsible will make it such that Amazon will have to enforce the insurance requirements system-wide. Also as most plaintiffs do not pursue entities in other countries that require complex foreign service and jurisdictional issues to be overcome, it will be interesting to see how this decision forces Amazon to force the small sellers to pony up when it comes to the defense and indemnification of Amazon. The overall effect will likely be increased prices on the Amazon third party platform (even more so that post-COVIID-19) which may hurt it in its fight with Walmart.

This decision was a long time in coming but I had to say the writing was on the wall. The decision is a great read for those that want to learn about how Amazon deals with sellers. Amazon wants a big piece of the sales pie. It wanted to have total control over sellers and buyers while keeping the two isolated from each other. But when it came to liability its position was “oh we don’t sell anything and have nothing to do with the marketing of the product”. Well that facade has now been severely eroded. The emperor's lack of clothes has now been pointed out in a court decision that will be heard around the world.

Law Offices of Steven W. Hansen | | 562 866 6228 © Copyright 1996-2020 Conditions of Use