1. The defendant manufactured/distributed/sold the product (was in the “chain of distribution”);
2. That the product had potential risks that were known or knowable in light of the scientific and medical knowledge that was generally accepted in the scientific community at the time of the manufacture/distribution/sale;
3. That the potential risks presented a substantial danger when the product is used or misused in an intended or reasonably foreseeable way;
4. That ordinary consumers would not have recognized the potential risks;
5. That defendant failed to adequately warn of the potential risks;
6. That plaintiff was harmed while using the product as intended or in a reasonably foreseeable way; and
7. That lack of sufficient instructions or warnings was a substantial factor in causing plaintiff’s harm.
“[A] defendant involved in the marketing/distribution process has been held strictly liable if three factors are present:
(1) the defendant received a direct financial benefit from its activities and from the sale of the product;
(2) the defendant’s role was integral to the business enterprise such that the defendant’s conduct was a necessary factor in bringing the product to the initial consumer market; and
(3) the defendant had control over, or a substantial ability to influence, the manufacturing or distribution process.”
Bay Summit Community Ass’n v. Shell Oil Co., 51 Cal. App. 4th 762, 773 (1996).
CALIFORNIA STATE COURTS
California Supreme Court: O'Neil v. Crane Co., 53 Cal. 4th 335, 347-48 & 351-52 & 362-63 (2012); Johnson v. American Standard, Inc., 43 Cal. 4th 56, 64-65 (2008).
California 1st Dist.: Oxford v. Foster Wheeler LLC, 177 Cal. App. 4th 700, 717 (2009); Taylor v. Elliott Turbomachinery Co. Inc., 171 Cal. App. 4th 564, 575-77 (2009).
California 2d Dist.: Chavez v. Glock, Inc., 207 Cal. App. 4th 1283, 1304 (2012).
California 3d Dist.: Nelson v. Superior Court, 144 Cal. App. 4th 689, 695 (2006).
California 4th Dist.: Hufft v. Horowitz, 4 Cal. App. 4th 8, 13 (1992).
California 5th Dist.: McKenney v. Purepac Pharmaceutical Co., 167 Cal. App. 4th 72, 82-83 (2008) (drug and medical device manufacturer liability for failure to warn).
California 6th Dist.: County of Santa Clara v. Atlantic Richfield Co., 137 Cal. App. 4th 292, 318 (2006).
CALIFORNIA FEDERAL COURTS
United States Court of Appeal for the 9th Circuit: Rosa v. TASER Int’l, Inc., 684 F.3d 941, 946 (9th Cir. 2012).
Central District: Michery v. Ford Motor Co., No. CV 12-04957 RSWL (FFMx), 2013 U.S. Dist. LEXIS 161445, at *19-20 (C.D. Cal. Nov. 12, 2013); Alarcon v. Organon U.S.A., Inc., No. CV 13-6337 PA (RZx), 2013 U.S. Dist. LEXIS 126556, at *8 (C.D. Cal. Sept. 4, 2013).
Eastern District: Waldo v. Eli Lilly & Co., No. CIV. S-13-0789 LKK/EFB, 2013 U.S. Dist. LEXIS 145772, at *11-12 (E.D. Cal. Oct. 8, 2013); Hatherley v. Pfizer, Inc., No. CIV. 2:13-00719 WBS CKD, 2013 U.S. Dist. LEXIS 93943, at *26 (E.D. Cal. July 3, 2013).
Northern District: Monigan v. National Presto Indus., No. C 12-3698 SI, 2013 U.S. Dist. LEXIS 177069, at *8-9 & 10-11 (N.D. Cal. Dec. 17, 2013); Tucker v. Wright Med. Tech., Inc., No. 11-cv-03086-YGR, 2013 U.S. Dist. LEXIS 38354, at *41-42 (N.D. Cal. Mar. 19, 2013).
Southern District: Cruz v. Sears, Sears’ Craftsman Tools, No. 12-CV-00623-H (BGS), 2012 U.S. Dist. LEXIS 99817, at *5 (S.D. Cal. July 18, 2012).