Tag Archives: Products Liability

California’s ‘Made In The USA’ Law Is Now More Business-Friendly

Eric Junginger 
Eric Junginger
February 29, 2016

So what exactly does the “Made in the USA” label on products and clothing sold in California really mean?  Starting on January 1, 2016, it means that not all of the parts of the merchandise with that label were actually made in the U.S.A.

Prior to 2016, California had the most stringent law governing “Made in the USA” labels on products, which made it unlawful for any entity to sell a product in California with the “Made in the USA” label when the product or any part of the product was made entirely or substantially produced outside of the U.S.  In other words, the general rule was that 100% of the product (including all of its components) had to be made in the U.S. in order to market it with the “Made in the USA” label in California.  This law generated many class actions in California.

Under amended California Business and Professions Code section 17533.7, California now allows the “Made in the USA” label if one of the following two criteria are met:  (1) If all of the foreign-made units or parts in a product is not more than 5% of the final wholesale value of the product; or (2) If all of the foreign-made units or parts in a product – that cannot be obtained from a domestic source – is not more than 10% of the final wholesale value of the product.  California Governor Jerry Brown signed this law to stop the tide of class actions filed in California concerning “Made in the USA” claims where tiny components of the end product were foreign-made, and to bring its law closer to the rules set forth by the Federal Trade Commission (“FTC”) .

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Give Experts All The Facts Before They Form An Opinion

Eric Junginger 
Eric Junginger
September 9, 2015

It’s easy to have your expert opine exactly what you think you need to support or oppose a summary judgment motion when the expert is not given all of the pertinent facts. In Shiffer v. CBS Corporation, ___ Cal.App.4th ___ (2015 Cal.App. LEXIS 788) [9/8/15], the First District Court of Appeal made clear that “[a]n expert’s opinion is only as good as the facts on which it is built,” and if the expert has not been given the complete set of facts to form an opinion, the expert’s opinion lacks foundation and can be excluded from evidence.

In Shiffer, plaintiff conceded at deposition that the original asbestos-containing insulation on a Westinghouse turbine generator was already installed when he arrived at the job site, and it was never repaired, maintained, installed, or removed in his presence. Westinghouse moved for summary judgment based on no asbestos exposure. In opposition to Westinghouse’s MSJ, plaintiff submitted a contradictory declaration that insulation was being applied on the turbine when he arrived at the job site.

Relying solely on this declaration (and not reading any of plaintiff’s deposition testimony), plaintiff’s experts Charles Ay, Christopher Depasquale, and Barry Horn submitted declarations collectively opining that plaintiff was exposed to Westinghouse’s asbestos which was a substantial factor in causing his mesothelioma. However, the trial court rejected the plaintiff’s declaration because it failed to raise a triable issue of exposure, and the expert declarations because they did not consider plaintiff’s deposition testimony. Finding no admissible evidence of asbestos exposure, summary judgment was granted.

The Court of Appeal affirmed, observing that plaintiff’s experts relied on “a significantly incomplete universe of information, leaving them without an adequate basis” to form their opinions. Under Sargon Enterprises v. University of Southern California (2012) 55 Cal.4th 747, 770, expert opinions “may not be based on assumptions of fact without evidentiary support.” While it remains true that expert declarations in opposition to a summary judgment motion are to be liberally construed, expert opinions may nevertheless lack foundation and be excluded from the summary judgment record if the experts did not analyze the complete set of relevant facts.

An expert never wants to be surprised at a deposition or trial with facts – that if the expert had known about them – would have materially changed the expert’s opinion. The same goes for a pre-trial expert declaration. It is incumbent on counsel to provide their expert with the complete set of relevant facts. This is not just a good tip in managing your relationship with an expert, but it provides a sound foundation to reduce the risk that the expert’s opinion will be excluded from evidence.

Proposed Prop. 65 Regulations Make California More Unfriendly Market

Shannon Nessier 
Shannon Nessier
March 16, 2015

California’s Safe Drinking Water and Toxic Enforcement Act of 1986 [Cal. Health & Safety Code §25249.5 et seq.], known as Prop. 65, has created numerous hurdles for manufacturers and distributors who want to sell their products to the expansive California market.  On January 12, 2015, the Office of Environmental Health Hazard Assessment (“OEHHA”) released proposed modifications to Prop. 65 which, if adopted, would make those hurdles even larger, especially for those in the food industry.

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