Wednesday, September 07, 2011

Would the Tylenol tampering lawsuits have survived Wisconsin’s new product liability laws?

In 1991, the Chicago law firm I was working at, Corboy & Demetrio, settled a highly publicized product liability case. The law firm represented the families of three individuals who died in 1982 after ingesting cyanide-laced Tylenol. The Tylenol tampering deaths caused a nationwide poisoning scare and eventually led to tamper-resistant packaging on all over-the-counter medicines.

Twenty years later, in 2011, Wisconsin Governor Scott Walker signed product liability law changes that he claimed businesses needed to create jobs here. Despite the fact that the Chamber of Commerce ranked Wisconsin in the top half of states to do business in 2010, Walker felt the new law was necessary. Unfortunately, the simple truth is that the new law harms Wisconsin consumers by giving manufacturers and sellers of dangerous products large legal loopholes for skirting responsibility to those they injure.

Essentially, the new law gives corporations a variety of new defenses and makes defendant-oriented changes to prior Wisconsin product liability law. The changes and defenses make it easier for manufacturers to sell dangerous and defective products and not be held responsible for the injuries or deaths such products cause. I would like to use the Tylenol tampering lawsuits to demonstrate the effect of the new law.

One of the most egregious examples of the new law’s anti-consumer bias is a dismissal of all sellers and distributors of products if the manufacturer defends the case. Thus, any company that sold or distributed the cyanide-laced Tylenol would be off the hook under the new law because the manufacturer, Johnson & Johnson, appeared. This is despite the allegation that the Tylenol was tampered with after it left Johnson & Johnson. So, despite the fact that companies profited from selling or distributing the cyanide-laced Tylenol, they would not be held accountable under the new law.

Additionally, a distributor or seller cannot be held accountable if the distributor or seller receives the product in a sealed container and had no opportunity to inspect it. Thus, any company that sold or distributed the cyanide-laced Tylenol in a sealed container would be off the hook under the new law.

Another new defense for manufacturers of dangerous products is the presumption that their product is not defective if it complied with applicable state and federal regulations or specifications. So if the Food and Drug Administration had approved the non-tamper resistant bottles for Johnson & Johnson, any Wisconsin jury hearing the case would have to presume that the bottles were not defectively designed.

A further new defense can limit what a jury can know about actions take by the company after the cyanide-laced Tylenol was found. A Wisconsin jury may never learn that Johnson & Johnson put tamper-resistant lids on all of its Tylenol bottles. The only way evidence of the tamper-resistant lids is admitted is if the injured person showed the risk of harm posed by the product could have been reduced or avoided by the lids because it was a reasonable alternative design.

An additional defense provided under the new law is a 15-year time limit. This time limit provides manufacturers immunity from claims by those injured by a defective product that was manufactured 15 years or more before the injury. Thus, if one of those defective bottles of cyanide-laced Tylenol were still here in Wisconsin today, and someone ingested one and died, there would be no case. Not even Johnson & Johnson would be responsible. Note, however, there is one exception to this new law, which is claims for damages caused by a disease that doesn’t appear for several years, such as mesothelioma caused by exposure to asbestos.

Governor Scott Walker’s new product liability law is replete with reasons as to why the Tylenol tampering lawsuits would not have survived in Wisconsin. With the stroke of a pen, the Governor changed years of Wisconsin law and tragically harmed Wisconsin’s consumers.

Wisconsin Personal Injury Lawyer