The Supreme Court has overturned a California law restricting the sale of violent video games to minors on First Amendment grounds. Brown v. Entertainment Merchant's Assoc., No. 08-1448, slip op., 564 U.S. ___ (2011).

The California law at issue was enacted in 2005 and prohibited the sale or rental of violent video games to persons under the age of eighteen. Violent video games were defined as games where a player has the option of “killing, maiming, dismembering, or sexually assaulting an image of a human being.” Representatives from the video-game and software industry filed a preenforcement challenge to the Act in the U.S. District Court for the Northern District of California. Finding that the Act violated the First Amendment, the district court permanently enjoined its enforcement. The Ninth Circuit upheld the district court's decision, and in a 7-2 decision, the Supreme Court affirmed.

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The Supreme Court issued two rulings this week restricting the ability of plaintiffs to sue foreign manufacturers in state courts.

In the first case, the families of two 13-year-old boys filed wrongful death claims against foreign affiliates of Goodyear Tire & Rubber Co. in North Carolina. Goodyear Dunlop Tires Operations, S.A. v. Brown, No. 10-76, slip op., 564 U.S. ____ (2001). The boys died in a bus crash in France allegedly caused by defective tires manufactured in Turkey. The foreign subsidiaries of Goodyear argued that their tires were manufactured primarily for sale in European and Asian markets, differ in size and construction from tires ordinarily sold in the United States, and are designed to carry significantly heavier loads and serve under road conditions and speed limits common in Europe and Asia. The families of the boys argued that a small percentage of the foreign affiliates' tires were distributed in North Carolina by other entities – typically custom ordered for use on specialized vehicles like cement mixers and trailers.

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A Pennsylvania jury recently awarded $10 million to the family of a three-year-old child left permanently disfigured and blind in one eye allegedly as a result of taking Children's Motrin. (Maya v. Johnson & Johnson, Pa. Ct. Com. Pl., No. 09-02-02879, verdict 5/20/11).

The child developed a rash the day after she took over-the-counter Children's Motrin. Within five days, the child's body was fully engulfed by toxic epidermal necrolysis. The child suffered permanent brain damage, lost 84 percent of her skin, 50 percent of her lung function, and lost sight in one eye. Her family argued that the makers of Children's Motrin, McNeil-PPC Inc., knew about the relationship between ibuprofen use and the skin reaction known as Stevens-Johnson Syndrome—a form of toxic epidermal necrolysis—but warned of the risk only on the label for the prescription drug, not on the over-the-counter label. The defense argued the child developed the rash too soon to have been caused by the Children's Motrin and that it had been caused by some other medication or by a bacteria or virus.

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At the end of last year, as previously discussed on this blog, San Francisco made headlines by enacting an ordinance banning Happy Meals and other meals with “incentive items” aimed at children and teens, unless those meals met specific nutritional guidelines.

As noted by the Wall Street Journal, since then, the kid gloves have come off. In several states, the restaurant industry has begun lobbying for legislation that would restrict the ability of local governments to enact “Happy Meal” ordinances.

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In a lawsuit filed last month in state court in Florida, a sixteen-year-old boy blamed a Florida utility, Tampa Electric Company (“TECO”), for his fall from a thirty-five-foot power pole and his resulting injuries.

On October 1, 2009, Alexander “Avi” Davidson, a high school student and avid photographer, was taking photos at a local park. Wanting to capture the sunset, he climbed a nearby thirty-five-foot power pole. After taking some pictures, he came into contact with a power line. The resulting shock threw him to the ground. Davidson suffered extensive burns, his left arm had to be amputated at the elbow, and he was left paralyzed from the waist down.

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Mexican-American children born in one California community exhibit seven times higher levels of polybrominated diphenyl ether (PBDE’s) flame retardants in their blood than their Mexican born counterparts, a result that is thought to be linked to California’s heightened fire protection standards.

The authors of the recently released study believe that the findings present a “major public health challenge.” The study compared the blood tests of 264 Mexican-American children born and raised in the Salinas Valley of California with the tests of 283 Mexican children. The results showed substantially higher levels of PBDE's in the blood of children of Mexican descent born and raised in the Salinas Valley compared with children born and raised in Mexico.
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Legislation working its way through the United States Senate would prevent parties from sealing certain court records, including settlement agreements, in cases in which a judge determines the court records are “relevant to the protection of public health or safety.”

Senate Bill 623 would create a new law called the “Sunshine in Litigation Act of 2011.” A link to the text of the bill can be found by clicking here.

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A working group of four federal agencies recently released a preliminary draft of proposed voluntary principles designed to limit the marketing of unhealthy food to children. The Interagency Working Group on Food Marketed to Children, comprised of representatives of the Federal Trade Commission, U.S. Food and Drug Administration, Centers for Disease Control and Prevention, and the U.S. Department of Agriculture, developed the recommendations based on a 2009 directive from Congress.

Specifically, the proposed voluntary guidelines urge companies to market foods to children ages two through seventeen only if they are low in fat, sugar, and sodium. Additionally, foods marketed to children would need to contain specified healthy ingredients, such as significant amounts of fruits, vegetables, and whole grains. The guidelines would broadly apply to television, magazine, in-store, and Internet advertising, as well as promotions including text messages, product placement in video games, celebrity endorsements, and even “philanthropic activity tied to branding opportunities.”

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Kids in Europe may be exposed to as many as 128 chemical residues in a typical day’s worth of meals. That’s the conclusion of a recent study conducted by several French and Belgian environmental groups and discussed in a recent article by Pascale Santi in the Guardian.

Researchers bought food at supermarkets in France that would constitute three meals and a snack for a typical 10-year-old and contracted with independent laboratories to test for possible residues from pesticides, dioxins, heavy metals, and plasticisers such as phthalates and PFCs. The results showed 128 chemical residues of 81 different substances. The study classified forty-two of these substances as “possibly or probably carcinogens” and five as “certainly carcinogens.”

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On the heels of its new crib standard, the CPSC has released new standards for toddler beds. The new federal standard will build upon the voluntary ASTM standard and will require warning labels discussing the risks of entrapment and strangulation to appear on the beds.

According to the CPSC, there were 122 incidents associated with toddler beds between 2005 and 2010, including four deaths and 43 injuries. The standard is intended to minimize entrapment in the end of the bed, between the guardrail and side rail, and in the mattress support system. The standards also address corner post extensions, which may catch cords, ribbons, necklaces, or clothing. These warning labels must appear on the bed:

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Researchers found that children whose parents had properly installed and maintained safety devices had 70 percent fewer home-related injuries than children whose parents had not installed such devices.

Researchers at Cincinnati Children’s Hospital Medical Center studied two groups of families with newborn babies. One group properly installed and maintained safety devices, including stairway gates, smoke detectors, carbon monoxide detectors, safe storage for knives, cabinet locks, electrical outlet covers, and hot water heaters set below 120 degrees Fahrenheit. The researchers followed up two years later and determined that the children in the homes with safety devices had 70 percent fewer home-related injuries that required medical attention than did the children in the other group.

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On October 15, 2010, a New York trial judge denied a motion to dismiss a negligence action, ruling that a four-year-old child was capable of negligence as a matter of law under the facts presented. See Menagh v. Breitman, 2010 NY Slip Op 32892 (N.Y. Sup. Ct. Oct. 15, 2010). (Click here for a New York Times article on the case.)

In April 2009, Juliet Breitman (four years, nine months) and Jacob Kohn (five years old) were racing their bicycles on the sidewalk, under the supervision of their mothers. While racing, they allegedly struck 87-year old Claire Menagh, causing her to suffer a hip fracture. Menagh died from unrelated causes three months later.

Menagh’s estate brought a negligence action against both children and their mothers. Juliet Breitman filed a motion to dismiss, arguing that, because of her age at the time of the incident, she was incapable of negligence as a matter of law.

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A Texas jury awarded $41.8 million to a teenage girl who suffered paralyzing injuries in a rollover accident. Rubi Ann Rocha was paralyzed from the upper chest down following an accident in April of 2009 when the pickup truck she was riding in rolled over. Rocha claimed the tread came off of the right rear tire, which was manufactured by Michelin, resulting in the rollover.

Rocha claimed the tire was manufactured in a Michelin plant in Tuscaloosa, Alabama, which experienced heavy rain during the week the tire was made. Rocha claimed the plant roof leaked causing water to contaminate the tire during the vulcanization process—a chemical process that makes rubber more durable. Michelin admitted that tires contaminated with water during the vulcanization process can result in tread separation when the water vaporizes and causes air pockets between the steel belts. However, Michelin argued that someone had damaged the tire bead before the accident, and that the driver should have been able to retain control of the vehicle.

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Since the enactment of a 2004 federal law requiring school districts to establish individual, and oftentimes inconsistent, policies to improve the nutrition of meals and snacks served to schoolchildren, the vending industry has been “skipping school.” However, a new law, which will provide uniform nutritional requirements, is providing the industry with renewed opportunity. Companies specializing in providing healthier vending options are looking to be the first at the table, according to a recent article in Bloomberg Businessweek.

 The National Automatic Merchandising Association estimates that just 10 percent of its vending members currently sell in schools, which is down from nearly 25 percent just a decade ago. A spokesperson for the trade association stated that many vending operators found it too difficult to find products that complied with the “patchwork of school guidelines” that were created in the wake of the 2004 law. However, the Healthy, Hunger-Free Kids Act of 2010, signed by President Obama on December 13, 2010, will change the landscape. The new law vests the U.S. Department of Agriculture with the authority to regulate school nutrition, as opposed to individual localities.

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An Ohio jury last week determined the death of a 10-year-old girl was caused by the negligence of several people and not by a Yamaha Rhino. Ellie Sand was riding in the front passenger seat of a Rhino on October 27, 2007 without a seatbelt or helmet as required. The driver, a 21-year-old with no off-road riding experience, was taking Ms. Sand and three other children—who were riding in the back cargo area of the Rhino—on a ride through a recently harvested cornfield where he was attempting donuts and high-speed “fishtails.” During the course of the driver’s reckless stunt driving, the Rhino overturned onto its right side, fatally injuring Ms. Sand.

Ms. Sand’s parents sued Yamaha, the dealer that sold the vehicle, and the company that owned the Rhino. They claimed the Rhino was defective in its design and warnings. Yamaha defended the Rhino as a safe and defect free vehicle sold with appropriate warnings and instructions that, if followed, would have prevented Ms. Sand’s death. Yamaha argued that the driver’s “breathtakingly reckless” driving was the real cause of Ms. Sand’s death.

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