Red, Orange, Yellow, Green, Blue, Indigo, Violet: Full
Red, Orange, Yellow, Green,
Blue, Indigo, Violet:
Full Spectrum of Recent Product Decisions
Cynthia P. Arends
Halleland Lewis Nilan & Johnson
220 S. Sixth St., Ste 600
Minneapolis, Minnesota 55402
(612) 573-2946
(612) 338-7858 [fax] carends@halleland.com
R. Craig Mayfield
Hill Ward &Henderson
101 E. Kennedy Blvd, Ste 3700
Tampa, Florida 33602
(813) 221-3900
(813) 221-2900 [fax] cmayfield@hwhlaw.com
Return to course materials table of contents
Cynthia P. Arends
is a shareholder with Halleland Lewis Nilan & Johnson, PA in Minneapolis. Ms. Arends’ practice focuses on product liability and commercial litigation. She serves as editor of DRI’s Product Liability Committee newsletter,
Strictly Speaking
, as membership chair of DRI’s Commercial Litigation Committee, and as the vice-chair of DRI’s Young Lawyers Committee. Ms. Arends is a frequent author and presenter on products liability and litigation strategy topics and was six times named a Minnesota Super Lawyer “Rising Star.”
R. Craig Mayfield
is a shareholder with the firm of Hill Ward Henderson in Tampa,
Florida. His practice includes trial and appellate representation of numerous industrial, pharmaceutical, commercial, and consumer industries in a variety of product liability matters. Mr. Mayfield is a member of DRI’s Young Lawyers Committee, where he serves as seminar planning subcommittee chair and currently serves as chair for
DRI’s 2009 Young Lawyers Seminar in Las Vegas.
Red, Orange, Yellow, Green, Blue, Indigo, Violet:
Full Spectrum of Recent Product Decisions
Table of Contents
Red, Orange, Yellow, Green, Blue, Indigo, Violet: Full Spectrum of...
v Arends and Mayfield v 237
238 v Product Liability Conference v April 2009
Red, Orange, Yellow, Green, Blue, Indigo, Violet:
Full Spectrum of Recent Product Decisions
I. First Circuit
By Kevin M. Sullivan and Christopher G. Perillo
Kevin M. Sullivan is an attorney at the Boston firm of Murphy & Riley, P.C., concentrating in product liability and insurance defense litigation. Formerly a Navy JAGC officer and special assistant United States attorney, he is a graduate of Brown University and a cum laude graduate of Tulane Law School.
Christopher G. Perillo is an attorney at the Boston firm of Murphy & Riley, P.C., concentrating in product liability, professional liability, and insurance defense litigation. He is a graduate of Suffolk University
School of Law, a cum laude graduate of St. John’s Seminary College, and a cum laude graduate of Gregorian University (Rome, Italy).
A. Massachusetts
Tort Reform: No cases reported in this area.
Preemption :
In Tofanelli v. Biogen Idec, Inc., 2008 U.S. Dist. Lexis 61674 (D. Mass. Aug. 5, 2008) , the court allowed plaintiff’s motion to remand the case to state court. Id.
at 1-2. The plaintiff in this wrongful death action alleged that the defendants failed to provide adequate warnings of the risks associated with the prescription drug
Tysabri. Id. at 1. The drug was approved by the Food and Drug Administration under an accelerated approval process. Id.
at 1. It was administered to plaintiff’s decedent, who thereafter died due to an uncontrolled opportunistic herpes simplex virus infection. Id.
at 1-2.
The plaintiff originally filed the action in Massachusetts state court, and the defendants removed to federal court. Id.
at 2.The plaintiff moved for remand to the state court on the ground that federal court lacked subject matter jurisdiction. Id . The defendants opposed the motion, and moved to transfer the case to the
Southern District of Iowa where the drug was administered to the decedent. Id.
On its face, the complaint purported to raise product liability claims only under state law, but the defendants argued the claims actually raised substantial federal issues. Id.
at 7. The defendants’ arguments
“attempted to frame the federal question as an issue raised by the claims in the complaint rather than a preemption defense to be raised by the Defendants.” Id.
at 8. “Styling the question in that fashion is a prudent strategic course because ‘[a] defense such as federal preemption is not a basis for removal, even if the defense is anticipated in the complaint, and even if it is the only true issue in the case.’” Id.
(quoting Commonwealth v.
Fremont Investment & Loan , Civil Action No. 07-11965-GAO, 2007 U.S. Dist. Lexis 95617, 2007 WL 4571162, at
*2 (D. Mass. Dec. 26, 2007)). In order for the defendants to prevail, they had to show “that the plaintiffs’ claims either: 1) are completely pre-empted by federal law or 2) fall within the ‘federal ingredient’ doctrine.” Id.
The defendants did not undertake to argue that federal law completely preempts state law in the area of drug regulation, thus this issue was only briefly addressed by the court. Id.
at 8-9. The court noted that “the
Supreme Court has only recognized three federal statutory schemes as supporting complete preemption, those for: (i) labor contracts under § 301 of the Labor-Management Relations Act, 29 U.S.C. § 185; (ii) ERISA benefits under § 502(a) of the Employee Retirement Income Security Act, 29 U.S.C. § 1132(a), and (iii) usury claims against federally chartered banks under §§ 85 and 86 of the National Bank Act, 12 U.S.C. §§ 85-86.” Id.
at 9. The
Red, Orange, Yellow, Green, Blue, Indigo, Violet: Full Spectrum of...
v Arends and Mayfield v 239
court thus concluded, “Labeling under the Food, Drug and Cosmetic Act, 21 U.S.C. § 301 et seq.
has not to date been determined to provide grounds for complete preemption. There is no current basis to find what has conventionally been termed complete preemption here and consequently complete preemption is not available to justify removal.” Id.
at 9-10.
The defendants argued the state-law product liability claims fell within the “federal ingredient” doctrine because the claims challenged the FDA’s decision to grant Tysabri accelerated marketing approval. Id.
at
10. The court noted that under Massachusetts law, compliance with FDA labeling regulations does not necessarily protect the manufacturer from state-law failure-to-warn claims. Id.
at 14 [citations omitted]. Ultimately, the court did not resolve the issue of whether FDA’s drug approval authority preempts state-law failure-to-warn claims, finding that the issues in the case were matters to be addressed in the first instance by the state courts.
Id.
at 14-15, 19. The court noted that states, through their police powers, have traditionally provided private remedies to protect citizens from harms such as a manufacturer’s inadequate product warnings. Id.
at 17. The court also noted that the Supreme Court retained power to review the decision of a federal issue in a state cause of action. Id.
at 16-17.
Environmental or “Green” Products Litigation : No cases reported in this area.
Market Share or Other New Theories of Liability : No cases reported in this area.
Class Action Fairness Act (CAFA) :
In a superior court action, Judge Gants noted that “this federal statute does not govern state court consideration of class action settlement.” In re Mass. Smokeless Tobacco Litig.
, 23 Mass. L. Rep. 719 (Mass. Super. Ct. 2008)
Other :
Successor Company’s Duty to Warn a Predecessor’s Customer
In Nna v. Wabtec Corp.
, 2008 U.S. Dist. Lexis 29191, 2-3 (D. Mass. Mar. 31, 2008), the district court addressed the duty of a successor company to warn a predecessor’s customer of a design defect of which it became aware. The plaintiffs did not pursue a conventional successor liability theory, instead arguing the defendant had an independent duty to warn the predecessor’s customer of any defect in the design of the product of which it became aware as a result of purchasing the predecessor’s assets. Id.
at 2-3. Massachusetts case law has not previously addressed this issue. Id.
at 10, n3. While the court applied New York law in allowing the defendant’s motion for summary judgment, it noted there was no difference between New York law and
Massachusetts law on the issue presented. Id.
at 6, n1.
In order for the successor corporation to be liable for negligently failing to warn the predecessor’s customer, it must have a special relationship with the customer that gives rise to an independent duty to warn. Id.
at 9. If a special relationship exists, then a successor corporation has an independent duty to warn its predecessor’s customer even where there is no conventional successor liability. Id.
at 9-10.
In determining whether the requisite “special relationship” existed, the court focused on “the actual or potential economic advantage to the defendant successor corporation.” Id.
at 10. The court considered “whether there is (1) succession to a predecessor’s service contracts, (2) coverage of the particular product under a service contract, (3) service of that product by the successor, and (4) knowledge by the successor corporation of defects and of the location or owner of that product.” Id.
at 11. Applying these factors, the court concluded the defendant did not have sufficient pertinent contacts with the predecessor’s customer to overcome the traditional rule of no liability for a successor under the circumstances. Id.
at 14.
Notably, plaintiff’s argument that a special relationship existed because the defendant held itself out as the exclusive source for products, testing protocol, specifications, and information” failed, as it merely recast the “product line exception” that Massachusetts and New York have explicitly rejected as a basis for successor
240 v Product Liability Conference v April 2009
liability. Id.
at 12. The defendant successor could not be liable merely for continuing to produce its predecessor’s product. Id.
Massachusetts Consumer Protection Act, G.L. c. 93A; Rule 12(b)(6) Standard of Review
In Iannacchino v. Ford Motor Co.
, 451 Mass. 623 (2008), the supreme judicial court affirmed the trial court’s order allowing defendant’s motion for judgment on the pleadings. The plaintiffs, a proposed class of
Ford vehicle owners, claimed the outside door handle systems in their vehicles were noncompliant with applicable Federal safety standards, defective, and unsafe. Id.
at 624. The plaintiffs alleged the doors might open accidentally in certain types of collisions, putting occupants at risk of significant personal injury or death. Id.
at 626. The plaintiffs alleged the defendant violated G.L. c. 93A and breached an implied warranty of merchantability. Id.
at 624. The court found the implied warranty claim and the Chapter 93A claim were based on the same economic theory of injury and the same alleged facts, and therefore should survive or fail under the same analysis. Id.
at 634-35. The court also expressly adopted the revised standard for evaluating a Rule 12(b)(6) motion articulated in Bell v. Twombly , 550 U.S. 544 (2007) (“allegations plausibly suggesting (not merely consistent with)” an entitlement to relief required at pleading stage).
The Iannacchino plaintiffs did not allege their door handles ever malfunctioned, or that they actually sustained any personal injury or property damage. Iannacchino, supra at 624. Rather, plaintiffs claimed that
Ford’s alleged practice of knowingly manufacturing, offering for sale, and refusing to recall vehicles that do not comply with Federal safety regulations and are defective is unfair or deceptive and has injured the plaintiffs economically. Id.
at 624.
The SJC did not consider the lack of accident-related injury or manifested defect a bar to recovery under G.L. c. 93A, § 9. Id.
at 624-25. The court found that if Ford knowingly sold noncompliant (and therefore potentially unsafe) vehicles or if Ford failed to initiate a recall and to pay for the condition to be remedied, the plaintiffs would have paid for more ( viz ., safety compliant vehicles) than they received. Id.
at 631. Such an overpayment would represent an economic loss, measurable by the cost to bring the vehicles into compliance, for which the plaintiffs could seek redress under G.L. c. 93A, § 9. Id.
at 631.
The court further found that the plaintiffs’ complaint failed to adequately allege that their vehicles failed to comply with Federal Motor Vehicle Safety Standard 206. Id.
at 631. The plaintiffs’ factual explanation of the alleged noncompliance relied on Ford’s use of the so-called “GM test,” rather than SAE J839, to measure door-handle adherence to the inertia load requirements of FMVSS 206. Id.
at 631. At the hearing on Ford’s motion, however, plaintiffs acknowledged that the GM test was in fact NHTSA-approved, which defeated the claim of safety standard noncompliance. Id.
at 631. Thus, the court concluded that the plaintiffs failed to make out a case of violation of Chapter 93A under a theory of regulatory noncompliance. Id.
at 632.
To the extent plaintiffs’ complaint alleged a “defect” independently of any FMVSS 206 issue, this allegation also fails. Id.
at 632. The “bare assertion that a defendant…has knowingly manufactured and sold a product that is ‘defective,’ or suffers from ‘safety-related defects,’ does not suffice to state a viable claim.” Id.
at
632-33. “Where…there is no allegation that the plaintiffs have suffered personal injury or property damage, the complaint must identify a legally required standard that the vehicles were at least implicitly represented as meeting, but allegedly did not.” Id.
at 633.
The plaintiffs’ allegations that Ford failed to meet its internal standards also failed. Id.
at 633-34. In the absence of any allegation of personal injury or property damage, the court declined to adopt “a rule that would expose a company to liability for failing to meet self-imposed standards that may in fact be aspirational goals conducive to the development and implementation of improved safety measures that exceed regulatory requirements.” Id.
at 634.
Red, Orange, Yellow, Green, Blue, Indigo, Violet: Full Spectrum of...
v Arends and Mayfield v 241
B. Rhode Island
Tort Reform : No cases reported in this area.
Preemption : No cases reported in this area.
Environmental or “Green” Litigation : No cases reported in this area.
Market Share or Other New Theories of Liability :
Public Nuisance Theory:
In State of Rhode Island v. Lead Industries Association, Inc.
, 951 A.2d 428 (2008), the Supreme Court of Rhode Island reversed the judgment of the superior court as to the liability of several lead pigment manufacturers under the theory of public nuisance. The court refused to extend the law of public nuisance to encompass products-based proceedings and held that the “proper means of commencing a lawsuit against a manufacturer of lead pigments for the sale of an unsafe product is a product liability action.” Id . at 456. The court also concluded that the remedy articulated by the General Assembly for lead poisoning “did not include an authorization of an action for public nuisance against the manufacturers of lead pigments.” Id . at 457.
Class Action Fairness Act (CAFA) : No cases reported in this area.
Other :
Assumption of Risk
In Sheehan v. North American Marketing Corp. and Delair Group, LLC, 2008 U.S. Dist. Lexis 26882
(D.R.I. Apr. 2, 2008), the plaintiff brought suit against the manufacturer and distributor of an above-ground pool after a dive into shallow waters rendered her a quadriplegic. The plaintiff alleged that the defendants: (1) negligently created an unreasonably dangerous and defective pool; (2) breached express warranties and the implied warranty of merchantability; and (3) were strictly liable for the allegedly defective product. Id. at 1. The court granted the defendants’ motion for summary judgment, and dismissed all counts.
The court held that the plaintiff knowingly accepted and appreciated the danger and assumed the risk of diving into a shallow pool. Id.
at 12. This knowledge and voluntary action by the plaintiff absolved the defendants of any unreasonable risk they may have created and that may have contributed to the plaintiff’s accident. Id . at 15. As a result, the plaintiff’s claim that the defendants should be held strictly liable for negligently creating an unreasonably dangerous and defective pool was dismissed.
In addition, the court dismissed plaintiff’s express warranty claim because the plaintiff did not provide any factual allegations upon which she relied regarding an express warranty by the manufacturer. Id . at 17.
The court held that the plaintiff failed to satisfy her burden of proving that statements or representations made by the seller induced her to purchase the product, and that she relied upon such statements and representations. Id .
The court also dismissed plaintiff’s breach of implied warranty claim. The court held that plaintiff’s expert’s admission that the plaintiff’s lack of memory left her “filling in the blanks” and “filling in the dots” amounted to conjecture and speculation, and did not amount to sufficient evidence supporting plaintiff’s claim that the defendants created a product unfit for its ordinary and intended purpose. Id . at 19.
C. New Hampshire
Tort Reform : No cases reported in this area.
Preemption : No cases reported in this area.
Environmental or “Green” Litigation : No cases reported in this area.
242 v Product Liability Conference v April 2009
Market Share or Other New Theories of Liability : No cases reported in this area.
Class Action Fairness Act (CAFA) : No cases reported in this area.
Other :
Maritime Law/Liability of Installer
In Warford v. Industrial Power Systems, Inc.
, 2008 DNH 192 (Oct. 21, 2008), the court applied maritime law in a product liability action arising out of an explosion and fire on the plaintiff’s fishing vessel that was allegedly caused by defective generators. The court held that in order to maintain an action alleging a product design defect, the plaintiff had to prove that the product is defective ( i.e.
, the foreseeable risk of harm posed by the product could have been reduced or avoided by the adoption of a reasonable alternative design). Id . at 38. “It is not enough for the plaintiff to show a better, safer, or different design would have prevented his or her injury.” Id .
The court also held that the defendants, who were merely installers, and not sellers or distributors of the product, could not be held liable for defects in generators under the theories of strict liability or breach of implied warranties of merchantability of fitness for a particular purpose. Id . at 34-35.
D. Maine
Tort Reform : No cases reported in this area.
Preemption : No cases reported in this area.
Environmental or “Green” Litigation : No cases reported in this area.
Market Share or Other New Theories of Liability : No cases reported in this area.
Class Action Fairness Act (CAFA) : No cases reported in this area.
Other :
Expert Testimony Not Required
In Taylor v. Ford Motor Co.
, 2008 U.S. Dist. Lexis 26411 (D. Me. Mar. 28, 2008), the plaintiff alleged that the defective design of the roof and door assemblies of a 2002 Ford F-250 Super Cab pickup caused her husband’s death. The court, applying Maine law, denied the defendant’s motion for summary judgment, ruling that a product design expert is not required on the issue of professional design standards when the available evidence is sufficient to bring the technical issues within the practical abilities of lay jurors. Id . at 37-38.
Postsale Duty to Warn Indirect Purchasers
In Brown v. Crown Equipment Corp.
, 2008 Me. 186 (Dec. 11, 2008), the court recognized in limited circumstances that there can be a postsale duty to warn indirect purchasers. Id . at P3. The court did not incorporate or adopt the more expansive rule of the Restatement (Third) of Torts: Products Liability § 10 (that a manufacturer has a duty to warn known but indirect purchasers where its product was not defective at the time of sale but a product hazard developed thereafter) because the defendant manufacturer in the subject action had a common-law duty, pursuant to the facts of the case, to warn the plaintiff of the alleged defect. Id . at 9-12.
The plaintiff in the subject action alleged a defect in a forklift caused her husband’s death. The defendant knew of the risk of injury, created a kit for reducing or eliminating the risk, was in personal contact with the decedent’s employer who owned the forklift, and performed an evaluation of the very forklift before the decedent’s death. Id . Based on these facts, the court ruled that the defendant owed a postsale common-law duty to warn indirect, known purchasers of the risks and dangers of the product. Id .
Red, Orange, Yellow, Green, Blue, Indigo, Violet: Full Spectrum of...
v Arends and Mayfield v 243
E. Puerto Rico
Tort Reform : No cases reported in this area.
Preemption : No cases reported in this area.
Environmental or “Green” Litigation : No cases reported in this area.
Market Share or Other New Theories of Liability : No cases reported in this area.
Class Action Fairness Act (CAFA) : No cases reported in this area.
Other :
Statute of Limitations
In Morel v. Daimler Chrysler AG , 557 F. Supp. 2d 240 (2008), the court held that the plaintiffs’ claims were time barred, and dismissed the plaintiff’s claims against Daimler Chrysler AG (“DCAG”).
The plaintiffs alleged that the decedent’s death was caused by the defective design of a Mercedes-Benz vehicle. The decedent died on November 29, 2004. The plaintiffs were aware of the alleged defect on this date.
The Civil Code of Puerto Rico provides that the statute of limitations for negligence actions runs for one year from the moment the aggrieved person has knowledge of the injury and who caused it. Id . at 243-44. The statute does not require actual knowledge. It is sufficient that the “would-be plaintiff have notice that would have led a reasonable person to investigate and so uncover the needed information.” Id . at 244.
The original complaint was filed against Daimler Chrysler Corporation (“DCC”) on November 4, 2005, within the one-year statute of limitations. DCC was not involved in the design or manufacturing of the Mercedes-Benz vehicle. The plaintiffs then filed an amended complaint on February 16, 2006, naming DCAG as the defendant.
DCAG filed a motion for summary judgment asserting that the plaintiffs’ claims were time barred. The court noted that the plaintiffs, in opposing the motion, did not claim they lacked the required knowledge of the correct defendant; did not explain their efforts to determine the identity of the proper defendant; and did not provide a reason for their failure to identify DCAG until after the one-year statute of limitations period. Id . at
244. Rather than providing these explanations to meet the requirements of the Civil Code, the plaintiffs relied on F.R.C.P. 15(c)(3), arguing that the amended complaint related back to the original complaint, which was filed within the statutory period. The court held that F.R.C.P. 15 was inapplicable, explaining “that when a procedural rule has a direct substantive effect on state substantive rights, like the Puerto Rico statute of limitations, state procedural rules control.” Id . at 245.
The court then applied Puerto Rico R. Civ. P. 13.3, and determined that the action against DCAG was time barred. In order for the plaintiffs’ amended complaint to relate back to the date of the original filing, DCAG had to know of the pending cause of action on or before November 29, 2005. Id. at 18. The court found that the plaintiffs had not made that showing. Id. Applying the interpretation of law articulated in Schiavone v. Fortune,
477 U.S. 21 (1986), the court determined that the “entity originally sued (DCC) had to be served with process before November 29, 2005.” Id. Where it was uncontested that DCC was served on December 12, 2005, after the one-year statute of limitations period had run, the amended complaint did not relate back and the plaintiffs’ claims against DCAG were dismissed as time barred. Id.
II. Second Circuit
By Gail Rodgers, Christopher C. Land, and Mamie V. Wise
244 v Product Liability Conference v April 2009
Gail Rodgers is a senior associate at DLA Piper LLP (US) in New York City. She specializes in products liability, mass torts, and pharmaceutical and medical device litigation. She currently serves on the DRI Drug and Medical Device Steering Committee and is the chair of the DRI Young Lawyers Public Service Subcommittee. Ms. Rodgers also serves on the DRI Membership Committee as the large law firm representative.
Christopher C. Land is a senior associate in the New York office of DLA Piper LLP (US). He practices in DLA Piper’s mass torts group focusing on the defense of manufacturers of pharmaceutical drugs and medical devices. As part of this work, Mr. Land has helped take numerous cases before mock (and real) juries and has also led messaging focus groups for his clients.
Mamie V. Wise is an associate at DLA Piper LLP (US) in New York. She practices in general litigation and focuses on product liability, mass torts, and pharmaceuticals. She also participates in the New York City
Bar’s Cancer Advocacy Program and the New York State Mentor High School Mock Trial Program.
Tort Reform:
City of New York v. Beretta USA, Inc., 524 F.3d 384 (2d Cir. 2008). In Beretta, the court upheld the Protection of Lawful Commerce in Arms Act (“PLCA”). This Act provides that civil actions against firearm manufacturers or sellers resulting from the criminal or unlawful misuse of a firearm shall be immediately dismissed by the court. The city of New York brought this action against gun manufacturers to enjoin them, under the
New York state criminal nuisance statutes, from selling their products into the city under the theory that they were often eventually used in criminal activities. Pursuant to the PLCA, the gun manufacturers moved to dismiss the claims, which the lower court denied, and the manufacturers appealed to the Second Circuit.
The city of New York argued on a number of grounds that the PLCA was unconstitutional, including the arguments that litigation was not a commercial activity that could be regulated by Congress, that it violated the Tenth Amendment by commandeering the state’s laws, and that it violated the First Amendment right of access to courts. The Second Circuit determined that since the statute required a jurisdictional nexus for the transportation of the firearms across state lines and that the manufacturing of firearms itself was interstate trade, the PLCA was within Congress’s commerce powers. The court also held that the Act did not violate the Tenth Amendment because it required no affirmative conduct by the state, and it did not violate the First
Amendment because it did not bar court access for the plaintiffs’ actions that fall within the Act’s exceptions.
The court noted that the Act immunized only specific defendants from specific claims, and did not impair general access to the courts.
Preemption :
In re Agent Orange Product Liability Litigation , 517 F.3d 76 (2d Cir. 2008). United States military veterans and their families sued chemical manufacturers alleging that they created dangerous and toxic herbicides for the US military during the Vietnam War and that the herbicides caused cancer. The government contractor defense acts to protect government contractors from liability when state tort law would significantly conflict with the government’s interest. For the defense to apply, the government must have made a discretionary determination about the product as it relates to the defective design feature. Because the government made that discretionary determination to approve specifications for a unique product tailored to its needs, even with knowledge of a design defect, the government contractor defense preempted state tort law.
Environmental or “Green” Products Liability Litigation:
Benzman v. Whitman, 523 F.3d 119 (2d Cir. 2008). This putative class action sought to hold the former
EPA administrator liable for erroneously reassuring statements about the health risks of the World Trade Center dust after the September 11 terrorist attacks. The Second Circuit rejected plaintiffs’ attempts to create what it termed “in essence a mass tort for making inaccurate statements.” Benzman, 523 F.3d at 127.
Red, Orange, Yellow, Green, Blue, Indigo, Violet: Full Spectrum of...
v Arends and Mayfield v 245
Market Share or Other New Theories of Liability : No cases reported in this area.
Class Action Fairness Act (CAFA) : No cases reported in this area.
Other :
McLaughlin v. American Tobacco , 522 F.3d 215 (2d Cir. 2008). The defendants appealed the certification of a class of smokers who were allegedly deceived by defendants’ marketing and branding into believing that light cigarettes were healthier than regular cigarettes. The plaintiffs brought RICO claims based on mail and wire fraud, claiming that defendants’ misrepresentation led them to buy light cigarettes in a greater quantity and at an artificially higher price than they otherwise would have purchased them. The court held that in order to fulfill the RICO requirement that an injury occur “by reason of” a defendant’s action, each plaintiff must establish (1) reliance on the defendant’s misrepresentation, (2) injury, and (3) loss causation. Rather than showing individual plaintiffs’ reliance on the alleged misrepresentation, the plaintiffs relied on the public’s general sense that light cigarettes were healthier than regular ones. The plaintiffs also attempted to show loss on a classwide basis related to the price of light cigarettes. The court found these to be insufficient under the RICO requirement. The court also noted that the statute of limitations defense also counseled against class certification, because it would be difficult to determine which plaintiffs’ claims were time-barred. The court summarized that because numerous issues in the case were not susceptible to generalized proof but would require individualized inquiries, it decided to decertify the class.
A. Connecticut
Tort Reform : No cases reported in this area.
Preemption :
Martir v. Town & Country Club , 2008 Conn. Super. Lexis 2654 (Conn. Super. Ct. 2008). The plaintiff brought a personal injury action against defendant country club, contractors, and paint company after allegedly slipping on recently painted steps. The defendant Glidden Paints moved to dismiss on the basis that the claims asserted were in essence product liability claims and were improperly asserted in the apportionment complaint. The court agreed that even though the allegations were couched in terms of negligence, they were product liability claims that could not be brought as apportionment claims. The court also found that the Connecticut products liability statute provided the exclusive remedy for product liability claims thereby denying plaintiffs the option of bringing such claims under apportionment. The court held that the apportionment complaint was legally insufficient and granted the defendants’ motion to strike the complaint.
Environmental or “Green” Products Liability Litigation : No cases reported in this area.
Market Share or Other New Theories of Liability:
Albini v. Osteoimplant Tech ., 2008 Conn. Super. Lexis 2751 (Conn. Super. Ct. 2008). The plaintiff brought a products liability action related to an artificial hip against the defendant manufacturer Osteoimplant
Technology, Inc. as well as Encore Medical Corp., which had purchased Osteoimplant’s assets. The plaintiff and
Encore agreed that under generally accepted products liability rules, Encore would not be liable to the plaintiff.
Nevertheless, the plaintiff argued that the court should adopt the “product line exception” under which successor corporations may be liable if they continue to manufacture the same product. The exception has been adopted by California, Washington, and New Jersey, and followed by a handful of Connecticut superior court judges. The court declined to adopt the doctrine and granted the defendant’s motion for summary judgment.
Basso v. Boston Sci. Corp.
, 2008 Conn. Super. Lexis 3020 (Conn. Super. Ct. 2008). The plaintiff alleges he was injured after a Bagley Helical Basket medical device broke inside his body during a procedure to remove kidney stones. The plaintiff brought product liability claims against the device manufacturer, Boston Scien-
246 v Product Liability Conference v April 2009
tific, and Greenwich Hospital, as well as claims for intentional and negligent spoliation of evidence. The plaintiff alleged the hospital was engaged in the sale of medical products and made a profit when it sold the device to plaintiff for use in the procedure. Greenwich Hospital moved to strike the claims against it, arguing that as a matter of law, hospitals are not product sellers and cannot be subject to product liability claims. The plaintiff argued that it was inappropriate for the court to decide the issue on a motion to strike and it should be resolved at the summary judgment stage. The court noted that the hospital had not cited any authority establishing that a hospital cannot be a product seller per se . The court denied the motion to strike, stating that it would be possible for the plaintiff to bring forth evidence showing the particular hospital was engaged in selling medical products.
The court said it could revisit the issue on a motion for summary judgment if no such showing was made.
Class Action Fairness Act (CAFA) : No cases reported in this area.
Other :
Nationwide v. Amphion , 2008 WL 2572166, (D. Conn. 2008). The plaintiff brought claims for damage to real and personal property on behalf of two Best Buy customers who purchased a portable DVD player that allegedly malfunctioned and caught fire. The plaintiff alleged that the DVD player was defective when it was manufactured and distributed, and that it was unsafe for its intended purpose. Best Buy, one of three named defendants, subsequently brought claims against the third party manufacturer’s representative AB & T, which arranged the sale. AB&T argued that the court lacked jurisdiction, because AB&T took no action directed at the state of Connecticut nor had it possessed or distributed any DVD players. Furthermore, AB&T had no office or agent in Connecticut and had not solicited business there. The court held that AB&T did not make any sales that would expose it to jurisdiction in Connecticut under the state’s long-arm statute. The court granted
AB&T’s motion to dismiss.
Breen v. Synthes-Stratec, Inc ., 108 Conn. App. 105, 947 A.2d 383, 2008 Conn. App. Lexis 261 (Conn. App.
Ct. 2008). The plaintiff appealed a jury verdict in favor of the defendants in a products liability case involving screw plate devices used in orthopedic surgery on plaintiff’s leg. The plaintiff argued that the jury had been improperly charged on comment (k) to section 402 of the Restatement (Second) of Torts and on the learned intermediary doctrine. Comment (k) lists drugs, vaccines, and experimental drugs as examples of unavoidably unsafe products. The court held that under Connecticut law, comment (k), as well as the learned intermediary doctrine, is applicable to implanted medical devices. The court affirmed the jury verdict.
Travelers Indemnity Co. of America v. Connecticut Light and Power , 2008 Conn. Super Lexis 1387
(Conn. Super. Ct. 2008). The plaintiff brought a product liability claim against defendant electric company after voltage fluctuations in the electricity provided to plaintiff’s home allegedly caused a fire. The defendants moved to strike plaintiff’s product liability claim arguing that electricity is not a product. The court noted a split among superior court judges on the issue, but ultimately held that electricity is a product for product liability purposes once it passes through a consumer’s meter. The court denied defendants’ motion to strike.
Pfizer, Inc. v. Mine Safety Appliances Co.
, 2008 Conn. Super. Lexis 1239 (Conn. Super. Ct. 2008). Following an explosion at a Pfizer facility in Connecticut, plaintiffs sued Mine Safety Appliance Company (“MSA”) as the supplier of a chemical reagent thought to have caused the explosion. Pfizer employees sued for personal injury and Pfizer sued for damages to the facility. MSA sought partial summary judgment for the claims premised on the Connecticut Product Liability Act. The plaintiffs’ product liability claims included numerous allegations relating to design, manufacture, labeling, packaging, and testing of the reagent at issue. MSA argued that warranty and labeling claims were preempted by OSHA regulations, that it did not breach its duty to warn, that its warnings and instructions were not the proximate cause of plaintiffs’ injuries, and that the plaintiffs failed to disclose an expert with regard to their design claims. The court noted that besides MSA’s motion as to Pfizer and the expert claim, MSA did not specify which portion of the products liability claims were intended as the
Red, Orange, Yellow, Green, Blue, Indigo, Violet: Full Spectrum of...
v Arends and Mayfield v 247
subjects of the motion for partial dismissal. The court recognized a superior court split as to whether a party can eliminate some, but not all, of the allegations of a single count through a motion for summary judgment.
The court found that most cases have not allowed elimination of only some of those allegations and denied
MSA’s motions.
B. New York
Tort Reform : No cases reported in this area.
Preemption :
Strini v. Edwards Lifesciences Corp.
, 2008 WL 820192 (N.D.N.Y. Mar. 26, 2008). The district court ordered defendants to disclose certain documents they had declined to produce. The defendants moved for reconsideration on several grounds, including that plaintiff’s claims were preempted under Riegel and that the documents demanded were irrelevant. The court held that accepting Edwards’ contention would require a determination on the merits, which is reserved for the district court. Further, the court found that even if some of the claims were governed by Riegel, the claims for negligent failure to comply with FDA-approved procedures appeared to survive Riegel and the documents ordered disclosed might lead to the discovery of evidence that defendants breached express warranties. Such parallel claims are not preempted under Riegel . The court denied the motion for reconsideration.
Fabiano v. Philip Morris , 2008 WL 2796951 (App. Div. 1st Dept. 2008). The plaintiff appealed the denial of his punitive damages claim against several cigarette manufacturers. The defendants raised the defense of res judicata premised on the action brought by the New York State Attorney General and ultimately resolved when the New York Attorney General and the attorneys general of 45 other states entered a Master Settlement Agreement with various cigarette manufacturers. The plaintiffs argued they were not party to the 1997 agreement and not bound by it. The court found that punitive damages claims were “quintessentially and exclusively” public in both their orientation and purpose and were particularly appropriate for an Attorney General to bring in parens patriae . Punitive damages claims were allowed not to compensate the injured party, but rather to punish the wrongdoer and deter similar conduct in the future. The court held that the public nature of the interests prosecuted and resolved by the New York Attorney General under the Master Settlement Agreement left plaintiff with no private right of action for the same damages. Ultimately, the punitive damages issue was res judicata and the court dismissed plaintiff’s punitive damages claim.
Tormey v. American Tobacco Co.
, 48 A.D.3d 1063, 2008 N.Y. Slip Op. 770 (App. Div. 4th Dept. 2008).
The plaintiffs alleged that cigarette manufacturers were negligent in failing to warn nonsmokers about risks of environmental tobacco smoke. The plaintiffs appealed from a partial grant of summary judgment on failure to warn. The court held that plaintiffs’ claims were “based on smoking and health” and therefore preempted by the
Federal Cigarette Labeling and Advertising Act. The court affirmed the grant of partial summary judgment for the defendants.
Lake v. Kardijan , 2008 N.Y. Slip Op. 28506 (N.Y. Sup. Ct. Madison County Dec. 17, 2008). The plaintiff allegedly was injured during a procedure to treat an enlarged prostate. The plaintiff sued Urologix, manufacturer of the Targis System, a Class III medical device used during the procedure, and various physician defendants. The court found that the plaintiff’s strict liability, breach of implied warranty, and negligence claims were preempted under Riegel v. Medtronic , and the only claim that might survive preemption was breach of express warranty. For a breach of express warranty claim to escape preemption, the court found that plaintiff must identify specific representations by the manufacturer that exceeded the scope of the FDA approved statements,
“thereby establishing a contractual obligation voluntarily entered into by the manufacturer.” The plaintiff failed to make such a showing. The plaintiffs argued that Urologix failed to report adverse events to the FDA,
248 v Product Liability Conference v April 2009
thereby depriving Urologix of the benefit of FDA preemption. The court disagreed, holding that claims that a manufacturer violated the Medical Device Act (“MDA”) did not diminish the applicability of federal preemption because the enforcement of the MDA is the sole province of the federal government. The court granted
Urologix’s motion for summary judgment.
Environmental or “Green” Products Liability Litigation:
In re: Methyl Tertiary Butyl Ether Products Liability Litigation , 578 F. Supp. 2d 519 (S.D.N.Y. 2008).
The plaintiffs in this MDL alleged that defendant gasoline refiners and manufacturers had contaminated their wells with the gasoline additive methyl tertiary butyl ether (“MTBE”). Twelve gasoline refiners who account for approximately 70 percent of the named defendants in these consolidated cases agreed to settle 59 actions for
$442 million. The defendants also agreed to pay 70 percent of the cost of treating any of plaintiffs’ wells threatened with future contamination. In order to foreclose future contribution claims from the remaining defendants, the twelve moved for a determination that the settlement was made in good faith under California and
Illinois law. Nonsettling defendant ExxonMobil opposed the motion, arguing that the twelve had not properly estimated their liability and share of the damages. The court considered the twelve’s estimation methods, and found that ExxonMobil had not met its burden of proving the settlement was not in good faith. The court found the settlement in each case was within the reasonable range of the settling defendants’ combined liability. The court dismissed the claims against the settling defendants.
Cleary v. Wallace Oil Co.
, 2008 WL 4682615 (App. Div. 2d Dept. 2008). More than 900 gallons of heating oil were pumped into plaintiffs’ home while plaintiffs were away. The plaintiffs sued defendant oil supplier under Article 12 of New York Navigation Law for strict liability for a party discharging petroleum. The plaintiffs also sued for negligent infliction of emotional distress. The district court granted summary judgment to plaintiffs on the strict liability claims and the appellate court affirmed that decision. On appeal, the court found that the plaintiffs’ expert had presented evidence that the environment was toxic, but not any clinical evidence of some physical manifestation of exposure or some other indication of toxin-induced disease. The court awarded summary judgment to the defendants on the negligent infliction of emotional distress claims.
Market Share or Other New Theories of Liability:
In re: Methyl Tertiary Butyl Ether (“MTBE”) Products Liability Litigation , 2008 U.S. Dist. Lexis 47222
(S.D.N.Y. June 18, 2008). In another case involving alleged well contamination by MTBE, the court addressed the “commingled product theory.” The court held that all defendant gasoline refiners and MTBE manufacturer defendants could be liable for contamination in each well, unless a particular defendant could prove its product could not have been in the commingled gasoline alleged to have caused contamination at the particular time and place. After the court had denied defendant’s summary judgment motion, defendant ExxonMobil moved for interlocutory appeal, arguing that three questions should be certified to the New York Court of
Appeals. The first was whether New York would permit a “commingled product” theory without establishing which manufacturers’ products reached each well’s capture zone. The second was whether New York law would permit a “commingled product” theory against all manufacturers, even when the plaintiffs could establish traditional causation against one or more defendants capable of making the plaintiffs whole. The last was whether
New York law would permit the plaintiffs to establish causation under a “commingled product” theory against defendants with a very small contribution rather than a substantial one. The court held that the plaintiffs had not established conflicting authority establishing substantial doubt as to the earlier order’s correctness. The court denied ExxonMobil’s motion for interlocutory appeal and did not disturb its denial of summary judgment.
Class Action Fairness Act (CAFA):
Red, Orange, Yellow, Green, Blue, Indigo, Violet: Full Spectrum of...
v Arends and Mayfield v 249
In re Zyprexa Products Liability Litigation , 253 F.R.D. 69 (E.D.N.Y. 2008). The plaintiffs alleged violation of RICO and state consumer protection statutes, common-law fraud, and unjust enrichment against Eli Lilly, the Zyprexa manufacturer. The plaintiffs purported to include both individuals and third party payors who had bought Zyprexa. The plaintiffs invoked jurisdiction under the Class Action Fairness Act (“CAFA”) for certifying nationwide classes of consumers and third party payors alleging RICO violations. Specifically, plaintiffs alleged that Eli Lilly had engaged in mail fraud predicated on overpricing after making excessive claims about
Zyprexa’s utility as well as disavowing adverse side effects including weight gain, diabetes, hyperglycemia, and metabolic problems.
The plaintiffs sought to certify classes of individual direct payors and third party payors who purchased the drug. The court distinguished McLaughlin v. American Tobacco , 522 F.3d 215 (2d Cir. 2008), arguing that the defendants’ alleged misrepresentations caused plaintiffs specific damages when they overpaid for
Zyprexa. The court held that the plaintiffs’ proof of reliance, loss causation, and injury were not generalized but individual-specific. The court also determined that allowing claims before June 20, 2005, the case’s initial filing date, would resolve any statute of limitations problems. After considering each of the requirements for certifying a class action, the court certified a class of third party payors with regard to the RICO claims. Nevertheless, the court acknowledged the difficulty of administering a class based on a single federal law but involving 50 different state substantive-procedural rules and no federal conflicts of law rule. The court declined to certify a class of individual plaintiffs with regard to RICO claims because the individuals’ claims were not typical of the class and because of their unique circumstances, the named individuals could not adequately represent the class. The court also stated that solutions required under CAFA providing for removal of state substantive-lawbased cases could be put off for the future, but did not elaborate further. The court declined to certify plaintiffs’ state consumer fraud claims because applying various state laws to a class would present both predominance and manageability problems. In addition, the court pointed out that state consumer protection laws vary widely on fundamental substantive and procedural issues.
Other :
In re Fosamax Prods. Liab. Litig ., 2008 U.S. Dist. Lexis 57473 (S.D.N.Y. July 28, 2008). Numerous plaintiffs brought suit for allegedly developing osteonecrosis of the jaw after ingesting Merck’s osteoporosis drug Fosamax. Hundreds of cases were consolidated in the Southern District of New York for pretrial coordination. In one of these actions, Debra Flores, a Virginia resident, brought her claim in New Jersey court against
Merck and two other non-Virginia defendants. The case was removed to the U.S. District Court for the District of New Jersey then transferred to the MDL. The plaintiff moved to remand, arguing that because Merck is a citizen of the forum state, the case could not be removed under 28 U.S.C. § 1441(b).
The court interpreted section 1441(b), which permits removal of diversity cases only if none of the parties “properly joined and served” is a resident of the forum state, to allow removal if the defendant was a resident but had not yet been served. The court allowed defendant Merck’s removal of the case to stand because although Merck is a New Jersey resident, it had not been served before the case was removed. The court held that the plain language of the statute allowed removal unless an in-state defendant has been “properly joined and served” and denied Flores’ motion to remand.
In re Grand Theft Auto Video Game Consumer Litigation , 251 F.R.D. 139 (S.D.N.Y. 2008). This case involves seven actions transferred to the Southern District of New York as part of multidistrict litigation. The plaintiffs alleged that the defendants had violated state consumer-protection laws of New York, California, and
Pennsylvania by marketing and selling their video game with an improper content rating. The plaintiffs sought to certify a nationwide class of consumers with similar claims under the consumer protection laws of the 50 states. The plaintiffs claimed the defendants failed to disclose to the Entertainment Software Ratings Board
250 v Product Liability Conference v April 2009
(“ESRB”) that the game contained a Sex Minigame, which was accessible by using a modification. After the modification code was widely circulated among the gaming community, the ESRB changed the game’s rating from Mature to Adults Only. The plaintiffs proposed a settlement class of purchasers who were offended by the
Minigame and who would not have purchased the game or returned it had they known. Citing McLaughlin v.
American Tobacco Co.
, 522 F.3d 215 (2d Cir. 2008), the court ruled that common issues did not predominate over individual issues and decertified the settlement class.
Rose v. Brown & Williams Tobacco Corp.
, 53 A.D.3d 80 (N.Y. App. Div. 1st Dept. 2008). The plaintiff developed cancer and neurological damage after decades of cigarette smoking. In a negligent design claim, plaintiff contended the defendant tobacco companies should have sold only “light” cigarettes not the regular variety plaintiff smoked. The court noted that under New York law, a manufacturer cannot be liable for failing to adopt an alternative product design that has not been shown to retain the “inherent usefulness” of the original. The court stated that cigarettes’ functionality can be demonstrated only by their acceptability to consumers, and absent any evidence that light cigarettes would be acceptable in the regular cigarette market, the plaintiffs did not meet their burden. The court reversed the judgment and dismissed the complaint.
Adamo v. Brown & Williamson , 2008 N.Y. Slip. Op. 09849 (N.Y. 2008). The New York Court of Appeals affirmed Rose v. Brown & Williamson (Rose died during the pendency of the appeal and the executor, Adamo, was substituted). The court held that the plaintiffs failed to prove that regular and light cigarettes have the same utility. The court held that in cases in which a product’s only function is to satisfy the customer, the plaintiff must show that the safer product is acceptable to customers. The court also stated that if regular cigarettes are to be banned, it is a decision for the legislature not the court.
Devore v. Pfizer , No. 4147-4147A-4147B, slip op. (N.Y. App. Div. Nov. 20, 2008). The plaintiffs, four
Michigan residents, alleged they were injured by Pfizer’s drug Lipitor in Michigan. They brought claims for fraud, negligent representation, products liability, breach of implied warranty, and fraudulent concealment.
The plaintiffs appealed the trial court’s dismissal of their complaints. They argued that New York law should be applied because the alleged tortious conduct occurred in New York, because Pfizer is headquartered in New
York. The defendant Pfizer argued that the injuries occurred in Michigan and Michigan law should be applied, including a state statute granting immunity against claims for FDA-approved drugs. Specifically, the statute applies to bar claims unless the plaintiff can show the FDA’s approval was revoked or the manufacturer secured its approval through fraud or bribery. The court applied New York’s “interest analysis” approach to the choice of law issue and found that Michigan had far greater significant contacts with the litigation than New York.
The court rejected plaintiffs’ argument that the district court should have allowed discovery before ruling on a motion to dismiss based on Michigan law. The plaintiff pled the location of the injury and the court held that a Rule 3211 motion to dismiss may be brought based on the application of foreign law. Accordingly, the court affirmed the district court’s dismissal of the complaints.
C. Vermont
Tort Reform : No cases reported in this area.
Preemption :
Kellogg v. Wyeth , 2008 U.S. Dist. Lexis 104073 (D. Vt. 2008). The plaintiff sued Wyeth and several generic drug manufacturers alleging that metoclopramide caused her to develop the neurological disorder of tardive dyskinesia. Metoclopramide is an active ingredient in Wyeth’s drug Reglan, prescribed to treat plaintiff’s gastroesophageal reflux disease. The generic drug manufacturer defendants argued that the failure-to-warn and labeling claims were preempted by FDA abbreviated new drug application (“ANDA”) requirements that generic drugs that are bioequivalent to approved brand name drugs use labeling that is essentially the same as
Red, Orange, Yellow, Green, Blue, Indigo, Violet: Full Spectrum of...
v Arends and Mayfield v 251
the brand name drug. The court applied a presumption against preemption and held that the generic manufacturers had not shown that Congress, by requiring identical labeling of brand name and generic drugs, had clearly intended to preempt all failure-to-warn claims under state law. The court denied defendants’ motions for summary judgment and allowed plaintiff to pursue the failure-to-warn claims against the generic manufacturers.
Environmental or “Green” Products Liability Litigation : No cases reported in this area.
Market Share or Other New Theories of Liability : No cases reported in this area.
Class Action Fairness Act (CAFA) : No cases reported in this area.
Other : No cases reported in this area.
III. Third Circuit
By Brian P. Sharkey and Genevieve M. Spires
Brian P. Sharkey is counsel to Porzio, Bromberg & Newman with offices in Morristown, New Jersey, and New York, New York, and is a member of the firm’s complex tort litigation department. Mr. Sharkey concentrates his practice in the areas of product liability, appellate practice, and governmental affairs, and represents companies in the pharmaceutical, automotive, and heavy machinery industries.
Genevieve M. Spires is an associate and a member of the firm’s complex tort litigation department. She concentrates her practice in the areas of product liability, mass tort, toxic tort litigation, and general liability and represents companies in the pharmaceutical, chemical, and heavy machinery industries.
Tort Reform:
In Taylor v. Mooney Aircraft Corp.
, 265 Fed. Appx. 87 (3d Cir. 2008), a Georgia family died when their aircraft, which one of the deceased family members purchased in Georgia from a Georgia company, crashed in Pennsylvania. The district court granted summary judgment to the defendants based on Georgia’s ten-year statute of repose that applied to product liability claims. The Third Circuit, applying Pennsylvania’s choice-oflaw rules, affirmed that ruling. In so doing, the court noted that there was a conflict between Georgia and Pennsylvania law because the latter’s products liability law would permit the plaintiffs’ claims to proceed. However, the court further concluded that it was a false conflict because Georgia had a strong interest in applying its statute of repose, whereas Pennsylvania had no interest that would be harmed if its law was not applied.
Preemption :
Tuna fish was the subject of the Third Circuit’s preemption analysis in Fellner v. Tri-Union Seafoods,
LLC , 539 F.3d 237 (3d Cir. 2008). The plaintiff claimed that her diet consisted almost exclusively of the defendant’s tuna products for a five-year period. She sued the defendant, claiming that she was injured because of her consumption of methylmercury and other harmful compounds contained in those products. The district court granted the defendant’s preemption motion to dismiss that was based on the FDA’s regulatory approach to the risks posed by mercury in tuna fish. On appeal, the defendant presented three preemption theories: (1) the FDA adopted a pervasive regulatory approach, as evidenced by a FDA advisory, backgrounder, and internal enforcement guidelines, that conflicted with the plaintiff’s state-law product liability claims; (2) the FDA rejected the use of warning labels in favor of a more nuanced approach that warnings should not be regulated; and (3) the FDA would have rejected any warning label as “misbranding.” The Third Circuit rejected all of those arguments and reversed and remanded. As to the first theory, the Third Circuit explained that federal law could preempt only state law, and the FDA’s actions did not amount to federal law . Even if it did, however, the court further explained that there was no actual conflict between the plaintiff’s claims and the FDA’s actions. The
252 v Product Liability Conference v April 2009
Third Circuit dismissed the defendant’s second theory by stressing that the FDA’s decision not to require a federal methylmercury warning did not have a preemptive effect. Lastly, the Third Circuit rejected the defendant’s third theory because it could not identify any FDA regulatory action that established that a mercury warning would in fact be misbranding under federal law.
The plaintiffs in Colacicco v. Apotex Inc.
, 521 F.3d 253 (3d Cir. 2008), were the survivors of adults who committed suicide while taking medication from the class of antidepressants referred to as selective serotonin reuptake inhibitors (“SSRIs”). The issue presented to the court was whether the plaintiffs could proceed with their state-law claims against the drug manufacturers based on their theory that the drug labeling did not warn of its association with an increased risk of suicide, or whether the FDA’s actions preempted the plaintiff’s claims. The key FDA actions included its monitoring of the possible association between suicide and SSRIs for
20 years and its repeated rejection of the scientific basis for the warnings that the plaintiffs state-law claims should have been included on the labeling. Specifically, the FDA determined that the warnings that the plaintiffs advanced were without scientific basis and would therefore be false and misleading. Based on those FDA actions, the Third Circuit concluded that the plaintiff’s state-law warning claims conflicted with federal law and were therefore preempted. The court emphasized, however, that its holding was limited to situations where the
FDA publicly rejected the specific warning that the plaintiffs claimed state law required.
Environmental or “Green” Products Litigation : No cases reported in this area.
Market Share or Other New Theories of Liability : No cases reported in this area.
Class Action Fairness Act (CAFA) : No cases reported in this area.
Other :
In Pineda v. Ford Motor Co.
, 520 F.3d 237 (3d Cir. 2008), the plaintiff, an automobile technician, was injured when the rear liftgate glass of a vehicle he was working on shattered. The plaintiff offered expert testimony to support his defect claims. The district court excluded the expert’s testimony and then granted summary judgment to the defendant. The Third Circuit reversed both decisions. The district court reasoned that the expert was not qualified to offer an opinion about the warning claim because he admitted that he was not a
“warnings expert.” The Third Circuit disagreed with that ruling because, even though he may not have been the
“best qualified” expert or a “specialized” warnings expert, the expert’s general background and experience rendered him qualified to offer an opinion about the purported deficiencies of the defendant’s warning. In terms of his substantive opinion, the expert asserted that a Safety Recall Instruction that the defendant issued following the manufacture of the automobile at issue was an adequate alternative to the warning that the defendant provided with the automobile at the time of sale. The district court opined that Federal Rule of Evidence 407 prohibited such a comparison because the Safety Recall Instruction was a subsequent remedial measure. The
Third Circuit concluded otherwise, as it ruled that it was appropriate for an expert to rely upon a subsequent safety instruction issued by a manufacturer in evaluating whether the initial warning was inadequate. The court further explained that Rule 407’s general exclusion of subsequent remedial measures did not prevent the expert from basing his opinion on the Safety Recall Instruction.
In Toms v. J.C Penney Co., Inc.
, 2008 U.S. App. Lexis 26262 (3d Cir. Dec. 23, 2008), the plaintiff claimed that the defendant sold her a defective terry cloth robe that was unreasonably flammable. The plaintiff was injured when she dropped a match onto the collar of her robe, which then caught fire. The Third Circuit ruled that the plaintiff failed to establish that the robe was defective in any way. First, the court concluded that the plaintiff failed to establish a design defect claim because she did not provide a reasonable alternative design for the robe, nor did she demonstrate that the risks involved in wearing the robe outweighed its usefulness. Second, the court found that the plaintiff did not establish a manufacturing defect claim because she presented no
Red, Orange, Yellow, Green, Blue, Indigo, Violet: Full Spectrum of...
v Arends and Mayfield v 253
evidence to support that theory and because she did not negate other possible causes of the incident. Lastly, the court rejected the plaintiff’s argument that the defendant should have provided a warning about the excessive flammability of the robe because she did not prove that the robe was in fact excessively flammable.
The plaintiff in Harold v. Black & Decker, U.S., Inc.
, 2008 U.S. App. Lexis 21117 (3d Cir. Oct. 7, 2008), prevailed in his products liability trial, which involved a rotary hammer. At trial, the defendant attempted to introduce into evidence records that demonstrated an absence of prior accidents involving the hammer. Specifically, the defendant sought to introduce a 13-month record of every phone call to a customer complaint hotline and a record of every claim of loss filed against it over the last 12 years. The trial court excluded the evidence because it was more prejudicial than probative, but the Third Circuit reversed. The Third Circuit determined that when a company maintains a comprehensive database of claims made and lawsuits brought against it, it will satisfy its burden to prove the foundation for the admissibility of that evidence. Because the defendant had sold thousands of functionally identical hammers to the one at issue, the Third Circuit concluded that evidence of the absence of prior accidents was admissible and that its exclusion was reversible error.
A. New Jersey
Tort Reform:
In 1995, the New Jersey legislature amended the New Jersey Product Liability Act to include an “innocent seller” defense. That defense allows the seller of an allegedly defective product to be relieved of liability by filing an affidavit that identifies the manufacturer of the product. However, a product seller will remain liable if it exercises significant control over the design, manufacture, packaging, or labeling of the product relative to the alleged defect. In Smith v. Alza Corp.
, 948 A.2d 686 (N.J. Super. Ct. App. Div. 2008), the plaintiff filed a product liability lawsuit against several defendants, including Steritek, Inc., alleging that he suffered a stroke caused by taking the diet drug Acutrim. Steritek packaged, labeled, and shipped the drug in bulk to distribution centers for ultimate sale and tried to use the “innocent seller defense.” The New Jersey Appellate Division concluded that Steritek did not qualify as a “seller” of the drug because it never actually sold Acutrim or obtained title to it throughout the entire manufacturing and distribution process.
The economic loss doctrine was the main issue in International Flavors & Fragrances, Inc. v. McCormick & Co., Inc.
, 575 F. Supp. 2d 654 (D.N.J. 2008). The plaintiff buyer sued the defendant paprika seller for breach of express and implied warranty, products liability, and fraudulent concealment. The plaintiff claimed that the paprika was defective because it was infested with cigarette beetles. The plaintiff further claimed that it had sustained damages because it had incorporated that contaminated paprika into its flavor products. The court, relying upon the economic loss doctrine, granted the defendant summary judgment on the plaintiff’s product liability and fraud claims. Under the economic loss doctrine, a plaintiff cannot recover in tort for purely monetary loss, as opposed to physical injury or property damage caused by the defendant. The court explained that the New Jersey Product Liability Act provides that a product liability claim arises when the product causing the alleged harm was not reasonably fit for its intended purpose, and that the Act defined harm as physical injury or physical damage to property, other than the product itself. The parties disputed whether the flavor product that the plaintiff incorporated the infested paprika into was “property other than the product itself” and whether such damage could support a product liability claim. The court held that the plaintiff could not pursue its tort claims on the facts involved in the case. The court pointed out that the plaintiff had not identified any cases from any jurisdiction involving analogous facts in which the plaintiff had been allowed to maintain a tort claim. Rejecting the plaintiff’s argument that its tort claims should not be barred, the court reasoned that if the plaintiff’s position were to be accepted, “‘contract law would drown in a sea of tort.’”
Preemption :
254 v Product Liability Conference v April 2009
The New Jersey Appellate Division considered two preemption issues in McDarby v. Merck & Co.,
Inc.
, 949 A.2d 223 (N.J. Super. Ct. App. Div. 2008), a Vioxx lawsuit in which the plaintiffs prevailed at trial and obtained a multimillion dollar award. First, Merck argued that the Federal Food Drug and Cosmetic Act
(“FDCA”) preempted the plaintiffs’ claims that challenged the adequacy of the FDA-approved Vioxx label.
The appellate division held that the preemption doctrine did not mandate dismissal of the plaintiffs’ statelaw claims. Although it acknowledged Riegel v. Medtronic, Inc.
, 552 U.S. ___ (2008), the court determined that
New Jersey precedent supported its conclusion that the FDCA did not preempt the plaintiffs’ warning claims under either an express conflict theory or an implied conflict theory, in part because the FDA’s regulations did not prohibit a drug manufacturer from adding more warnings. Second, the appellate division ruled that the plaintiffs’ punitive damages claims were preempted by the FDCA. It is significant to note that the New Jersey
Supreme Court granted certification to consider the first preemption issue and has stayed its consideration of the case pending the disposition of Riegel .
The focus of the court’s analysis in Clark v. Actavis Group , 567 F. Supp. 2d 711 (D.N.J. 2008), was the primary jurisdiction doctrine. In April 2008, the FDA announced a Class I Recall of all lots of Beretek and UDL
Laboratories Digitek®. In May 2008, the plaintiffs filed a lawsuit against several defendants alleging that Digitek® was defective and adulterated. The plaintiffs then filed an emergency order to show cause in June 2008 requesting, among other things, that the defendants provide urgent notice to unnamed class members and physicians about the drug and preserve evidence. The court denied the plaintiffs’ motion based on the doctrine of primary jurisdiction, which provides that in cases involving factual issues beyond the conventional experience of judges, or in cases requiring the exercise of administrative discretion, agencies created by Congress for regulating that subject matter should not be passed over. That is, primary jurisdiction requires judicial abstention in cases where the regulatory scheme is of paramount importance. The court determined that the primary jurisdiction doctrine applied and that it should defer to the FDA for several reasons. First, the court reasoned that
Congress had given the FDA the authority to monitor and supervise product recalls. Second, the court observed that having to decide whether the additional notice that the plaintiffs sought, which went beyond the FDA’s recall, would have required it to perform the same type of technical analysis that the FDA had. The court determined that it would be inappropriate to do so because it did not have the expertise to conduct such a probing medical analysis and that the responsibility for doing so was within the realm of the FDA’s authority. Third, the court stressed that the plaintiffs had not provided any contrary legal support and had admitted that the determination of whether a new notice was required would involve medical expert testimony. Fourth, the court reasoned that a ruling in favor of the plaintiffs could complicate the recall procedures and that it should not become involved in a matter that was clearly within the FDA’s purview. Finally, the court emphasized that the plaintiffs could have sought similar relief from the FDA.
Environmental or “Green” Products Litigation : No cases reported in this area.
Market Share or Other New Theories of Liability:
Sinclair v. Merck & Co., Inc.
, 948 A.2d 587 (N.J. 2008), was a class action lawsuit that arose from the plaintiffs’ use of Vioxx. The plaintiffs claimed that, although they did not have any current injuries, they were at an enhanced risk of serious undiagnosed and unrecognized myocardial infarction, as well as other latent and unrecognized injuries. Among other things, the plaintiffs sought to recover medical monitoring costs. The New
Jersey Supreme Court rejected that relief because the plaintiffs did not have any current, physical injuries. The court held that because the plaintiffs could not, in the absence of any alleged physical injury, satisfy the definition of “harm” contained in the New Jersey Product Liability Act, N.J.S.A
. 2A:58C-1 to 11, their claim for medical monitoring damages failed.
Red, Orange, Yellow, Green, Blue, Indigo, Violet: Full Spectrum of...
v Arends and Mayfield v 255
The plaintiff in Boyle v. Ford Motor Co.
, 942 A.2d 850 (N.J. Super. Ct. App. Div. 2008), was injured when his car collided with a truck and the front-end of his bumper burrowed under the truck’s undercarriage. The plaintiff claimed that the truck was defectively designed because it was not equipped with a rear bumper guard.
The plaintiff sued several defendants, including the manufacturer of the truck’s chassis cab. The chassis cab was designed and intended to be a generic vehicle that would be altered to meet the end-user’s specific needs. The jury returned a verdict in favor of the plaintiff because it found that the chassis cab was defectively designed when it left the manufacturer’s control without a rear bumper guard. The appellate division reversed, holding that the manufacturer was in reality a component part manufacturer and that in that role it was not feasible or practical for it to install or provide a rear bumper guard. Instead, the court explained that the responsibility for deciding whether to attach a rear bumper guard was with the truck’s final-stage manufacturer because it was in the best position to evaluate the type of safety device needed for the end-user’s specific use.
Class Action Fairness Act (CAFA):
The plaintiffs in Kaufman v. Allstate Insurance Co.
, 2008 U.S. Dist. Lexis 71245 (D.N.J. Sept. 10, 2008), filed a class action lawsuit against six insurance companies alleging that the defendants failed to provide coverage for the reduced value of their vehicles that resulted from being involved in accidents. The plaintiffs claimed that the defendants’ failure to provide coverage for the diminished value of their vehicles violated New Jersey law and the insurance agreements. Three of the defendants were New Jersey citizens. The plaintiffs moved to remand the action to New Jersey state court based on the “local controversy” exception to the Class Action
Fairness Act (“CAFA”). That exception requires a federal court to decline jurisdiction when: (1) more than two-thirds of the plaintiff class are citizens of the original forum state; (2) at least one defendant from whom significant relief is sought and whose conduct forms a significant basis for the plaintiff’s claims is a citizen of the original forum state; (3) the principal injuries occurred in the original forum state; and (4) no other class action involving the same or similar allegations was filed against the defendants in the prior three years. The defendants did not dispute that the first and fourth requirements were present; instead, they focused their arguments on whether the plaintiffs satisfied the significant relief and principal injuries requirements. The court concluded that the plaintiffs satisfied the significant relief requirement because one of the New Jersey citizens from whom they sought relief was the largest insurer of personal automobiles in New Jersey. As to the principal injuries factor, the court found that it was satisfied because the plaintiffs’ claims pertained only to insurance policies issued in New Jersey. Therefore, the court granted the plaintiffs’ motion to remand.
Other :
The plaintiff in Quincy Mutual Fire Insurance Co. v. Scripto, USA , 573 F. Supp. 2d 875 (D.N.J. 2008), alleged that the defendant’s utility lighter was defectively designed and caused a fire. The plaintiff claimed that the fire was started by a four-year-old child using the defendant’s lighter. After criticizing the plaintiff’s expert’s unfamiliarity with the factual information about the fire, the court determined that the plaintiff failed to establish a design defect claim. Specifically, the court found that the plaintiff did not present an alternative design because: the plaintiff had not actually designed the alternative; had not provided evidence that an alternative exists; had not proven that an alternative lighter would work for its intended purpose; and had not proven that the alternative would be safer than the defendant’s current design. Moreover, the court found that even if there were sufficient evidence of a defect, summary judgment would still be appropriate because the plaintiff had offered no evidence to prove that the alleged defect was the proximate cause of the injury.
The multidistrict litigation In re Human Tissue Products Liability Litigation , 582 F. Supp. 2d 644 (D.N.J.
2008), arose from a criminal enterprise to harvest tissue from corpses without obtaining the appropriate consent and without following the relevant regulations. The plaintiffs included recipients of processed tissue that was supplied by one of the defendants, as well as relatives of the deceased donors whose tissue had been har-
256 v Product Liability Conference v April 2009
vested. The plaintiffs sued the defendants, who included tissue processing companies, distributors, and funeral homes, for product liability and other claims. Several of the defendants moved for summary judgment on general causation grounds as to the various tort claims advanced by the recipient patients who allegedly suffered harm from the tissue product. The court partially granted that motion. The court determined that the plaintiffs’ experts’ opinions did not satisfy the fit and reliability requirements of Federal Rule of Evidence 702 with respect to certain opinions they offered regarding the transmission of HIV, HBV, HCV, cancer, and syphilis; that unprocessed bone tissue was a transmitter of prior diseases; and that the incubation periods of HIV and hepatitis were longer than 30 days. The court determined that the plaintiffs’ experts’ failed to adequately explain how they extrapolated their conclusions from the results of various prior studies. Without expert testimony and without there being any genuine issue of material fact as to the issues of transmission and incubation, the court held that the defendants were entitled to summary judgment on those causation subissues.
Forum non conveniens is the common-law doctrine that empowers a court to dismiss a case when the forum selected by the plaintiff is so inconvenient that it would be unfair to the defendant to litigate the case there, even though jurisdiction and venue are otherwise appropriate. In Varo v. Owens-Illinois, Inc.
, 948 A.2d
673 (N.J. Super. Ct. App. Div. 2008), 15 Spanish nationals filed a product liability lawsuit in New Jersey against the defendant, alleging that they were injured when they were exposed to asbestos while working aboard
United States naval warships docked in Spain. The plaintiffs claimed that the defendant manufactured and sold the asbestos products in New Jersey. The trial court granted the defendant’s forum non conveniens motion to dismiss, but the appellate division reversed. The appellate division found that the defendant failed to prove that Spain was an available adequate alternative forum for the plaintiffs to adjudicate their claims. In addition, considering the public- and private-interest factors enunciated by the United States Supreme Court in Gulf Oil
Corp. v. Gilbert , 330 U.S. 501 (1947), the court further concluded that the defendant failed to prove that New Jersey was an inappropriate forum or that the plaintiff’s forum selection was intended to vex, oppress, or harass the defendant.
The issue presented to the appellate division in Nicastro v. McIntyre Machinery America, Ltd.
, 945 A.2d
92 (N.J. Super. Ct. App. Div. 2008), was whether New Jersey courts could assert long-arm jurisdiction over a
British manufacturer of an industrial machine that the plaintiff claimed was defectively designed and caused him to be injured in a workplace accident in New Jersey. The plaintiff’s employer purchased the machine new from the manufacturer’s Ohio-based, exclusive United States distributor. The employer made the purchase after attending a national trade show in the United States at which the manufacturer and distributor jointly operated an exhibit booth about the machine. The British manufacturer asserted that it did not have a physical presence in New Jersey, that it exercised no control over its distributor’s activities, and that it had no knowledge of what the distributor did with its machines after it shipped them to the distributor’s facility in Ohio. The appellate division, reversing the trial court, held that there were sufficient minimum contacts under the “stream-of-commerce” theory to support jurisdiction in New Jersey. The court further concluded that exercising jurisdiction in New Jersey did not offend traditional notions of fair play and substantial justice. Notably, the New Jersey
Supreme Court is considering this case on appeal.
B. Delaware
Tort Reform:
Denton v. A. Schulman, Inc.
, 2008 Del. Super. Lexis 416 (Del. Super. Ct. Oct. 16, 2008), was an asbestos lawsuit. The defendant moved for summary judgment, arguing that Indiana’s ten-year statute of repose, which the parties agreed governed the case, barred the plaintiff’s claims. The plaintiff argued that the statute of repose did not apply to his claims because the defendant engaged in wanton and willful conduct. The court rejected
Red, Orange, Yellow, Green, Blue, Indigo, Violet: Full Spectrum of...
v Arends and Mayfield v 257
that argument, reasoning that the Indiana legislature intended to impose a ten-year limitations period for all actions involving defective products, whether the action was premised on negligence, strict liability, or even intentional conduct.
Preemption : No cases reported in this area.
Environmental or “Green” Products Litigation:
A trial court issued two separate opinions granting summary judgment to two defendants in a chemical workplace exposure case. Herring v. Ashland, Inc.
, 2008 Del. Super. Lexis 356 (Del. Super. Ct. Oct. 1, 2008);
Herring v. Ashland, Inc.
, 2008 Del. Super. Lexis 358 (Del. Super. Ct. Oct. 1, 2008). In both opinions, the court explained that the defendants were entitled to summary judgment because of the plaintiff’s inability to establish product identification. Although the plaintiff’s evidence indicated that she was present in the same area as various chemicals, there was no evidence, only speculation, to indicate that she was exposed to the specific defendants’ products.
Market Share or Other New Theories of Liability:
In McLaughlin v. Dover Downs, Inc.
, 2008 Del. Super. Lexis 251 (Del. Super. Ct. July 17, 2008), the plaintiff was injured when he was knocked down in an automatic revolving door. The plaintiff sued several defendants, including the manufacturer of the revolving door. The revolving door contained several safety features, but the plaintiff claimed that the door was defective because it did not include certain optional devices as standard equipment. The plaintiff also alleged that the manufacturer failed to warn of the door’s dangers. The court rejected the notion that the door was defective because it did not include the optional devices as standard equipment, as the court stressed that simply because the door could have been safer did not mean that it was defective. The court also pointed out that there was no evidence that the manufacturer had knowledge that the door had any propensity to malfunction and cause injuries. Therefore, the court granted the manufacturer’s summary judgment motion.
Moore v. Anesthesia Services, P.A.
, 2008 Del. Super. Lexis 59 (Del. Super. Ct. Feb. 15, 2008), involved a spoliation issue. Following a carotid artery endarterectomy, the plaintiff was recovering when a suture broke.
The plaintiff then underwent a second procedure and suffered a major stoke. The plaintiff initially sued the hospital, the surgeon, and various other hospital personnel. During discovery, the plaintiff learned that the suture may have been defective. He then sued the two manufacturers, Ethicon Products Worldwide and Johnson and Johnson (“Ethicon”), and the United States Surgical Corporation (“USSC”), which supplied sutures to the hospital, alleging that the suture was defective. However, the suture was discarded at the time of the procedures. The surgeon thought that the suture was Ethicon’s, but billing records indicated that it was USSC’s. Both manufacturers moved for summary judgment, contending that the spoliation of the suture meant that plaintiff could not prove that the suture was defective, nor could the plaintiff prove which manufacturer’s suture was used. The court denied the defendants’ motions for two reasons. First, the court explained that the plaintiff was entitled to pursue discovery from both manufacturers about suture failures. Second, because the surgeon testified in deposition that the suture “ruptured,” the court concluded that there was a genuine issue of fact as to whether the suture was defective.
Nationwide Mutual Fire Insurance Co. v. Sears, Roebuck & Co.
, 2008 U.S. Dist. Lexis 17049 (D. Del. Mar.
5, 2008), was a subrogation product liability action. The plaintiff asserted negligent design and manufacture, strict liability, breach of warranty, and negligent repair claims with respect to a fire that was allegedly caused by a preowned Sears lawnmower. Sears moved to dismiss the strict liability claim pursuant to Federal Rule of
Civil Procedure 12(b)(6). The court, applying Delaware’s choice-of-law rules, first concluded that Delaware law applied because Delaware had the most significant relationship to the underlying accident and the parties. The
258 v Product Liability Conference v April 2009
court then granted Sears’s motion because Delaware does not recognize strict liability claims or the doctrine of strict tort liability for defective products.
Class Action Fairness Act (CAFA) : No cases reported in this area.
Other :
In Cervantes v. Bridgestone/Firestone North American Tire Co., LLC , 2008 Del. Super. Lexis 283 (Del.
Super. Ct. Aug. 14, 2008), the defendants requested that the court apply Mexican law to a case arising out of an automobile accident that occurred in Duragno, Mexico. Applying the factors outlined in the Restatement (Second) Conflict of Laws , the court denied the defendants’ motion because the United States had the most significant relationship to the case. The court noted that the place of injury was fortuitous and that none of the conduct that allegedly caused the injury occurred in Mexico. Moreover, the court pointed out that both defendants were incorporated in Delaware and that the relationship between the parties was centered in Delaware, not Mexico. Finally, the court concluded that Mexican law should not be applied because public policy factors weighed in favor of adjudication in Delaware, in large part because it would be far easier to apply Delaware law rather than Mexican law.
In Crane v. Home Depot, Inc.
, 2008 Del. Super. Lexis 198 (Del. Super. Ct. May 30, 2008), the plaintiff was injured when a ladder he was standing on collapsed. The plaintiff sued Home Depot, where the ladder had been sold, and the German parent company of the manufacturer of the ladder, alleging that the ladder was defective.
The German company moved for dismissal on the basis of a lack of personal jurisdiction, but the court denied the motion. The court concluded that, pursuant to the stream of commerce theory, there were sufficient minimum contacts demonstrating that the exercise of personal jurisdiction was consistent with fair play and substantial justice.
C. Virgin Islands
Tort Reform : No cases reported in this area.
Preemption : No cases reported in this area.
Environmental or “Green” Products Litigation:
In Mendez v. Hovensa, LLC , 2008 U.S. Dist. Lexis 25127 (D.V.I. Mar. 24, 2008), the plaintiffs suffered from acute gastroenenteritis after drinking water that the defendant provided to them while they were working at the defendant’s facility. The water was provided to numerous employees in several coolers. After drinking this water, the plaintiffs became ill. The defendant made an attempt to collect the water and a representative number of the coolers. The contents of a few coolers were tested, but it was unknown whether the plaintiffs drank from those coolers or others at the facility. The plaintiffs’ experts ruled out other possible causes of their illness and concluded that contaminated water had caused their injuries. The plaintiffs asserted several claims, including one that the defendant provided them with unsafe and contaminated drinking water. The court denied the defendant’s summary judgment motion on this claim because it determined that, based on the evidence presented, a jury could conclude that the water was contaminated.
Market Share or Other New Theories of Liability:
The court in Banks v. International Rental & Leasing Corp.
, 2008 U.S. Dist. Lexis 12214 (D.V.I. Feb. 13,
2008), rejected the plaintiffs’ argument that strict liability could be imposed upon a lessor. The plaintiffs were injured in an automobile accident involving a minivan they rented from the defendant. In their complaint the plaintiffs claimed that, among other things, the defendant should be held strictly liable for leasing a defective product; specifically, the plaintiffs asserted that the brake system was the cause of the accident. The defendant moved for summary judgment, arguing that not only did the Restatement (Second) of Torts section 402(A)
Red, Orange, Yellow, Green, Blue, Indigo, Violet: Full Spectrum of...
v Arends and Mayfield v 259
provide the substantive law of products liability for the Virgin Islands, but it also prohibited a strict liability claim against a lessor for a defective product. The plaintiffs opposed the defendant’s position, claiming that the Restatement (Third) of Torts was the controlling law. The court agreed with the defendant, concluding that because section 402(a) had gained widespread acceptance in the Virgin Islands, it therefore was considered governing local law. The court also agreed with the defendant that a strict liability action for a defective product could not be maintained against a lessor and granted summary judgment to the defendant.
In Martin v. Powermatic, Inc.
, 2008 U.S. Dist. Lexis 44211 (D.V.I. June 4, 2008), the plaintiff was injured while using a saw in his workplace. The plaintiff alleged the product was a “Powermatic” saw. The plaintiff sued several defendants, including Jet Equipment and Tools, Inc. (“JET”), and asserted product liability claims. JET, although denying that the saw at issue was in fact a “Powermatic” saw, moved for summary judgment, arguing that it had merely acquired the assets and certain liabilities of the Powermatic entity that allegedly manufactured the saw. Hence, it argued that summary judgment was appropriate based on the principle of successor nonliability. The court explained that the Third Circuit had adopted the general rule that a successor corporation could not be held liable for the debts, liabilities, or torts of its predecessor. However, there were four exceptions to that rule of nonliability: (1) the successor expressly or impliedly assumes the predecessor’s liabilities;
(2) there is an actual or de facto consolidation or merger of the seller and the purchaser; (3) the purchasing company is a mere continuation of the seller; or (4) the transaction is entered into fraudulently to escape liability. The court granted JET’s summary judgment motion because it found that none of the exceptions to nonliability applied.
Class Action Fairness Act (CAFA) : No cases reported in this area.
Other : No cases reported in this area.
D. Pennsylvania
Tort Reform : No cases reported in this area.
Preemption :
In Knipe v. SmithKline Beecham , 583 F. Supp. 2d 553 (E.D. Pa. 2008), the plaintiffs sued the manufacturer of an antidepressant, claiming that their deceased child committed suicide as a result of ingesting the drug. The plaintiffs alleged that the defendant failed to warn of an increased risk of suicide among adolescent users of the drug. The manufacturer filed a summary judgment motion seeking to dismiss the plaintiffs’ statelaw claims on the grounds that they were preempted by the Federal Food, Drug and Cosmetic Act, 21 U.S.C.
§ 301, et seq.
The court concluded that the plaintiffs’ claims were not preempted by Food and Drug Administration (“FDA”) labeling requirements in effect at the time because the requirements did not mandate suicide warnings for pediatric patients using the drug at issue and similar drugs. It held that a jury must decide whether the drug manufacturer “indeed possessed information, not available to the FDA, upon which it could have unilaterally added a warning to its labeling.” The court also held that a jury could find that the manufacturer should have provided such warnings without imposing a requirement that conflicted with federal law on the manufacturer. The court distinguished the Third Circuit’s decision in Colacicco v. Apotex , 521 F.3d 253 (3d
Cir. 2008), a case involving the same drug and failure to warn of alleged suicide risks, based on the fact that
Knipe involved the risk of suicide in pediatric patients, while Colacicco involved adult patients. In Colacicco , the
Third Circuit held that state-law claims for alleged failure to warn of the risk of suicide in adult patients with the same antidepressant were preempted because they conflicted with the FDA’s regulatory actions in rejecting such warnings. The Knipe court noted that the Third Circuit limited its holding in Colacicco to situations in which the FDA publicly rejects the need for a warning that state-law plaintiffs claim is necessary. The court fur-
260 v Product Liability Conference v April 2009
ther distinguished the cases, explaining that because the antidepressant at issue was never approved for use in children, the FDA never reviewed safety or efficacy data before any approval for that use.
The court in Farina v. Nokia , 578 F. Supp. 2d 740 (E.D. Pa. 2008), was presented with a preemption issue in the class action context. The plaintiff cell phone user brought a putative class action against manufacturers, suppliers, vendors, lessors, service providers, and trade associations involved in the cell phone industry.
The plaintiff advanced several state-law claims asserting, among other things, that the defendants participated in a civil conspiracy to suppress knowledge of the adverse health and biological effects associated with cell phone use. The plaintiff further alleged that the use of a headset would have prevented cell phone users from being exposed to those health risks. The court granted the defendants’ preemption motion to dismiss. (At an earlier point in the litigation the court determined that federal jurisdiction was proper under the Class Action
Fairness Act, 28 U.S.C. § 1332(d) and § 1453.) Initially, the court ruled that the Federal Communicates Act did not provide a basis for express preemption of the plaintiff’s claims. Instead, the court based its dismissal on an implied preemption theory because, in order for the plaintiff to prevail at trial, the jury would have to determine that the Federal Communication Commission’s standards were inadequate and failed to ensure the safe use of cell phones. Because the plaintiff asserted that headsets were required to make cell phones safe and the governing regulations did not require headsets, the court reasoned that the plaintiff sought to impose additional legal duties on the defendants. Those additional duties would conflict with federal law because the defendants could be held liable even though they complied with federal law.
In Wright v. Aventis Pasteur, Inc.
, 2008 Phila. Ct. Com. Pl. Lexis 221 (C.P. Phila. Aug. 28, 2008), the plaintiffs claimed that mercury in the thimerosal-containing vaccinations and measles-mumps-rubella vaccine that their son received caused him neurological damage. The plaintiffs sued the manufacturers of the vaccines on design defect and failure-to-warn claims. The trial court granted summary judgment to the defendants, concluding that the National Childhood Vaccine Injury Act of 1986, 42 U.S.C.S. § 300aa-1 et seq.
(“Act”) preempted the plaintiffs’ state-law claims. The court determined that the Act preempted all state-law claims that a
FDA-approved vaccine was defectively designed, without even having to consider whether the specific vaccine at issue was unavoidably unsafe. As to the plaintiffs’ warning claims, the court found that the plaintiffs failed to raise any genuine issues of material fact that would enable them to overcome the presumption of a proper warning that the defendants were entitled to under the Act because they complied in all pertinent respects with governing federal law and regulations.
The plaintiff in Kiak v. Crown Equipment Corp.
, 2008 Phila. Ct. Com. Pl. Lexis 52 (C.P. Phila. Feb. 29,
2008), was injured at his workplace in an accident involving a forklift. He sued the forklift manufacturer and claimed that the machine had a defectively designed back-up travel alarm system. The trial court granted the defendant’s summary judgment motion in which it argued that the plaintiff’s claims were preempted by an
Occupational Safety and Health Act (“OSHA”) regulation, 29 C.F.R. 1910.178. In so doing, the court rejected the plaintiff’s theory that the forklift should have included additional safety features, as the court found that the plaintiff’s claim conflicted with the regulations minimum safety requirements. The court stressed that the
OSHA standard imposed the burden on the end-user, that is, the plaintiff’s employer, to determine whether additional safety devices were necessary based on its own needs and uses of the machine. The court also rejected the plaintiff’s contention that OSHA’s savings clause prevented federal preemption of his claims, as well as his theory that OSHA’s regulation governed only employee-employer relations as opposed to his relationship with a third party, that is, the manufacturer. As to the latter point, the court explained that it would be unfair to impose liability upon a manufacturer that complied with the federal standard based on the end user’s decision to incorporate additional safety devices that went beyond the standard.
Red, Orange, Yellow, Green, Blue, Indigo, Violet: Full Spectrum of...
v Arends and Mayfield v 261
In Collins v. Smithkline Beecham Corp.
, 2008 Phila. Ct. Com. Pl. Lexis 57 (C.P. Phila. Mar. 11, 2008), the plaintiffs claimed that the defendant did not provide adequate warnings to the decedent, who committed suicide, about the association between ingestion of Paxil and suicide. The trial court denied the defendant’s preemption motion that was based on its argument that Pennsylvania’s state-law labeling requirements frustrated the purposes of the Federal Food, Drug and Cosmetic Act, such that it could not comply with both federal and state law. The court performed an implied conflict preemption analysis and rejected the defendant’s position that allowing the plaintiffs’ claim that the label was inadequate conflicted with the FDA’s exclusive authority to dictate the content of the label. The court disputed the defendant’s interpretation of the relevant federal statutory and regulatory provisions and, relying upon Congress’s choice not to provide a federal remedy in the face of a state common-law cause of action, concluded that the plaintiffs’ claims were not preempted.
Environmental or “Green” Products Litigation:
In Commonwealth of Pennsylvania v. United States Mineral Products Co.
, 956 A.2d 967 (Pa. 2008), several state agencies sued Monsanto Corporation, under a strict liability theory, for chemical contamination in a state building resulting from the release of polychlorinated biphenyls (“PCBs”) that plaintiffs claimed Monsanto manufactured. The key issue at trial was whether the PCBs were distributed to the building’s surfaces in the normal use of PCB-containing products, or whether the PCBs were spread in smoke and soot during a severe fire. The PCBs were discovered for the first time in the building in the wake of the fire. The jury returned a defense verdict and the trial court denied the plaintiffs’ request for a new trial. Although the plaintiffs argued that they had proven that Monsanto’s product was defective, the Pennsylvania Supreme Court refused to disturb the verdict because it ruled that the jury reasonably could have concluded that the fire caused the spread of the PCBs to surfaces in the building, rather than any intended use of the PCBs.
Market Share or Other New Theories of Liability:
The plaintiffs in Schmidt v. Boardman Co., 2008 Pa. Super. Lexis 2458 (Pa. Super. Ct. Sept. 2, 2008), sued the defendants on the theory that they were liable as the successor companies to the original company that manufactured an allegedly defective nozzle/fire hose. The jury returned a verdict in favor of the plaintiffs. On appeal the defendants argued that they should not have been held liable for their predecessor’s product. Applying the product line exception to the general rule of nonliability for successor corporations, the appellate court affirmed the verdict. The court found that the defendants should be held liable because they had purchased the predecessor’s drawings, designs, engineering materials, and its trade name. Moreover, the defendants advertised under the predecessor’s trade name and admitted that it purchased that name to attract customers. Furthermore, although the defendants did not manufacture the exact same product as the predecessor, the court concluded that they should be held liable because they continued essentially the same product line.
Class Action Fairness Act (CAFA) : No cases reported in this area.
Other :
In Perry v. Novartis Pharmaceuticals Corp.
, 564 F. Supp. 2d 452 (E.D. Pa. 2008), the plaintiffs alleged that their child’s lymphoblastic lymphoma was caused by the defendant’s prescription drug Elidel. After the parties completed discovery limited to causation, the defendant moved to exclude the plaintiff’s two experts and for summary judgment. On general causation, the court determined that only one of the plaintiff’s experts satisfied the Federal Rules of Evidence. The court also found that the plaintiff’s experts’ testimony was inadmissible as to specific causation because the differential diagnosis procedure that the experts used failed to exclude that the child’s lymphoma was idiopathic. In the absence of any admissible expert evidence establishing causation, the court granted summary judgment to the defendant.
262 v Product Liability Conference v April 2009
Stephenson v. Sunbeam Products, Inc.
, 545 F. Supp. 2d 498 (W.D. Pa. 2008), involved allegations of a defective electric blanket. The plaintiff administratrix claimed that the decedent’s death was caused by a defect in an electric blanket that the decedent owned and allegedly used on the night of her death. The decedent died from smoke inhalation from a fire that started in her bedroom where she and the blanket were found. The defendant moved for summary judgment, arguing that the plaintiff failed to raise a genuine issue of material fact concerning whether the blanket caused the fire. Specifically, the defendant asserted that the plaintiff had failed to demonstrate that the blanket was actually turned on and was energized before the fire. Although the court acknowledged that the plaintiff had not proven that the blanket was in fact turned on before the fire, it found that she had presented sufficient evidence through her experts to survive the summary judgment motion. On that point, the court stressed that the plaintiff had produced testimony from two individuals who, based on their investigation of the scene and their knowledge and experience, had concluded that the blanket was the cause of the fire.
In Chubb v. On-Time Wildlife Feeders , 578 F. Supp. 2d 737 (M.D. Pa. 2008), an all terrain vehicle
(“ATV”) allegedly caught on fire and damaged the plaintiffs’ home. The plaintiffs sued the manufacturer of a product called a “Bumper Buddy” that was on the ATV at the time of the fire, claiming that it malfunctioned and caused the fire. That defendant/third party plaintiff sued the ATV manufacturer, claiming that a defect in the ATV caused the fire. The court granted summary judgment to the ATV manufacturer based on the third party plaintiff’s failure to provide expert testimony to support its claims that the ATV was defective. The third party plaintiff’s expert was disqualified following a Daubert hearing. Thus, the only evidence of a defect was testimony to the effect that the ATV was full of gas before the fire started and the ATV design expert’s testimony that “under enough circumstances,” it was possible for fuel to enter the frame of the ATV. The court noted that while some product liability cases do not require an expert, the facts must be comprehensible to an average juror. The court held that the two statements relied upon by the third party plaintiff were insufficient to establish a causal connection by which a jury could find that a design defect caused the fire and that the defect existed in the ATV when it left its manufacturer.
One of the issues in Perez v. Townsend Engineering Co.
, 562 F. Supp. 2d 647 (M.D. Pa. 2008), involved the admissibility of government and industry regulations and standards in product liability cases. In Perez , the plaintiff’s hand was injured when it came into contact with a skinning machine. He sued the machine’s manufacturer, claiming that it was defective. One of the items that the defendant manufacturer sought to preclude the plaintiff from introducing at trial was the position of the British government’s occupational safety organization that one type of skinner was preferred and recommended over the other. The court held, among other things, that in a product liability case, evidence of industry and government standards is not admissible to demonstrate the reasonableness of a defendant’s design choice. Further, evidence of the government recommendation at issue constituted inadmissible hearsay. Finally, because United States’ regulations could not be introduced as evidence in product liability cases, the recommendation of a certain design by a British government agency to
British companies should not be admissible because it does not show that the defendant violated any applicable standard in the United States.
In McAndrew v. Garlock Equipment Co.
, 537 F. Supp. 2d 731 (M.D. Pa. 2008), the decedent was injured while trying to thaw solidified asphalt that was clogging a portion of steel tubing that had been used to lift the asphalt to a roof. The steel tubing, which had thin walls, exploded after gas built up inside it. The plaintiff sued the alleged manufacturer of the thin wall steel tubing, claiming that it was defectively designed and manufactured and lacked sufficient warnings regarding the potential explosion hazard. The defendant filed a motion in limine to exclude the plaintiff’s expert’s testimony. The court granted this in part, ruling that the expert would not be permitted to testify regarding product identification, the alleged manufacturing defect, any alleged
Red, Orange, Yellow, Green, Blue, Indigo, Violet: Full Spectrum of...
v Arends and Mayfield v 263
design defect, and failure to warn to the extent that his testimony relates to personal protective equipment. The court analyzed each of the expert’s opinions to determine whether it is based on sufficient facts and data, a reliable methodology, and whether a connection was established between the methodology and the facts of the case. The court excluded the expert’s testimony as to product identification because it was entirely based on his own visual examination of the ruptured tubing and the defendant’s tubing exemplar. Because it was not based on any scientific, technical or other specialized knowledge and the jury could examine it visually on its own, the court determined that the expert’s testimony would not aid the jury. The plaintiff was not planning to present an alternative safer design to the jury, and therefore the plaintiff’s expert would be barred from testifying as to any design defect. As to the plaintiff’s claim of a manufacturing defect, the court found that the expert’s opinion that the tubing was not properly welded was not based on sufficient facts and data or a reliable methodology. Further, the court found that the methodology used by the expert did not have a sufficient connection to the facts of the case. Finally, because the plaintiff decided not to present evidence at trial that a full face shield would have prevented the plaintiff’s injuries, the court barred the plaintiff’s expert’s opinion as to the need to provide instructions on the use of personal protective equipment.
Ford Motor Co. v. Buseman , 954 A.2d 580 (Pa. Super. Ct. 2008), was an interlocutory appeal involving the interpretation of a settlement release. The plaintiff, the administratrix of the estate of her daughter, sued several defendants alleging that her daughter died as a result of injuries sustained in an automobile accident.
The plaintiff claimed that the automobile was defective. The defendants, including the manufacturer of the vehicle, moved for summary judgment on the basis that the plaintiff’s settlement of a prior wrongful death/survival action against the driver of the vehicle released them from any liability. The trial court denied the motion, but the Pennsylvania Superior Court reversed and ruled that the defendants were entitled to summary judgment. The two releases that the plaintiff had signed in settling the prior action discharged the driver and “all other persons, firms, or corporations.” Although the plaintiff contended that she had not intended to release from liability the instant defendants, the court ruled that the releases were unambiguous, clear, and released all tort-feasors from liability, including the automobile manufacturer.
Cave v. Wampler Foods, Inc.
, 2008 Pa. Super. Lexis 3926 (Pa. Super. Ct. Nov. 12, 2008), was a product liability action based on strict liability in which the plaintiff alleged that he suffered dental injuries from biting into hard material contained in the defendants’ ground turkey product. The jury returned a verdict for the plaintiff, and on appeal the defendants argued, among other things, that the trial court had improperly excluded testimony that the Code of Federal Regulations allowed for a small amount of bone material in processed meat, as well as testimony about other industry standards. Although the court acknowledged that Pennsylvania courts previously had rejected the introduction of industry or government standards into evidence in strict liability actions, the court concluded that under the unique facts of the food products claim, the excluded evidence was both relevant and admissible. Reversing the jury verdict, the court reasoned that the proffered evidence related only to the characteristics of the end product, not whether the defendants exercised all possible care, and, therefore, it was relevant to whether the product was defective.
IV. Fourth Circuit
By Jeremy C. Hodges and Derek A. Shoemake
Jeremy C. Hodges is an associate with Nelson Mullins Riley & Scarborough LLP in the firm’s Columbia,
South Carolina, office where he primarily practices in the areas of products liability defense, with an emphasis on medical device and pharmaceutical litigation.
264 v Product Liability Conference v April 2009
Derek A. Shoemake is a law clerk in the Columbia, South Carolina, office of Nelson Mullins Riley &
Scarborough LLP and a third-year law student at the University of South Carolina School of Law.
Tort Reform : No cases reported in this area.
Preemption : No cases reported in this area.
Environmental or “Green” Products Litigation : No cases reported in this area.
Market Share or Other New Theories of Liability : No cases reported in this area.
Class Action Fairness Act (CAFA) : No cases reported in this area.
Other :
Hansen v. Isuzu Motors Ltd ., 289 F. Appx. 621 (4th Cir. 2008). In an appeal from the U.S. District Court for the District of South Carolina, the Fourth Circuit held that the trial court did not err by instructing the jury that plaintiff should prevail on his claim of negligence if the evidence showed that the manufacturer’s conduct was negligent, or that it was reckless, willful, or wanton. The court rejected plaintiff’s argument that including the latter terms suggested a greater level of culpability than what was required to prevail on a simple negligence claim. The court reasoned that the trial court’s instructions, as a whole, made it clear that plaintiff had to prove only negligence and had provided an adequate explanation of the relevant standard for that claim. The court also held that under South Carolina law, a claim for negligent misrepresentation may be made only if the misrepresentation induced a plaintiff to enter into a contract or a business transaction.
South Carolina Department of Disabilities & Special Needs v. Hoover Universal, Inc.
, 535 F.3d 300 (4th
Cir. 2008). Multiple South Carolina state governmental entities invoked diversity jurisdiction in the district court to sue Hoover for allegedly defective building materials used in public buildings constructed during the
1970’s. The district court granted summary judgment in favor of Hoover based on South Carolina’s statute of repose and statutes of limitations. While appeals were pending before the Fourth Circuit, plaintiffs filed a motion to vacate the judgment of the district court under F.R.C.P. 60(b), arguing that the plaintiff governmental entities were alter egos of the state, and were, therefore, not citizens of any state so that diversity jurisdiction never existed.
A limited remand was granted to consider the jurisdictional issue, and the district court set its prior judgments aside. On appeal from that decision, the Fourth Circuit reluctantly affirmed the district court despite the inequities that resulted from allowing the plaintiffs to prosecute their claims in federal court but then have the judgments set aside judgments after losing at summary judgment.
Kennedy v. Joy Technologies, Inc ., 269 F. Appx. 302 (4th Cir. 2008). In a products liability suit against the manufacturer of a continuous miner machine, the Fourth Circuit held that the district court erred in ruling that an investigative report prepared by a mining agency pursuant to authority granted by law was inadmissible under F.R.E. 803(8)(c). The court noted that Rule 803(8)(c) is a rule of admissibility, not exclusion, and that the district court abused its discretion in presuming the report was unreliable. The district court also erred in excluding the evidence sua sponte , where the defendants bore the burden of proof on that issue.
A. Maryland
By Brian W. Casto
Brian W. Casto is an associate of Miles & Stockbridge PC at its Baltimore office, where he is a member of the firm’s products liability practice group. Mr. Casto focuses his practice on representing manufacturers in products liability actions and also in regulatory matters before the Consumer Products Safety Commission.
Tort Reform:
Red, Orange, Yellow, Green, Blue, Indigo, Violet: Full Spectrum of...
v Arends and Mayfield v 265
Green v. N.B.S., Inc.
, 952 A.2d 364 (Md. Ct. Spec. App. 2008). The plaintiff, the mother of a minor child, appealed from a trial court’s order applying Maryland’s statutory cap on noneconomic damages to a jury verdict rendered in her favor. In the eight months before giving birth to her child, plaintiff lived in a rental home where paint was chipping around several window frames and doorways. The plaintiff continued to live at the home until her child was diagnosed with elevated lead exposure, at ten months old. The plaintiff brought suit alleging that defendants’ negligence in owning and maintaining the rental home led to the child’s exposure to lead based paint, and that defendants’ negligence also violated Maryland’s Consumer Protection Act (“CPA”).
At trial, the court granted judgment in favor of plaintiff on her claims of negligence and violations of the CPA.
Thus, the only issues submitted to the jury were whether the child suffered any injury and, if so, the amount of noneconomic damages she suffered. The jury returned a verdict of $2.3 million, and the trial court, sua sponte , applied Maryland’s statutory cap on noneconomic damages, reducing the verdict to $515,000.
The plaintiff appealed, arguing that the cap applied only to common-law tort claims and that her CPA claim was not a common-law tort claim. After a careful examination of the legislative history behind the statutory cap, the Maryland Court of Special Appeals concluded that it applies to all actions for personal injury or wrongful death, even those based on statutory or constitutional violations. The Court of Appeals of Maryland granted certiorari in October 2008, and the case will likely be heard in 2009. See Green v.
N.B.S., Inc.
, 957 A.2d
999 (Md. 2008).
Brendan Kearney, Case in Baltimore Takes Aim at Maryland’s Longstanding Cap on Damages , Daily
Record (Baltimore, Md.), June 19, 2008 (“available through Westlaw at 2008 WLNR 11614358).
At the close of a medical malpractice trial in the city of Baltimore this past summer, a trial judge rejected plaintiff’s claim that the statutory cap on noneconomic damages was invalid because it has not accomplished its intended objective and also because it is preempted by the Federal Americans with Disabilities Act.
The plaintiff, whose award for pain and suffering was reduced from $10.2 million to $632,500, reportedly plans to appeal the decision.
American Tort Reform Ass’n, Judicial Hellholes 2008/2009, available at http://www.atra.org/reports/ hellholes/report.pdf (last visited Jan. 11, 2009).
The city of Baltimore was placed on the “watch list” in the American Tort Reform Foundation’s latest annual report on Judicial Hellholes. The report cited an abundance of asbestos litigation, multiple large verdicts in favor of plaintiffs in asbestos and lead paint cases, as well as challenges to Maryland’s statutory cap on noneconomic damages as reasons for including the city of Baltimore on its watch list.
Preemption :
Gourdine v. Crews , 955 A.2d 769 (Md. 2008). While driving, Crews suffered a debilitating hypoglycemic reaction that caused him to black out and hit another car, killing Gourdine. Crews was a diabetic and at the time of the accident was taking insulin medications manufactured by Eli Lilly. Gourdine’s wife sued Lilly for negligence, strict liability, and fraud, arguing that Lilly knowingly failed to include an adequate warning in its prescription drug label and that it was foreseeable that the lack of an adequate warning would lead to this type of accident and injury to third parties. At trial, the court granted summary judgment in favor of Lilly on two grounds: (1) because of the learned intermediary doctrine, Lilly did not owe a duty to plaintiff; and (2) plaintiff’s failure-to-warn claims were preempted by federal law.
On appeal, the Court of Appeals of Maryland avoided deciding whether or not the plaintiff’s failureto-warn claims were preempted by the Federal Food, Drug and Cosmetic Act, 21 U.S.C. § 321, et seq ., and held that the learned intermediary doctrine was not an issue they needed to explore. Instead, the court affirmed the decision on the basis that Lilly did not owe a duty to plaintiff’s decedent because there was no connection
266 v Product Liability Conference v April 2009
between Lilly’s warning and decedent’s injury. Without that connection, there was no duty, which is required for strict liability and negligence, making summary judgment appropriate as to both of those claims. The appellate court also found that summary judgment was appropriate as to plaintiff’s fraud claim because of the absence of any proof that Lilly made a false representation to the person allegedly defrauded.
Environmental or “Green” Products Litigation : No cases reported in this area.
Market Share or Other New Theories of Liability:
Reiter v. ACandS, Inc.
, 947 A.2d 570 (Md. Ct. Spec. App. 2008). Multiple asbestos-related cases were filed in the Circuit Court for Baltimore County and consolidated for trial. The lower court ultimately granted summary judgment in favor of several defendants on the grounds that plaintiffs’ evidence did not satisfy Maryland’s frequency, regularity, and proximity tests that determine the legal adequacy of causation in asbestos personal injury cases. In doing so, the trial court explicitly stated that Maryland law does not recognize market share liability theories, which was the first affirmative statement rejecting market share liability by a Maryland court and which was affirmed by the Court of Special Appeals of Maryland.
Class Action Fairness Act (CAFA):
Lloyd v. General Motors Corp.
, 560 F. Supp. 2d 420 (D. Md. 2008). The plaintiffs filed their initial products liability class action complaint in 1999 regarding seating systems in defendants’ automobiles and subsequently filed several amended complaints. The following year, the trial court granted the defendants’ motion to dismiss plaintiffs’ third amended complaint. An appeal from that decision was heard by the Maryland Court of Appeals in 2002. In February 2007, more than four years after hearing arguments on the case, the Maryland
Court of Appeals reinstated plaintiffs’ third amended complaint and pronounced that plaintiffs could recover damages for the economic loss of replacing the seating systems even in the absence of personal injury because they alleged that the systems posed an unreasonable risk of death or serious injury.
Afterwards, plaintiffs filed a fourth amended complaint in August 2007 that added new named plaintiffs, broadened the putative plaintiff class, and expanded the model years of class vehicles. The defendants responded by invoking CAFA and removing the case. The plaintiffs moved to remand, arguing that the action “commenced” under CAFA when it was originally filed according to applicable relation-back principles.
The district court ultimately disagreed, although it sided with a majority of federal courts in finding that relation-back principles did apply to determine whether an amended complaint may “commence” a new action.
Applying Maryland law to the relation-back question, the court found that the amended complaint in question did not relate back to the original complaint because it added multiple new parties who were never part of any previous class and who asserted claims for their own, new damages. Accordingly, the fourth amended complaint “commenced” a new action under Maryland law after CAFA’s effective date, and was therefore properly removed.
Summary of Other Significant Cases from Maryland:
Gourdine v. Crews , 955 A.2d 769 (Md. 2008). Gourdine is also notable for its commentary on the learned intermediary doctrine in cases against pharmaceutical manufacturers. Both the trial court and the intermediate appellate court discussed the learned intermediary doctrine in the context of a pharmaceutical manufacturer’s duty to warn a patient when a drug is prescribed by a health care professional. The court of appeals disagreed with the lower court, however, and found that the learned intermediary doctrine had not been previously adopted in Maryland.
Mancia v. Mayflower Textile Services Co.
, No. 1:08-CV-00273-CCB, 2008 U.S. Dist. Lexis 83740 (D. Md.
Oct. 15, 2008). Although not a products liability case, lawyers practicing in the United States District Court for the District of Maryland should be familiar with Chief Magistrate Judge Grimm’s memorandum opinion in
Red, Orange, Yellow, Green, Blue, Indigo, Violet: Full Spectrum of...
v Arends and Mayfield v 267
Mancia v. Mayflower Textile . In that opinion, Judge Grimm makes clear his distaste for boilerplate objections to written discovery requests and litigants who fail to “cooperate and communicate” during discovery. Specifically,
Judge Grimm believes that F.R.C.P. 33(b)(4) and 34(b)(2) require a factual basis in support of every objection to written discovery. A party failing to support its objections with facts, therefore, risks sanctions under
F.R.C.P. 26(g), which may include an award of attorneys’ fees. Any party that fails to cooperate during discovery or stonewalls its opponent in an attempt to gain a strategic advantage in the United States District Court for the
District of Maryland does so at its own peril.
B. North Carolina
By F. Marshall Wall and Stephanie A. Gaston
F. Marshall Wall is a partner in the Raleigh, North Carolina, office of Cranfill Sumner & Hartzog LLP.
He is a member of the DRI Products Liability Committee and the Fire and Casualty Specialized Litigation
Group. His practice is focused on the investigation and defense of products liability cases, trucking and commercial motor vehicle accidents, and business disputes.
Stephanie A. Gaston is an associate in the Raleigh, North Carolina, office of Cranfill Sumner & Hartzog
LLP. Her practice focuses on products liability cases, premises liability cases, including negligent security litigation, motor vehicle negligence, and commercial litigation.
Tort Reform : No cases reported in this area.
Preemption :
Horne v. Novartis Pharmaceutical Corp.
, 541 F. Supp. 2d 768 (W.D.N.C. 2008). Before becoming pregnant, plaintiff suffered from hypertension and was prescribed an ACE inhibitor manufactured by Novartis, which the plaintiff continued to take during the first seven weeks and four days of her pregnancy, before her physician prescribed another medication. The plaintiff’s son was born with severe heart and kidney defects and died as a result of those defects less than one month after his birth. The plaintiff sued, alleging inadequate labeling; failure to warn; negligent labeling, packaging, promotion, marketing, and advertising; fraud and misrepresentation; and breach of the implied warranty of merchantability. Novartis moved to dismiss all of plaintiff’s claims under F.R.C.P. 12(b)(6).
The court found that plaintiff’s claims for failure to warn and any claims based on inadequate or improper labeling were preempted by federal regulations and statutes. The court also specifically found that
Novartis’ approved label demonstrated that the FDA considered medical and scientific evidence available at the time and concluded that the risks of birth defects and fetal injury did not appear during the first trimester, as plaintiff alleged. The court noted that the study plaintiff relied on to establish a link between her son’s condition and first trimester exposure was published more than two years after plaintiff stopped using the medication. In reaching its decision on preemption, the court also commented that the label urged by plaintiff was not supported by reasonable evidence of causal association and, if adopted, would subject Novartis to liability for misbranding its drug. Thus, if Novartis was found liable on plaintiff’s claims of inadequate labeling and failure to warn, it would be placed in an impossible situation where it could not comply with both federal and state law at the same time.
The court also went on to dismiss plaintiff’s claims for wantonness, fraud, and misrepresentation because they were also based on the product’s labeling. Further, to the extent those claims were based on allegations that Novartis withheld evidence from or committed fraud on the FDA, those claims were preempted under the U.S. Supreme Court’s decision in Buckman Co. v. Plaintiff’s Legal Committee .
Environmental or “Green” Products Litigation : No cases reported in this area.
268 v Product Liability Conference v April 2009
Market Share or Other New Theories of Liability : No cases reported in this area.
Class Action Fairness Act (CAFA):
Bartnikowski v. NVR, Inc.
, No. 1:07CV00768, 2008 WL 2512839 (M.D.N.C. June 19, 2008). The plaintiffs filed a non-products liability suit in state court as representatives of a class of current and former employees of defendant seeking overtime pay that was allegedly withheld from them. The defendant removed the case under CAFA on the basis that the district court had original jurisdiction over the matter because the amount in controversy exceeded $5 million, exclusive of interest and costs. In what appears to be a matter of first impression for a federal district court in North Carolina, the court found that in a CAFA removal case, the a defendant bears the burden of proving, by a preponderance of the evidence, that federal jurisdiction was proper, which included proof that the amount in controversy requirement was satisfied. The district court ultimately remanded the case after finding that the evidence offered in support of removal by defendant, including its calculation of plaintiffs’ potential damages was speculative and based on unsupported assumptions. CAFA was, therefore, improperly invoked by defendant, and the district court did not have jurisdiction over the case.
Summary of Other Significant Cases from North Carolina:
Scholl v. Sagon RV Supercenter , LLC , 249 F.R.D. 230 (W.D.N.C. 2008). The plaintiff, a North Carolina resident, sued the manufacturer and seller of an allegedly defective motor home in state court, and defendants timely removed the case on the basis of diversity. The defendant Georgia dealer moved to dismiss on the basis that the court lacked personal jurisdiction over it, while the defendant Indiana manufacturer moved to dismiss for improper venue based on a forum selection clause in its sales contract with plaintiff. The court denied the
Georgia dealer’s motion to dismiss after noting that the dealer’s representatives called plaintiff in North Carolina on several occasions to negotiate the sale of the motor home and ultimately mailed the sales contract to her in North Carolina, where plaintiff executed the contract. These acts gave the court specific jurisdiction over the defendant dealer for purposes of this case.
The court denied the Indiana manufacturer’s motion to dismiss, and found that when a defendant removes a case from state to federal court, it loses the ability to move for dismissal based on improper venue.
The manufacturer’s motion to transfer venue was allowed, however, despite the presence of a North Carolina statute that generally prohibits the enforcement of forum selection clauses. The court found that the North
Carolina statute was not dispositive of the issue and instead examined eleven factors to determine whether the provision should be enforced. Here the plaintiff, who had the burden of showing that the case should not be transferred, failed to show that transferring the case would be a “grave injustice.”
Farrar & Farrar Dairy, Inc. v. Miller-St. Nazianz, Inc.
, No. 5:06-CV-160-D, 2008 WL 3914471 (E.D.N.C.
Aug. 25, 2008). The plaintiffs, operators of a dairy farm, moved for class certification pursuant to F.R.C.P. 23, against the defendant, a Wisconsin farm equipment dealer who sold allegedly defective agricultural silage bags to plaintiffs. In their motion for class certification, the plaintiffs sought to represent a class consisting of all persons, both natural and corporate, who purchased silage bags in question that were manufactured during a particular period of time. The court concluded that even if the named plaintiffs could meet the requirements of Rule 23(a), they failed to meet the predominance requirements of Rule 23(b)(3) because individual causation questions and individual affirmative defenses--not common issues--would be the predominate issues facing the court. This finding, coupled with the challenges presented by variations in each state’s laws, enabled the court to conclude that a class action was not the superior method for handling this litigation and to therefore deny class certification.
Cambridge Homes of North Carolina, L.P. v. Hyundai Construction, Inc.
, No. COA08-242, 2008 WL
5213003 (N.C. Ct. App. Dec. 16, 2008). The plaintiff brought suit against the installer and manufacturers of
Red, Orange, Yellow, Green, Blue, Indigo, Violet: Full Spectrum of...
v Arends and Mayfield v 269
defective vinyl siding, as well as two Korean companies that produced chemicals used to manufacture the siding in question (“Suppliers”). The Suppliers moved to dismiss the complaint for lack of personal jurisdiction.
In determining whether a nonresident defendant is subject to personal jurisdiction in North Carolina, the court of appeals confirmed that the stream of commerce theory applies to products liability cases and found that the
Suppliers were subject to North Carolina’s long-arm statute. Even so, the court determined that the Suppliers lacked sufficient minimum contacts to subject them to jurisdiction in North Carolina under the due process prong of the court’s personal jurisdiction analysis. As a result, the case was remanded for entry of an order dismissing all claims against the Suppliers.
C. South Carolina
By Jeremy C. Hodges and Derek A. Shoemake
Jeremy C. Hodges is an associate with Nelson Mullins Riley & Scarborough LLP in the firm’s Columbia,
South Carolina, office where he primarily practices in the areas of products liability defense, with an emphasis on medical device and pharmaceutical litigation.
Derek A. Shoemake is a law clerk in the Columbia, South Carolina, office of Nelson Mullins Riley &
Scarborough LLP and a third-year law student at the University of South Carolina School of Law.
Tort Reform:
Aldana v. RJ Reynolds Tobacco Co ., No. 2:06-3366-CWH, 2008 WL 1883404 (D.S.C. Apr. 25, 2008). On a motion to reconsider the dismissal of plaintiff’s claims for strict liability and negligence, the court rejected plaintiffs’ argument that only a warning that makes a product safe can prevent the product from being defective and unreasonably dangerous. Instead, the court found that under South Carolina law an adequate warning prevents a product from being defective and unreasonable dangerous although the adequate warning may not make the product completely safe for use.
Colleton Preparatory Academy, Inc. v. Hoover Universal, Inc.
, 666 S.E.2d 247 (S.C. 2008). The court found that the economic loss rule does not prevent a plaintiff from recovering purely economic losses in a products liability action, if the plaintiff can establish that (1) the manufacturer owed a duty of care to the plaintiff; (2) the manufacturer breached that duty, which can be proven through a breach of industry standards; and
(3) if the manufacturer’s breach created a clear, serious and unreasonable risk of bodily injury or death. The court further elaborated that manufacturers have a duty, distinct from contractual duties, to create safe products and that they are liable for poorly made products used in a foreseeable manner.
Preemption :
Aldana v. RJ Reynolds Tobacco Co ., No. 2:06-3366-CWH, 2007 WL 3020497 (D.S.C. Oct. 12, 2007). The
South Carolina District Court held that the Public Health Cigarette Smoking Act preempts claims that cigarette manufacturers failed to warn of the dangers of smoking and that warnings used in cigarette advertising or packaging are inadequate. The court noted, however, that the Act does not preempt claims alleging that a cigarette manufacturer affirmatively engaged in deceit by concealing material facts that it had a duty to disclose through some means other than in its advertising or promotion.
Stevens v. Pacesetter, Inc. No. 3:07-CV-3812, 2008 WL 2637417 (D.S.C. Apr. 12, 2008). The defendant filed a F.R.C.P. 12(b)(6) motion to dismiss based on the significant medical device preemption decision from
United States Supreme Court in Reigel v. Medtronic. The court granted defendant’s motion with prejudice except as to a narrow class of claims that it determined might survive postReigel . Those possible surviving claims include allegations that defendant failed to manufacture the device in accordance with approved federal standards, failed to provide federally approved warnings, or failed in some other way to comply with standards
270 v Product Liability Conference v April 2009
established for the product in the premarket approval process. Because it was unclear whether plaintiff actually asserted any viable postReigel claims in this case, defendant’s motion was granted without prejudice as to those potential claims and plaintiff was given leave to file an amended complaint.
Environmental or “Green” Products Litigation : No cases reported in this area.
Market Share or Other New Theories of Liability : No cases reported in this area
Class Action Fairness Act (CAFA):
Wright v. American Bankers Life Assurance Co. of Florida , No. 2:07-cv-3363-PMD, 2008 WL 4921299
(D.S.C. Apr. 1, 2008). The district court held that state law governs the question of whether an amendment to a state court class action complaint relates back to the date the original complaint was filed, or whether it recommences the case such that it becomes removable under CAFA. Here, the court found that all of the plaintiffs’ amendments to the complaint--elevating a class member to class representative, adding additional claims, and rewording the definition of the class itself--related back to the initial complaint, and therefore did not recommence the action. As a result, the action was not governed by CAFA and was remanded back to state court.
Brooks v. GAF Materials Corp ., 532 F. Supp. 2d 779 (D.S.C. 2008). The plaintiffs’ amended complaint plainly provided a specific limitation on damages of less than $5 million, and because the complaint controls the amount in controversy for purposes of determining federal diversity jurisdiction, the district court held that it was without subject matter jurisdiction under CAFA. In remanding the case, the court rejected defendant’s argument that the court should independently review the amount in controversy because plaintiffs are not bound by the limitation on damages in their complaints.
Other :
Fernandez v. Spar Tek Industries, Inc.
, No. 0:06-3253-CMC, 2008 WL 2403647 (D.S.C. June 10, 2008).
The court granted the defendant’s motion for summary judgment because there was no evidence that the machine in question was in the same condition at the time of the plaintiff’s injury as when it left the defendant’s control, which must be established in a products liability case under either a negligence or strict liability theory in South Carolina.
In re N.Y. Renu with Moistureloc Prod. Liab. Litig.
, No. MDL 1785, CA 2:06-MN-77777-DCN, 2008 WL
2338552 (D.S.C. May 8, 2008). Intracorporate communications to and from counsel can retain a privilege if the disclosure is limited to those persons who have a “need to know” the advice of counsel. The company’s burden is to show that it limited dissemination of the documents in keeping with its asserted confidentiality, not to justify each decision on a particular employee’s access to the information.
Salmonsen v. CGD, Inc ., 661 S.E.2d 81 (S.C. 2008). A trial court’s order establishing an “opt-in” notification procedure for a class action was immediately appealable because it affected a substantial right of class members and the mode of trial. The South Carolina Supreme Court also specifically rejected the use of “opt-in” procedures because they essentially amount to decertification of the class and therefore undermine due process reasoning behind South Carolina Rule of Civil Procedure 23.
D. Virginia
By Natalie Chapin Schaefer and Bernard S. Vallejos
Natalie Chapin Schaefer is an attorney with the law firm of Steptoe & Johnson PLLC. Ms. Schaefer focuses her practice in the area of litigation with an emphasis on product liability and energy litigation. Ms.
Schaefer is admitted to practice in West Virginia and the United States District Court for the Southern District of West Virginia.
Red, Orange, Yellow, Green, Blue, Indigo, Violet: Full Spectrum of...
v Arends and Mayfield v 271
Bernard S. Vallejos is an associate with the law firm of Farrell Farrell & Farrell PLLC in Huntington,
West Virginia. He practices defense litigation with a specific focus on medical malpractice, products liability, mass tort, and employment liability litigation. Mr. Vallejos is admitted to practice in West Virginia and the
United States District Court for the Southern District of West Virginia. Mr. Vallejos has been a member of DRI since 2005 and currently serves as liaison chair of DRI’s Medical Liability and Health Care Law Committee.
Tort Reform:
SuperValu, Inc. v. Johnson , 666 S.E.2d 335 (Va. 2008). The plaintiff, a former owner of several grocery stores, won a $16 million jury verdict on claims of constructive fraud and intentional infliction of emotional distress. The defendant filed post a posttrial motion arguing that the evidence in support of both claims was insufficient as a matter of law, which was denied by the trial court. On appeal, the Supreme Court of Virginia found that plaintiff failed to present evidence that defendants negligently or innocently misrepresented a material fact, thus, the jury’s verdict on the constructive fraud claim was not supported. Likewise, the court held that the tort of intentional infliction of emotional distress does not encompass conduct that may cause only economic damage to a business and that the evidence was insufficient as matter of law to support the jury’s verdict on that claim as well.
Payne v. Wyeth Pharmaceuticals, Inc.
, No. 2:08cv119, 2008 WL 4890760 (E.D. Va. Nov. 12, 2008). The plaintiff was injured in a car accident involving another car driven by a Wyeth sales representative. Several months after the injury, the plaintiff filed for Chapter 7 bankruptcy protection in the United States Bankruptcy
Court for the Eastern District of Virginia. In so doing, the plaintiff filed a set of schedules detailing his assets and liabilities, which included his prebankruptcy medical bills. The debt reflected on the plaintiff’s medical bills was ultimately discharged by the bankruptcy court, but the plaintiff intended to introduce those medical bills into evidence at a civil trial against Wyeth for injuries allegedly sustained in the car accident. Wyeth, however, filed a motion in limine to exclude the discharged medical bills from evidence on the basis that Virginia’s collateral source rule did not apply to bankruptcy discharges. The district court, sitting in diversity, undertook a discussion of the collateral source rule, its plain meaning, public policy considerations, and Virginia circuit court cases, which were divided on the question. In predicting how the Supreme Court of Virginia would rule on the issue, the district court held that the plaintiff’s prebankruptcy medical bills should be excluded from evidence to prove special damages because they were not subject to the collateral source rule, and that they were also inadmissible under F.R.C.P. 403 to prove pain and suffering.
Merricks v. Monaco Coach Corp.
, No. 3:08cv00047, 2008 WL 5210856 (W.D. Va. Dec. 15, 2008). The plaintiffs purchased a recreational vehicle and within a few months discovered numerous defects. The plaintiffs took the RV in for repairs and service on at least nine separate occasions but alleged that, despite the repairs, it was still defective and filed suit for breach of express and implied warranties under the federal Magnuson-Moss
Warranty Act (“MMWA”). The defendant moved to dismiss, arguing that plaintiffs’ claims were barred by the statute of limitations contained in the written limited warranties provided with plaintiffs’ RV. As to plaintiffs’ implied warranty claims, the court found that the written limitations included in defendant’s warranty did not comply with the MMWA, and denied defendant’s motion. The court also found that limitations on express warranties were valid and that because plaintiff had taken advantage of the beneficial portions of those warranties, they must also accept the less advantageous portions. The defendant’s motion to dismiss based on the statute of limitations was, therefore granted as to plaintiffs’ express warranty claims.
Preemption :
Adkins v. Cytyc Corp ., No. 4:07CV00053, 2008 WL 2680474 (W.D. Va. July 3, 2008). The plaintiff’s treating surgeon used the defendant’s NovaSure medical device during the course of performing an endometrial ablation procedure on the plaintiff. During that procedure, the plaintiff’s colon was burned, and she brought
272 v Product Liability Conference v April 2009
suit for breach of implied and express warranties, negligence in inadequate design, and negligent warnings or negligent instruction of the surgeon by the defendant’s corporate representative who was present during the plaintiff’s procedure. The court held that the 1976 Medical Device Amendments to the Food, Drug and Cosmetic Act (“MDA”) preempted the plaintiff’s claims that challenged the safety or effectiveness of the NovaSure device because it received premarket approval from the FDA. However, the court ruled that the MDA did not preempt the plaintiff’s claims that the defendant’s corporate representative breached a duty to ensure that the device was operating correctly and to ensure that the plaintiff’s surgeon was using the device properly.
Environmental or “Green” Products Litigation : No cases reported in this area.
Market Share or Other New Theories of Liability:
Rash v. Stryker Corp ., No. 1:08CV00015, 2008 WL 5237153 (W.D. Va. Dec. 17, 2008). In a medical device products liability action, plaintiff alleged that he suffered injuries as a result of using Stryker’s “pain pump,” which delivers pain medication to an operative site following surgery. Stryker moved to dismiss plaintiff’s failure-to-warn claim arguing, inter alia , that there is no postsale duty to warn under Virginia law. The court recognized that the Supreme Court of Virginia had not yet considered whether a postsale duty to warn exists and that, sitting in diversity, it was required to predict how the Supreme Court of Virginia would answer that question. After considering the Restatement (Third) of Torts: Products Liability section 10 views of other states, and dicta from a Fourth Circuit opinion, the court determined that Virginia would recognize a cause of action for negligent breach of a postsale duty to warn.
Sykes v. Bayer Pharmaceutical Corp ., 548 F. Supp. 2d 208 (E.D. Va. 2008). In a case in which the plaintiffs alleged that an ingredient in Bayer’s immune globulin product led to a newborn child’s neurological injuries, the district court rejected the plaintiffs’ failure to test claim because the Supreme Court of Virginia has stated that a plaintiff may show a product is defective in three ways: (1) if it is defective in assembly, (2) if it is unreasonably dangerous in design, or (3) if it is unaccompanied by adequate warnings concerning its hazardous properties. Accordingly, the district court held that any other products liability claims or theories are not recognized under Virginia law.
Class Action Fairness Act (CAFA) : No cases reported in this area.
Other :
Perreault v. Free Lance-Star , 666 S.E.2d 352 (Va. 2008). The plaintiffs, as personal representatives, brought wrongful death actions against defendants alleging that the decedents’ deaths resulted from the administration of an improperly formulated or contaminated product during open-heart surgery. The plaintiffs’ claims were ultimately resolved at mediation, and the parties entered into confidential settlement agreements.
The Supreme Court of Virginia found that the trial court did not err in requiring the parties to file written petitions that recited financial terms of the settlements in order to obtain court approval of the settlements pursuant to Virginia’s wrongful death statutes. The court also affirmed the trial court’s decision to deny a request to partially seal the records in these cases by redacting financial terms of the settlements.
Boysaw v. Purdue Pharma , No. 1:07CV00079, 2008 WL 4452650 (W.D. Va. Sept. 30, 2008). In this Oxy-
Contin case, the court granted the defendant’s motion for summary judgment because the plaintiff did not offer any expert testimony to refute testimony from the defendant’s experts. The court noted that Virginia tort law does not require expert testimony to establish causation in every case, but that it was ordinarily required in a products liability action regardless of the plaintiff’s indigence or inability to pay for an expert.
Reynolds v. Crown Equipment Corp ., No. 5:07CV00018, 2008 WL 2465032 (W.D. Va. June 16, 2008).
Although the plaintiff was not at fault for spoliating the key piece of evidence in his products liability action, the court still granted the defendant’s summary judgment motion because Virginia law requires that when evi-
Red, Orange, Yellow, Green, Blue, Indigo, Violet: Full Spectrum of...
v Arends and Mayfield v 273
dence is unavailable for whatever reason, the plaintiff must present evidence tending to negate every reasonable alternative explanation of the accident. Without the broken roller bearing that was the cause of the accident in this case, the plaintiff could not produce evidence that proved or negated other explanations for the products’ failure, and the defendant was entitled to summary judgment.
Cook v. Purdue Pharma , No. 1:08cv272 (TSE/JFA), 2008 WL 1957858 (E.D. Va. May 2, 2008). In a pro se inmate’s civil action, the court ruled that plaintiff failed to state a claim under the Consumer Products Safety
Act (“CPSA”) because the plain language of the statute restricts any private right of action under the CPSA to knowing and willful violations of rules and orders of the Consumer Products Liability Commission.
Dunnam v. Sportsstuff, Inc ., No. 3:07CV322-HEH, 2008 WL 200287 (E.D. Va. Jan. 23, 2008). Although the mandatory stay provision of the Bankruptcy Code is generally available only to the debtor defendant in a products liability action, the court held that proceedings against the nonbankrupt codefendant should also be stayed. The court reached this conclusion after finding that claims against the codefendant were based only on its role as seller of the allegedly defective product, and that any judgment against that codefendant would inevitably be subject to its indemnity agreement with the bankrupt debtor-defendant.
John Crane, Inc. v. Jones , 650 S.E.2d 851 (Va. 2007), cert. denied , 128 S. Ct. 1257 (2008). In 2007, the
Supreme Court of Virginia ruled that federal maritime law, rather than state law, applied to a products liability suit filed on behalf of a former shipyard employee who died from work exposure to asbestos. The court upheld a $10 million award, concluding that the trial court properly applied general maritime law because asbestos exposure can potentially disrupt maritime commerce. In early 2008, the U.S. Supreme court denied certiorari .
E. West Virginia
By Jeremy C. Hodges and Derek A. Shoemake
Jeremy C. Hodges is an associate with Nelson Mullins Riley & Scarborough LLP in the firm’s Columbia,
South Carolina, office where he primarily practices in the areas of products liability defense, with an emphasis on medical device and pharmaceutical litigation.
Derek A. Shoemake is a law clerk in the Columbia, South Carolina, office of Nelson Mullins Riley &
Scarborough LLP and a third-year law student at the University of South Carolina School of Law.
Tort Reform : No cases reported in this area.
Preemption :
Walker v. Medtronic , Inc ., No. 2:07-00317, 2008 WL 4186854 (S.D. W. Va. Sept. 9, 2008). The defendant argued that, based on the U.S. Supreme Court’s holding in Riegel v. Medtronic, Inc ., which was issued after this case was filed, the Medical Device Amendments to the federal Food, Drug and Cosmetic Act preempted plaintiffs products liability claim against the defendant manufacturer of a medical device that received premarket approval from the FDA. Although the court agreed that the plaintiff’s complaint did not allege any claims that should survive postRiegel , it denied the defendant’s motion for summary judgment and notified the plaintiff it would permit a motion to amend the complaint to correct that deficiency.
Environmental or “Green” Products Litigation : No cases reported in this area.
Market Share or Other New Theories of Liability : No cases reported in this area.
Class Action Fairness Act (CAFA):
McMahon v. Advance Stores Co., Inc.
, No. 5:07CV123, 2008 WL 183715 (N.D. W. Va. Jan. 18, 2008). The court remanded the case back to state court because the defendants, who had the burden of proving that the
274 v Product Liability Conference v April 2009
$5 million amount in controversy under CAFA was satisfied by a preponderance of the evidence, failed to carry their burden.
Other :
Vitatoe v. Mylan Pharmaceutical, Inc ., No. 1:08cv85, 2008 WL 3540462 (N.D. W. Va. Aug. 13, 2008). In a products liability action against a pharmaceutical manufacturer, the district court ruled that a case had been properly removed to federal court based on diversity jurisdiction when a nonresident defendant removed the case before the plaintiff served the complaint on a West Virginia codefendant whose presence would have prevented removal.
Pettry v. La-Z-Boy, Inc ., No. 5:07-cv-00516, 2008 WL 2003448 (S.D. W. Va. May 8, 2008). The plaintiffs alleged that fire damage was caused by defendant’s chair, which went missing after plaintiffs’ claimed their insurance company’s fire investigator took possession. The court ruled that although it was unclear whether plaintiffs’ failure to preserve the chair was intentional or merely negligent, it granted summary judgment in favor of defendant because the recliner was the only evidence from which defendant could develop its defenses adequately.
Whittington v. Hunter’s View, Ltd ., No. 3:06-0903, 2008 WL 703714 (S.D. W. Va. Mar. 13, 2008). In an action for negligent design, the court denied the defendant’s summary judgment motion because, although the injured plaintiff failed to wear the safety harness as recommended by the manufacturer of a tree stand, there were genuine issues of material fact as to whether the proximate cause of the accident was the plaintiff’s failure to wear the harness or the defendant’s design.
V. Fifth Circuit
By Keith W. McDaniel, Quincy T. Crochet, Daena G. Ramsey, Mark D. Jicka, and Robert B. Ireland III
Keith W. McDaniel is a shareholder and Quincy T. Crochet is an associate at McCranie, Sistrunk,
Anzelmo, Hardy, Maxwell & McDaniel, PC, with offices in the metropolitan New Orleans, Louisiana, area. Mr.
McDaniel’s practice involves various types of tort litigation, including product liability, transportation, toxic exposure, and premises liability throughout the Gulf South region. He and Mr. Crochet regularly represent manufacturers in products liability lawsuits. They have defended manufacturers of products from the automotive, home product, industrial/construction machinery, and medical device industries.
Daena G. Ramsey’s practice focuses on complex commercial, product, and insurance litigation. She has tried more than 30 cases to verdict in state and federal courts in Texas and other states and has handled appellate cases at the state and federal level, as well as before the Fifth Circuit Court of Appeals.
Mark D. Jicka is a member of Watkins & Eager PLLC in Jackson, Mississippi. He is currently on the
Steering Committee for DRI’s Products Liability Committee and serves as the expert witness chair for that committee. His practice focuses on defending manufacturers at trial and on appeal. He has handled cases for clients in Mississippi, Alabama, Tennessee, Arkansas, Louisiana, and Kentucky.
Robert B. Ireland III is an associate at Watkins & Eager, PLLC in Jackson, Mississippi. He is an active member of DRI and the Jackson Young Lawyers. He handles a wide variety of litigation matters, with an emphasis on representation of manufacturers in automotive and other product litigation matters.
Tort Reform : No cases reported in this area.
Preemption :
Mills v. Warner-Lambert Co.
, 581 F. Supp. 2d 772 (E.D. Tex. 2008). The plaintiffs filed suit challenging the effectiveness of various nonprescription lice treatment medications, seeking only recovery of the purchase
Red, Orange, Yellow, Green, Blue, Indigo, Violet: Full Spectrum of...
v Arends and Mayfield v 275
price for the lice medications. Significantly for the court’s preemption decision, the plaintiffs were not alleging personal injury, death, or property damage; thus, these plaintiffs did NOT bring a products liability or negligence action challenging the design, manufacture or marketing of the drugs. Rather, they sued alleging they drugs simply did not work (that lice were resistant to the drugs and they did not work for anyone at any time).
The plaintiffs plead causes of action for breach of the implied warranty of merchantability and for violations of the Deceptive Trade Practices Act. Note that by the time this decision was rendered the case was 8 years old and had traveled through many state courts including the Texas Supreme Court, eventually ending up in federal court under the Class Action Fairness Act.
The court found that federal law preempted their challenge to these over-the-counter drugs previously approved by the FDA. This ruling is consistent with other courts in Texas, California, and Florida which had also found preemption. The court did not decide the case under implied preemption, but under express preemption, based on the case not being a products liability action and based on the Food, Drug and Cosmetic Act
(“FDCA”), as amended by the Food and Drug Administration Modernization and Accountability Act. As such, the court avoided addressing the issue of implied preemption now pending before the U.S. Supreme Court in
Wyeth v. Levine.
Under 21 U.S.C. § 379r ( “National uniformity for nonprescription drugs”), the FDCA is applied to nonprescription drugs. Section 379r(a) states that no state may establish or continue in effect any requirement that relates to the regulation of a nonprescription drug and that is different from or in addition to, or that is otherwise not identical with, a requirement under the FDCA. By section 379r(e) the statute also includes a savings clause: that nothing in the preemption provision “shall be construed to modify or otherwise affect any action or the liability of any person under the product liability law of any State.”
In finding preemption, the court found the following four essential elements supporting its holding:
1) The FDA regulations relating to the content, labeling and sale of the defendants’ medications constitute federal requirements : the FDA approved a new drug application (“NDA”) for one of the lice medications at issue in 1986, allowing it to be sold as a prescription drug. In 1990, the FDA approved another NDA that allowed the medication to be sold over the counter. All FDA approved labeling stated that the medication was “for the treatment of head lice.” The other defendants’ medications were not required to go through the NDA process but instead were subject to the monograph system for over-the-counter drugs, which included labeling requirements. The OTC drugs approved under this system carried the required labels. Comparing the NDA and monograph approval processes to the PMA process for Class III medical devices for which express preemption does exist, the court held that the FDA labeling regulations for these nonprescription drugs were “federal requirements” for labeling, an essential element for finding express preemption (although the court acknowledged that the monograph system was more akin to the
“substantial equivalence” analysis for Class II medical devices for which Lohr held there was no preemption, it took pains to distinguish the two approval systems in order to find a “federal requirement”).
2) The plaintiffs’ lawsuit would establish a state requirement relating to defendants’ medications : based on the express language of section 379r and the U.S. Supreme Court’s “clear pronouncement” in
Riegel v. Medtronic , plaintiffs’ claims are state requirements that relate to the FDCA’s regulation of drugs.
3) The state requirement established by the plaintiffs’ lawsuit is different from, in addition to, or otherwise not identical with the requirements of the FDCA : the FDA has approved the medications at issue as being effective and has required that they be labeled as such. Since plaintiffs’ claims are
276 v Product Liability Conference v April 2009
based solely on the argument that the drugs are NOT effective and the defendants are liable for representing that they ARE effective, the two positions are diametrically opposed (“In practical effect, the State lawsuit would make unlawful the sale of a product formulated to comply with a federal requirement.”).
4) The plaintiffs’ claims are not “saved” by section 379r(e) : because this is not a products liability action (plaintiffs assert claims grounded in contract seeking only economic damages and not damages for any tortious act arising from a product defect), the savings clause of section 379r does not prevent preemption.
Gee v. Viking Range Corp., 2008 U.S. Dist. Lexis 72918 (N.D. Miss. Sept. 24, 2008). The defendant refrigerator manufacturer moved to dismiss the plaintiff’s breach of warranty claims regarding refrigerator that leaked and required “fix” that raised energy usage above maximum prescribed by Energy Policy and Conservation Act and amount stated on federally mandated refrigerator label. The defendant argued the claims were preempted by 42 U.S.C. § 6297(g), which provides that disclosures on label regarding energy use and efficiency that are required to be made “shall not create an express or implied warranty.” That is, the defendants argued that claim that refrigerators exceeded maximum usage noted on label was preempted by EPCA. The court agreed, finding the plaintiff’s claims “inextricably intertwined” with warranty claims expressly barred by section 6297(g), and granted the defendant’s motion to dismiss.
Rollins v. St. Jude Medical Center, 583 F. Supp. 2d 790 (W.D. La. 10/20/2008). In Rollins , the plaintiff alleged she was injured during an angiogram due to a defective Angio-Seal, which is a Class III medical device.
Specifically, the plaintiff alleged that the Angio-Seal failed to properly deploy during the procedure, resulting in the development of a large, painful hematoma in her groin that required surgery to correct. The plaintiff brought claims pursuant to the Louisiana Product Liability Act, La. R.S. 9:2800.51, et seq.
, alleging, among other things, unreasonably dangerous design; unreasonably dangerous construction, composition, or manufacture; failure to adequately warn and/or instruct; failure to conform to warranties; redhibition; and failure to train medical personnel. The defendants moved for a dismissal on grounds that plaintiffs claims were preempted by the Medical Device Amendments to the Food, Drug, and cosmetic Act, 21 U.S.C. 360k(A). In the magistrate’s recommended ruling, which was subsequently adopted by the district court judge, the above claims were dismissed to the extent that the claims challenged actions on the part of the defendants that complied with FDAapproved standards and requirements. The court went on to provide that plaintiff would retain the right to seek leave to amend her complaint if discovery revealed that the defendants failed to comply with FDA regulations regarding the claims. The court explained that “[n]o negligence claims can be maintained as to devices that complied with the FDA requirements because success on those claims requires a showing that the FDA requirements themselves were deficient.”
Environmental or “Green” Products Litigation:
In re FEMA Trailer Formaldehyde Products Liability Litigation, Slip Copy, 2008 WL 5423488, E.D. La.,
Dec. 29, 2008 (NO. MDL 071873). On December 29, 2008, Judge Kurt D. Englehardt issued a 50-page ruling denying plaintiffs’ motion for class certification in its entirety. The plaintiffs had consolidated into this multidistrict litigation more than 30 separate lawsuits (including class and mass joinder actions) by occupants of emergency housing units in four different states (Mississippi, Alabama, Louisiana, and Texas) after the devastation of Hurricanes Katrina and Rita in 2005. They alleged the manufacturers of these units and FEMA caused unhealthy levels of formaldehyde exposure. They then asked the court to certify various classes, including a separate class for each of the four states, as well as for plaintiffs requiring future medical services and who suffered economic loss. The various classes could have totaled as much as 350,000 individuals. The court ruled that plaintiffs failed to meet any of the requirements of F.R.C.P. 23 (a) or (b).
Red, Orange, Yellow, Green, Blue, Indigo, Violet: Full Spectrum of...
v Arends and Mayfield v 277
George Paz v. Brush Engineered Materials Inc., 2009 U.S. App. Lexis 580 (5th Cir. (Miss.) Jan. 13, 2009) .
Several plaintiffs sought recovery for injuries they believe were caused by exposure to and working with beryllium-containing products at NASA’s Stennis Space Center. The district court found that the plaintiffs’ conditions did not amount to a compensable injury under Mississippi law and granted summary judgment in favor of defendants. The plaintiffs’ expert had opined that conditions such as beryllium sensitization were important precursors to lung disease, but, without evidence that there was a reasonable probability that condition would lead to further disease, the court of appeals was unwilling to find that the plaintiffs’ conditions, which involved immune response (with cellular, subcellular, and subclinical change without more), amounted to cognizable injury. The court affirmed summary judgment.
Barnes v. Koppers, Inc., 534 F.2d 357 (5th Cir. (Miss.) 2008). The court held that, in order to obtain benefit of longer tolling period found in CERCLA, 42 U.S.C. § 9658 (which is based on the plaintiff’s awareness of injury and potential cause), toxic tort plaintiff had the burden to prove that her “claims arose from a ‘release’ of
‘hazardous substances’ into the ‘environment,’ as well as other case-specific preconditions establishing that the defendant’s ‘facility’ falls within CERCLA.” Case involved allegations that the plaintiff’s cancer was caused by exposure to dioxins and polycyclic aromatic hydrocarbons emitted from a plant next door.
Market Share or Other New Theories of Liability:
There are no significant opinions to report. However in Ramey v. Cantrell Macine Co., Inc.
, 2008 WL
4155335 (W.D. La. 9/8/2008), the Western District of Louisiana reiterated through affirmative citation that, pursuant to the Louisiana Product Liability Act, La. R.S. 9:2800.51 et seq.
, a plaintiff must identify the manufacturer of the product at issue and cannot rely on market share liability.
Class Action Fairness Act (CAFA):
Joseph v. Unitrin, Inc.
, 2008 WL 3822938 (E.D. Tex. Aug. 12, 2008). This case involved a class action against multiple insurance companies over policy nonrenewals. While multiple defendants were sued they were all interrelated. The court remanded the case after defendants’ proper removal under CAFA under the local controversy and home state jurisdictional exceptions to CAFA jurisdiction.
The court found that plaintiffs’ pleadings established that (1) greater than two-thirds of the proposed plaintiff class are Texas citizens and (2) the one defendant from whom “significant” relief was sought was a citizen of Texas. In so holding the court required very little in the way of evidence to demonstrate the exceptions.
As to the local controversy exception the court relied simply on plaintiffs’ allegations of residency and “common sense”: “Because the putative class members are alleged to be Texas residents, logic dictates that their homes, any be extension, their domicile remain in Texas.” That is, the class members necessarily had to be Texas residents to purchase the Texas homeowners’ policies at issue. To find that the Texas defendant was the party against which “significant” relief was sought, the court first held that “significant” means of less importance than “primary” ( i.e.
, to be “significant” the defendant does not have to be the primary defendant against whom the class seeks relief). The Texas defendant was “significant” because it issued the policies being challenged to all of the plaintiffs, was the only defendant in contractual privity with the plaintiffs, was the only defendant with whom the putative class members had contact before the institution of the suit, and was alleged to be the conduit through which the other defendants engaged in the claimed civil conspiracy.
Broquet v. Microsoft Corp., 2008 WL 2965074 (S.D. Tex. July 30, 2008). The suit was originally filed as a personal injury action by one family, alleging a defect with the Xbox game system that caught fire and caused severe physical injuries. When a second family intervened and included claims brought on behalf of a class of
Xbox owners, Microsoft removed the case under CAFA. The plaintiffs lost their motion to remand in which they tried to argue three exceptions to CAFA jurisdiction.
278 v Product Liability Conference v April 2009
The intervenor attempted to argue the small class exception (fewer than 100 members), but their own pleadings defined the proposed class as “each and every such Microsoft Xbox owner within the recall and the defect at issue for the years made the subject of the recall,” which class would admittedly exceed 100 members.
The plaintiffs were not permitted to change their own definition to avoid federal court jurisdiction under CAFA by attempting to limit the definition after removal to those who were severely injured.
The case met the amount-in-controversy because the intervenor plead that they sought “all damages that may be allowable by Texas law when its cause is presented to a jury. The defendant successfully argued that this could include the cost of refunds of the purchase price of Xboxes or replacement costs for the defective power cord, which cost would easily exceed $5 million minimum.
The intervenor even tried to argue he had no standing to plead a class action since he filed on behalf of his injured son and had no claims belonging personally to him. Since he claimed that he and his children incurred medical expenses, pain and suffering, and mental anguish and these were claims belonging to him personally, the named plaintiff plead Article III standing for his own claims. Whether this plaintiff was ultimately an appropriate class representative because of his lack of personal injury does not affect the issue of whether he had standing to bring the class action. Finally, the named plaintiff sought leave to amend his Petition to strike the class action allegations, but the amendment was irrelevant to the determination of jurisdiction, which is determined by reference to the operative pleadings at the time of removal.
Brinston v. Koppers Industries, Inc.
, 538 F. Supp. 2d 969 (W.D. Tex. 2008). After the defendant removed the case under CAFA, the plaintiffs attempted a remand by withdrawing their class allegations. Noting that class certification was not appropriate for this case (562 plaintiffs asserting property damage from defendant’s pollutants that allegedly occurred over a hundred years), the court nonetheless retained jurisdiction. The basis for federal jurisdiction under CAFA is established at the time of removal, and once the federal court has jurisdiction over a removed case, subsequent events generally cannot remove jurisdiction. Amending the complaint to remove class allegations will not divest the court of jurisdiction nor will the conclusion that the plead class is not appropriate for certification.
Robinson v. Cheetah Transportation , 2006 WL 468820 (W.D. La.). In Robinson , The Western District of
Louisiana was faced with determining the breadth and scope of the exceptions provisions of the Class Action
Fairness Act (28 U.S.C. § 1332(d)(3)-(4)), specifically the “local controversy” exception. This case stemmed from a trucking accident that occurred at the mouth of a major Louisiana bridge that caused loss of business, among other damages sought, to nearly 2000 people. The defendants moved for, and were granted, removal to federal court under the CAFA and plaintiffs filed for remand based on the “Local Controversy” exception due to the driver’s status as a Louisiana resident.
The court was faced with determining the meaning of the term “significant relief” in 28 U.S.C. § 1332( d)(4)(A)(i)(II)(aa). The court found that no other court or Congress had explicitly defined the term, and therefore the court looked to legislative history to determine the meaning behind Congress’s enactment in 2005.
During the enactment of the CAFA, congress had used an example of the usage of “significant relief” in regard to a hypothetical products liability case. Using this hypothetical, the court found that “whether a putative class seeks significant relief from an in-state defendant includes not only an assessment of how many members of the class were harmed by the defendant’s actions, but also a comparison of the relief sought between all defendants and each defendant’s ability to pay a potential judgment.” Therefore, the term “significant relief” is not determinable by the number of people injured by a single defendant, nor the total amount of damages caused, but instead the amount of damages that can be reasonably sought from the individual defendant.
Other :
Red, Orange, Yellow, Green, Blue, Indigo, Violet: Full Spectrum of...
v Arends and Mayfield v 279
Broussard v. Procter & Gamble Co.
, 517 F.3d 767 (5th Cir. (La.) 2008). The plaintiff, who suffers from chronic low back pain, was badly burned while using a Therma Care Heatwrap manufactured by the defendant.
The packaging of the box, the pouch that contained the Heatwrap, and a package insert all warned against the use of the product by individuals with poor circulation or poor skin sensation, both of which plaintiff had.
The defendants successfully argued in a summary judgment motion that the plaintiff could not succeed on her claims, which were brought pursuant to the Louisiana Product Liability Act (“LPLA”), because her use of the product was not a “reasonably anticipated use” as required by the LPLA. In affirming, the Fifth Circuit explained that a plaintiff such as Ms. Broussard who uses a product in contravention of clear warnings can prove that the use was reasonably anticipated only by coming forth with evidence tending to show that the manufacture knew or should have known that the warnings were ineffective. Ms. Broussard failed to present a single piece of evidence in that regard, and she was therefore unable to establish that her use of the Heatwrap was reasonably anticipated.
Ackermann v. Wyeth Pharmaceuticals , 563 F.3d 203 (5th Cir. Tex. 2008). The plaintiff filed suit against
Wyeth after her husband committed suicide while using Effexor, an antidepressant. Ackermann claimed that
Wyeth inadequately warned about the suicide risk associated with the drug. In the face of a motion for summary judgment, Ackermann argued that the “Read-and-Heed Presumption” should be applied in pharmaceutical drug cases involving learned intermediaries. The Fifth Circuit rejected her argument, explaining that the purpose of the presumption--to excuse a plaintiff from having to make self-serving assertions that he would have followed the instructions had they been given--would not be served in a case involving a learned intermediary because it is the physician and not the plaintiff who must testify regarding the effect that the proposed warning would have had on his decision to prescribe the particular medication. In so holding, the Fifth Circuit abrogated the decision rendered in Anderson v. Sandoz Pharmaceutical Corp.
, 77 F. Supp. 2d 804, 809 (S.D. Tex.
1999).
Fife v. Polaris Industries, Inc., 2008 U.S. Dist. Lexis 9882 (S.D. Miss. Jan. 15, 2008). In Fife, the court denied the plaintiff’s motion in limine regarding evidence of the plaintiff’s alcohol and drug use before the subject ATV accident as relevant to causation and the plaintiff’s ability to accurately recollect the events of the accident.
In 2008, the United States District Courts of Mississippi issued a number of summary judgment opinions in automotive cases, several of which discussed Daubert issues, including the following:
• McIntosh v. Nissan North America, Inc., 2008 U.S. Dist. Lexis 91972 (S.D. Miss. Oct. 28, 2008) (airbag case): The plaintiff was involved in one vehicle accident in which she lost control and crashed into trees. She asserted products liability claims related to alleged defects in the airbag, which she believed should have deployed. The court excluded opinions of the plaintiff’s sole expert and granted summary judgment.
• Williams v. Daimler Chrysler Corp., 2008 U.S. Dist. Lexis 55123 (N.D. Miss. July 28, 2008) (airbag case): The plaintiff was involved in head-on collision as she attempted to pass an 18-wheeler on two-lane highway. She was pinned between steering wheel and seat, but was extricated before vehicle caught fire. The plaintiff asserted claim related to nondeployment of air bag and a crashworthiness claim related to fact vehicle caught on fire. The court excluded the plaintiff’s airbag and warnings experts and granted summary judgment.
• Betts v. General Motors Corp., 2008 U.S. Dist. Lexis 54350 (N.D. Miss. July 16, 2008) (seatbelt and glazing/tempered glass claims): The plaintiff sustained injuries in rollover accident in which tempered glass at driver window shattered. He was partially ejected through window and suffered his injuries when crushed between vehicle and ground. The plaintiff asserted seatbelt claims and
280 v Product Liability Conference v April 2009
claims that laminated driver window would have prevented ejection whereas tempered glass did not. The court denied all Daubert motions, including ones asserted as to four plaintiff experts and one defense expert. The court granted summary judgment on seatbelt claim and denied summary judgment on glazing/glass claim.
• Craig v. Daimler Chrysler Corp., 2008 U.S. Dist. Lexis 77379 (S.D. Miss. Mar. 19, 2008) (brakes case): The plaintiff sustained injuries when he rear ended a vehicle on the highway. The plaintiff asserted claims related to alleged brake defects, having testified he pushed brake pedal before accident but brakes did not engage. The court excluded testimony of the plaintiff’s brake design expert and all biomechanical opinions of treating orthopedic surgeon. The court denied summary judgment as to manufacturing defect and inadequate warnings claims, but granted summary judgment as to all other claims including design defect allegations.
A. Louisiana
Tort Reform:
Louisiana did not enact any major tort reform in 2008. However, Act No. 921 of Louisiana’s 2008 Regular Session amended what is commonly referred to as the “No Pay, No Play” law (La. R.S. 32:866), and could potentially affect product liability litigation. The amendment increases the amount an owner or operator of a motor vehicle is prevented from recovering for bodily injury damages and property damages based on any claim arising out of an automobile accident where that individual failed to maintain compulsory motor vehicle liability insurance. Presently, the plaintiff is precluded from recovering the first $10,000 in bodily injury damages and the first $10,000 in property damages. Pursuant to Act 921, effective January 1, 2010, these amounts are increased to $15,000 and $25,000, respectively.
Preemption : No cases reported in this area.
Environmental or “Green” Products Litigation:
Aucoin v. Southern Quality Homes, LLC , 984 So. 2d 685 (La. 2/26/08). The Louisiana Supreme Court affirmed a decision in a mold case holding the manufacturer of a mobile home liable to the purchasers in redhibition. The plaintiffs successfully argued that the manufacturer improperly installed vapor barriers, roof components, siding, and drywall material; additionally, the “marriage line” between the two section s of the home was improperly sealed. These failings, which were violative of the Uniform Standards Code for Manufactured Housing, La. R.S. 51911.21, allowed the infiltration of moisture and subsequent mold proliferation. The court ruled that the plaintiffs were entitled to recover the purchase price of the home, as well as attorney fees and costs. However, the court overturned the lower court’s award of $25,000 in mental pain and suffering damages on the basis that the plaintiffs failed to show that the manufacturer knew or should have known that its failure to perform its obligations would result in nonpecuniary losses.
Market Share or Other New Theories of Liability:
Desoto v. Ford Motor Co.
, 975 So. 2d 195 (La. App. 3d Cir. 2008). In Desoto v. Ford Motor Co.
, the Louisiana Third Circuit took another step in limiting the reliance of the plaintiff’s bar on res ipsa loquitor in disputed product liability claims. At trial, plaintiff alleged that a defect in the speed control deactivation system in his 2000 F-150 resulted in a fire damaging the vehicle and his home. The plaintiff introduced into evidence a recall Ford initiated of certain F-150 vehicles due to the risk of fire associated with the speed control system.
No other evidence was introduced, and the subject vehicle was destroyed by plaintiff, depriving the defendant of an opportunity to inspect. Ford disputed plaintiff’s defect allegations, introducing expert testimony placing the origin of the fire outside the vehicle. The expert’s testimony also offered several rational explanations for
Red, Orange, Yellow, Green, Blue, Indigo, Violet: Full Spectrum of...
v Arends and Mayfield v 281
the cause of the fire other than vehicle defects, such as improper maintenance or vandalism. Nevertheless, the trial court ruled in plaintiff’s favor based upon the doctrine of res ipsa loquitor . Ford appealed, and the Louisiana Third Circuit Court of Appeal reversed. The court found that because the plaintiff failed to exclude all reasonable explanations offered by Ford’s expert, it was impermissible for the trial court to rely on res ipsa to rule in plaintiff’s favor. The court explained that res ipsa applies only when evidence is introduced that “sufficiently exclude[s] inference of the plaintiff’s own responsibility or the responsibility of others besides defendant in causing the accident.”
Class Action Fairness Act (CAFA) : No cases reported in this area.
B. Mississippi
Tort Reform:
The Mississippi legislature did not enact any tort reform measures during the 2008 Legislative Session, nor did it enact measures during the prior session that went into effect in 2008. However, the tort reform overhaul in 2002 and 2003 continues to have a significant impact on the litigation climate.
Preemption : No cases reported in this area.
Environmental or “Green” Products Litigation : No cases reported in this area.
Market Share or Other New Theories of Liability:
Since 1993, when the Mississippi Products Liability Act was enacted, there has been no clear answer to the question of whether a plaintiff could bring negligence or warranty actions outside the MPLA for injuries caused by a product. The MPLA, by its terms, applies “in any action for damages caused by a product except for commercial damage to the product itself.” Miss. Code Ann. § 11-1-63. One of the areas where this distinction becomes important is the statute of limitations, which is three years for MPLA claims, but six years for warranty claims. The Mississippi Supreme Court appears to have resolved this open issue in Watson Quality Ford,
Inc. v. Casanova, No. 2007-IA-01171-SCT (Miss. Dec. 4, 2008). The court determined that bringing an action under the MPLA was not the sole remedy available to a products liability plaintiff.
Class Action Fairness Act (CAFA) : No cases reported in this area. of note, class actions are unavailable in state court in Mississippi.
Other :
Forbes v. General Motors Corp., No. 2007-CA-00902-SCT (Miss. Oct. 30, 2008). This is the second opinion from the Mississippi Supreme Court in this case, which arises from an automobile accident in which the plaintiff’s airbag did not deploy. The plaintiff claimed that the vehicle was defective because defendant breached an express warranty in the owners’ manual stating that an airbag would deploy in an accident that was “hard enough.” That is, the plaintiff’s theory was that this accident was “hard enough” to deploy the airbag and, because it did not deploy, the vehicle was defective and unreasonably dangerous, and that this condition caused the injuries.
In the original opinion, Forbes v. General Motors Corp.
, 935 So. 2d 869 (Miss. 2006), the court reversed the entry of summary judgment in favor of the defendant finding in pertinent part that the plaintiff was not required to have an expert witness to support of her breach of express warranty defect theory. The court was careful to limit the opinion to the facts of the case, but, nonetheless, the decision broke from a long line of prior cases all but requiring expert testimony in products liability case.
On remand, the defendant moved for summary judgment as to the plaintiff’s sole remaining warranty claim, which the court granted as the action was filed more than six years (applicable limitations period) after
282 v Product Liability Conference v April 2009
the plaintiff purchased the vehicle ( i.e.
, after “tender of deliver” was made). In the second Forbes opinion, the court simply upheld the entry of summary judgment on this basis.
C. Texas
Tort Reform :
The Texas legislature did not meet in 2008 so there are no new legislation or initiatives to report.
In 2003, the Texas legislature enacted significant tort reform legislation. Some cases challenging the legislation are now making their way through the appellate courts.
Dill v. Fowler, 255 S.W.3d 681 (Tex. App. - Eastland 2008, no pet.), challenged the constitutionality of the medical malpractice statute that decreased the standard of care for emergency room health care providers to require proof of willful or wanton negligence. The court found that the decreased standard did not violate equal protection, but was rationally related to the state’s concern over the medical malpractice crisis and its materially adverse affect on delivery of health care and the state’s interest in ensuring availability of emergency health care.
The tort reform legislation also included a statute that provided that recovery of medical or health care expenses incurred is limited to the amount actually paid or incurred by or on behalf of the claimant. One debate has focused on whether the plaintiff could recover the gross amount of his medical bills even though the medical provider may have reduced a portion of the bill as a result of a contractual arrangement with the plaintiff’s insurer. In Matbon, Inc. v. Gries , 2009 WL 94310 (Tex. App. - Eastland, Jan. 15, 2009) and Irving Holdings v.
Brown , 20009 WL 18713 (Tex. App. - Dallas Jan. 5, 2009), the courts held that recovery is limited to the amount actually paid or incurred by or on behalf of the plaintiff, meaning not what was initially charged but what was actually due and paid. The collateral source rule still applies to prevent evidence that the payments were made by an insurance company. Note that the Brown decision, while correctly interpreting this statute, further allowed a percentage reduction for the plaintiff’s comparative negligence before reducing the jury award to the amount paid. This resulted in a full recovery of medical expenses incurred to the plaintiff despite being found to be 50 percent at fault simply because the jury award represented the full amount charged, not the amount actually paid.
Preemption :
Bic Pen Corp. v. Carter , 251 S.W.3d 500 (Tex. 2008). On the heels of Riegel v. Medtronic, the Texas
Supreme Court addressed the preemptive effect of regulations issued under the (federal) Consumer Product
Safety Act by the Consumer Product Safety Commission. This case involved regulations adopted by the Commission requiring disposable lighters to be child-resistant and setting the protocol for testing the child-resistant features. In this case, a five-year-old girl was badly burned when her six-year-old brother accidentally set her dress on fire with a disposable lighter. The Commission had certified the lighter at issue as compliant with its regulations after considering the design and testing information from the manufacturer.
The court found that the Act preempts the state common-law cause of action for design defect because the plaintiff’s claim impermissibly sought to impose a higher standard under common law that would conflict with the federal regulations.
The Act includes a preemption and savings clause. That is, the Act states (paraphrasing) that no state shall have any authority to establish or to continue in effect any safety standard or regulation that is not identical to the federal regulations. The savings clause states only that “compliance with consumer product safety rules or other rules or orders under this chapter shall not relieve any person from liability at common law or under State statutory law to any other person.” The United States Supreme Court previously addressed this
Red, Orange, Yellow, Green, Blue, Indigo, Violet: Full Spectrum of...
v Arends and Mayfield v 283
issue in Geier v. American Honda Motor Co., which involved preemption/savings clauses in the National Traffic and Motor Vehicle Safety Act. Relying on that authority, the Texas court held that the savings clause allows statelaw tort claims unless the state-law claims actually conflict with federal regulations. Thus, the clause does not
“save” the plaintiff’s claims that seek to impose liability for failing to meet design criteria that are more stringent than the federal regulations require.
Finally, the Act does provide for creation of state specific exemptions to the federal regulations, but the requested exemptions must meet the criteria of the Act and be approved by the Commission (not done by Texas for this product).
MCI Sales and Service, Inc. v. Hinton , 2008 WL 4172643 (Tex. App. - Waco, Sept. 10, 2008). This is a
“crashworthiness” case arising out of a motor coach passenger bus crash in Waco, Texas that caused many deaths and injuries. Part of the suit alleged defective design causes of action against the manufacturer for failure to equip the bus with three-point passenger seatbelts or with laminated glass passenger windows. On appeal from a $17 million jury verdict, MCI unsuccessfully asserted implied preemption under the National
Traffic and Motor Vehicle Safety Act.
MCI argued for implied preemption on the grounds that the federal regulation applicable to safety systems for buses does not require the installation of passenger seatbelts or regulate compartmentalization for passenger protection and by the National Highway Traffic Safety Administration’s (“NHTSA”) rejection of any standard that would require passenger seatbelts on buses. Belt system regulations did exist for the driver, but notably, the regulations are silent as to passenger protection. Thus, a manufacturer could install seatbelts in the passenger compartment of a motor coach and still be in compliance with federal regulations.
Although the NHTSA had repeatedly rejected efforts to establish seatbelt regulations for passenger buses, the court found that none of its actions presented a “clear indication of a conscious federal policy against passenger seatbelts in motor coach buses.” Indeed, seven years before the crash, MCI had asked the NHTSA to provide guidance on how to anchor seatbelts in an MCI motor coach. The NHTSA had declined to provide specific guidance, holding: “Federal law leaves the question of how any such anchorages should be designed entirely up to the judgment of the bus manufacturer.” It was further significant to the court the absence of federal regulation and the decision not to take regulatory action. Such inaction was not preemptive in this case.
Unlike the airbag crash cases where implied preemption was found by the federal regulations establishment of a gradual phase in of regulations, the NHTSA had no regulations or policies opposing the use of seatbelts in motor coaches. The plaintiffs’ common-law claims relating to MCI’s failure to have installed passenger seatbelts on the bus at issue were not in actual conflict with federal law or federal purposes or objectives and were therefore not preempted.
As to the design defect claims related to the absence of laminated windows, the bus passenger windows did comply with federal regulations. Relying on previous Fifth Circuit authority, the court found that, regardless of such compliance, the claims were not preempted. Compliance with the regulation did not preempt a state common-law rule that would in effect require further safety measures that would have protected the injured passengers in this case.
Class Action Fairness Act : No cases reported in this area.
Daimler Chrysler Corp v. Inman, 252 S.W.3d 299 (Tex. 2008). Although not a CAFA case because the suit was filed before passage of the Act, the holding is a significant decision with regard to the requirement of an actual injury to trigger standing to bring suit. The representative plaintiffs sued Chrysler alleging that its seatbelt buckle design was defective because it was too easy to press the release button and that it was “possible” to unlatch it without intending to do so. The plaintiffs did not argue that the unintended unlatching was
284 v Product Liability Conference v April 2009
unavoidable, probable or eventual, nor had any named plaintiff actually experienced any unintended unlatching or suffered any injury. The plaintiffs sued to require the buckles to be replaced with a design that was harder to unlatch. The Texas Supreme Court on a tight 5-4 vote held that because these plaintiffs lacked standing to bring the class action suit, the court did not have jurisdiction over it. The plaintiffs lacked standing because they had not been personally aggrieved; there was no concrete or particularized or imminent injury, but only one that was hypothetical. The court claimed it was not addressing the merits of the claims, but that under these facts the plaintiffs lack standing because there claim of injury was too slight for a court to afford redress.
Other:
Product Liability: Jury Charge/Instructions--manufacturing defect
Ford Motor Co. v. Ledesma, 242 S.W.3d 32 (Tex. 2007). In a case alleging manufacturing defect, the jury must determine whether the product deviated, in its construction or quality, from its specifications or planned output in a manner that rendered it unreasonably dangerous. Merely giving the instruction of “producing cause” was legally insufficient as deviation from design or manufacturing protocols is a required element of proof.
Insurance Coverage: public policy does not prohibit coverage of punitive damages awards
Fairfield Ins. Co. v. Stephens Martin Paving, LP , 246 S.W.3d 653 (Tex. 2008). The case was before the
Texas Supreme Court on a certified question from the United States Court of Appeals for the Fifth Circuit on the following issue:
Does Texas pubic policy prohibit a liability insurance provider from indemnifying an award for punitive damages imposed on its insured because of gross negligence?
The issue of whether public policy should prohibit insurance coverage for an award of punitive damages has been percolating for some time in this state (this case had been pending for nearly four years at the time of the decision). The argument for such a public policy stand rests on the purpose of punitive damages being for deterrence and punishment (which, the argument goes, is defeated if simply paid for by insurance).
While this suit involved workers’ compensation/employer’s liability insurance policies and the holding must be limited to the narrow facts of the case and to the policies before the court, the opinion suggests it would be a difficult argument to make that public policy trumps an express contract absent legislative pronouncement to the contrary.
The insured’s employee was killed in a workplace accident and the employer paid workers’ compensation benefits to his wife and children. The family then sued the employer for gross negligence arising from the employee’s death (because the family received workers’ compensation benefits, by statute they could seek only exemplary damages). This case arises out of a federal court declaratory judgment action by the insurer that argued it had no duty to defend or indemnify the employer. The employer carried workers’ compensation insurance and employer’s liability insurance and in reaching its conclusion, the court determined that the policies covered exemplary damages assessed for gross negligence. Thus, the only question before it was whether public policy should prohibit the coverage of exemplary damages.
Noting that the Texas legislature had taken affirmative action to pass laws prohibiting insurance coverage of exemplary damages assessed against certain health care providers and physicians, and to exclude risk management and excess insurance pools for various public entities, insolvent insurers, and other such entities covering exceptional risks from paying exemplary damages, the court focused on the legislative involvement in the establishment of the workers’ compensation system ( i.e.
, the legislature will speak when it intends to prohibit such coverages). The workers’ compensation insurance policy forms are mandatory and promulgated by the Texas Department of Insurance. The system is heavily regulated and governed by state law. That the policies
Red, Orange, Yellow, Green, Blue, Indigo, Violet: Full Spectrum of...
v Arends and Mayfield v 285
created under this scheme--the workers’ compensation and employer’s liability coverages--insure gross negligence was the foundation for the decision. The court, in the absence of legislative fiat, declined to invalidate the parties’ contract. Thus, the carrier had a duty to defend and indemnify the employer.
Understanding that its opinion was limited to the policy and facts before it but that the issue could be raised again before it, the court analyzed the debate and where the other states were in their own analysis of this issue. It further analyzed the principles of freedom of contract and when the legislature or courts may intervene to prohibit certain undesirable contractual provisions.
In the case before it, the court weighed heavily the principle of freedom of contract, absence an express legislative enactment prohibiting any term of the contract (for example, such as the legislative prohibitions against charging usurious interest or unconscionable contracts, among others). The court also looked to the reasoning supporting appellate court decisions rejecting as against public policy coverage for exemplary damages in an uninsured or underinsured motorist policy (in such cases, the insured seeks to recover against his own insurer for exemplary damages assessed against the tort-feasor, reasoning that the purposes of deterrence and punishment are not served by assessing exemplary damages against the insured’s carrier and not against the tort-feasor). The courts, though, have allowed coverage of exemplary damages assessed against a corporation when such damages are assessed because of the acts of its agents (the reasoning being that the costs would otherwise be passed onto the consumer or affect the shareholders, contrary to the purpose for assessing punitive damages). Under the case at hand, the court could find no public policy argument allowing it to ignore the parties’ contractual terms.
VI. Sixth Circuit
By Jennifer Snyder, Lisa M. Miller, and Hannah W. M. Schrock
Jennifer Snyder is an attorney in the Cincinnati office of Ulmer & Berne. She defends pharmaceutical companies and dietary supplement manufacturers in products liability and mass tort cases nationwide. She is a member of DRI’s Young Lawyers Steering Committee. Last year at the product liability seminar, Jennifer gave a presentation on CAFA during the Young Lawyers Breakout.
Lisa M. Miller practices products liability defense and patent law at Ulmer & Berne. In addition, she also counsels dietary supplement and pharmaceutical companies on risk assessment and management.
Hannah W. M. Schrock participates in the defense of complex product liability litigation, concentrating in the defense of pharmaceutical companies.
Tort Reform : No cases reported in this area.
Preemption : No cases reported in this area.
Environmental or “Green” Products Litigation : No cases reported in this area.
Market Share or Other New Theories of Liability : No cases reported in this area.
Class Action Fairness Act (CAFA):
Freeman v. Blue Ridge Paper Products, Inc., 2008 U.S. App. Lexis 26419 (6th Cir. Dec. 29, 2008). In this purported class action, plaintiffs sought to avoid federal court jurisdiction by filing five separate complaints, limiting each to a six-month time period, and limiting the total class damages to less than $4.9 million. The complaints were identical, and they sought damages for the defendant paper mill’s alleged water pollution. The
Sixth Circuit found that no colorable basis existed for dividing the claims other than an attempt to avoid the clear purpose of CAFA. Accordingly, the Sixth Circuit found that federal jurisdiction existed under CAFA, and that the district court’s order remanding the cases to state court was improper.
286 v Product Liability Conference v April 2009
Other : No cases reported in this area.
A. Kentucky
Tort Reform : No cases reported in this area.
Preemption :
Wilson v. Wyeth, Inc ., 2008 U.S. Dist. Lexis 87726 (W.D. Ky. Oct. 24, 2008); Smith v. Wyeth, Inc ., 2008
U.S. Dist. Lexis 87684 (W.D. Ky. Oct. 24, 2008); Morris v. Wyeth, Inc ., 582 F. Supp. 2d 861 (W.D. Ky. Oct. 24, 2008).
The plaintiffs filed complaints alleging that their use of metoclopramide caused them to develop tardive dyskinesia. All plaintiffs claimed that the manufacturers failed to adequately warn of the long term negative effects of metoclopramide. The manufacturers of generic metoclopramide moved to dismiss based on federal preemption, arguing that federal law prohibits generic manufacturers from unilaterally altering drug labels. The generic manufacturers argued that state laws that require warnings that are stronger than or in addition to those approved by the FDA conflict with federal law. The court agreed, holding that, pursuant to the Hatch-
Waxman Amendments to the Food, Drug & Cosmetic Act, a generic drug manufacturer may not unilaterally alter its drug label without prior FDA approval, either before or after product approval. Further, the court held that whether a generic manufacturer failed to notify the FDA about safety information had no bearing on its preemption analysis. Motions for consideration filed by plaintiffs in all these cases are pending.
Environmental or “Green” Products Litigation:
Cochran v. Oxy Vinyls LP , 2008 U.S. Dist. Lexis 67389 (W.D. Ky. Aug. 29, 2008). The plaintiffs, 185 residents of neighborhoods surrounding an industrial area, brought a class action seeking monetary and injunctive relief for property damage allegedly resulting from fallout and noxious odors emitted by the defendant’s facility. The court denied plaintiffs’ motion for class certification under Federal Rule of Civil Procedure 23(b)(2) and 23(b)(3), finding that there was an insufficient relationship between the proposed class definition and the evidence plaintiffs provided regarding emissions from the facility. The court found that plaintiffs did not show that the pollution identified by the expert emanated from the defendant’s facility as opposed to other plants in the area.
Market Share or Other New Theories of Liability : No cases reported in this area.
Class Action Fairness Act (CAFA) : No cases reported in this area.
Other :
Bennett v. Ford Motor Co ., 2008 U.S. Dist. Lexis 27286 (W.D. Ky. Apr. 3, 2008). In this case, plaintiffs amended their complaint to include a claim for violation of the Kentucky Consumer Protection Act (“KCPA”).
The court held that the consumer claim was barred by the time limitations set forth in Kentucky Revised Statute section 367.220 because it was brought in an amended complaint more than two years after the alleged violation of the KCPA occurred. The relation back provision of Kentucky Rule of Civil Procedure 15.03(1) did not apply because the original complaint asserted product liability claims and the new KCPA claims sounded in fraud. The court held that the KCPA claim could not be established by the same evidence as the original claims; therefore the original complaint did not give the manufacturer adequate notice of the new KCPA claim and did not relate back.
Hyman & Armstrong, P.S.C. v. Gunderson , 2008 Ky. Lexis 114 (Ky. Apr. 24, 2008). In this case, the court addressed the standards for the admissibility of expert testimony in Kentucky. An obstetrician prescribed the drug Parlodel to a patient following childbirth. Three days after being discharged from the hospital the patient suffered a seizure and died. Both the package insert and PDR entry for Parlodel contained warnings of the risks of seizure and hypertension for postpartum patients. Because the manufacturer presented sufficient evidence
Red, Orange, Yellow, Green, Blue, Indigo, Violet: Full Spectrum of...
v Arends and Mayfield v 287
of an adequate warning to the obstetrician about the risks of Parlodel, the Kentucky Supreme Court held that it was error for the trial court to fail to give a jury instruction on the learned intermediary doctrine. However, the court found the error was not prejudicial in light of what the court characterized as evidence of the manufacturer’s efforts to “conceal or downplay the risks of Parlodel.” In another assignment of error, defendants maintained that the scientific evidence relied on by plaintiffs’ causation experts, specifically case reports, animal studies, and chemical analogies, were unreliable and not relevant because the evidence did not prove that Parlodel caused seizures in women taking the drug for postpartum lactation suppression. The court explained that medical causation must usually be proved to a reasonable medical probability. The court acknowledged that the individual pieces of evidence alone might not prove that Parlodel caused postpartum seizures in women, but when considered together as a body of evidence with scientific underpinnings, the court held it was sufficiently reliable to present to the jury.
Burton v. CSX Transportation, Inc ., 269 S.W.3d 1 (Ky. 2008). The plaintiff claimed that he suffered permanent brain damage from exposure to toxic fumes emitted by solvents he used at work. At trial, much of the expert testimony focused on whether the employee’s problems were caused by toxic encephalopathy due to exposure to fumes or by multiple sclerosis. The defendant offered expert testimony based on a review of the relevant medical literature, including opinions as to the validity of the literature. The plaintiff argued that the defendant’s expert opinion did not meet the threshold of reliability required by Daubert v. Merrill Dow Pharmaceuticals . The Kentucky Supreme Court explained that a “high standard” must be met for an expert’s testimony based primarily or fully on literature review to be properly admitted under Daubert . Ultimately, the court found that the trial court did not abuse its discretion by admitting the expert testimony based on literature review because the expert was qualified to assess the medical literature and the literature review was performed appropriately.
B. Michigan
Tort Reform:
Konstantinov v. Findlay Ford Lincoln Mercury, 2008 U.S. Dist. Lexis 5793 (E.D. Mich. Jan. 28, 2008). In this case, the court addressed a provision of the 1996 Michigan Tort Reform Act limiting seller liability. The statute in question, Michigan Compiled Laws section 600.2947(6), provides that sellers, other than manufacturers, are not liable in product liability actions unless (1) the seller failed to use reasonable care and that failure proximately caused injuries; or (2) the seller made an express warranty, the product failed to conform to the warranty, and the failure to conform to the warranty proximately caused injuries. After recounting what the court described as “contradictory interpretations of the statute” by Michigan state courts, the federal district court held that nonmanufacturing sellers can be held liable for breach of implied warranty only if they knew or had reason to know of the defect. Here, the court denied the seller’s motion for summary judgment where plaintiffs presented evidence sufficient to establish an issue of fact about whether the seller knew about available safety features that were not present in a customized limousine at the time it was sold.
Preemption : No cases reported in this area.
Environmental or “Green” Products Litigation : No cases reported in this area.
Market Share or Other New Theories of Liability:
Napier v. Osmose, Inc., 399 F. Supp. 2d 811 (W.D. Mich. 2008). In this case, plaintiffs suffered injuries after one of them got a splinter on a wood deck that had been treated with inorganic arsenic wood preservative. The plaintiffs sued all the manufacturers and sellers of products containing inorganic arsenic, and sought recovery based on theories of “alternative liability” and “concert of action.” It was undisputed that plaintiffs
288 v Product Liability Conference v April 2009
would not be able to identify the manufacturer of the product used to treat the wood at issue in the case. The plaintiffs relied on Abel v. Eli Lilly and Co., 343 N.W.2d 164 (Mich. 1984), in which plaintiffs were allowed to pursue recovery for injuries allegedly suffered as a result of the use of DES under a theory of alternative liability.
Alternative liability is based on a modified concept of joint and several liability. However, since the Abel decision, the Michigan legislature passed tort reform legislation that eliminated joint and several liability. Based on that legislation, the court found that alternative liability and concert of action theories are not viable theories of recovery in product liability cases. Because plaintiffs could not identify the product that allegedly caused plaintiffs’ injuries, the case was dismissed.
Class Action Fairness Act (CAFA) : No cases reported in this area.
Other :
White v. Smithkline Beecham Corp., 538 F. Supp. 2d 1023 (W.D. Mich. 2008). The plaintiffs challenged
Michigan Compiled Laws section 600.2946(5), which provides immunity from product liability suits for manufacturers of pharmaceutical drugs if (1) the FDA approved the safety and efficacy of the drug and (2) the drug and the labeling were in compliance with the FDA’s approval at the time the drug left the control of the manufacturer. The only exceptions to the defense are for fraud-on-the-FDA and bribery of an FDA employee. The plaintiffs filed a product liability suit alleging their 16-year-old daughter committed suicide after taking Paxil.
While Paxil has been approved by the FDA for use in adults, it has not been approved for the treatment of children or adolescents. The plaintiffs argued, unsuccessfully, that the statutory defense should not apply where the drug is prescribed “off-label.” The court held that the statute does not limit protection to situations when the drug is used for its approved purposes. The court also denied plaintiffs’ request for leave to file an amended complaint, finding that any amendment would be futile in light of the FDA’s approval of the drug.
In light of the conflicting holdings of the Sixth Circuit in Garcia v. Wyeth-Ayerst Labs.
, 385 F.3d 961
(6th Cir. 2004), and the Second Circuit in Desiano v. Warner-Lambert & Co.
, 467 F.3d 85 (2d Cir. 2006), and the United States Supreme Court’s recent treatment of the Desiano case in Warner-Lambert Co., LLC v. Kent,
128 S. Ct. 1168 (2008), practitioners should be aware that the treatment of Michigan Compiled Laws section
600.2946(5)(a), the exception to immunity for fraud-on-the-FDA, differs based on the jurisdiction in which the case is filed.
Thorn v. Mercy Memorial Hospital Corp ., 2008 Mich. App. Lexis 2441 (Mich. Ct. App. Dec. 11, 2008).
In a medical malpractice action, a personal representative sought to recover damages pursuant to Michigan’s
Wrongful Death Act, Michigan Compiled Laws § 600.2922. The personal representative sought to recover the economic value of household services provided by the decedent for her minor children. The defendants sought to exclude plaintiff’s expert testimony on that topic, arguing that Michigan Compiled Laws section 600.2922(6) did not specifically list loss of services as a recoverable element of damages. The defendants also argued that the claim for loss of services was noneconomic in nature and therefore subject to the damages cap of Michigan
Compiled Laws section 600.1483. The court concluded that the statutory language of Michigan Compiled Laws section 600.2922(6) did not preclude the personal representative from seeking damages for loss of services.
The court rejected defendants’ argument that loss of services was merely a component of a claim for the loss of society and companionship or the equivalent of a claim for loss of consortium. As a result, the court held the personal representative’s claim for loss of services comprised an economic damage that was not subject to the damages cap of Michigan Compiled Laws section 600.1483.
Woodman v. Kera, L.L.C
., 280 Mich. App. 125 (Mich. Ct. App. 2008). Where a child was injured by inflatable play equipment, an action was brought against the property owner. The owner asserted an affirmative defense of waiver on the ground that the child’s father had signed a release on behalf of his son. The court held that, under Michigan law, a parent had no authority merely by virtue of the parental relationship to waive,
Red, Orange, Yellow, Green, Blue, Indigo, Violet: Full Spectrum of...
v Arends and Mayfield v 289
release, or compromise claims of his or her child. While the court acknowledged the public policy concerns inherent in this holding, it stated that the legislature was the proper institution to make public policy determinations. The court found no legislative enactments expressly permitting parents to waive liability for injuries incurred in either commercial or nonprofit settings before the injury occurred. Therefore, the court held that the preinjury release of liability signed by the child’s father was presumptively not enforceable.
C. Ohio
Tort Reform:
Groch v. GMC, 117 Ohio St. 3d 192, 883 N.E.2d 377 (Ohio 2008). The plaintiff was within the scope of his employment at General Motors when the trim press he was operating came down on his right arm and wrist. He sought damages from General Motors based on a theory of intentional tort and from the manufacturers of the trim press based on a theory of product liability. The trim press manufacturers moved to dismiss based on the statue of repose in Ohio Revised Code section 2305.10(C), which prohibits claims from being filed more than ten years after the product is first sold. The Ohio Supreme Court upheld the constitutionality of the product liability statute of repose. The court held the statute of repose did not offend the right to pursue a remedy because it prevents a claim to which such right could apply from vesting. However, the court found the retroactive application of the statute, expressly provided for in Ohio Revised Code section 2305.10(F) (now
(G)), unconstitutional as applied against the plaintiff Groch, because his claim, which vested before the statute’s enactment, was impaired.
In Re: Special Docket No. 73958 , 2008 Ohio App. Lexis 3757 (Ohio App. Sept. 4, 2008). The court upheld the constitutionality of Ohio Revised Code sections 2307.91 to 2307.98, which require a plaintiff who seeks to recover for a nonmalignant condition allegedly caused by asbestos to make a prima facie showing that (1) he has a physical impairment resulting from a medical condition and (2) that the person’s exposure to asbestos was a substantial contributing factor to the medical condition. The statutory scheme expressly provides for retroactive application. After plaintiffs challenged the constitutionality of the statute, the court held that retroactive application is not unconstitutional because the statutes are remedial and procedural, rather than substantive in nature. Further, the court found that the law did not impose any new or additional burdens, duties, obligations, or liabilities on plaintiffs.
Preemption :
Longs v. Wyeth , 536 F. Supp. 2d 843 (N.D. Ohio 2008). In this case, the plaintiff sought to recover for injuries allegedly sustained as a result of the use of the drug Redux. The court held that plaintiff’s claim that the drug was “unreasonably dangerous” conflicted with the FDA’s authority to determine whether drugs are safe and effective. Accordingly, all claims relating to pre-FDA approval were held to be preempted. To the extent that plaintiff alleged that the defendant misrepresented information to the FDA, those claims were preempted as well. In addition, the court granted summary judgment on claims for design defect and negligence because it found no evidence to demonstrate that defendant’s actions proximately caused plaintiff’s injuries.
McWilliams v. S.E., Inc ., 581 F. Supp. 2d 885 (N.D. Ohio 2008). The plaintiff sought to recover for the death of his sister after the tandem harness she wore while skydiving allegedly failed. The plaintiff asserted claims for failure to warn and defective design. Relying heavily on the reasoning of Greene v. B.F. Goodrich Avionics Systems, 409 F.3d 784 (6th Cir. 2005), the court found that plaintiff’s failure-to-warn claims were preempted because the Federal Aviation Administration has regulated the sport of skydiving and has established the applicable standards of care in the field of air safety. However, the court found that the regulations for the design of skydiving harnesses (unlike the regulations mandating the design of aircraft seats, for example) left
290 v Product Liability Conference v April 2009
ample room for the manufacturer to exercise discretion in the design. Accordingly, the claim for design defect was not preempted.
Environmental or “Green” Products Litigation : No cases reported in this area.
Market Share or Other New Theories of Liability : No cases reported in this area.
Class Action Fairness Act (CAFA):
Rogers v. Credit Acceptance Corp., 2008 U.S. Dist. Lexis 46594 (N.D. Ohio June 16, 2008). In this case, the court addressed the amount-in-controversy requirement for removal of a purported class action to federal court under CAFA. The plaintiff filed a purported class action alleging that the defendants failed to disclose and improperly used a vehicle disabling device that prevented use of the vehicle when payments on the financing contract were late. One defendant removed the action to federal court under CAFA. In support of its assertion that the amount in controversy was satisfied, the removing defendant argued that (1) the damages available under the various causes of action asserted included punitive damages, actual damages and attorney’s fees;
(2) complying with the declaratory and/or injunctive relief requested could cause the defendant to forego collecting all or a portion of the balance of outstanding loans to the putative class members in the amount of $34 million; and (3) given that there are 3700 putative class members, each class member need place only $1350 at issue, and that amount likely was met by the actual and punitive damages available on the conversion claim alone. The court held that this “simple division” was not enough to demonstrate that the amount in controversy was satisfied by a preponderance of the evidence. The court stated that there was no way to determine the actual damages on the particular contracts because each individual plaintiff would have different circumstances related to the cost of alternative transportation and whether he missed work or was otherwise inconvenienced. Accordingly, it found defendant’s arguments about damages to be mere speculation, and the case was remanded.
Glazer v. Whirlpool Corp., 2008 U.S. Dist. Lexis 85798 (N.D. Ohio Oct. 6, 2008). Again addressing
CAFA’s amount in controversy requirement, the court found that the defendant did demonstrate that the $5 million minimum more likely than not was satisfied. In this case, the putative class included all Ohio residents who acquired a new Whirlpool Duet Sport Front-Loading washer after June 2, 2004, alleging that all such washers suffered from a common defect. Whirlpool proffered evidence that more than 21,000 such washers were sold in Ohio during the relevant time period. Whirlpool further used the minimum retail price for which such washers were sold to demonstrate that the amount in controversy was approximately $15 million. Given that plaintiff’s complaint sought the repair or replacement of all Duet Sport Front-Loading washers sold in Ohio, the court found that defendant’s factual assertions regarding the cost of the washers satisfied the amount in controversy requirement.
St. Clair v. Kroger , 581 F. Supp. 2d 896 (N.D. Ohio 2008). In this case, the court addressed whether subsequent events that destroy the jurisdictional requirements of CAFA require remand to state court. The plaintiff filed a class action asserting claims based on the Ohio Consumer Sales Practices Act (“CSPA”). After the class claims based on the CSPA were dismissed for failure to plead them properly, the court was left with an individual plaintiff with claims for a de minimus amount. While the court gave the plaintiff an opportunity to show cause why federal subject matter jurisdiction continued to exist, it stated that dismissal for lack of jurisdiction appeared to be appropriate.
Other :
Dicenzo v. A-Best Products Co., Inc.
, 120 Ohio St. 3d 149, 897 N.E.2d 132 (Ohio 2008). In an asbestos case, the court determined that the decision in Temple v. Wean United, Inc. (1977), 50 Ohio St. 2d 317, 364
N.E.2d 267, which imposed strict liability on nonmanufacturing sellers of defective products, applies prospec-
Red, Orange, Yellow, Green, Blue, Indigo, Violet: Full Spectrum of...
v Arends and Mayfield v 291
tively only. The court stated that prospective application was appropriate because retroactive application would not promote the purpose behind product liability law--to make products safer, particularly here, where the product at issue has not been manufactured or sold for many years. Thus, the court reinstated the judgment of the trial court granting summary judgment to a supplier of asbestos-containing insulation products.
D. Tennessee
Tort Reform : No cases reported in this area.
Preemption :
Flanigan v. Westwind Technologies, Inc.
, 2008 U.S. Dist. Lexis 82203 (W.D. Tenn. Sept. 15, 2008). In this case, the court held that the “combatant activities” exception to the Federal Tort Claims Act (“FTCA”) preempts product liability claims against government contractors for injuries sustained by U.S. soldiers in combat. The plaintiffs sought recovery for the death of an Apache Helicopter pilot after the helicopter crashed in Afghanistan. The defendants, the manufacturers of the helicopter and its component parts, claimed that the claims were preempted pursuant to the “combatant activities” exception to the Federal Tort Claims Act. The court, relying on a decision of the United States Supreme Court, held that independent contractors are protected from tort liability associated with the performance of government procurement contracts under certain circumstances.
See Boyle v. United Techs. Corp ., 487 U.S. 500, 511, 108 S. Ct. 2510 (1988). The court held that the “combatant activities” exception to the FTCA expands Boyle to shield private defense contractors from product liability claims arising from the use of complex, sophisticated equipment during times of war.
Environmental or “Green” Products Litigation : No cases reported in this area.
Market Share or Other New Theories of Liability:
Robinson v. Rooto Corp., 2008 U.S. Dist. Lexis 37663 (W.D. Tenn. May 6, 2008). The plaintiffs brought an action against the manufacturer of liquid drain opener, alleging it left them legally blind. In addition to a strict liability claim, plaintiffs asserted claims based on violations of the Federal Hazardous Substance Act
(“FHSA”) and the Poison Prevention Packaging Act (“PPPA”). The defendants contended that no private cause of action existed under the FHSA or PPPA. Whether the FHSA and the PPPA provide private causes of action was an issue of first impression in the Sixth Circuit. The court considered whether there was any evidence of legislative intent to provide or deny a private remedy. Finding that the weight of authority from other jurisdictions supported the conclusion that neither statute provides a private right of action, the court dismissed the
FHSA and PPPA claims.
Class Action Fairness Act (CAFA):
Proffitt v. Abbott, 2008 U.S. Dist. Lexis 72898 (E.D. Tenn. Sept. 23, 2008). In this case, the court considered evidence outside the pleadings in determining whether CAFA’s amount in controversy requirement was met. The plaintiffs filed eleven separate lawsuits alleging that defendants’ sales practices for the drug TriCor illegally excluded generic competition through anticompetitive means. The complaints were identical except for the time period in which the anticompetitive acts allegedly took place. Each complaint limited the damages sought to $4.9 million. The defendants argued that the time divisions were a deliberate attempt to circumvent
CAFA’s removal provisions. The defendants provided testimony in support of removal that, more likely than not, the damages at issue met the amount in controversy requirements for CAFA. The court agreed with defendants, finding that the cases could not be considered isolated lawsuits. Accordingly, the motion to remand was denied.
Other :
Flax v. Daimlerchrysler Corp., 2008 Tenn. Lexis 505 (Tenn. July 24, 2008). In a product liability case against a car manufacturer, the court reiterated Tennessee’s modern jurisprudence concerning negligent inflic-
292 v Product Liability Conference v April 2009
tion of emotional distress (“NIED”) claims. Tennessee has rejected both the “physical manifestation” rule and the “danger zone” rule. In order to ensure credibility with regard to “stand alone” NIED claims, a plaintiff who has not suffered a physical injury must demonstrate through expert medical or scientific proof that he has suffered a severe emotional injury. When emotional damages are a “parasitic” consequence of negligent conduct that results in multiple types of damages, the higher degree of proof for emotional injuries is not required.
The court also reiterated the standards that now govern punitive damages awards in Tennessee. A verdict imposing punitive damages must be supported by clear and convincing evidence that the defendant acted intentionally, fraudulently, maliciously, or recklessly. When weighing the evidence, the court should take the strongest legitimate view of all the evidence in favor of the verdict, to assume the truth of all that tends to support it, allowing all reasonable inferences to sustain the verdict and to discard all to the contrary. When the amount of a punitive damage award is challenged, the court should conduct a de novo review of the punitive damages award to determine whether the award complies with due process requirements in light of three guideposts: (1) The reprehensibility of defendant’s conduct; (2) The ratio between the punitive award and the actual harm suffered by the plaintiff; and (3) Comparable civil and criminal penalties that could be imposed for similar conduct. More weight should be given to the first two factors.
VII. Seventh Circuit
By Lisa M. Pagel, Rayen A. Pierattini, and Charles S. Ofstein
Lisa M. Pagel is a senior associate in SmithAmundsen’s Chicago office where she concentrates her practice in products liability defense. Lisa attended the John Marshall Law School where she graduated cum laude and was an editor of the Journal of Information and Computer Law.
Rayen A. Pierattini is an associate in SmithAmundsen’s Chicago office and a member of the firm’s insurance services group. Rayen attended the University of Wisconsin Law School where she was note and comment editor for both the Wisconsin International Law Journal and the Wisconsin Journal of Law Gender and
Society .
Charles S. Ofstein practices with the firm Donohue Brown Mathewson & Smyth LLC, in Chicago, Illinois.
A. Illinois
Tort Reform:
Mikolajczyk v. Ford Motor Co.
, No. 104983, 2008 WL 4603565 (Ill. Oct. 17, 2008). In Mikolaczyk , the Illinois Supreme Court reversed a $27 million dollar verdict because the trial court abused its discretion by refusing the defendant’s tendered nonpattern instructions on the risk-utility factors. The court specifically adopted the “risk-utility balance” set forth in the Restatement Third of Torts: Products Liability section 2, comment f. It held that an appropriate jury instruction is to be given at the request of either party when the evidence presented by either or both sides support an application of the common law’s integrated test. Whether an instruction is required on either the consumer expectation test, risk-utility test or both will depend on the issues raised in the pleadings and the evidence presented at trial.
Preemption :
Link v. Zimmer Holdings, Inc.
, 06 C 5438, 2008 WL 5047677 (N.D. Ill. Nov. 26, 2008), and Bausch v.
Stryker , 08 C 4248, 2008 WL 5157940 (N.D. Ill. Dec. 9, 2008).
Illinois courts have been narrowly construing Riegel v. Medtronic , __ U.S. ___, 128 S. Ct. 999 (2008). In
Link v. Zimmer Holdings, Inc.
, 06 C 5438, 2008 WL 5047677 (N.D. Ill. Nov. 26, 2008), the district court ruled that
Red, Orange, Yellow, Green, Blue, Indigo, Violet: Full Spectrum of...
v Arends and Mayfield v 293
plaintiff’s claims were preempted. Like Riegel , the allegedly defective product in Link was a class III medical device and plaintiff’s claims were not parallel to the federal requirements. Similarly, the district court in Bausch v. Stryker , 08 C 4248, 2008 WL 5157940 (N.D. Ill. Dec. 9, 2008), barred the plaintiff’s claim because it was based on alleged defects found in a class III device.
Kunnemann v. Janssen Pharmaceutica Products, L.P.
, 05 C 3211, 2008 WL 5101116 (N.D. Ill. Dec. 2,
2008). Conversely, the district court in Kunnemann v. Janssen Pharmaceutica Products, L.P.
, 05 C 3211, 2008 WL
5101116 (N.D. Ill. Dec. 2, 2008), ruled that the plaintiff’s product liability claims were not preempted by Riegel . The product at issue in that case was Duragesic, a prescription pain patch designed to deliver medication through the user’s skin. Duragesic was not a Class III medical device. In addition, the plaintiff’s strict liability claim alleged both a design defect and a failure to warn. The court declined to foreclose the plaintiff’s claims on the basis of preemption because the Supreme Court had not yet ruled in Levine v. Wyeth , 2004-384, 2006 WL
3041078 (Vt. Oct 27, 2006)
Environmental or “Green” Products Litigation : No cases reported in this area.
Market Share or Other New Theories of Liability : No cases reported in this area.
Class Action Fairness Act (CAFA) : No cases reported in this area
Other:
Competency of Experts
Favia v. Ford Motor Co.
, 381 Ill. App. 3d 809, 886 N.E.2d 1182 (1st Dist. 2008). In Favia , the Illinois
Appellate Court affirmed a defense verdict in a products liability action arising out of a single vehicle crash in a construction zone. The plaintiffs and his decedents were thrown from the vehicle. The two responding officers,
Deputy Robert Ewing and Sergeant Daniel Goris, made notations and took measurements with respect to the tire marks and other markings on the road, the location of the vehicle and the injured and deceased passengers.
At trial, Deputy Ewing testified that the plaintiff’s oversteering was the primary cause of the crash, with the unlevel pavement being a contributing cause. Sgt. Goris opined that the plaintiff oversteered, but that it was the plaintiff allowing the right-side tires to drop into the unpaved portion of the road that caused the crash.
Both testified on cross-examination that they had no training in mechanical engineering, automotive engineering, vehicle dynamics or kinematics or accident reconstruction.
The plaintiffs appealed, arguing primarily that the trial court erred in admitting the opinion testimony of Deputy Ewing and Sgt. Goris as to the cause of the rollover crash. The plaintiffs argued that their opinions were inadmissible as lay testimony (because they did not witness the crash) and inadmissible as expert testimony (because they lacked the requisite foundation). The First District disagreed, holding that the witnesses’ lack of particular scientific or academic knowledge goes to the weight of their testimony, not its admissibility.
The limits on the scope of their expertise were well established on cross-examination.
Joint and Several Liability
Ready v. United/Goedecke Service, Inc.
, No. 103474, 2008 WL 5046833 (Ill. Nov. 25, 2008). In Ready , the
Illinois Supreme Court held that the language “defendants sued by the plaintiff” present in the 1986 version of
Illinois’ comparative negligence statute includes only those defendants who remain in the case when it is submitted to the fact finder. In other words, settling defendants should not be included on the verdict form and the jury should not be allowed determine their share of fault.
Although Ready interprets a prior version of the comparative negligence statute, the same language is present in the current version. See 735 ILCS 5/2-1117 (West 2008). Moreover, revisions to the comparative negligence statute are currently under consideration by the Illinois House, after having been passed out of the Sen-
294 v Product Liability Conference v April 2009
ate. The revisions would provide that the joint liability section applies only to the parties still remaining in the case at the time that a final determination is made by the trier of fact and that it does not apply to the defendants or third party defendants that have been dismissed for any reason, including settlement.
Liability of Nonmanufacturers
Murphy v. Mancari’s Chrysler Plymouth, Inc.
, 381 Ill. App. 3d 768, 887 N.E.2d 569 (1st Dist. Mar. 31,
2008). In Murphy , the Illinois Appellate Court held that the “seller’s exception” statute requires dismissal of a strict liability claim against a nonmanufacturer defendant unless it can be shown that the defendant actively contributed in some way to the injury, whether through control, failure to warn, disregard of known dangers or willful and wanton misconduct. In doing so, the First District clarified that the purpose of the “seller’s exception” statute is to allow a defendant whose sole liability results from its role as a member in the chain of distribution of an allegedly defective product, who has not been shown to have created or contributed to the alleged defect or had knowledge of the defect to get out of a product liability action at an early state in order to avoid expensive litigation and to defer liability upstream to the manufacturer, the ultimate wrongdoer.
B. Indiana
Tort Reform:
Technisand, Inc., v. Melton, 2008 Ind. Lexis 1273 (Indiana Supreme Court 2008). The plaintiff’s wife was diagnoses with chronic myeloid leukemia; she died a year after diagnosis. A year after her death, the plaintiff received a letter from his late wife’s employer stating that she may have been exposed to substances made by the defendant that may have placed her at greater risk for leukemia. After receipt of this letter plaintiff filed suit against wife’s employer, along with several other companies, adding defendant to the case a year later. The defendant raised a statue of limitations defense claiming that the Wrongful Death Act was controlling and thus suit should have been brought within two years of plaintiffs’ wife’s death. The Indiana Court of Appeals, stated that Indiana’s Product Liability Act not the Wrongful Death Act provided the relevant limitation period in this case. The supreme court found otherwise, stating that although the claim involved products liability as the lower courts had stated, this case also involved Indiana’s Survival Statue, which provides that an individuals personal injury claim or cause of action does not survive beyond that individuals death. The court viewed plaintiffs’ wife’s death as a claim for wrongful death rather than a claim for products liability. The court explained that the injuries forming the basis for the substantive tort claim, through products liability caused by plaintiffs wife’s death had expired pursuant to the Survival Act. Thus, plaintiffs claim expired upon his wife’s death. However, plaintiffs claim against the defendant for wrongful death could have survived had plaintiff commenced action within two years of the date of death. The plaintiff conceded that he did not bring suit against the defendant within those two years, thus the court found the defendant could not use the Products
Liability Act statue of limitations as an alternative to the statue of limitations contained in the Wrongful Death
Act, thus plaintiffs claim was dismissed.
Preemption :
Roland v. General Motors Corp., 881 N.E. 2d 722 (Ind. 2008). A mother and son brought suit against a car manufacturer after they were involved in an automobile collision. The plaintiffs claimed that their car was defectively designed because the center rear seat was not equipped with a lap-shoulder belt, only a lap belt. The defendant responded by filing for partial summary judgment stating that federal law preempted the claim. The plaintiffs responded that although federal regulation gave the manufacturers a choice between lap-only and lap-shoulder belts this did not bar their state tort law claim. The defense again responded by stating that the
Federal Motor Vehicle Standards, which gave vehicle manufacturers this choice, did not express a minimum safety standard, but a comprehensive regulatory scheme. Furthermore, the defendants’ choice of installing a
Red, Orange, Yellow, Green, Blue, Indigo, Violet: Full Spectrum of...
v Arends and Mayfield v 295
lap belt rather than a lap-shoulder belt was authorized by the comprehensive scheme and therefore the present tort claim interfered therewith, thus requiring preemption. The court agreed with the defense however, they did so on a much narrower footing. The court concluded that the plaintiff’s common-law tort action was preempted by federal law, however, the court noted that it found this on the narrow grounds that the state tort law claim conflicts with the deliberate and comprehensive regulatory scheme set forth by Federal Motor Vehicle
Standards. In addition, the court noted it did not agree with other courts, which found preemption on broader grounds that any regulation that gives a choice to a manufacturer preempts state action.
Environmental or “Green” Products Litigation : No cases reported in this area.
Market Share or Other New Theories of Liability : No cases reported in this area.
Class Action Fairness Act (CAFA) : No cases reported in this area
Other:
Spoliation
Green v. Ford Motor Co., 2008 U.S. Dist. Lexis 96278 (S.D. Ind., 2008). The plaintiff alleged that a serious car accident that left him paralyzed arose from defendants defective design of their Explorer model such that it was more susceptible to rollover than was reasonable. The plaintiff further argued that defendant knew that the Explorer was more susceptible to rollover, yet defendant did not perform the testing necessary to determine how to best restrain occupants in rollover collisions. The defendant responded with a motion to dismiss for spoliation of evidence. In support of their position the defense stated that plaintiff allowed the vehicle to be destroyed, thus preventing the defendant from inspecting it for evidence necessary to support its defenses and refute plaintiffs claims. The district court rejected this challenge stating that the vehicle itself was not necessary in order for the defendant to conduct its defense. The court opined that both defendant and plaintiff had access to other evidence regarding the design of the Explorer, such as schematics, expert testimony and testing. In addition, while it would have been ideal for the defendant to be able to examine the specific vehicle involved in the crash, the law does not necessitate such an examination in a design defect case. With regards to the defective restraint system, the court similarly opined that the defense had access to numerous other sources, such as testing, expert testimony and observation at the scene of the crash to determine whether the system was responsible for plaintiff’s injuries. Thus, the court concluded that because the allegedly defective designs still existed, and there were sources by which the parties could ascertain whether those defects were responsible for plaintiff’s injuries, the trier of fact would have sufficient evidence to apportion fault between the parties despite the destruction of the vehicle itself.
Large v. Mobile Tool International, Inc. 2008 U.S. Dist. Lexis 1291 (N.D. Ind. 2008). Case arose when an employee was seriously injured during the use and operation of a bucket truck, when the bucket truck came into contact with electric lines in which he was in the process of repairing. The plaintiff alleged negligent design and/or manufacture, product liability, breach of express and implied warranties, and spoliation of evidence. The defendant filed for summary judgment on the spoliation of evidence claim by arguing that the
Indiana Supreme Court had held that Indiana does not recognize first party intentional spoliation of evidence as an independent tort claim, however, the court opined that because the plaintiff already had an existing claim against the defendant, the plaintiff did not need a separate spoliation claim to pursue an affirmative remedy because the defendant could simply piggyback discovery sanctions and legal inferences to the defendant. Thus the court concluded that because there were appropriate sanctions available to insure that all parties receive a fair trial the court denied defendants motion for summary judgment on the issue of spoliation.
296 v Product Liability Conference v April 2009
C. Wisconsin
Tort Reform : No cases reported in this area.
Preemption : No cases reported in this area.
Environmental or “Green” Products Litigation : No cases reported in this area.
Market Share or Other New Theories of Liability : No cases reported in this area.
Class Action Fairness Act (CAFA) : No cases reported in this area
Other:
Consumer Contemplation and Bystanders
Jonathan Horst by his guardian ad litem and Kara Horst vs. Deer and Company, 2008 WI App. 65, 752
NW 2d 406 (Apr. 30, 2008). In Horst , the Wisconsin Appellate Court affirmed that, although the strict liability doctrine had been extended to bystanders, the bystander must still demonstrate an unreasonably dangerous defect by application of the consumer contemplation Test. In Wisconsin, the analysis for whether a product had an unreasonably dangerous defect is known as the “consumer contemplation test.” Essentially the consumer contemplation test states that the claimant must show that the product was more dangerous than the ordinary consumer or user would have contemplated.
In Horst , the minor plaintiff was seriously injured when his father accidentally ran him over with a lawnmower while driving in reverse. The minor’s mother, as guardian ad litem, filed suit alleging that the manufacturer of the lawnmower was at fault for designing a tractor that was unreasonably dangerous specifically with regard to the tractor’s override switch that allowed the operator to mow in reverse. The trial court denied defendant’s motion for summary judgment stating that the issue of unreasonable dangerousness and consumer contemplation are questions for the trier of fact. The jury found the defendant not guilty. The plaintiffs argued on appeal that they were entitled to a new trial due to an erroneous jury instruction. Ultimately, the appellate court held that the trial court applied the correct jury instruction, which reflected the consumer contemplation test. The trial courts supplement to the instruction accurately stated that bystanders are protected by the doctrine of strict liability if the bystander is injured by a defective part that is unreasonably dangerous to the ordinary user or consumer.
VIII. Eighth Circuit
By Lisa M. Schmid
Lisa M. Schmid is an associate with Halleland Lewis Nilan & Johnson. She practices primarily in the areas of product liability and labor and employment and is licensed to practice in Minnesota.
Tort Reform:
Newton v. Clinical Reference Laboratory , 517 F.3d 554 (8th Cir. 2008) (Arkansas). In Newton , the court recognized the Arkansas Supreme Court’s decision in Summerville v. Thrower , 253 S.W.3d 415 (Ark. 2007), and overturned the district court’s dismissal of a medical malpractice action. The district court had dismissed the action based on the plaintiff’s failure to submit a timely expert affidavit, but in Summerville , the court held that
30-day requirement unconstitutional as it conflicted with Rule 3 of the Arkansas Rules of Civil Procedure.
Preemption :
Sherman v. Winco Fireworks, Inc.
, 532 F.3d 709 (8th Cir. 2008) (Nebraska). In Sherman , the court held that the district court erred when it allowed the defendant, firework distributor Winco, to amend its answer to
Red, Orange, Yellow, Green, Blue, Indigo, Violet: Full Spectrum of...
v Arends and Mayfield v 297
include preemption as a defense more than 17 months after the deadline for amendments without requiring good cause. 532 F.3d at 712.
The plaintiffs’ suit included negligent failure-to-warn and warranty claims. Id.
at 713. In its motion for summary judgment, the defendant raised preemption as a defense for the first time, claiming that the negligence and warranty claims were preempted by the Federal Hazardous Substances Act and accompanying regulations. Id.
Following the motion for summary judgment, and 17 months after the deadline, Winco filed a motion for permission to amend its pleading to include federal preemption as an affirmative defense. Id. The district court granted the motion and later held that the negligent failure-to-warn claim was preempted. Id.
at
713-14.
In holding that the district court erred in granting the motion to amend the answer, the circuit court examined Rule 16(b) in relation to Rule 15(a) of the Federal Rules of Civil Procedure. Id.
at 715. Rule 16(b) governs the pretrial scheduling orders and states that “[e]xcept in categories of actions exempted by local rule, the district judge…must issue a scheduling order,” which “must limit the time to…amend the pleadings,…and file motions.” Id.
The rule continues on to say the schedule “may be modified only for good cause and with the judge’s consent.” Id.
[emphasis added by the court]. Rule 16(b), not the more liberal standard of Rule 15(a), applies when a party “seeks leave to amend a pleading outside the time period established by a scheduling order.” Id.
at 716. In this case, Winco clearly sought leave to amend outside the time period established by the scheduling order, so Rule 16(b) provided the correct standard—good cause. Id.
Therefore, the circuit court held that the district court was required to apply the good cause standard to Winco’s motion to amend. Id.
The district court failed to do so, and the error was prejudicial. Id.
at 716-19. As a result, the court remanded for a new trial on the negligent failure-to-warn claim. Id.
at 719.
Environmental or “Green” Products Litigation : No cases reported in this area.
Market Share or Other New Theories of Liability : No cases reported in this area.
Class Action Fairness Act (CAFA) : No cases reported in this area.
Other :
Sappington v. Skyjack, Inc.
, 512 F.3d 440 (8th Cir. 2008) (Missouri). In Sappington , the plaintiffs, survivors of a man killed in an accident involving a Skyjack lift, brought a strict products liability claim against
Skyjack and RSC, alleging that the lift that Skyjack made and RSC leased was defective and unreasonably dangerous because it was not stable enough to avoid tipping when its wheels fell into a hole. 512 F.3d at 443-44.
The plaintiffs argued that a new, safer model already existed, and that Skyjack should have used only that safer design; they presented evidence to support their arguments. Id.
at 444. In addition, the plaintiffs hired two experts to support their theory, one who tested the newer design under circumstances similar to those at the time of the accident, and one who reviewed the accident scene and investigation reports, the relevant safety standards, and the testing performed by the other accident. Id.
at 444. The second expert testified that the lift
“was defective and unreasonably dangerous because it did not remain upright when its wheels dropped into the depression.” Id.
He also stated that the newer model’s safety modifications would have prevented the accident, and that the older model should have and could have been replaced with the newer one. Id.
at 444-45.
Both Skyjack and RSC moved to exclude the plaintiffs’ expert testimony and then for summary judgment, arguing that the plaintiffs could not prove their case without the testimony. Id.
at 445. The district court applied the Daubert test and held that the experts’ testimony was not relevant or reliable and excluded the evidence. Id.
It then granted summary judgment for Skyjack and RSC. Id.
The circuit court reversed and held that even without the expert testimony, the plaintiffs’ could “maintain a submissible claim for strict products liability.” Id.
at 447. The court noted that under Missouri law, “[a]
298 v Product Liability Conference v April 2009
claim of strict products liability may be based solely upon circumstantial evidence and does not require expert testimony.” Id.
The “contested issue on summary judgment [was] whether the lift was unreasonably dangerous, and [that] is an issue which resides solely within the province of the jury.” Id.
at 448. In this case, the plaintiffs had produced evidence that showed that the lift could have been made safer and that a safer drill would not have overturned, and they were not required to use experts to present such evidence. Id.
Therefore, the circuit court held that “we are not able to say, under Missouri’s law of strict products liability, there is no conceivable way for the plaintiffs to convince a jury the lift was unreasonably dangerous.” Id.
In addition, the circuit court held that the district court abused its discretion in disallowing the plaintiffs’ expert testing testimony, as both survived review under Daubert . Id. at 450, 454.
Pritchett v. Cottrell, Inc.
, 512 F.3d 1057 (8th Cir. 2008) (Missouri, Kansas, and Nebraska substantive law). The plaintiffs in Pritchett brought products liability actions against Cottrell and others, alleging that the ratchet system used to secure vehicles on Cottrell’s car hauling rigs was defective and that the defect injured them. 512 F.3d at 1061. One of the plaintiffs also alleged that a defective ladder design caused injury to him (the
Nebraska law claim). The district court granted Cottrell’s motion for summary judgment on the ratchet claims, holding that the plaintiffs “had failed to meet their burden to demonstrate that their injuries were caused by a specific defect in the ratchet system.” Id.
at 1061-62.
In reversing the district court, the circuit court noted that the “[a]ppellants have presented evidence to create a material question of fact regarding whether their injuries were caused by an unreasonably dangerous design defect in the manual nature of the ratchet system” under both Kansas and Missouri law. Id.
at 1066.
However, because the plaintiffs’ expert “offered no opinion that Cottrell’s ladder was unreasonably dangerous or defective, or that any particular design caused or contributed to the accident in th[e] case,” the district court properly granted Cottrell’s motion for summary judgment on that claim. Id. at 1067.
In re Prempro Products Liability Litigation , 514 F.3d 825 (8th Cir. 2008) (Arkansas). In this case, the plaintiff Rush filed suit against Wyeth, arguing that Wyeth’s estrogen products Premarin and Prempro caused her to develop breast cancer. In re Prempro Products Liability Litigation , 514 F.3d 825, 828 (8th Cir. 2008). Rush’s case was part of the multidistrict litigation on Hormone Replacement Therapy. Id.
At trial, the jury found that
Rush failed to prove that Wyeth inadequately warned about the drugs’ risks, that the drugs were defectively designed, that Wyeth was negligent, and that any of the claims proximately caused her breast cancer. Id.
On appeal, Rush argued that the district court erred in giving jury instructions, allowing improper defense expert testimony, disallowing her expert testimony, and failing to provide jury instructions on fraud. Id.
The circuit court held that that the district court did not abuse its discretion in its choice of jury instructions, and that even if it did so, the choices did not prejudice Rush. Id. at 829-31. Further, the court held that the district court did not abuse its discretion in admitting the defendant’s expert testimony and excluding the plaintiff’s testimony. Id.
at 831-33. Therefore, the court affirmed the decision of the district court. Id.
at 833.
Integrity Floorcovering, Inc. v. Broan-Nutone, LLC , 521 F.3d 914 (8th Cir. 2008) (Minnesota). In this case, the plaintiffs alleged that bathroom ventilation fans manufactured by Broan malfunctioned and started fires that damaged plaintiffs’ buildings. Integrity Floorcovering, Inc. v. Broan-Nutone, LLC , 521 F.3d 914, 916 (8th
Cir. 2008). Broan moved for summary judgment, arguing that Minnesota Statute section 541.051, subd. 1(a) barred the plaintiffs’ claims. Id.
at 917. Minnesota Statute section 541.051 provides a ten year statute of repose for an “action by any person…to recover damages for any injury to property, real or personal…arising out of the defective and unsafe condition of an improvement to real property…brought against any person…furnishing…materials… Id.
To avoid the statute, the plaintiffs argued that Broan was not a member of the class protected by the statute or that their claims fell under an exception to the statute for lawsuits filed against “the manufacturer or supplier of any equipment or machinery installed upon real property.” Id.
The district court
Red, Orange, Yellow, Green, Blue, Indigo, Violet: Full Spectrum of...
v Arends and Mayfield v 299
held that the statute applied to Broan and that the fans were not “equipment or machinery” under Minnesota law. Id.
Therefore, the court granted summary judgment for Broan. Id.
The circuit court analyzed Minnesota Statute section 541.051 and upheld the district court’s grant of summary judgment. First, it held that Broan and its fan were protected under the plain language of the statute.
Id.
at 917. Second, in deciding whether the fan qualified as equipment or machinery to meet the exception, the court noted that it had to “forecast how the Minnesota Supreme Court would [have] decide[d] this issue.” Id.
at 920. The circuit court then accepted the district court’s analysis on that issue and held that the fan was not equipment or machinery under Minnesota law. Id.
In re St. Jude Medical, Inc., Silzone Heart Valve Products Liability Litigation , 522 F.3d 836 (8th Cir. 2008)
(Minnesota). In In re St. Jude Medical , the circuit court held that under Rule 23 of the Federal Rules of Civil
Procedure, the district court improperly certified the plaintiffs’ consumer protection class because individual issues in the fraud case would predominate common issues. 522 F.3d at 838. The court stated “because proof often varies among individuals concerning what representations were received, and the degree to which individual persons relied on the representations, fraud cases are often unsuitable for class treatment.” Id.
Here, St.
Jude presented direct evidence that some plaintiffs never received any material misrepresentations about the heart valves. Id. at 840. Such evidence indicates that an individual analysis of St. Jude’s liability under the consumer fraud statutes as to each plaintiff will be necessary and that as a result, individual issues of causation and reliance would predominate the case. Id.
Thus, class certification was improper. Id.
at 841-42.
Owen v. General Motors Corp.
, 533 F.3d 913 (8th Cir. 2008) (Missouri). In Owen , the circuit court affirmed the district court’s grant of dismissal and summary judgment. 533 F.3d at 916. The Owens purchased a 1999 Chevy Tahoe in May 1998, and their windshield wipers failed in 2004. Id.
at 916. They brought suit in
April 2006, and their suit included numerous claims, including breach of warranty claims. Id.
at 916-18.
To avoid the statute of limitations on these claims, the Owens argued that their three year express warranty from General Motors covered future performance and therefore did not begin to run until they discovered the defect. Id.
at 918. The district court disagreed with the Owens’ analysis and held that the three year warranty lasted only through May 2001. Id.
at 918-19. The district court also held that the discovery exception of the statute of limitations cannot be used to extend the life of an express warranty. Id. at 919. Therefore, the statute of limitations for breach of express warranty claims “begins to accrue upon discovery only if the defect is, or should have been, discovered within the warranty period.” Id.
The Owens did not discover the defect within that three year period. Id.
In upholding the district court, the circuit court stated “[b]ecause the alleged defect was not discovered within the three-year express warranty, the statute of limitations for the breach of warranty claims cannot run from the date the Owens discovered the defect.” Id.
Thus, the three year express warranty ended in 2001, and the four year limitations period ended in 2005. As a result, the district court was correct in holding that the four year statute of limitations period barred the warranty claims brought in 2006. Id.
The court also upheld the dismissal of the other claims and summary judgment on the remaining claim.
Polski v. Quiqley Corp., 538 F.3d 836 (8th Cir. 2008) (Minnesota). In Polski , the plaintiffs, claiming they suffered “severe and permanent impairment of their senses of taste and smell due to their use of Cold-
Eeze,” sued the defendant, the company that made the nasal spray for fraud, negligence, strict products liability, breach of express and implied warranties, and state-law violations. 538 F.3d at 837. Quiqley moved to exclude the plaintiff’s sole causation expert, and the district court granted that motion after its Rule 702 and Daubert analysis and then granted summary judgment for Quiqley. Id.
The district court held that the expert’s causation
300 v Product Liability Conference v April 2009
theory was “not sufficiently reliable to be admitted under Rule 702.” Id.
at 839-40. The expert in question had never tested his causation theory, and such testing was possible. Id.
at 840. Therefore, the circuit court found that the district court had not abused its discretion. Id.
Further, without causation evidence, summary judgment was appropriate. Id. at 841.
A. Arkansas
By Glennon P. Fogarty
Glennon Fogarty is a partner with Husch Blackwell Sanders. His practice focuses on civil litigation, with an emphasis in product liability, patent infringement, contractual disputes, agribusiness, trade regulation, and construction matters. Glennon has appeared in various jurisdictions, including Arkansas, Illinois, Mississippi, Missouri, Nebraska, and Tennessee. He also assists clients responding to governmental investigations.
Tort Reform:
Constitutionality
While the Arkansas Civil Justice Reform Act (“CJRA” or the “Act”) of 2003 became effective in March
2003, many of its provisions remain untested.
• Reasonable Cause Affidavit in Medical Malpractice Actions
Summerville v. Thrower , 253 S.W.3d 415 (Ark. 2007). Although technically beyond the scope of this review, the Arkansas Supreme Court’s 2007 decision in Summerville v. Thrower is notable in that the court concluded that the 30-day time limit in Arkansas Code Ann. section 16-114-209(b)(3)(A) for the plaintiff to file a reasonable cause affidavit directly conflicted with Rule 3 of Arkansas Rules of Civil Procedure and therefore, ruled this section of the CJRA unconstitutional. See Summerville v. Thrower , 253 S.W.3d 415, 416 (Ark. 2007).
Two justices concurred in the result, concluding that the provision at issue was unconstitutional on the basis that it conflicted with Ark. R. Civ. P. 11. Id.
, pp. 422-23.
This section of the Act had required plaintiffs to file an expert’s affidavit within 30 days of the filing of plaintiff’s complaint. See Ark. Code Ann. § 16-114-209(b) (requiring that the affidavit state the expert’s familiarity with the standard of care, the breach of such standard and causation). The Summerville decision expressly references the severability clause of the Act holding that section 16-114-209(b) is valid in all other respects. 253 S.W.3d at 421. Following the Summerville decision, the Eighth Circuit Court of Appeals reversed a district court decision that had dismissed a medical malpractice action based on the plaintiff’s failure to submit a timely expert affidavit. See Newton v. Clinical Reference Lab., Inc.
, 517 F.3d 554 (8th Cir. 2008).
• Damages and Rules of Evidence
In Burns v. Ford Motor Co.
, 549 F. Supp. 2d 1081 (W.D. Ark. 2008), the United States District Court for the Western District of Arkansas held that Arkansas Code Ann. section 16-55-212(b), a provision of the CJRA that limits evidence to costs actually paid by or on behalf of the plaintiff (as opposed to merely billed), violated the Arkansas Constitution. In Burns , the plaintiff-consumer sued the defendant automobile manufacturer alleging that she had been sold a defective product. The plaintiff’s complaint expressly challenged the constitutionality of Arkansas Code Ann. section 16-55-212(b) arguing that the section violated the Arkansas Constitution, amendment 80, section 3, and article V, section 32. Burns , 549 F. Supp. 2d at 1082.
In ruling on the constitutional challenge, the district court acknowledged that the Arkansas Supreme
Court had not yet decided the constitutionality of the Act and, that as such, the district court was in the position of having to “predict how the Arkansas Supreme Court would rule if the constitutional issue was before it .”
Id.
The Burns court found that section 16-55-212(b) would, if enforced, reverse the collateral source rule that has been recognized and approved by the Arkansas Supreme Court and therefore infringed upon the Arkansas
Red, Orange, Yellow, Green, Blue, Indigo, Violet: Full Spectrum of...
v Arends and Mayfield v 301
Supreme Court’s constitutional prerogative to prescribe rules of evidence under amendment 80, section 3. Id.
at
1084-85 (Amendment 80 provides, in part, that the “Supreme Court shall prescribe the rules of pleading, practice and procedure for all courts…). The district court also found that section 16-55-212(b) violated article V, section 32 of the Arkansas Constitution, governing Arkansas Worker Compensation law. Id.
at 1084. Article V, section 32 provides, in part, as follows: “no law shall be enacted limiting the amount to be recovered for injuries resulting in death or for injuries to persons or property; and in case of death from such injuries the right of action shall survive.” Id.
Note that decisions of federal courts concerning the constitutionality of the Act are not uniform. See, e.g.
, Perry v. Ethicon, Inc.
, 2006 WL 4939797, 2006 U.S. Dist. Lexis 86127 (E.D. Ark. Nov. 27, 2006) (finding the provision constitutional); Saunders v. Wilder Bros. Sawmill, Inc.
, No. 2:05-CV-00219-WRW (E.D. Ark. filed Sept.
2, 2005), Doc. Nos. 89 and 90 (order finding Ark. Code Ann. § 16-55-212(b) unconstitutional followed by order withdrawing prior order and certifying the issue to the Arkansas Supreme Court).
• Apportionment of Fault
Substantively, the CJRA changes Arkansas law to require the fact finder to consider the fault of all persons or entities who contributed to the alleged injury or damage regardless of whether the person or entity was or could have been named as a party to the suit.
See Ark. Code Ann. §16-55-202; Grubbs v. Hindes , --- S.W.3d
----, 101 Ark. App. 405, 2008 WL 588534 n.1 (Mar. 5, 2008).
In Bohannon v. Johnson Food Equipment, Inc., 2008 WL 2685719 (E.D. Ark. June 16, 2008), the plaintiffs challenged the applicability and constitutionality of this provision. In Bohannon , the plaintiff alleged that she was injured while attempting to clean a chicken processing machine in the course of her employment with Tyson Poultry, Inc. (“Tyson”). The defendants contended that a component part manufacturer, which was a nonparty to the action as well as Tyson, the plaintiff’s employer, caused plaintiff’s injuries.
The plaintiff contended, inter alia, that (1) the provisions of the Arkansas Workers Compensation
Act precluded the apportionment of fault to an employer, (2) the CJRA was inapplicable to nonparties, and (3) even if the CGRA did apply to nonparties, allowing apportionment of fault to immune nonparties violated the
Arkansas Constitution (separation of powers) and the U. S. Constitution’s guarantee of a fair trial. Each of these arguments was rejected by the district court. Id.
at *2
This provision, as well as other provisions of the Act, are at issue in Johnson v. Rockwell Automation,
Inc.
, 2008 WL 3914161, a products liability action pending in the United States District Court for the Eastern District of Arkansas. Pursuant to Rule 6-8(b) of the Rules of the Supreme Court of the State of Arkansas, the parties to Rockwell Automation jointly moved the district court to certify questions of law to the Arkansas
Supreme Court concerning the constitutionality of the following provisions:
— section 16-55-2002, which allows the fact finder to consider or assess the negligence or fault of nonparties
— the modification of joint and several liability as provided for in section 16-55-2001
— the Act’s limitation on disability as certain evidence of damages relating to the costs of medical care, treatment, or services as provided for in section 16-55-212(b)
See Johnson v. Rockwell Automation, Inc.
, 2008 WL 3914161 at *1 (E.D. Ark. Aug. 21, 2008); see also
Johnson v. Rockwell Automation, Inc.
, --- S.W.3d. ---, 374 Ark. 217, 2008 WL 4173655 (Sept. 11, 2008) ( per curiam order establishing briefing schedule for the above-referenced issues).
Venue Provisions
302 v Product Liability Conference v April 2009
Wright v. Centerpoint Energy Resources Corp.
, --- S.W.3d ---, 372 Ark. 330, 2008 WL 383646 (Ark. 2008).
The CJRA, in addition to modifying substantive tort law, contains a general venue provision now codified as
Arkansas Code Ann. section 16-55-213. In Wright v. Centerpoint Energy Resources Corp.
, the Arkansas Supreme
Court rejected the argument that section 16-55-213(a) repealed by implication section 16-60-112(a), which specifically provides that personal injury and wrongful-death actions shall be brought in the county where the accident occurred, or in the county where the person injured or killed resided at the time of the accident.
In Wright , the appellant was the personal representative of the estate of the deceased, who had allegedly died from carbon monoxide poisoning in her apartment in Craighead County. Although the deceased had resided in Craighead County at the time of her death and the accident had occurred in Craighead County, the appellant elected to file a wrongful-death action in his county of residence, Crittenden County, arguing that venue was proper in the county in which he, as the plaintiff, resided under section 16-55-213(a). The court found that the two statutes could be harmonized. In reviewing section 16-55-213(a) “as a whole,” the court determined that a wrongful-death action could be brought in only three counties: (1) the county where a substantial part of the events or omissions giving rise to the claim occurred; (2) where an individual defendant resided; and (3) where the plaintiff resided. See Wright at *2. The court found that that the use of the past tense in the subsection s of 16-55-213(a) showed that the General Assembly intended for venue to be fixed “where the plaintiff or defendant resided at the time of the events giving rise to the cause of action .” Id.
[emphasis in original]. The court concluded that venue was fixed, under both statutes, at the time of the events giving rise to the claim (the time of injury or death) thereby precluding the appellant, who was appointed personal representative of the decedent’s estate after the accident, from being a “plaintiff” under 16-55-213(a). Id.
at *3.
Dotson v. City of Lowell , --- S.W.3d ---, 2008 WL 4879162 (Ark. Nov. 13, 2008). In contrast to Wright , in Dotson v. City of Lowell , the Arkansas Supreme Court found that 16-55-213(a) repeals by implication section 16-60-116(a), as both provisions were general default venue statutes. Id.
In Dotson , the court distinguished the Wright decision, stating, “the statute at issue here, section 16-60-116(a), is like section 16-55-213(a), in that both are general default venue statutes that apply only when other specific venue statutes do not, while the statute at issue in Wright , section 16-60-112(a), was a specific venue statute applicable only to personal injury and wrongful-death actions.”
Preemption:
Claims Against Airlines and the Airline Deregulation Act of 1978 and/or the Federal Aviation Act of 1958:
Ray v. American Airlines, Inc.
, 2008 WL 3992644 (W.D. Ark. Aug. 22, 2008), concerned a state court putative class action alleging false imprisonment, intentional infliction of emotional distress, negligence, breach of contract, and fraud relating to a prolonged airline trip, including allegations that plaintiff was confined against her will on the ground for approximately 11 hours. See Ray , 2008 WL 3992644 at *2 (W.D. Ark.
Aug. 22, 2008). The defendant removed the case to federal court and then moved to dismiss plaintiff’s claims, claiming that the plaintiff’s causes of action were preempted by the Airline Deregulation Act of 1978 (“ADA”) and/or the Federal Aviation Act of 1958 (“FAA”).
The court found that plaintiff’s claims involving compensation for lodging, meals, ground transportation and other expenses were preempted under the ADA because the Department of Transportation has implemented regulations that require air carriers to compensate passengers when flights are overbooked. Id.
at *10.
The court also found that plaintiff’s breach of contract claims were preempted by the ADA, except to the extent that such claims were expressly allowed by specific terms of the defendant’s Conditions of Carriage and Customer Service Plan. Id.
In regard to the FAA, the court found that plaintiff’s claims that were based on defendant’s decision to reroute her flight due to safety concerns and the FAA’s decision to shut down the Dallas/Ft.
Worth airport for bad weather were preempted by the FAA, as such decisions were directly related to safety
Red, Orange, Yellow, Green, Blue, Indigo, Violet: Full Spectrum of...
v Arends and Mayfield v 303
issues. Id.
However, the court concluded that plaintiff’s claims based upon defendant’s actions after the flight were diverted and on the ground were not preempted. Id.
Claims against Motor Vehicle Manufacturers and the Federal Motor Vehicle Safety Standard 205:
In Spruell v. Ford Motor Co.
, 2008 WL 906648 (W.D. Ark. Apr. 1, 2008), the United States District Court for the Western District of Arkansas rejected a defendant’s argument that the Federal Motor Vehicle Safety
Standard 205 (“FMVSS 205”) preempted the plaintiff’s state-law negligence and strict liability claims based upon the use of tempered glass in a side window. The district court, citing the Fifth Circuit’s 2007 decision in
O’Hara v. General Motors Corp.
, 508 F.3d 753 (5th Cir. 2007), found that FMVSS 205 was intended to create only a minimum safety standard and as a result, does not preempt common-law suits. Id.
at *2; see also Burns v.
Ford Motor Co., 2008 WL 222711 (W.D. Ark. Jan. 24, 2008) (plaintiff’s product liability claim relating to the window glazing in a sport utility vehicle was not preempted by federal motor vehicle safety standards).
Environmental or “Green” Products Litigation:
In re Tyson Foods, Inc. Chicken Raised Without Antibiotics Consumer Litigation , 582 F. Supp. 2d 1378
(U.S. Jud. Pan. Mult. Lit. Oct. 17, 2008). Before a ruling by the United States Judicial Panel on Multidistrict
Litigation, no less than three putative class actions were pending in Arkansas concerning Tyson Foods, Inc.’s alleged improper marketing of chicken as “Raised Without Antibiotics” and/or “Raised Without Antibiotics that impact antibiotic resistance in humans.” See In re Tyson Foods, Inc. Chicken Raised Without Antibiotics Consumer
Litigation , 582 F. Supp. 2d 1378 (U.S. Jud. Pan. Mult. Lit. Oct. 17, 2008). The complaints allege, inter alia , violations of the Arkansas Deceptive Trade Practices Act and common-law fraud in regard to defendant’s marketing claim that its chicken was “raised without antibiotics.” The plaintiff alleged that defendant (1) used ionophores, which are classified as antibiotics, in its feed, and (2) injected vaccines into chicken eggs. Pursuant to the order cited above, these cases were transferred to the United States District Court for Maryland in October 2008.
Market Share or Other New Theories of Liability:
Under market share liability, “[t]here need be no assurances whatsoever that the defendants who actually end up paying damages…played any role in causing the injury. A plaintiff must join only manufacturers of a substantial share of the product and meet her burden of proof on…other…elements.” Doe v. Baxter Healthcare Corp.
, 380 F.3d 399, 408 (8th Cir. 2004). Alternative theories of liability that minimize or eliminate the need to prove causation such as market share or concert of action have not found their way into Arkansas jurisprudence. Burns v. Universal Crop Protection Alliance , 2007 WL 2811533 (E.D. Ark. Sept. 25, 2007) (citing Davis v.
DuPont , 729 F. Supp. 652, 655 (E.D. Ark. 1989)).
Class Action Fairness Act (CAFA):
Motions for Remand—Burden & Evidence:
In Webb v. Riceland Foods, Inc.
, 2008 WL 4820565 (E.D. Ark. Nov. 4, 2008), the court addressed a number of issues under CAFA. The Webb case was filed following the United States Department of Agriculture
(“USDA”) announcement that low levels of genetically modified rice had been found in some commercial long grass rice varieties. In response, plaintiff filed a punitive class action in Arkansas state court asserting claims for negligence, strict liability and breach of contract seeking compensatory, statutory and punitive damages.
The defendant removed the case to the United States District Court for the Eastern District of Arkansas. The plaintiff sought remand, asserting that removal was improper under CAFA because two-thirds or more of all the proposed plaintiffs and defendants were citizens of Arkansas. The plaintiffs conceded that $5 million was at controversy and that at least one member of the punitive class was a diverse non-Arkansas citizen. The parties disagreed, however, over which party bore the burden of proof as some courts have held that CAFA shifts the burden from the defendant to the party seeking remand.
304 v Product Liability Conference v April 2009
Generally, the removing party bears the burden of establishing federal subject matter jurisdiction.
See Toller v. Sagamore Ins. Co.
, 514 F. Supp. 2d 1111, 1113-14 (E.D. Ark. 2007). The Webb decision affirmed the general ruling in Toller , but distinguished the Toller decision based upon the fact that Toller did not involve the “home state controversy” exception provided for by 28 U.S.C. §1332(d)(4)(B) of CAFA. Webb , 2008 WL
4820565 at *1. The court concluded that, under this exception, once the removing party establishes the amount in controversy and the existence of minimal diversity, the burden shifts to the party seeking remand to prove that the exception applies. Id.
As plaintiffs conceded that the defendants had proven $5 million was in controversy and at least one member of the punitive class was a diverse non-Arkansas citizen, the court found the burden shifted to the plaintiff to prove the exception.
The defendants presented evidence that showed that only 47.2 percent of certain rice growers registered with the USDA resided in Arkansas, whereas plaintiffs presented evidence from USDA that supported plaintiffs’ argument that 88.5 percent of USDA payments went to Arkansas addresses. The court found that plaintiffs had failed to meet their burden by a preponderance of evidence and accordingly determined that mandatory remand was not proper. Id. at *2. Nevertheless, the court (initially) ordered remand, finding that four of the six discretionary remand factors weighed in favor of plaintiff’s motion for remand. Id.
The four factors that supported the court decision to remand the case were comprised of the following.
— The punitive class action claims were governed by Arkansas state law.
— Claims were brought in the forum with a nexus to the claims alleged as the defendant was headquartered in Arkansas.
— The number of class members in Arkansas in the aggregate was substantially larger than the number of class members in any other state and the out of state class members were dispersed among a substantial number of states. Specifically, even based upon defendants’ contentions, almost half of the punitive class members were domiciled in Arkansas, with the remaining class members domiciled across 45 different states and the District of Columbia with Louisiana (26 percent), Texas (nine percent) and Missouri (seven percent) being closest to Arkansas.
— There was no evidence presented by the defendants that any other similar class action had been filed against the defendant in the prior three years asserting the same or similar claims.
Id.
at *3-*4.
Undaunted by the court’s initial decision, counsel for defendant filed a motion for reconsideration, arguing that the court had reached an erroneous conclusion regarding the sixth factor; that is, whether or not similar punitive class actions had been filed and submitting evidence of similar class actions. See Webb v. Riceland Foods, Inc.
, 2008 WL 4960464 at *1. Based upon this new information, the court determined that three factors favored discretionary remand while two factors favored federal jurisdiction. The court, referencing CAFA’s legislative history, determined that the sixth factor carried the greatest weight and therefore ruled that the case should remain in federal court. As a result, the court granted the motion to reconsider and withdrew its prior order of remand. Id.
at *2.
In Summerhill v. Terminex, Inc.
, 2008 WL 40809448 (E.D. Ark. 2008), the United States District Court for the Eastern District of Arkansas again addressed the burden of proof in regard to motions to remand following a removal under CAFA. As in Webb , the court in Summerhill found that the general rule is that a party seeking federal jurisdiction has the burden of proof, but that such general rule did not apply to a party seeking to apply the “local controversy” or “home state” exceptions. As a result, the court held that plaintiff bore the burden to prove that either of the exceptions justified remand. The court found that plaintiff failed to meet its burden of proof in regard to either exception, and therefore, denied the motion for remand.
Red, Orange, Yellow, Green, Blue, Indigo, Violet: Full Spectrum of...
v Arends and Mayfield v 305
Motion for Remand—Amount in Controversy and Plaintiff’s Demand:
In Ray v. American Airlines, Inc.
, 2008 WL 3992644 (W.D. Ark. 2008) (also discussed in the Preemption section above), the United States District Court for the Western District of Arkansas concluded that neither Rule 408 nor Rule 403 of the Federal Rules of Evidence prevented the court from considering a settlement demand for purposes of assessing the amount in controversy. Id.
at *4. Before removal, counsel for the putative class sent a letter demanding that defendants pay plaintiff $50,000 for plaintiff’s individual claim, $5 million for the class action claim, as well as $74,900 for another passenger who had filed an identical claim in a different venue, as well as $5 million for the class action for that case. Id.
at *4. The court’s decision to deny remand was not based solely upon the settlement demand, but did rely on the demand in part, citing the Eighth Circuit’s decision in In Re Minnesota Mut. Life Ins. Co.
, 346 F.3d 830 (8th Cir. 2003) (demand letter was “further support for the valuation of the claims”). Id.
at *5.
Subject Matter Jurisdiction:
In M.S. Wholesale Plumbing, Inc. v. University Sports Publications Co.
, 2008 WL 5225823 (E.D. Ark. Dec.
10, 2008), the plaintiff commenced a putative class action pursuant to the court’s diversity jurisdiction under
CAFA, alleging that the defendant engaged in unlawful marketing of advertising space. The defendant subsequently moved to strike the class allegations on the ground that the plaintiff could not meet the predominance requirement under Rule 23(b)(3). After dismissal of the class allegations, plaintiff filed a separate putative class action in state court, repeating many of the same allegations against the same defendant. The defendant removed the state court action to federal court, but the court remanded the case, finding that the defendant failed to establish that the amount of controversy satisfied jurisdictional requirements. Thereafter, plaintiff moved to voluntarily dismiss the remaining claims in the case originally filed in federal court. The defendant opposed the motion, arguing that it was merely an attempt to forum shop so as to evade the court’s decision striking the class allegations. The court concluded that it lacked subject matter jurisdiction under CAFA because there never was nor would there ever be a class certification order as contemplated under CAFA. Id.
at
*2 (citing 28 U.S.C. § 1332(d)(8)). As a result, the court ruled it was obligated to dismiss the claim without prejudice. Id.
Other:
Cost and Expenses under the Arkansas Lemon Law:
DaimlerChrysler Corp. v. Smelser , --- S.W.3d ---, 2008 WL 5342108 (Ark. Dec. 11, 2008). Prevailing plaintiffs are not limited to the costs delineated in Rule 54(d) and may recover other expenses, such as for copying and mileage under Arkansas Code Ann. section 4-90-415(c ) of the Arkansas Lemon Law. See DaimlerChrysler Corp. v. Smelser , --- S.W.3d ---, 2008 WL 5342108 (Ark. Dec. 11, 2008).
Amendment to Rules:
On January 10, 2008, the Arkansas Supreme Court issued a per curiam order regarding proposed amendments to several rules, as follows:
— Approving amendments to Arkansas Rule of Evidence 502 and Ark. R. Civ. P. 26 (b)(5) concerning inadvertent disclosure.
— Approving amendments regarding the qualifications for private process services.
— Declining, by a vote of 4 to 3, to approve the proposed change to Rule 5-2 of the Rules. As such,
Rule 5-2’s prohibition on the use of “[o]pinions of the court of appeals not designated for publication” remains in effect.
306 v Product Liability Conference v April 2009
B. Iowa
By Fredrick J. Ludwig
Fredrick J. Ludwig is a partner in the St. Louis office of Husch Blackwell Sanders LLP. He practices in the areas of products liability & toxic tort, construction & design, and business litigation.
Tort Reform:
Limitations/Repose:
Estate of Ryan v. Heritage Trails Associates, Inc.
, 745 N.W.2d 724 (Iowa 2008). The plaintiffs were injured when a tank they were filling with anhydrous ammonia ruptured. The plaintiffs brought suit against the suppliers and distributors of the anhydrous ammonia, and against the company hired by their employer to provide safety training (“defendants”). The defendants filed contribution claims against the tank manufacturer.
The tank manufacturer moved to dismiss the contribution claims against it based upon on the 15-year statute of repose and the contribution exception contained in Iowa Code section 614.1(2A)( a ), and based upon a lack of common liability between it and the defendants. The trial court denied the tank manufacturer’s motion to dismiss, and subsequently denied a motion for directed verdict based on the same arguments. After a verdict the trial court entered a $2.5 million judgment against the tank manufacturer.
Section 614.1(2A)( a ) states in part: “[t]his subsection shall not affect the time during which a person found liable may seek and obtain contribution or indemnity from another person whose actual fault caused a product to be defective.” The Supreme Court of Iowa found that the language of the statute was clear, and that the contribution exception in section 614.1(2A)( a ) does not prevent a contribution claim from accruing during the repose period. The defendants’ claims against the tank manufacturer were not precluded by section
614.1(2A)( a ).
The court went on to find that the defendants’ contribution claims against the tank manufacturer were precluded because the defendants and the tank manufacturer did not have common liability under section
668.5(1). Common liability is determined at the time of the accident and not when suit is brought. The statute of repose prevented the plaintiffs’ claims against the tank manufacturer from accruing (the tank was more than
15 years old at the time of the accident). Because the tank manufacturer could not be liable to the plaintiffs, it did not have common liability with the defendants.
The defendants argued that section 614.1(2A)( a ) abrogated the common liability requirement for contribution claims. The court found that the plain language of the statute contradicted this argument. Furthermore, although section 614.1(2A)( a ) was enacted 13 years after section 668.5, section 614.1(2A)( a ) contains no language indicating a change in the statutory requirements of section 668.5.
The supreme court remanded the case to the trial court with instructions to vacate the judgment against the tank manufacturer and to enter judgment in its favor.
Buechel v. Five Star Quality Care, Inc.
, 745 N.W.2d 732 (Iowa 2008). Juanita Buechel died on January
20, 2001, in a nursing home facility when her head became lodged in the space between her bed’s mattress and bed rails. The compression on her neck asphyxiated her. The plaintiffs filed a wrongful death suit against the nursing home on January 15, 2003, five days before the expiration of the applicable statute of limitations. The petition included a product liability claim against the unknown manufacturer of the bed in which Ms. Buechel died. With their petition the plaintiffs filed a certification under Iowa Code section 613.18(3) that they had not yet identified the manufacturer of the bed. On September 15, 2003, the plaintiffs learned the identity of the bed manufacturer, Joerns Furniture Company, predecessor to Sunrise Medical (“Sunrise”), and moved to amend their petition more than a month later on October 28, 2003.
Red, Orange, Yellow, Green, Blue, Indigo, Violet: Full Spectrum of...
v Arends and Mayfield v 307
The trial court granted Sunrise’s motion for summary judgment based on its affirmative defense that the plaintiffs’ cause of action accrued on January 21, 2001, the date of Ms. Buechel’s death, and that the claims against Sunrise were untimely under the applicable two-year statute of limitations in section 614.1(2). Sunrise argued that the statute of limitations expired five days after the plaintiffs learned the identity of the bed manufacturer, and that the plaintiffs were on inquiry notice as of the date of Ms. Buechel’s death because they were told that she was asphyxiated while her head was caught in the bed frame. The trial court reasoned that because the plaintiffs knew the mattress and bed frame were involved in Ms. Buechel’s death, they had a duty to investigate, and were charged with knowledge of facts that would have been disclosed by a reasonable investigation beginning on the date of her death. The trial court sustained Sunrise’s motion.
The supreme court acknowledged that under section 613.18(3), the statute of limitations is tolled upon certification that the plaintiffs do not know the identity of the manufacturer. The court and the parties agreed that the statute of limitations was tolled between the filing of the section 613.18(3) certification on January 15, 2003, and September 15, 2003, when the plaintiffs learned the identity of the manufacturer. The issue was whether the plaintiffs’ cause of action against Sunrise accrued on the date of Ms. Buechel’s death.
The court found that the plaintiffs knew on January 21, 2001, that Ms. Buechel died of asphyxiation, and that her head became lodged between the mattress and bed rail. The plaintiffs therefore knew that the rails had a causative role in Ms. Buechel’s death. Although the plaintiffs did not know the nature of any defect in the bed, they had knowledge of sufficient facts to put them on notice of a potential problem with the bed. This required further investigation.
The court declined to require that the plaintiff have some degree of knowledge regarding the specific defect in the bed. Instead, a reason to believe there is some “problem” with the bed requires diligent investigation. As such, the plaintiffs were on inquiry notice as of January 21, 2001, and their claim against Sunrise was barred by the two-year statute of limitations. The court affirmed the trial court’s ruling based on the statute of limitations.
Constitutionality :
Johnson v. American Leather Specialties Corp.
, 578 F. Supp. 2d 1154 (N.D. Iowa 2008). Vincent Johnson’s eye was injured when the 26-foot retractable dog leash attached to his Labrador Retriever snapped under tension, recoiled, and struck him in the left eye. Mr. Johnson and his wife (“plaintiffs”) filed suit against American
Leather Specialties Corp. (“American”) and Shopko Stores, Inc. (“Shopko”) alleging various theories, including strict products liability. Neither were the designer or manufacturer of the leash. Both filed a motion for partial summary judgment on all claims except the plaintiffs’ negligent failure-to-warn theory. American and Shopko claimed immunity under Iowa Code section 613.18(1). The plaintiffs argued that Minnesota law, not Iowa law, governed the case. The plaintiffs further argued that application of section 613.18(1) resulted in an unconstitutional taking under the Fifth and Fourteenth Amendments of the U.S. Constitution, or an unconstitutional imposition on the plaintiffs’ inalienable rights under the Iowa State Constitution.
After engaging in a choice of law analysis and determining that Iowa law applied, the district court turned to the plaintiffs’ constitutional challenges. The plaintiffs claimed that Iowa’s tort reform legislation codified in section 613.18(1) deprived them of previously held common-law claims without just compensation. To determine whether a taking occurred under the U.S. Constitution, the district court examined: (1) whether the plaintiffs possessed a property interest protected by the Takings Clause; and (2) whether a taking has occurred.
The district court found that the plaintiffs did not have a protected property interest. The tort reform legislation challenged by the plaintiffs, section 613.18, was enacted in 1986. The plaintiffs’ cause of action did not accrue until 2005. The plaintiffs had no vested right in the former law. The Iowa legislature “clearly had the
308 v Product Liability Conference v April 2009
constitutional authority to enact the type of tort reform scheme at issue in Iowa Code section 613.18 even if its enactment served to deprive Plaintiffs of some previously held causes of action under the common law.” The district court concluded that application of section 613.18 to the plaintiffs’ claims did not result in an unconstitutional taking under the Fifth and Fourteenth Amendments of the U.S. Constitution.
The district court also concluded that even if the plaintiffs had a protected property interest, there was no taking. There are two types of taking: (1) per se , which involves direct governmental appropriation or invasion of private property; and (2) regulatory, in which a regulation affecting private property “goes too far.” The plaintiffs’ filings did not allege a per se taking, and the record did not reflect a direct governmental invasion of the plaintiffs’ private property. In determining whether there had been a regulatory taking via section 613.18, the district court analyzed three factors: (1) the economic impact of the statute on the plaintiffs; (2) the extent to which the statute interfered with a distinct, investment-backed expectation of the plaintiffs; and (3) the character of the government’s statute.
The plaintiffs failed to demonstrate a significant economic impact on them, which weighed against finding a taking. The plaintiffs argued that application of the statute left them with a single theory to pursue, the negligent failure-to-warn claim. The district court noted that although perhaps more difficult, the plaintiffs could have sought damages against the manufacturer of the leash. Moreover, the plaintiffs are entitled to full compensation from American and Shopko if they are successful on their remaining claim.
Neither the plaintiffs nor the defendants addressed the second factor; therefore, the district court found that it weighed against finding a taking. Although no party addressed the third factor, the district court noted that section 613.18 does not prohibit the plaintiffs from bringing strict products liability claims and breach of implied warranty of merchantability claims in a products liability suit; however, such claims against nonmanufacturers are precluded. Analysis of the third factor did not weigh in favor of or against a finding of a taking.
Weighing these factors, the district court found that even if the plaintiffs had a protected property interest, application of section 613.18 did not constitute an unconstitutional taking of the plaintiffs’ personal property in violation of the Fifth Amendment of the U.S. Constitution.
The district court then turned to the plaintiffs’ argument that application of section 613.18 resulted in a violation of the plaintiffs’ inalienable rights under article I, section 1 of the Iowa Constitution. Iowa’s Inalienable Rights Clause prevents only arbitrary, unreasonable legislative action affecting an inalienable right. To determine whether section 613.18 violates the Inalienable Rights Clause, three factors are analyzed: (1) whether the plaintiffs’ asserted rights are protected by the Inalienable Rights Clause; (2) whether section 613.18 affects those asserted rights; and (3) whether section 613.18 is a reasonable exercise of the state’s police power. In examining the first factor, the court reiterated that the plaintiffs’ cause of action did not accrue until after enactment of section 613.18. The plaintiffs did not have a vested right in any common-law rule, and a common-law cause of action that has not accrued may be abolished. Because of this, the plaintiffs did not assert rights protected by the Inalienable Rights Clause.
The district court granted American’s and Shopko’s motions for summary judgment in part, and denied them in part. In addition to allowing the uncontested negligent failure-to-warn claim to remain, the district court also saw “no basis to dismiss the breach of express warranty claim…”
Preemption : No cases reported in this area.
Environmental or “Green” Products Litigation : No cases reported in this area.
Market Share or Other New Theories of Liability:
Speight v. Walters Development Co., Ltd.
, 744 N.W.2d 108 (Iowa 2008). The Supreme Court of Iowa expanded liability in cases where the product at issue is a home. The Speights purchased a home from the
Red, Orange, Yellow, Green, Blue, Indigo, Violet: Full Spectrum of...
v Arends and Mayfield v 309
Rogers. The Rogers previously purchased the home from the Roches, who purchased the home new from the defendant Walters Development Company, Ltd. (“Walters”). After buying the home, the Speights noticed water damage and mold. A building inspector determined that the damages were the result of a defectively constructed roof and defective rain gutters.
The Speights filed suit against Walters alleging breach of implied warranty of workmanlike construction and general negligence. The trial court found that the Speights could not maintain a breach of implied warranty claim against Walters. The Supreme Court of Iowa stated that the builder-vendor warrants home construction to be in a workmanlike manner, not that a home is suited to any particular purpose. Because of this, there is no contractual justification for limiting recovery for breach of implied warranty claims to the original purchasers. Public policy also justifies holding the builder-vendor liable to subsequent purchasers. Latent defects are not discoverable by reasonable inspection; therefore, a subsequent purchaser is no greater position than the original purchaser to discover such defects. The court found it inequitable to allow an original purchaser of a home to recover while at the same time refusing recovery to a subsequent purchasers for latent defects in homes the same age.
The court found that “subsequent purchasers may recover for breach of implied warranty of workmanlike construction against a builder-vendor…Subsequent purchasers, of course, may not be afforded greater rights of recovery.”
Class Action Fairness Act (CAFA) : No cases reported in this area.
Other:
Expert Witnesses:
Ayers v. Ford Motor Co.
, No. 07-0611, 2008 WL 141187 (Iowa Ct. App. Jan. 16, 2008). In May 2004,
Ayers Ford F-150 pickup truck caught fire while Ayers was hauling his horses in an attached trailer. State Farm
Insurance (“State Farm”) paid Ayers the value of the truck, and filed a subrogation action against Ford Motor
Company (“Ford”). State Farm alleged the fire was caused by a defective compression clamp in the engine compartment. State Farm’s expert was Steven Mikesell, a former mechanic that now worked as an automotive consultant specializing in the cause and origin of vehicle fires. Mikesell performed a visual inspection of the truck, but performed no tests on the truck or any of its component parts, including the compression clamp.
On the morning of trial Ford moved to prohibit Mikesell from saying the clamp was defective. Ford claimed that because Mikesell was not an engineer, and because Mikesell did not perform any tests on the clamp, Mikesell should not be allowed to comment on whether the clamp was defective. The court agreed and ordered that Mikesell not testify that the clamp was defective, that it was the wrong size, or that it created improper pressure on a hose.
Ayers testified that he bought the truck new in January 2000 and that he had put roughly 60,000 miles on it between the time he bought it and the fire. Ayers performed routine maintenance on the truck himself, and added a fifth wheel for towing his horse trailer.
Mikesell testified that he examined the burned truck and concluded that the fire started when one end of a power steering hose came loose and power steering fluid leaked onto the hot engine. He concluded that one end of the hose came out of its fitting before the time the fire started. Mikesell described this as a “compression clamp failure.” When asked to define this term, he stated “The hose comes out of the clamped area.” He consulted no treatises or journals in rendering his opinion. His investigation was limited to a visual inspection of the truck.
Ford moved for a directed verdict at the close of State Farm’s evidence and argued that State Farm failed to make a prima facie case on its claims for strict liability, breach of express warranty, and negligence. The
310 v Product Liability Conference v April 2009
trial court agreed and stated that Mikesell “can’t say that the clamp failed, because he’s not an engineer.” The trial court held that the evidence would require the jury to speculate that Ford was at fault based only on the fact that there was a fire.
Circumstantial proof of a defect is enough to establish a prima facie case; however, if an issue is proven by circumstantial evidence, it must be sufficient to make the theory reasonably probable and more probable then any other theory based on the evidence. The court of appeals noted that State Farm’s counsel admitted that Mikesell did not know what caused the hose to come loose. Mikesell could do nothing more than speculate regarding why the hose could have come loose. He did not conclude there was anything wrong with the clamp itself. The evidence could also lead to the inference that the hose or clamp was damaged during the four years that Ayers operated the truck. Presenting State Farm’s claim to the jury would “invite the jury to impose liability upon its personal whim and caprise.”
The trial court did not err in finding there was insufficient evidence to submit the case to the jury.
State Farm’s product liability claim required proof that the truck was defective at the time it left Ford’s control.
Economic Loss Doctrine:
Two unpublished opinions demonstrate that the economic loss doctrine remains viable in Iowa.
Van Sickle Construction Co. v. Wachovia Commercial Mortgage, Inc.
, No. 07-1602, 2008 WL 4725153
(Iowa Ct. App. Oct. 29, 2008). Van Sickle brought a number of claims, including negligent misrepresentation, against the sellers of two tractors. He sought only economic damages in the form of “business injury, economic injury, lost opportunity, and loss of use of the vehicles” due the sellers’ delay in delivering the vehicles’ titles. On the appeal of a verdict in Van Sickle’s favor, the court of appeals found that Van Sickle’s negligent misrepresentation claim was barred by the economic loss doctrine, and further stated that the Supreme Court of Iowa has never expressly limited application of the economic loss doctrine to product liability cases. The judgment of the trial court was reversed.
Lipps v. Hjelmeland Builders, Inc.
, No. 07-1410, 2008 WL 4877458 (Iowa Ct. App. Nov. 13, 2008). In this case the product at issue was a new home. The plaintiffs brought tort claims against their homebuilder’s subcontractor for water damage arising of allegedly defective brickwork on the home’s exterior. The trial court entered summary judgment for the subcontractor finding that the economic loss doctrine barred the homeowners’ tort claims. On appeal, the court declined to limit application of the economic loss doctrine, and found that the trial court did not err in granting summary judgment. In doing so, the court noted that “the economic loss doctrine has not been limited to product liability suits and clearly includes defective construction claims.”
C. Minnesota
By Lisa M. Schmid
Lisa M. Schmid is an associate with Halleland Lewis Nilan & Johnson. She practices primarily in the areas of product liability and labor and employment and is licensed to practice in Minnesota.
Tort Reform : No cases reported in this area.
Preemption:
Mensing v. Wyeth, Inc.
, 562 F. Supp. 2d 1056 (D. Minn. 2008). In Mensing , the plaintiff alleged that the defendant drug makers’ drug, metoclopramide (“MCP”), used for gastrointestinal disorders, caused her to develop tardive dyskinesia, a neurological movement disorder. 562 F. Supp. 2d at 1057. The plaintiff asserted state-law failure to adequately warn tort claims against the manufacturers. Id.
at 1058. The two generic drug maker defendants argued that the Abbreviated New Drug Application (“ANDA”) provisions of the Food, Drug,
& Cosmetic Act (“FDCA”) preempted the plaintiff’s state-law claims because they could not comply with both
Red, Orange, Yellow, Green, Blue, Indigo, Violet: Full Spectrum of...
v Arends and Mayfield v 311
ANDA requirements and requirements the plaintiff sought to impose. Id.
The defendants also argued that the state law conflicted with Congressional objectives. Id.
The court held that ANDA as codified did not allow generic drug manufacturers to strengthen drug labels without prior approval of the FDA; generic drugs needed to be labeled using the labeling approved for the nongeneric version. Id.
at 1061-62. Therefore, requiring the drug makers to follow a different state-law warning would force them to violate federal law. Id.
at 1065. As a result, federal preemption was necessary to avoid the conflict, and the plaintiff’s claims were dismissed as to the two generic drug makers. Id.
at 1065-66.
Clark v. Medtronic, Inc.
, 572 F. Supp. 2d 1090 (D. Minn. 2008). In Clark , the plaintiff alleged that
Medtronic was negligent in manufacturing and marketing an implantable cardioverter-defibrillator (“ICD”).
572 F. Supp. 2d at 1091. Medtronic moved for summary judgment based on federal preemption, and the court granted its motion, holding that the claims were preempted by the Medical Device Amendments (“MDA”) to the Food, Drug, and Cosmetic Act (“FDCA”). Id.
In reaching its decision, the court applied the two part test announced by the United States Supreme
Court in Riegel v. Medtronic, Inc.
, 128 S. Ct. 999 (2008). Id.
at 1093. Under Riegel , the court must decide whether
“the Federal Government has established requirements applicable to” the medical device. Id.
After making that determination, the court must then decide whether “state law claims are based on requirements ‘different from, or in addition to’ the federal requirements, relating to safety and effectiveness or any requirement under the
MDA.” Id.
In Riegel , the court held that “[p]remarket approval…imposes [federal] ‘requirements’” under the preemption clause of the MDA. Id.
at 1094. Medtronic had received premarket approval for the ICD in October
2003. Id.
at 1092.
The plaintiff attempted to avoid preemption by asserting that Medtronic violated the premarket approval requirements by making a defective ICD or that it fraudulently obtained premarket approval. Id.
at
1094. The court held that plaintiff failed to produce any evidence to support his claims. Id.
In addition, the court held that his state claims were not narrower than federal claims (if narrower claims exist after Riegel ).
Therefore, his claims were preempted.
Environmental or “Green” Products Litigation : No cases reported in this area.
Market Share or Other New Theories of Liability : No cases reported in this area.
Class Action Fairness Act (CAFA) : No cases reported in this area.
Other :
Wehner v. Linvatech Corp.
, 2008 WL 495525 (D. Minn. 2008). In Wehner , the court held that the plaintiff could not bring his False Advertising Act, Consumer Fraud Act, Unlawful Trade Practices Act, and Uniform
Deceptive Trade Practices Act claims under the Private Attorney General Act because his claims did not benefit the state as a whole. 2008 WL 495525 at *3 - *4. The plaintiff argued that his suit benefited the state because the defendant company removed misleading information from its website, but the court held that the plaintiff must actually seek relief that benefits the state; incidental relief that arises out of the suit is not sufficient to bring claims under the Private Attorney General Act. Id.
In re Viagra Products Liability Litigation , 572 F. Supp. 2d 1071 (D. Minn. 2008). In this case, plaintiffs asserted that Viagra caused a vision loss disorder called nonarteritic anterior ischemic optic neuropathy
(“NAION”). In re Viagra Products Liability Litigation , 572 F. Supp. 2d 1071, 1075 (D. Minn. 2008). Both the plaintiffs and the defendant drug manufacturer brought motions to exclude experts, and using the Daubert test, the court denied the plaintiff’s motion and granted in part and denied in part the defendant’s motion. Id.
Ehlers v. Siemens Medical Solutions, USA, Inc.
, 251 F.R.D. 378 (D. Minn. 2008). In Ehlers (a design defect case), the court excluded the plaintiff’s expert’s testimony regarding an alternative design under Daubert
312 v Product Liability Conference v April 2009
v. Merrell Dow Pharmaceuticals, Inc.
, 509 U.S. 579 (1993). 251 F.R.D at 388. The plaintiff suffered a broken ankle when the x-ray machine she was using unexpectedly shifted and crushed her foot. Id.
at 381. The plaintiff’s expert testified that safety modifications such as sensors and alarms could have made the machine safer. Id.
at
384. However, the court held that the expert failed to properly test his alternative safety design, that his safety modifications had not been subjected to peer review and had not been generally accepted in the industry, and that he had developed the modifications solely for his testimony. Id.
at 385-88. Therefore, the expert’s testimony was not reliable, and without his testimony, the plaintiff’s design defect claim could not survive summary judgment. Id.
at 388.
Further, the court also held that even if the expert’s testimony was admissible, summary judgment was still appropriate because the plaintiff failed to meet her burden on proximate cause. Id.
The negligence of the staff in failing to properly use the machine superseded any alleged defect in the machine as a cause of her injury. Id.
O’Neil v. Simplicity, Inc.
, 553 F. Supp. 2d 1110 (D. Minn. 2008). In O’Neil , the court granted the defendants’ motion to dismiss because the plaintiffs failed to state cognizable claims for breach of warranties, unjust enrichment, and various statutory fraud claims. The plaintiffs in this case each purchased cribs manufactured and distributed by the defendant companies. Due to a safety defect that resulted in actual harm to several consumers, the Consumer Product Safety Commission and the manufacturing company recalled the cribs. However, the plaintiffs’ cribs never actually malfunctioned, and their children and grandchildren never suffered injuries. As a result, the court found that the plaintiffs failed to “allege an actual manifestation of the defect that result[ed] in some injury.” Id.
at 1115. Simply alleging that an injury might occur or that they lost the benefit of their bargain in purchasing the cribs does not satisfy the plaintiff’s burden as to the injury element, and dismissal was appropriate.
Pope v. Elabo GMBH , ---F. Supp. 2d ---, 2008 WL 4867493 (D. Minn. 2008). In Pope , the court held that it could properly assert personal jurisdiction over the defendant, a German company. In this case, the plaintiff purchased a test machine manufactured by the defendant in Germany. In deciding that the defendant had sufficient contacts with the forum, the court held that that a “single direct sale by a manufacturer can be a sufficient contact to support personal jurisdiction in a suit related to that sale.” Id.
at *10. [original italics]. In holding that personal jurisdiction was reasonable, the court noted that “in today’s world of increasing globalization and improved communication technology, the burden of international litigation is not as high as it was even twenty years ago, when Asahi Metal (asserting personal jurisdiction over a foreign defendant) was decided.” Id.
at *12.
Once “minimum contacts have been established, often the interests of the plaintiff and the forum in the exercise of jurisdiction will justify even the serious burdens placed on the alien defendant.” Id.
(citing Asahi Metal at 114). Here, the plaintiff was injured by the defendant’s machine in Minnesota, and litigating in Germany would be a much greater inconvenience for him than for Elabo litigating in Minnesota. Id.
D. Missouri
By Todd C. Stanton and Fibbens A. Koranteng
Todd C. Stanton is a shareholder in the products liability and business litigation groups at Sandberg,
Phoenix & von Gontard P.C., and serves as the firm’s marketing partner. He is licensed to practice in Missouri and Illinois and has successfully tried cases to jury in both jurisdictions.
Fibbens A. Koranteng is an associate in the products liability and business litigation groups at Sandberg, Phoenix & von Gontard P.C. He is licensed to practice in Missouri and Illinois state courts. Fibbens is involved in several active products liability and business litigation cases.
Red, Orange, Yellow, Green, Blue, Indigo, Violet: Full Spectrum of...
v Arends and Mayfield v 313
Tort Reform : No cases reported in this area.
Joint and Several Liability:
State Ex. Rel Nixon v. Dally , 248 S.W.3d 615 (Mo. banc. 2008). In State Ex. Rel Nixon v. Dally , plaintiffs’ car was struck in the rear by one driver in February 2005. Ten months later, plaintiff and her husband were rear-ended by another driver in a different accident. The plaintiffs filed suit in 2007 and named both drivers as defendants under a theory of joint and several liability. The trial court sustained one of the defendants’ motion to sever, but, on appeal, the Missouri Supreme Court held the two discrete accidents involved in plaintiffs’ action constituted a series of occurrences, and concluded they were properly joined because the second collision aggravated injuries resulting from the first accident.
Preemption:
Smith v. Brown & Williamson Tobacco Corp.
, 2008 WL 5211857 (Mo. App. W.D. 2008). In Smith v.
Brown & Williamson Tobacco Corp.
, the survivors of decedent Barbara Smith brought a wrongful death action against the defendant tobacco corporation. While alive, decedent instituted an action against defendant, in which defendant was granted summary judgment as to most of decedent’s claims. The remainder of decedent’s claims were dismissed with prejudice after decedent died in 2000. In 2003, the decedent’s survivors brought their wrongful death action. A jury returned a verdict against defendant on negligence and strict liability claims, awarding $2 million in compensatory damages. The jury found decedent was 75 percent at fault, and, accordingly, the trial court reduced the survivors’ compensatory damages by $1.5 million. In addition, the jury found defendant liable for aggravating circumstances and assessed $20 million in punitive damages. The defendant appealed, asserting various point of error.
On appeal, defendant argued survivors’ claims based upon the inherent risks of cigarettes were barred by federal conflict preemption. The defendant relied on the U.S. Supreme Court’s decision in FDA v. Brown &
Williamson Tobacco Corp.
, 529 U.S. 120 (2000) for the proposition that Congress’s foreclosure of the removal of tobacco products from the market implicitly preempts state-law theories of liability based on the inherent risks of cigarettes because the only way a manufacturer can avoid liability under such theories would be to stop production.
The appellate court held that by demonstrating defendant’s specific design choices that had the potential of injuring decedent, survivors did more than present evidence of the general inherent risks of cigarettes.
In addition, the court held FDA did not specifically address the issue of preemption of state-law claims and declined to expand the Supreme Court’s opinion to imply preemption of state-law claims.
Environmental or “Green” Products Litigation : No significant cases reported for this category.
Market Share or Other New Theories of Liability:
Missouri does not recognize market share liability. See Zafft v. Eli Lilly & Co.
, 676 S.W.2d 241(Mo. banc. 1984).
Medical Monitoring Claims:
Ratliff v. Mentor Corp.
, 569 F. Supp. 2d 926 (W.D. Mo. 2008). In Ratliff v. Mentor Corp.
, the plaintiff brought a putative class action against the manufacturer of a product she had surgically implanted to treat her urinary stress incontinence, alleging various product liability claims, including medical monitoring as an equitable remedy. 569 F. Supp. 2d 926 (W.D. Mo. 2008). The plaintiff claimed damages for the manufacturer defendant to pay the cost of providing a mechanism to detect future latent injury caused by the product and the manufacturer moved to dismiss. Relying on Meyer v. Flour Corp.
, 220 S.W.3d 712 (Mo. banc. 2007), which defined a medical monitoring claim as a claim that “seeks to recover the costs of future reasonably necessary diagnostic testing to detect latent injuries or diseases that may develop as a result of exposure to toxic sub-
314 v Product Liability Conference v April 2009
stances,” the district court held that plaintiff’s “medical monitoring” claims that did not result from exposure to toxic substances were not cognizable under Missouri law.
Class Action Fairness Act (CAFA):
In re Genetically Modified Rice Litigation , 251 F.R.D. 392 (E.D. Mo. 2008). In In re Genetically Modified
Rice Litigation , plaintiffs, rice producers from Arkansas, Louisiana, Mississippi, Missouri and Texas, brought an action alleging that defendants contaminated the United States rice supply with unapproved genetically modified strains of rice, thereby affecting the market price for long grain rice. 251 F.R.D. 392 (E.D. Mo. 2008). The plaintiffs moved to certify their claims as a class action.
The United States District Court for the Eastern District of Missouri determined that because producers each sold their rice according to different and unique methods, the issue of damages was not common to the class. The court therefore concluded calculation of damages was an individual issue raised by each plaintiff’s claims and that individual inquiry into their damages predominated over common issues raised by the class action complaint. In addition, the court noted that some members of the class opposed class certification and desired to prosecute their claims individually. The court determined that, if certified, members of the class who do not opt out will still have to undergo a claims process requiring inquiry into individual plaintiffs’ damages, which may result in series of “minitrials” and thereby undermine the goals of class certification. Therefore, the court held that a class action would not be the superior method for resolving plaintiffs’ claims. For these reasons, the court denied class certification.
Other:
Punitive Damages:
Smith v. Brown & Williamson Tobacco Corp.
, 2008 WL 5211857 (Mo. App. W.D. 2008). In Smith v.
Brown & Williamson Tobacco Corp.
, the court held that survivors failed to make a submissible case for punitive damages because the evidence, which did not include evidence defendant knew cigarettes were dangerous 50 years before the lawsuit or that defendant did not want to develop a safer cigarette, did not clearly and convincingly demonstrate that defendant’s sale of cigarettes without adequate warning was tantamount to intentional wrongdoing. However, the court held that evidence of defendant’s conduct of engaging in an active process of creating controversy regarding the health risks of smoking, planning to dispute every Surgeon General’s report, instituting policies of preventing harmful information from becoming available to the public, and establishing procedures to ensure negative information did not reach the public, rose to the level of clear and convincing evidence to support a claim for punitive damages and remanded the case for a new trial on punitive damages as to survivors’ strict liability product defect claim only.
Failure to Warn: Heeding Presumption:
Smith v. Brown & Williamson Tobacco Corp.
, 2008 WL 5211857 (Mo. App. W.D. 2008). In Smith v. Brown
& Williamson Tobacco Corp.
, defendant, citing decedent’s conduct from 1969 to 1990 while cigarettes were required to be affixed with a warning label, argued the presumption decedent would have heeded a warning if defendant had supplied one before 1969 was inapplicable. The court held that survivors’ evidence the decedent was not aware of the specific injuries that can result from smoking was sufficient to raise the presumption decedent would have heeded a warning and quit smoking if defendant had given such a warning before 1969.
Negligence: Open and Obvious:
Smith v. Brown & Williamson Tobacco Corp.
, 2008 WL 5211857 (Mo. App. W.D. 2008). In Smith v. Brown
& Williamson Tobacco Corp.
, defendant argued that it owed no duty to decedent based on evidence the dangers of cigarette smoking are commonly known. The court determined from expert testimony presented at trial that there was no consensus as to the issue of the common knowledge of the dangers of smoking. Accordingly,
Red, Orange, Yellow, Green, Blue, Indigo, Violet: Full Spectrum of...
v Arends and Mayfield v 315
because reasonable minds could differ as to whether public knowledge about the health risks of developing disease and addiction from smoking cigarettes was so certain and generally known such as to relieve defendant of any duty to protect decedent from injury, the question was properly submitted to the jury for resolution.
Evidence of Absence of Other Prior Incidents:
Heitman v. Heartland Regional Medical Center , 251 S.W.3d 372 (Mo. App. W.D. 2008). In Heitman , patient and her husband sued hospital for personal injuries patient claimed she sustained when she fell exiting the shower in the bathroom of her hospital room. 251 S.W.3d 372 (Mo. App. 2008). The trial court entered judgment on a jury verdict in favor of hospital, and plaintiffs appealed. At trial, plaintiffs presented evidence of another prior incident involving the same shower. In rebuttal, the hospital introduced evidence showing the absence of any reports or problems with the shower in that room. The plaintiffs objected to the rebuttal evidence and subsequently appealed the trial court’s decision to allow it.
The appellate court held that hospital’s evidence of lack of the problems or accidents involving the shower in patient’s hospital room was proper rebuttal evidence to the witness’ testimony she had been in the hospital room three months earlier and had experienced problems with the shower, which testimony was presented to prove hospital had knowledge of the defective shower.
E. Nebraska
By Brandan P. Mueller
Brandan P. Mueller is a partner with Husch Blackwell Sanders LLP. Brandan has represented plaintiffs and defendants in cases involving product liability and general torts, complex commercial litigation, construction law, insurance law, and personal injury. Brandan practices in federal and state courts in Missouri and Illinois. He served in the United States Army and is a veteran of Operation Iraqi Freedom.
Tort Reform : No cases reported in this area.
Preemption: authority:
Federal rules governing section 8 Housing preempt a private cause of action against a public housing
In Tolbert v. Omaha Housing Authority , 747 N.W.2d 452 (Neb. Ct. App. 2008), the Nebraska Court of
Appeals ruled that a Federal regulation pertaining to a government housing program preempts a private cause of action against a public housing authority that helped administer the program. The plaintiffs brought suit alleging that Decedents perished in an arson fire at their residence because the poor condition of the home prevented Decedents’ escape. The plaintiffs further alleged that the Omaha Housing Authority (“OHA”) was at fault because the OHA allowed the residence to be used in the government housing program even though the residence did not meet Federal quality standards.
Decedents lived in government-subsidized housing generally known as “Section 8 Housing.” This program is administered by the U.S. Department of Housing and Urban Development (“HUD”) and allows for local housing authorities to contract with private landowners to make residences available for rental. Under the Section 8 program, the private property owners must keep the property in a “safe and habitable” condition and the housing authority, in this case OHA, must inspect the properties to determine whether the property meets the quality standards. See 42 U.S.C. §1437f(0)(8)(A) and (B). The standards against which the properties will be judged are set forth in 24 C.F.R. § 982.401(a)(2). However, the regulations also specifically state that these standards “[do] not create any right of the family, or any party other [than] HUD or the [public housing authority], to require enforcement of the [housing quality standards] requirements by HUD or the [public housing authority],
316 v Product Liability Conference v April 2009
or to assert any claim against HUD or the [public housing authority], for damages, injunction or other relief, for alleged failure to enforce the [housing quality standards].” See 24 C.F.R. § 982.406 (2007).
The home in question was a two-story residence that, according to the plaintiffs, had only one functioning exit. An arsonist set fire to the home and the Decedents perished near exits from the house that had been improperly “walled up” and “boarded up.” The plaintiffs brought suit against the property owners and
OHA, although the property owners were not involved in the matters before the Nebraska Court of Appeals.
The plaintiffs alleged that the housing authority demonstrated a reckless disregard for public safety based on the fact that OHA knew the home had inadequate exits and fire escapes yet allowed it to be rented under the
Section 8 program.
OHA filed a motion to dismiss pursuant to Neb. Ct. R. of Pldg. In Civil Actions 12(b)(6) and the trial court granted the same on the basis that, even assuming all of the plaintiffs’ allegations were true and OHA was negligent, federal law “clearly states that the [plaintiffs] have no private right to bring an action against OHA to recover damages.” Id.
at 621. The plaintiffs argued that they had stated a cause of action pursuant to Nebraska
Revised Statute section 13-910(3), which reads: “Any claim based upon the failure to make an inspection or making an inadequate or negligent inspection of any property other than property owned by or leased to such political subdivision to determine whether the property complies with or violates any statute, ordinance, rule, or regulation or contains a hazard to public health or safety unless the political subdivision had reasonable notice of such hazard or the failure to inspect or inadequate or negligent inspection constitutes a reckless disregard for public health or safety.” The trial court sided with OHA’s arguments and granted the motion to dismiss.
On appeal, the Nebraska Court of Appeals recognized that it hadn’t yet been decided if Nebraska law allows for a “Section 8 tenant [to] bring an action against a public housing authority for failure to inspect rental properties and enforce the housing quality standards.” Id.
at 623-24. The court then reviewed decisions by other jurisdictions that found that, although state law may allow for an action against a public housing authority, federal law preempts the state law on the issue.
The Nebraska court then looked at the plaintiffs’ allegations in the case at hand and stated that “the plaintiffs allege that the act of OHA in permitting the use of the property as rental property under Section 8 and further continuing to permit the property to be used as rental property under Section 8 was a willful reckless disregard of the safety of [Decedents]…because OHA failed to inspect the property; failed to ensure that the tenants had adequate emergency exits…; failed to require the landlord to make the property safe…; and failed to take action to ensure [Decedents’] safety in the event of a fire.” Id.
at 458. The court ruled that these allegations are “based on OHA’s failure to comply” with the federal quality standards regulation and that “federal law clearly states that the plaintiffs have no private right to bring an action against OHA to recover damages.” Id.
at 459. Accordingly, the Nebraska Court of Appeals found that the federal law preempts Nebraska law on the matter and affirmed the trial court’s dismissal of the action. Id.
Notice Provisions of Nebraska’s Uniform Arbitration Act Are Preempted by the Federal Arbitration Act:
In Aramark Uniform & Career Apparel, Inc. v. Hunan, Inc.
, 757 N.W.2d 205 (Neb. 2008), the Nebraska
Supreme Court ruled that the notice requirement in the state’s Uniform Arbitration Agreement (“UAA”) was preempted by the Federal Arbitration Agreement (“FAA”). The case arose out of a contract dispute between the parties that contained an arbitration provision. Aramark initiated arbitration over the disagreement. Hunan appeared in the arbitration and claimed that the arbitration provision was unenforceable because it did not contain the wording “ This Contract Contains an Arbitration Provision Which May Be Enforced by the Parties ” as required under Nebraska’s UAA. See Neb. Rev. Stat. §25-2602.02. Aramark countered that the contract involved interstate commerce and, therefore, was governed by the FAA, which did not require such a notice provision.
See 9 U.S.C. §2 (2006). The arbitrator found in favor of Aramark on the issue and proceeded to set the arbitra-
Red, Orange, Yellow, Green, Blue, Indigo, Violet: Full Spectrum of...
v Arends and Mayfield v 317
tion hearing. Aramark appeared for the hearing and argued its case while Hunan did not appear. The arbitrator awarded Aramark $13,144.54. Aramark then filed a motion and a petition to confirm the arbitration award but the trial court vacated the arbitration award finding that the FAA did not preempt the UAA. Hunan requested that the district court vacate the arbitration award because there was no valid arbitration agreement under the
UAA. The trial court found that the contract did not involve interstate commerce and that the UAA applied.
Because the court applied Nebraska law that required the notice provision, the district court vacated the arbitration award.
Aramark appealed this decision to the Nebraska Supreme Court, which before addressing the preemption issue, found that the contract did involve interstate commerce. Once it made this determination, the court then addressed the issue of preemption. In so doing, the court recognized that the U.S. Supreme Court has ruled “that courts may not invalidate arbitration agreements governed by the FAA under state laws applicable only to arbitration provisions.” Id.
(citing Doctor’s Assocs., Inc. v. Casarotto , 517 U.S. 681, 116 S. Ct. 1652,
134 L. Ed. 2d 902 (1996)). In analyzing the U.S. Supreme Court’s decision cited above, the Nebraska Supreme
Court found that the UAA’s notice provision was similar to the Montana statute at issue in Doctor’s Associates because the UAA provision applies only to arbitration provisions and renders those provisions unenforceable if the designated notice is not provided. Id.
Therefore, because the court found the FAA to have governed the contract and because the UAA notice provision conflicted with the FAA, the Nebraska Supreme Court held that
Nebraska Revised Statute section 25-2602.02 is preempted by federal law.
Environmental or “Green” Products Litigation : No cases reported in this area.
Market Share or Other New Theories of Liability : No cases reported in this area.
Class Action Fairness Act (CAFA) : No cases reported in this area.
Other : No cases reported in this area.
F. North Dakota
By Larry Boschee and Zachary Pelham
Larry Boschee is a partner, and Zachary Pelham an associate, with Pearce & Durick in Bismarck, North
Dakota. Mr. Boschee focuses on litigation and practices primarily in the areas of product liability defense, insurance defense, and commercial litigation. Mr. Pelham focuses his practice on insurance defense and products liability defense.
Tort Reform : No cases reported in this area.
Preemption : No cases reported in this area.
Environmental or “Green” Products Litigation : No cases reported in this area.
Market Share or Other New Theories of Liability : No cases reported in this area.
Class Action Fairness Act (CAFA) : No cases reported in this area.
Other:
Albers v. Deere & Co.
, No. 1:08-cv-040, 2008 WL 4416449 (D.N.D. Sept. 24, 2008). The plaintiff purchased a used John Deere combine and a used John Deere header on the same date from manufacturer’s dealer.
Id.
at *1. A fire occurred and the combine and header were destroyed. The plaintiff claimed the combine was defective. Deere asserted the economic loss doctrine as a defense. In granting Deere’s motion for summary judgment, a North Dakota federal district court predicted that the North Dakota Supreme Court would apply the economic loss doctrine to component-to-component damage when the consumer bought the components, made by the same manufacturer, from the manufacturer’s dealer, at the same time. Id.
at *19.
318 v Product Liability Conference v April 2009
Krosch v. JLG Industries, Inc.
, No. 1:07-CV-045, 2008 WL 5328396 (D.N.D. Dec. 19, 2008). The plaintiff rented an aerial work platform (scissor lift) from a hardware store. Id.
at *1. The plaintiff was injured when the lift tipped over. The plaintiff alleged strict products liability claims against lift manufacturer and level sensor manufacturer. Id.
at *3. But the plaintiff did not have any expert witness testimony to support his contentions.
A North Dakota federal district court granted manufacturers’ motion for summary judgment because of the absence of expert testimony. Id.
at *4-5.
G. South Dakota
By Larry Boschee & Zachary Pelham
Larry Boschee is a partner, and Zachary Pelham an associate, with Pearce & Durick in Bismarck, North
Dakota. Mr. Boschee focuses on litigation and practices primarily in the areas of products liability defense, insurance defense, and commercial litigation. Mr. Pelham focuses his practice on insurance defense and products liability defense.
Tort Reform : No cases reported in this area.
Preemption : No cases reported in this area.
Environmental or “Green” Products Litigation : No cases reported in this area.
Market Share or Other New Theories of Liability : No cases reported in this area.
Class Action Fairness Act (CAFA) : No cases reported in this area.
Other :
Denekamp v. Hetronic USA, Inc.
, No. CIV. 06-5025-KES, 2008 WL 4646954 (D.S.D. Oct. 17, 2008). In this case, the plaintiff alleged defective design and failure-to-warn strict products liability claims against crane manufacturer. Id. at *1. The plaintiff was injured when manual crane controls were activated by tree branches while plaintiff was operating the crane by remote control. Testimony was received that manufacturer participated in the redesign and remanufacture of the crane by providing technical assistance to install manual backup controls. Id.
at * 4. In denying manufacturer’s motion for summary judgment, a South Dakota federal district court predicted that the South Dakota Supreme Court would hold two or more parties working together on a product, with each party substantially contributing to a final design, a designer of the final product for purposes of strict product liability. Id.
at *3.
IX. Ninth Circuit
By Philip T. Kasin, Jeffrey S. Bazinet, Philip Nodhturft, Leland H. Kynes, Casey Reeder, Craig Mayfield, and Joshua C. Webb
Philip T. Kasin is an associate in the Seattle office of Schwabe, Williamson & Wyatt. His practice focuses on land use litigation, but he also represents clients in construction, product liability, and commercial litigation. In addition, he is active in the hospitality industry, where he provides advice on liquor law compliance and defends retailers, grocers, and restaurants from premises liability and food liability claims. Mr. Kasin was recognized as a “Rising Star” by Washington Law & Politics magazine in 2008.
Jeffrey S. Bazinet provided research and analysis for the state of Arizona. Jeff is a senior associate with the firm of Peters & Monyak, LLP in Atlanta, Georgia. His practice includes the defense of product liability and professional malpractice actions, as well as commercial litigation and appellate practice.
Philip Nodhturft III provided research and analysis for the states of Alaska and Hawaii. Phil is an associate with Hill Ward Henderson in Tampa, Florida, where his practice includes real estate finance and land use.
Red, Orange, Yellow, Green, Blue, Indigo, Violet: Full Spectrum of...
v Arends and Mayfield v 319
Leland H. Kynes is an associate with Hill Ward Henderson in Tampa, Florida. His practice focuses on commercial litigation, employment litigation, and real estate litigation. He served as a judicial clerk to the Honorable Charles R. Wilson of the U.S. Court of Appeals for the Eleventh Circuit.
Casey Reeder is an associate with the law firm of Hill Ward Henderson in Tampa, Florida. She practices primarily in the areas of commercial litigation and professional liability defense.
Craig Mayfield is a shareholder with the law firm of Hill Ward Henderson in Tampa, Florida. His practice primarily involves the defense of product liability and complex mass tort claims.
Joshua C. Webb is an associate with the law firm of Hill Ward Henderson in Tampa, Florida, and his practice involves a variety of commercial disputes and construction-related litigation matters.
Tort Reform : No cases reported in this area.
Preemption :
Golden v. CH2M Hill Hanford Group, Inc.
, 528 F.3d 681 (9th Cir. 2008). Golden worked on the Hanford Nuclear Reservation in a facility operated by CH2M Hill Hanford Group, Inc. (“CH2M”). CH2M stored liquid waste containing radioactive materials and nonradioactive heavy metals in large storage tanks. On May
20, 2002, Golden was working on one of these tanks when up to four gallons of this toxic liquid splashed on him. He sued CH2M in state court under Washington law, claiming that the accident caused him physical injuries ranging from colitis to sinusitis, as well as emotional distress. His wife sued for loss of consortium. CH2M removed to the United States District Court for the Eastern District of Washington. The district court had jurisdiction under the Price-Anderson Act, 42 U.S.C. § 2014, which preempts all state-law claims for injury resulting from nuclear incidents, and granted summary judgment to CH2M. The court of appeals affirmed in part, vacated in part, and remanded. Specifically, the court of appeals affirmed summary judgment on Golden’s claims of physical injuries because he failed to show specific causation. To show specific causation, Golden offered the testimony of his physician. However, the physician merely testified that he considered the chemicals a potential cause for Golden’s ailments. The court of appeals held that such testimony did not mean that
Golden’s exposure had in fact caused his injuries. Thus, Golden failed to show specific causation. Further, to the extent that Golden asserted an emotional distress claim in connection with radioactive materials, the court of appeals held his exclusive remedy was under the Price-Anderson Act, and, absent a showing of physical injury, he could not recover. However, the court of appeals vacated the grant of summary judgment insofar as the emotional distress and loss of consortium claims related to nonradioactive materials because it was possible that such claims, which did not involve a “nuclear incident,” were not preempted by the Act. The court of appeals remanded the case to the district court to determine whether it wished to exercise supplemental jurisdiction over those claims.
Dumontier v. Schlumberger Tech. Corp.
, 543 F.3d 567 (9th Cir. 2008). Schlumberger employees carelessly left cesium-137 on a drilling rig. The plaintiffs later worked on the rig and were exposed. Exposure can cause burns, radiation sickness and cancer, although plaintiffs had not yet developed any cancer or other illness. Instead, plaintiffs sued Schlumberger alleging that the radiation caused subcellular damage, including damage to their DNA. They brought a claim under Montana state law seeking damages for emotional distress, medical monitoring and actual malice. Schlumberger argued plaintiffs’ claim were preempted and moved to replace it with a federal cause of action under the Price-Anderson Act, 42 U.S.C. § 2014(h), and also moved for summary judgment on the Price-Anderson Act claim. The district court granted both motions. On appeal, the plaintiffs argued they suffered a listed harm under 42 U.S.C. § 2014(q) if the court interpreted bodily injury under Montana state law. The court of appeals affirmed, holding the Price-Anderson Act did not call for applying state law in interpreting the Act; the Act called for applying state law only in determining the avail-
320 v Product Liability Conference v April 2009
able causes of action. The Act prohibited recovery when the plaintiffs did not suffer bodily injury, even if a state cause of action did not have such a limitation. If state law was consulted to define bodily injury, the court of appeals reasoned section 2014(hh)’s preemption clause would lose much of its force. The court of appeals found that plaintiffs presented evidence that radiation always damaged the DNA or other cellular components.
However, such damage did not establish that there was or would be pain or interference with bodily functions; thus, there was not an injury within the meaning of the Act. Because the plaintiffs claimed compensation for exposure to radioactive material, they could recover only if they met the Act’s requirements, which the court found they did not.
McDonald v. Sun Oil Co.
, 548 F.3d 774 (9th Cir. 2008). The plaintiff property owners filed action against mining company alleging negligence, contribution, breach of contract, and fraud. The district court granted the defendant’s motion for summary judgment on the plaintiffs’ negligence claim, finding that it was barred by Oregon’s statute of repose for negligent injury to person or property, Or. Rev. Stat. § 12.115(1). On appeal, the Ninth Circuit held that CERCLA section 309 applied to statutes of repose as well as statutes of limitations, and therefore effectively preempted Oregon’s statute of repose.
Environmental or “Green” Products Litigation:
Northwest Environmental Advocates v. EPA , 537 F.3d 1006 (9th Cir. 2008). The plaintiffs, environmental groups and states, brought an action against defendants, the Environmental Protection Agency (“EPA”) and a shipping association, in which they challenged the EPA’s promulgation of regulation, 40 C.F.R. § 122.3(a), as violating the Clean Water Act (“CWA”). The regulation at issue exempted certain marine discharges from the permitting scheme of the CWA. Specifically, section 122.3(a) provided that the following vessel discharges into the navigable waters of the United States did not require permits: discharge of effluents from properly functioning marine engines; discharge of laundry, shower, and galley sink wastes from vessels; and any other discharge incidental to the normal operation of a vessel, including the discharge of ballast water. The United States District
Court for the Northern District of California vacated the regulation, holding that the EPA exceeded its authority under the CWA in exempting these discharges from the permitting requirements, and the defendants appealed.
The court of appeals found that the district court had subject matter jurisdiction over the suit, the EPA acted ultra vires in promulgating section 122.3(a), and the EPA’s denial of plaintiffs’ petition requesting the repeal of section 122.3(a) was not in accordance with law. The court of appeals reasoned that Congress expressed a plain intent to require permits in any situation of pollution from point sources, and the EPA failed to support its argument that Congress acquiesced to the EPA’s interpretation of the CWA. The judgment was affirmed.
Geertson Seed Farms v. Johanns , 541 F.3d 938 (9th Cir. 2008). The plaintiffs, alfalfa-seed farms and environmental groups, successfully petitioned the United States District Court for the Northern District of
California to enter an injunction enjoining the planting of genetically modified alfalfa (called “Roundup Ready alfalfa”) developed by defendant-intervenor manufacturer and approved by the defendant government pending the preparation of an environmental impact statement pursuant to the National Environmental Policy Act
(“NEPA”), and the defendants appealed. The Animal and Plant Health Inspection Service (“APHIS”), a division of the United States Department of Agriculture, initially classified the genetically modified alfalfa as a regulated article, but after being petitioned by the manufacturer and preparing an environmental assessment in accordance with the NEPA and its implementing regulations, made a finding of no significant impact. It unconditionally deregulated the alfalfa. Neither the Government nor the intervenors questioned the existence of a NEPA violation--they disputed only the scope of the injunction. The court of appeals held the record demonstrated that the district court applied the traditional four-factor test before issuing its injunction. The district court expressly recognized that an injunction did not automatically issue when a NEPA violation was found and said that it was required to engage in the traditional balance of harms analysis. The district court then discussed
Red, Orange, Yellow, Green, Blue, Indigo, Violet: Full Spectrum of...
v Arends and Mayfield v 321
each of the four factors of the traditional balancing test and concluded that the equities favored an injunction against the future planting of the genetically modified alfalfa. The district court did not err in declining to hold a further evidentiary hearing. The order was affirmed.
Market Share or Other New Theories of Liability: No cases reported in this area.
Class Action Fairness Act (CAFA):
United Steel, Paper & Forestry, Rubber Manufacturing Energy, Allied Industrial & Service Workers International Union v. Shell Oil Co ., 549 F.3d 1204 (9th Cir. 2008). The plaintiffs, a union and two individuals, filed a class action against defendants, Shell and Tesoro, in state court, alleging, inter alia, failure to permit rest periods and to pay wages timely upon termination. The defendants filed separate notices of removal to the district court. Both notices of removal relied, in part, on the Class Action Fairness Act of 2005 (“CAFA”), 28 U.S.C. §§
1332(d), 1453, as a basis of jurisdiction. After opening two separate cases, the district court first remanded
Shell’s case on the ground that Tesoro failed to consent to removal within 30 days of service on the first-served defendant, and then remanded Tesoro’s case for the same reason. On appeal, defendants asserted the district court erred because CAFA entitled one defendant to remove the entire action, and therefore Shell’s removal covered the entire action. The court of appeals stated it was undisputed that the class action was removable under
CAFA, and it was undisputed that Shell timely filed its notice of removal. Because the case was governed by
CAFA and the rule of unanimity was inapplicable, Shell removed the action as a whole, including claims against
Tesoro. The court of appeals reversed the orders of the district court remanding the claims against Shell and
Tesoro to state court. It also denied the union’s request for sanctions.
Lussier v. Dollar Tree Stores, Inc.
, 518 F.3d 1062 (9th Cir. 2008). The plaintiffs, putative class representatives, sought to recover unpaid wages, overtime wages, minimum wages and penalty wages for employees for a six year period. The complaint was originally filed in Oregon state court, but was removed by defendant employer Dollar Tree Stores, Inc. pursuant to the Class Action Fairness Act of 2005 (“CAFA”), 28 U.S.C. §
1332(d)(2). The United States District Court for the District of Oregon remanded the matter back to state court but denied the plaintiffs’ request for attorneys’ fees. The plaintiffs challenged the district court’s denial of their request for attorneys’ fees. The court of appeals held that while the district court rejected Dollar Tree’s novel arguments about the relationship between Oregon Revised Statute section 12.020, Oregon Rule of Civil Procedure 3, and CAFA in light of CAFA’s broadening of federal jurisdiction over class actions, it also found that
Dollar Tree’s position was reasonable. The court of appeals could not say that the district court abused its discretion. The representatives pointed out that Dollar Tree offered no authority for its bar to actions in the inverse theory, and submitted that Dollar Tree was wrong in distinguishing another case because the instant case commenced with the filing in state court. However, the other case said nothing about what any particular state’s law provided in relation to CAFA. Dollar Tree’s arguments were not otherwise clearly foreclosed. The court of appeals concluded that the district court did not abuse its discretion in finding that Dollar Tree’s arguments were not unreasonable, and affirmed the decision of the district court.
Other :
National Union Fire Insurance Co. of Pittsburgh v. Dassault Falcon Jet Corp.
, 263 Fed. Appx. 604 (9th Cir.
2008). The plaintiff sued Falcon Jet in tort and for breach of implied warranty to recover insurance payments made on behalf of its insured, the owner of a corporate business jet, in excess of $1.5 million for repair of the airplane. The district court granted summary judgment to Falcon Jet under the economic loss doctrines of New
Jersey and Ohio, and on appeal, the Ninth Circuit held that under California choice of law principles, application of New Jersey law was appropriate because that state’s governmental interests would suffer impairment if
California tort law were applied to the case, as New Jersey had a strong interest in applying its law in order to limit the New Jersey manufacturer’s liability for economic losses arising from tort claims.
322 v Product Liability Conference v April 2009
Torres v .
Taser International, Inc.
, 277 Fed. Appx. 684 (9th Cir. 2008). The plaintiffs sued manufacturer of holstered taser, asserting claims for design defect, negligent design, and negligent failure to warn. The district court granted summary judgment to the manufacturer, and the Ninth Circuit affirmed, holding, among other matters, that the plaintiff city could not establish a prima facie case of design defect under the risk/benefit theory found in California law, where the subject holster and taser were not used when the police officer fatally shot the arrestee.
Blazevska v . Raytheon Aircraft Co.
, 522 F.3d 948 (9th Cir. 2008). The plaintiffs, survivors of a plane crash that occurred in Macedonia, brought suit against Raytheon, the manufacturer of the Beechcraft Super
King Air 200 involved in the accident. The district court granted summary judgment to Raytheon, on the basis that the 18-year statute of repose in the General Aviation Revitalization Act (“GARA”) barred the plaintiffs’ claims. On appeal, the Ninth Circuit held that since the aircraft was delivered in the United States and the case was filed in a United States court, the case did not involve the issue of extraterritoriality that would limit Raytheon’s ability to assert the statute of repose due to a concern over improper regulation of conduct abroad. The court also noted that GARA precludes claimants only from bringing actions in United States courts, which is itself an entirely domestic act.
A. Alaska
Tort Reform : No cases reported in this area.
Preemption : No cases reported in this area.
Environmental or “Green” Products Litigation : No cases reported in this area.
Market Share or Other New Theories of Liability : No cases reported in this area.
Class Action Fairness Act (CAFA) : No cases reported in this area
Other :
Burnett v. Covell , 191 P.3d 985 (Alaska 2008). The Alaska Supreme Court affirmed the lower court’s ruling of summary judgment in favor of defendant office owner, who was sued by plaintiff on both negligence and strict products liability theories. The plaintiff, who weighed 330 pounds, was visiting a law office and was injured when the chair in which he was sitting collapsed under his weight. The court held that the plaintiff failed to identify any policy considerations sufficient to justify the extension of a strict liability theory to defendant, as strict liability was traditionally limited to those who place a product into the stream of commerce, and a purchaser or owner of office furniture who merely makes such furniture available to client has not
“placed” products into the stream of commerce for strict liability purposes. The court also held that plaintiff failed to show defendant had breached his duty of care, as there were no signs of physical deterioration in the chair, nor was there a common practice among officer owners to replace furniture beyond a certain age.
Jarvill v. Porky’s Equipment , 189 P.3d 335 (Alaska 2008). The plaintiff boat purchaser brought a product defect and negligence action against a boat manufacturing company after his boat sank in its harbor slip less than three years after purchase. The lower court found that the man with whom plaintiff contracted to build the boat had at least apparent authority to bind defendant to the contract when he built the boat on defendant’s premises and was, therefore, defendant’s agent. The court also held that testimony from the boat surveyor regarding the boat’s alleged defective design was admissible. However, the lower court ultimately dismissed plaintiff’s claims based on the statute of limitations. On appeal, the Alaska Supreme Court affirmed the first two holdings and reversed the statute of limitations holding, resulting in a remand for trial on the merits of plaintiff’s claims.
Red, Orange, Yellow, Green, Blue, Indigo, Violet: Full Spectrum of...
v Arends and Mayfield v 323
B. Arizona
Tort Reform:
State Farm Insurance Cos. v. Premiere Manufactured System, Inc.
, 172 P.3d 410 (Ariz. 2007). In Premiere Manufactured , the Arizona Supreme Court considered whether Arizona Revised Statutes section 12-2506 applies to strict product liability actions. Arizona Revised Statutes section 12-2506 abolishes joint and several liability in personal injury, wrongful death and property damage actions unless the parties were acting in concert, had a principal-agent relationship, or the liability at issue arises out of FELA. The court held that Arizona
Revised Statutes section 12-2506 establishes several-only liability for participants in a defective product’s chain of distribution.
The appellant argued that the court should impute a principal-agent relationship on participants in the product distribution under Wiggs v. City of Phoenix , in which the court held that a defendant could not avoid liability for breach of a nondelegable duty by claiming the tort at issue had been committed by an independent contractor. The court rejected this contention stating that, even assuming a nondelegable duty on product distribution chain participants, each participant is responsible only for its own conduct, not for its relationship to others, and therefore, vicarious liability was not an issue.
The court also held that Arizona Revised Statutes section 12-2509, which establishes a right of contribution among tort-feasors in strict liability actions, “does not itself enact a general doctrine of joint and several liability in strict liability action” and provides a right of contribution only when one of the three statutory exceptions to Arizona Revised Statutes section 12-2506 applies.
The court further ruled that Arizona Revised Statutes section 12-2506 does not conflict with the indemnity provisions of Arizona Revised Statutes section 12-684, reasoning that joint liability is not required for indemnity.
Finally, the court rejected the appellant’s argument that Arizona Revised Statutes section 12-2506 violates the “antiabrogation” clause in article 8, section 16 of the Arizona Constitution, which provides: “The right of action to recover damages for injuries shall never be abrogated, and the amount recovered shall not be subject to any statutory limitation.” The court reasoned that the abolition of joint and several liability in strict products liability cases does not deprive an injured claimant of the right to bring the action or prevent the possibility of redress for injuries because “the claimant remains entirely free to bring his claim against all responsible parties.” In response to the argument that “joint and several liability is so integral to the tort of strict products liability that instituting several-only liability effectively abolishes the cause of action,” the court responded: “Nothing in § 12-2506, however, prevents a claimant from suing all participants in a defective product’s chain of distribution and obtaining a judgment for the full amount of his damages. Nor does the statute excuse any responsible party from liability. Under the doctrine of strict products liability, a defendant breaches its legal duty when it distributes a defective and unreasonably dangerous product.” As to the contention that the statute violated the right to recovery guaranteed by the “antiabrogation” clause, the court stated:
To be sure, an injured claimant may not be able to recover the full amount of his damages under a regime of several-only liability when a defendant is insolvent or full collection of the judgment against each defendant is not possible. But…almost any statute dealing with tort actions will affect the amount or potential of recovery. Our Constitution provides only that a statute cannot limit the “amount recovered”; it is not a guarantee that the entire judgment will be collectible from a single defendant or indeed from any of the responsible parties.
Shinn v. Baxa Corp.
, No. 2:07-cv-01648-JCM-PAL, 2008 WL 2704712 (D. Nev. July 7, 2008). This action arose out of the death of the plaintiffs’ infant daughter, who died after she was administered a lethal dose of zinc intravenously through a Total Parental Nutrition (“TPN”) device manufactured by defendant Baxa. Before
324 v Product Liability Conference v April 2009
bringing suit against Baxa, the plaintiffs entered into a confidential settlement agreement with the hospital where the infant was being treated at the time of her death. The hospital sought to intervene in the action for the limited purpose of obtaining a determination that its settlement was entered into in good faith, for purposes of extinguishing Baxa’s contribution and equitable indemnity claims against it. In ultimately determining that the settlement was fair, appropriate, and reached in good faith, the court considered the likely application of the statutory compensatory damages caps contained in Nevada Revised Statutes section 41A.035.
Preemption : No cases reported in this area.
Environmental or “Green” Products Litigation : No cases reported in this area.
Market Share or Other New Theories of Liability : No cases reported in this area.
Class Action Fairness Act (CAFA) : No cases reported in this area
Other :
Heatec, Inc. v. R.W. Beckett Corp.
, No. 1 CA-CV07-0156, 2008 WL 2502278 (Ariz. Ct. App. June 24,
2008). At issue in this appeal was whether funds paid to settle a product liability action are reimbursable costs under Arizona Revised Statutes 12-684(A), which provides that, in a product liability action “where the manufacturer refuses to accept a tender of defense from the seller, the manufacturer shall indemnify the seller for a judgment rendered against the seller and shall also reimburse the seller for reasonable attorney’s fees and costs incurred by the seller in defending such action.” The Arizona court of appeals held that amounts paid in settlement of a case falling within the purview of the statute are not “costs” recoverable under the statute. The court noted that “‘costs’ is a term of art having a limited meaning” that generally “refers to expense items incurred in litigation that a prevailing party is allowed to tax against the losing party” and “are limited to necessary expenses” that “may not include everything that a party spends to achieve victory.” The court also noted that the definition of taxable costs under Arizona Revised Statutes section 12-332 did not include monies paid in settlement, and concluded that “the legislature did not intend to include such payments as reimbursable costs under section 12-684.”
C. California
Tort Reform : No cases reported in this area.
Preemption :
Williamson v. Mazda Motor of America, Inc.
, 84 Cal. Rptr. 3d 545 (Cal. Ct. App. 2008). Accident victims brought action against minivan manufacturer arising from injuries suffered in motor vehicle collision.
The plaintiffs alleged that the minivan in which they were riding was defective, in part, because it was equipped only with a lap belt in the middle seat of the middle row, rather than a shoulder belt. The court found that the plaintiff’s common-law claims were preempted by Federal Motor Vehicle Safety Standard 208, a regulation promulgated under the National Traffic and Motor Vehicle Safety Act of 1966, 39 U.S.C. § 30101 et seq ., which authorizes automobile manufacturers to install a lap-only seatbelt at the inboard seating positions of a vehicle.
The Williamson court relied on Supreme Court’s approach in Geier v. American Honda Motor Co., Inc.
, 529 U.S.
861 (1999).
McKenney v. Purepac Pharmaceutical Co.
, 83 Cal. Rptr. 3d 810 (Cal. Ct. App. 2008). The plaintiff brought action against drug maker based upon the alleged inadequacy of a drug label in warning of the dangers of using the drug. The trial court found that the plaintiff’s claims were preempted because defendant, the maker of a generic drug, was required by the FDA to use the same labeling used on the originally approved drug, which must be approved by the FDA. The appeals court in McKenney reversed, finding that the plaintiff’s
Red, Orange, Yellow, Green, Blue, Indigo, Violet: Full Spectrum of...
v Arends and Mayfield v 325
common-law claims for failure to warn were not preempted merely because the generic drug manufacturer uses FDA-approved labeling.
Carter v. Novartis Consumer Health, Inc.
, 582 F. Supp. 2d 1271 (C.D. Cal. 2008). Class action suit against maker of nonprescription cough and cold medicine brought by parents of children who purchased products
“for use by” children. The plaintiffs claimed that defendants falsely marketed their cough and cold medications as safe and effective for children under the age of six, when in fact the medications were ineffective and dangerous. The court determined that the plaintiff’s claims were expressly preempted by the Food, Drug and Cosmetic
Act, as the Act’s preemption clause includes not only state-law claims regarding labeling of nonprescription drugs, but also claims that require additional warnings in advertising.
Gaeta v. Perrigo Pharmaceutical Co.
, 562 F. Supp. 2d 1091 (N.D. Cal. 2008). Parents of child who sustained liver failure brought action against manufacturer of generic, nonprescription ibuprofen. The FDA had already engaged in a comprehensive review regarding the safety of that drug, and specifically determined that a warning for risk of liver injury “was not scientifically supported by the available data.” Therefore the court determined that the plaintiff’s lawsuit was preempted because it conflicted with an express judgment of the
FDA. The court also noted the risks of “overwarning,” which may lead to labeling that does not accurately portray a product’s risks, thereby discouraging the safe and effective use of approved products.
Bullock v. Philip Morris USA, Inc.
, 71 Cal. Rptr. 3d 775 (Cal. Ct. App. 2008). Claims for misrepresentation and false promise asserted against cigarette manufacturer by smoker who had been diagnosed with lung cancer were not preempted by Federal Cigarette Labeling and Advertising Act. Such claims were not “based on smoking and health,” as required to come under the FCLAA’s preemption provision, because they were not based on either a positive enactment or a common-law prohibition against statements in advertising and promotional materials that tend to minimize the health hazards associated with smoking.
Jessen v. Mentor Corp.
, 71 Cal. Rptr. 3d 714 (Cal. Ct. App. 2008). Patient whose testicular prosthesis became deformed and had to be removed brought action against manufacturer for strict product liability, negligence, and breach of warranty. The basis of the plaintiff’s claims was that the manufacturer had failed to include a warning on the outer packaging of the prosthesis that it must be filled with water before implantation.
The prosthesis is considered a Class III medical device under the Medical Device Amendments of 1976, a classification that requires a rigorous premarket approval and other federally imposed restrictions. The court held that the plaintiff’s common-law claims were subject to federal preemption pursuant to the preemption clause of the Medical Device Amendments.
Blanco v. Baxter Healthcare Corp ., 70 Cal. Rptr. 3d 566 (Cal. Ct. App. 2008). Family brought wrongful death action against manufacturer of mitral heart valve that fractured and failed, alleging negligent manufacturing, strict products liability, and negligent failure to warn. The court found that mitral valve was a Class III medical device under the Medical Device Amendments of 1976, which required a rigorous premarket approval.
The court interpreted the Supreme Court’s Medtronic decision as providing two main principles: (1) ask whether there are any device-specific federal requirements; and (2) if so, determine whether there would be a conflict between that device-specific federal requirement and any of the liability creating premises of the plaintiff’s state-law tort suit. If so, the court stated that the claims in the suit are preempted. Because the court determined that the claims in plaintiff’s suit conflicted with the FDA’s regulation of the mitral valves, the court found the claims to be preempted.
Turner v. Chevron U.S.A., Inc.
, No. CV 08-2267, 2008 WL 4570271 (C.D. Cal. Oct. 14, 2008). The plaintiff filed a common-law products liability claim against a gasoline company, alleging that gasoline containing ethanol, when used in boats and near water, contaminates or separates, dissolving the resin that binds together fiberglass fuel tanks. This destroys the fuel tanks, and the resin enters the fuel system, causing damage to boat
326 v Product Liability Conference v April 2009
engines. The gasoline company defended the suit by arguing that the plaintiff’s claims were preempted, because provisions of the Clean Air Act require the use of “oxygenates” in gasoline, and ethanol is an oxygenate. Furthermore, the California Health and Safety Code banned the use of any oxygenate other than ethanol in gasoline.
The court held that because the plaintiff’s products liability claim was in direct conflict with federal and state law, the claim was preempted.
Environmental or “Green” Products Litigation : No cases reported in this area.
Market Share or Other New Theories of Liability : No cases reported in this area.
Class Action Fairness Act (CAFA):
Green v. Staples Contract & Comm., Inc.
, No. CV08-7138, 2008 WL 5246051 (C.D. Cal. Dec. 10, 2008).
The defendant removed class action under CAFA. On the plaintiffs’ motion to remand, the court found that because the plaintiffs alleged in the complaint that the individual claims of the class members were under
$75,000 each, and that the plaintiffs’ aggregate claim was under the $5 million threshold of CAFA, the class had chosen to limit its aggregate claim. Applying the legal certainty standard for determining the amount in controversy from the Ninth Circuit’s decision in Lowdermilk the court found that the defendant did not meet its burden of proving that the amount in controversy exceeded five million dollars.
Chase v.
Rite Aid Corp.
, No. CV 07-8385, 2008 WL 5131200 (C.D. Cal. Dec. 3, 2008). The plaintiffs brought a purported class action suit in state court against Rite Aid alleging violations of the California Labor
Code, and Rite Aid removed under CAFA. The plaintiffs sought remand on the grounds that minimal diversity did not exist and that an exception to CAFA applied. The court found that no states possessed a significantly larger amount of Rite Aid’s business activities than any other state, and therefore applied the “nerve center” test in finding that Rite Aid’s principal place of business was located in Pennsylvania, where the company’s executive and administrative functions were performed at its corporate headquarters. As such, the court determined that Rite Aid was a citizen of Pennsylvania and Delaware, its state of incorporation, for purposes of diversity jurisdiction, and that therefore minimal diversity existed between Rite Aid and the class of California plaintiffs. However, the court ultimately decided to remand the action to state court, finding that the local controversy exception to CAFA, 28 U.S.C. § 1331(d)(4)(A), applied because more than two-thirds of the members of the proposed class were California citizens, and the fact that the other defendants were California citizens from whom the plaintiffs sought significant relief and whose conduct formed a significant basis for the claims asserted by the proposed class, in addition to the principal injuries occurring in California.
Salazar v.
Avis Budget Group, Inc.
, No. 07-cv-0064, 2008 WL 5054108 (S.D. Cal. Nov. 20, 2008). The plaintiffs filed a potential class action over wage and hour disputes for missed lunch and other meal breaks, and the defendants removed pursuant to CAFA. After removal, the plaintiffs moved for, and were denied, class certification due to individual issues predominating the claims. The plaintiffs then sought remand to state court, arguing that the court’s denial of class certification eliminated CAFA subject matter jurisdiction. The defendants countered that CAFA diversity jurisdiction was decided at the time of removal, and that the federal court would retain subject matter jurisdiction for the duration of the litigation. Discussing the divergent authority on the issue, the court accepted the reasoning of those courts remanding actions after the denial of class certification, finding that when the court denied class certification, it determined that it did not have, nor was there ever, CAFA diversity jurisdiction.
Tanoh v. AMVAC Chemical Corp.
, 2008 WL 4691004 (C.D. Cal. Oct. 21, 2008). In considering whether to remand a group of state-law tort actions brought by West African foreign nationals against California companies and companies from other states, the court specifically rejected the defendants’ alternative argument that
Federal subject matter jurisdiction existed under CAFA. The defendants attempted to argue that the actions
Red, Orange, Yellow, Green, Blue, Indigo, Violet: Full Spectrum of...
v Arends and Mayfield v 327
at issue were properly removable because the plaintiffs had strategically sought to avoid federal jurisdiction over their state-law claims pursuant to CAFA by filing one action involving 668 plaintiffs in federal court and several separate actions involving the same plaintiffs, but in groups in less than 100, in state court. In remanding the actions, the court found no authority for permitting removal under the circumstances, and indicated that removal in such a case could have easily been accomplished in the provisions of CAFA, but was rejected by
Congress.
Molina v. Lexmark International, Inc.
, No. CV 08-04796, 2008 WL 4447678 (C.D. Cal. Sept. 30, 2008).
Former employee filed class action against Lexmark, alleging that Lexmark failed to pay its current and former California employees promised vacation and personal day pay, and Lexmark removed the action under the provisions of CAFA. A motion for remand was filed, and essentially the parties disputed when Lexmark first received information from which it could ascertain that the amount in controversy exceeded CAFA’s $5 million threshold. After a lengthy review of the record evidence and a corresponding discussion in its order, the court concluded that the plaintiff’s counsel shared its expert’s damages analysis with Lexmark during a May 2, 2006, mediation, thereby providing Lexmark with objective written notice of the amount in controversy more than
30 days before it removed the case to federal court on July 22, 2008. As such, the court determined that removal was untimely and that the plaintiff was entitled to have its motion to remand granted.
Tompkins v.
Basic Research LL , No. CIV 5-08-244, 2008 WL 1808316 (E.D. Cal. Apr. 22, 2008). In a putative class action arising from the sale and advertising of an allegedly ineffective dietary supplement, Akavar
20/50, the plaintiff sought remand to state court after the defendants removed under CAFA, asserting that the defendants did not meet their burden of proving that $5 million dollars were in controversy. Finding that the complaint was silent as to any mention of an aggregate sum of the class members’ claims, the court applied the preponderance of the evidence standard to determine that the defendants made the requisite showing of the
CAFA amount in controversy. The court engaged in a step-by-step analysis to evaluate the defendants’ assertion of the amount in controversy, and ultimately found that the defendants’ proof satisfied a showing that it was more likely than not that the $5 million amount in controversy requirement had been met. Included in the figures totaling the amount in controversy threshold were restitution or compensatory damages for the recall or buyback sought, 25 percent of those damages in a common fund for attorneys’ fees, a “conservative” estimate of a 1:1 ratio for determining punitive damages as related to compensatory damages, and the amount for the cost of the defendants’ cost of compliance with injunctive relief in the form of buybacks and corrective advertising.
Other :
DiCola v. White Brothers Performance Products, Inc.
, 69 Cal. Rptr. 3d 888 (Cal. Ct. App. 2008). The plaintiff sued motorcycle parts manufacturer and distributor for product liability based on an allegedly defective motorcycle kickstand that caused accident injuring the plaintiff and killing her husband. The defendants denied placing the kickstand at issue on the market and moved for summary judgment. On appeal, the court affirmed summary judgment, finding that the defendants adequately met their burden of proof of showing that they did not manufacture or distribute the kickstand, and the plaintiff failed to effectively rebut the defense.
Arriaga v. CitiCapital Comm. Corp.
, 85 Cal. Rptr. 3d 143 (Cal. Ct. App. 2008). The plaintiff filed suit alleging strict liability, negligence, and breach of warranty after being injured when his finger became entangled in a glue spreading machine at work. CitiCapital’s predecessor financed the lease of the machine to its previous owner, and CitiCapital moved for summary judgment asserting that it did not select, manufacture or supply the machine, and as a finance lessor and one time seller was not a part of the chain of commerce and therefore could not be subject to strict liability. The appellate court affirmed the trial court’s grant of summary judgment, finding that the public policy considerations behind imposing liability on those who distribute con-
328 v Product Liability Conference v April 2009
sumer goods vertically were not furthered by including “finance lessors,” and concluded that CitiCapital’s status as a finance lessor meant that it could not be liable under a strict products liability or negligence theory.
Bullock v. Philip Morris USA, Inc.
, 71 Cal. Rptr. 3d 775 (Cal. Ct. App. 2008). After being diagnosed with lung cancer, the plaintiff sued Philip Morris for products liability and fraud. The trial court ultimately entered a jury verdict in favor of the plaintiff for $850,000 in compensatory damages and $28 million in punitive damages. On appeal, the court affirmed the trial court’s findings as to liability and compensatory damages, but granted a new trial to determine an appropriate punitive damages award. Morris argued on appeal that the plaintiff’s product liability claim failed because there was no substantial evidence of an available, safer cigarette design, and the appellate court rejected the argument, noting that the jury could have properly found that the cigarette was defective in design if the benefits of its design did not outweigh the risk of danger inherent in the design. The court also rejected the argument that the jury’s findings of liability for intentional misrepresentation and false promise were not supported by substantial evidence. However, the court did find that the trial court erred in refusing a proposed jury instruction regarding punitive damages that would have precluded the jury from imposing punishment for harm caused to nonparties.
Johnson v. American Standard, Inc.
, 179 P.3d 905 (Cal. 2008). The plaintiff was a trained and certified
HVAC technician, who filed suit for negligence and strict liability for failure to warn and design defect, claiming that the maintenance and repairs he performed on air conditioning units exposed him to phosgene gas, which caused him to develop pulmonary fibrosis. Affirming the lower court’s grant of a defense summary judgment, the Supreme Court of California held that the sophisticated user doctrine applied under California law and provided a complete defense to each of the plaintiff’s claims. The court found that the sophisticated user doctrine contained an objective “should have known” standard, meaning that a plaintiff’s claim lack of actual knowledge is irrelevant. The court also found that the sophisticated user defense applies equally to strict liability and negligent failure-to-warn cases, and that the relevant time for determining user sophistication is at the time of the plaintiff’s injury.
Greystone Homes, Inc. v. Midtec, Inc.
, 86 Cal. Rptr. 3d 196 (Cal. Ct. App. 2008). This case of first impression determined whether an indemnity action may be brought by a general contractor for economic loss it paid under California’s Right to Repair Act. Greystone sued Midtec for negligence and indemnity, arising out of claims made against Greystone by homeowners for defective plumbing fittings that Midtec manufactured. The trial court granted Midtec’s motion for summary judgment, and Greystone appealed asserting that it should be allowed to seek indemnity under the Right to Repair Act. On appeal, the court reversed, noting that although under traditional principles of tort law there would be no right to indemnity for payment of purely economic losses, the Right to Repair Act allowed homeowners to recover purely economic losses from a product manufacturer. The court reasoned that since individual homeowners could bring such an action under the Act, a builder could bring an equitable indemnity action, seeking reimbursement for economic loss to homeowners caused by the manufacturer’s negligence or breach of contract.
Ontiveros v. 24 Hour Fitness Corp ., 86 Cal. Rptr. 3d 767 (Cal. Ct. App. 2008). The plaintiff filed suit against her fitness club for premises liability and strict products liability, claiming that a cardio-vascular training machine lost resistance while she was using it, causing her to fall backwards and injure herself. The trial court entered summary judgment in favor of 24 Hour Fitness, and the plaintiff appealed. The appellate court affirmed, reasoning that the fitness club provided more to its members than just exercise machines, which was merely incident to the club’s provision of fitness services, and ultimately found that the fitness club was not part of the chain of distribution for purposes of product liability.
In re Mattel, Inc ., No. 2:07-ml-01897-DSF-AJW, 2008 WL 5147996 (C.D. Cal. Dec. 8, 2008). Consumers brought a class action against toy manufacturers and retailers, alleging that manufacturers produced and
Red, Orange, Yellow, Green, Blue, Indigo, Violet: Full Spectrum of...
v Arends and Mayfield v 329
retailers sold toys that were defective and unsafe after making representations about the quality of the toys. The defendants moved to dismiss the plaintiffs’ second amended consolidated class action complaint. Rejecting the defendants’ main arguments for dismissal, the district court found that the defendants’ voluntary product replacement did not preempt the consumers’ state-law reimbursement remedies, and that the consumers had sufficiently alleged injury in seeking medical monitoring by asserting allegations concerning the toxicity of lead, the seriousness of diseases caused by exposure to lead, and the clinical value of early detection and diagnosis of lead poisoning.
Conte v. Wyeth , 85 Cal. Rptr. 3d 299 (Cal. Ct. App. 2008). The plaintiff developed a neurological disorder allegedly as a result of taking generic metoclopramide for almost four years. The plaintiff filed suit against the manufacturer of the generic drug, as well as other generic manufacturers, and Wyeth, claiming that the manufacturers knew or should have known of a widespread tendency among physicians to misprescribe
Wyeth’s Reglan and its generic equivalents because the drug’s labeling substantially understates the risks of serious side-effects from extended use. In reversing a judgment in favor of Wyeth, the court held that Wyeth’s common-law duty to use due care in formulating its product warnings extends to patients whose doctors foreseeably rely on its product information when prescribing metoclopramide, whether the prescription is written for and/or filled with Reglan or its generic equivalent.
D. Guam
There are no reported cases.
E. Hawaii
There are no reported cases.
F. Idaho
Tort Reform : No cases reported in this area.
Preemption : No cases reported in this area.
Environmental or “Green” Products Litigation : No cases reported in this area.
Market Share or Other New Theories of Liability : No cases reported in this area.
Class Action Fairness Act (CAFA) : No cases reported in this area
Other :
Obendorf v. Terra Hug Spray Co.
, 188 P.3d 834 (Idaho 2008). Asparagus farmers filed suit originally alleging ordinary negligence in the misapplication of herbicides to their crop, which resulted in severe damage at the end of the growing season, including the loss of one entire field that had to be plowed under and replaced with corn. On the final day of trial, the court allowed farmers to amend their complaint to assert a claim for negligence per se , and permitted the inclusion of a negligence per se jury instruction on the verdict form based on an Idaho statute providing that use of a pesticide in a manner inconsistent with its labeling, or the recommendation of using a pesticide in a manner inconsistent with its labeling, is negligent. The Idaho Supreme
Court found no error with the permissive amendment and jury instruction on the basis that a party is not required to specifically plead negligence per se in their complaint when alleging a cause of action for ordinary negligence. Based on this, the farmers were not even obligated to amend their complaint in this manner, and thus there was no error in having allowed them to do so.
330 v Product Liability Conference v April 2009
G. Montana
Tort Reform : No cases reported in this area.
Preemption :
Smith v. Burlington Northern & Santa Fe Railway Co.
, 187 P.3d 639 (Mont. 2008). Daughter of motorist killed in collision with a train at railroad crossing brought wrongful death and survival action against railroad, alleging negligent maintenance of the crossing and negligent operation of the train. The trial court granted partial summary judgment in favor of the defendant, finding that the state-law tort claims premised upon the adequacy of the warning devices at the railroad crossing were preempted by the Federal Railway Safety Act under the Supreme Court’s decision in Norfolk Southern Railway Co. v. Shanklin , 529 U.S. 344 (2000). On appeal, the
Montana Supreme Court held that section 1528 of the 9/11 Act did not overrule the FRSA preemption analysis of Shanklin , where the Supreme Court held that when the FHWA approved a crossing improvement project and the warning devices are installed using federal funds, federal law thereby establishes a federal standard for the adequacy of those devices that displaces state tort law addressing the same subject.
Environmental or “Green” Products Litigation : No cases reported in this area.
Market Share or Other New Theories of Liability : No cases reported in this area.
Class Action Fairness Act (CAFA) : No cases reported in this area
H. Nevada
Tort Reform : No cases reported in this area.
Preemption : No cases reported in this area.
Environmental or “Green” Products Litigation : No cases reported in this area.
Market Share or Other New Theories of Liability : No cases reported in this area.
Class Action Fairness Act (CAFA) : No cases reported in this area
Other :
Neal-Lomax v. Las Vegas Metropolitan Police Department , 574 F. Supp. 2d 1193 (D. Nev. 2008). This action arose out the death of an arrestee following a struggle with police in which an officer used a taser on the arrestee. In addition to bringing claims against the police department and the individual officers involved, the plaintiffs pursued product liability claims against the taser’s manufacturer based on theories of negligent design and defective warnings. The court granted summary judgment for the defendant manufacturer, finding that the plaintiffs had failed to raise a genuine issue of material fact on the question of causation. The temporal proximity of the taser application and the arrestee’s death was not sufficient to raise a question of fact; rather, the court found that Nevada law required expert testimony opining to a reasonable degree of medical certainty that the allegedly defective product caused the alleged injury.
I. Northern Mariana Islands
There are no reported cases.
J. Oregon
Tort Reform : No cases reported in this area.
Preemption : No cases reported in this area.
Environmental or “Green” Products Litigation : No cases reported in this area.
Red, Orange, Yellow, Green, Blue, Indigo, Violet: Full Spectrum of...
v Arends and Mayfield v 331
Market Share or Other New Theories of Liability : No cases reported in this area.
Class Action Fairness Act (CAFA) : No cases reported in this area
Other :
Bispo v. GSW, Inc.
, No. 05-CV-1223-PK, 2008 WL 4911904 (D. Or. Nov. 12, 2008). Homeowner brought action against gas safety valve manufacturer for claims of strict liability and negligence, arising when valve failed, causing water heater to explode in home. The district court granted summary judgment in favor of the manufacturer, applying California products liability law under Oregon choice of law principles and finding that although the valve’s failure proximately caused the plaintiff’s injuries, the benefits of the valve’s design outweighed its risks. The court also found that under California law, because the manufacturer did not have constructive knowledge of the cause of the valve’s failure, it did not have a duty to warn.
Lowe v. Philip Morris USA, Inc.
, 183 P.3d 181 (Or. 2008). Cigarette smoker filed an action against tobacco companies alleging that her accumulated exposure to cigarette smoke had increased her risk of contracting lung cancer some time in the future, and she sought medical monitoring. The trial court dismissed the plaintiff’s action for failure to state a claim for negligence. On appeal, the Supreme Court of Oregon held that the plaintiff’s allegation that her accumulated exposure to cigarette smoke required her to undergo periodic medical monitoring was insufficient to give rise to a negligence claim under Oregon law, as the plaintiff failed to allege any injury to her person or property, nor did she identify any duty that companies owned her beyond the common-law duty to exercise reasonable care.
K. Washington
Tort Reform : No cases reported in this area.
Preemption : No cases reported in this area.
Environmental or “Green” Products Litigation : No cases reported in this area.
Market Share or Other New Theories of Liability:
Payne v. Saberhagen Holdings, Inc.
, 190 P.3d 102 (Wash. Ct. App. 2008). A former Navy boiler operator and technician (and his wife), who had worked around asbestos while in the Navy and was later diagnosed with mesothelioma, sought damages from several defendants, including the successor in interest to a corporation that in 1962 purchased the parent company of the manufacturer of the evaporators and fuel oil heaters that were installed aboard the ships on which the plaintiff had worked and that were wrapped in asbestos insulation manufactured by another corporation. The plaintiffs asserted that the purchase included the manufacturer’s asbestos-related liabilities based on de facto merger and continuation of the product line. After severing for trial the issue of the defendant’s liability as corporate successor to the manufacturer, the Superior Court for King
County entered a judgment in favor of the plaintiffs on the sole issue of successor liability. Division One of the
Washington State Court of Appeals reversed, holding that there was no basis for imposing the asbestos-related liabilities upon the successor. The appellate court reasoned there was no showing that the shareholders or owners of the manufacturer received any stock of the predecessor to establish continuity of ownership as required for de facto r merger, and the predecessor’s purchase of the manufacturer’s parent company for cash did not by itself transfer the manufacturer’s asbestos-related liabilities to the predecessor. Further, there was no evidence of any sales of the equipment after the purchase of the parent to support a finding that the predecessor continued to manufacture and sell the equipment as required to support the product-line exception to nonliability of successors, and the predecessor never held itself out as a continuation of the manufacturer.
Class Action Fairness Act (CAFA):
332 v Product Liability Conference v April 2009
Myrick v. Nationwide Mutual Insurance Co.
, 2008 U.S. Dist. Lexis 1708 (W.D. Wash. Jan. 3, 2008). The plaintiff filed a putative class action against defendant Nationwide in state court asserting that Nationwide made Personal Injury Protection (“PIP”) coverage payments to insureds like plaintiff and then inappropriately sought reimbursement for those payments from the insureds even though the insured had not been made whole by a third party tort-feasor. Nationwide filed a notice of removal, asserting that the United States District Court for the Western District of Washington had diversity jurisdiction under the Class Action Fairness
Act (“CAFA”), 28 U.S.C. § 1332(d), because plaintiff brought the action on behalf of a putative class of at least
100 individuals, the minimum diversity requirement was met ( i.e.
, at least one member of the class is a citizen of a state different from any defendant), and the amount in controversy exceeded $5 million. Nationwide relied on the declaration of a “Senior Trainer/Development Instructor” at Nationwide for the amount in controversy requirement, which stated that from January 2002 through the present, “Nationwide made PIP payments to Washington insureds and later recovered in excess of $7,000,000 of these PIP payments.” The plaintiff filed a motion to remand and for attorneys’ fees and costs. The narrow dispute centered on whether the amount in controversy requirement had been satisfied for purposes of removal. The district court granted plaintiff’s motion to remand but denied plaintiff’s request for attorneys’ fees, reasoning the declaration did not address the claims as pled in plaintiff’s complaint. Specifically, plaintiff sought recovery only for those PIP payments
Nationwide sought to recover where its insureds had not been made whole by third party tort-feasors. Nationwide did not argue or present any evidence suggesting that the subset of recovered PIP payments focused on in plaintiff’s complaint is equal to the total number of PIP payments Nationwide actually recovered. Thus, if some of the $7 million in PIP payments recovered by Nationwide were from insureds that had previously been made whole by third party tort-feasors, those recoveries would not be included within the recoveries at issue in this case. Moreover, if Nationwide recovered some of the PIP payments from someone other than the insured, those recoveries would fall outside the context of the lawsuit. Because Nationwide failed to offer any evidence suggesting that the claims as pled implicate more than $ 5 million, Nationwide failed to meet its burden of proving by a preponderance of the evidence that removal jurisdiction was proper.
Other:
Braaten v. Saberhagen Holdings , 2008 Wash. Lexis 1225 (Dec. 11, 2008). A former pipefitter who frequently was exposed to asbestos in the course of working on Navy ships and who was later diagnosed with mesothelioma, a disease caused by the inhalation of asbestos dust, sought damages from several valve and pump manufacturers for failure to warn about the danger of asbestos inhalation during routine maintenance of the valves and pumps. The valves and pumps manufactured by the defendants were installed on the Navy ships and the Navy applied asbestos-containing thermal insulation to them. None of the defendants manufactured, sold, or otherwise supplied the asbestos insulation applied to their products. Some of the defendants’ products originally contained packing and gaskets with asbestos in them, but the defendants did not manufacture these products themselves; rather, the packing and gaskets were manufactured by other companies and installed on the defendants’ products. Although the plaintiff claimed he was exposed to asbestos in these products supplied by the defendants, the evidence showed only that the packing and gaskets in the pumps and valves were replaced several times over their life with new packing and gaskets manufactured and sold by other companies.
It was not known how many times the packing and gaskets had been replaced in the defendants’ pumps and valves before the plaintiff worked on them. Also, the plaintiff never installed or worked on new pumps or valves.
The plaintiff initially filed an action in a Texas court but, after the court entered a summary judgment in favor of one of the defendants, the plaintiff took a nonsuit against the remaining defendants and filed a new action in
Washington (King County Superior Court). The trial court in Washington entered summary judgments in favor of the defendants, ruling that they had no duty to warn the plaintiff about the dangers of exposure to asbes-
Red, Orange, Yellow, Green, Blue, Indigo, Violet: Full Spectrum of...
v Arends and Mayfield v 333
tos in products manufactured by others to which the plaintiff was exposed in the course of maintaining the defendants’ products. The Washington State Court of Appeals reversed (137 Wn. App. 32 (2007)), holding that the defendants had a duty to warn of the danger of asbestos in the insulation installed on the pumps and valves because they knew that their equipment would be insulated with material containing asbestos and that maintenance of their equipment would result in exposure to the asbestos. The Washington Supreme Court reversed the court of appeals and reinstated the summary judgments. The supreme court found that the worker did not present sufficient evidence to withstand summary judgment as to whether the defendants manufactured, sold, or were otherwise in the chain of distribution of the asbestos-containing insulation applied to their products.
The defendants did not have a duty under either common-law products liability or common-law negligence principles to warn of the danger of exposure during maintenance of their products to asbestos-containing insulation that was manufactured, supplied and applied to their products by third parties.
X. Tenth Circuit
By Shannon Bell, Kim Tran, Donald Patterson, and Jeremy K. Ward
Shannon Bell is a senior litigation associate at the Denver law firm of Moye White, LLP. Ms. Bell is a member of the complex commercial litigation trial section and practices in all areas of commercial litigation, including product liability, commercial banking, construction, and real estate.
Kim Tran is an attorney in the law firm of Hiltgen & Brewer PC in Oklahoma City. Ms. Tran’s practice is concentrated in the areas of product liability, insurance defense, insurance coverage, commercial litigation, and construction law. She represents companies involved with consumer goods and products, manufacturing industries, and the insurance market.
Donald Patterson is Of Counsel to the Topeka/Overland Park law firm of Fisher, Patterson, Sayler &
Smith. He is a Fellow of the American College of Trial Lawyers, a member of the Kansas Association of Defense
Counsel, and a longtime active member of the Product Liability Committee of DRI. Mr. Patterson is a primary author of DRI’s 1991 monograph, Expert Testimony and the Defense of Litigation .
Jeremy K. Ward is an associate attorney with the law firm of Feldman, Franden, Woodard & Farris,
PLLP in Tulsa, Oklahoma. His practice is focused primarily on the defense of product liability, construction defect, over-the-road trucking, and professional negligence claims.
Tort Reform : No cases reported in this area.
Preemption : No cases reported in this area.
Class Action Fairness Act (CAFA) : No cases reported in this area.
Environmental or “Green” Products Litigation : No cases reported in this area.
Market Share or Other New Theories of Liability : No cases reported in this area.
Other :
McPhail v. Deere & Co.
, 529 F.3d 947 (10th Cir. 2008). Estate of farmer who was fatally injured in a tractor accident brought products liability action in state court against the tractor manufacturer and other John
Doe defendants under Oklahoma law. The Western District of Oklahoma granted summary judgment and it was brought up for appeal. The court examined the adequacy of the warning that had two sentences (“starting in gear kills” and “start only from seat in park or neutral”), the word “Danger” and an illustration of a person standing on the ground being run over by the tractor as it moves forward. The court observed that the sticker did not warn a user that the tractor’s transmission can engage even though the tractor appears to be in neutral.
Instead the sticker expressly connects the danger of death to starting in gear. The court found that the dece-
334 v Product Liability Conference v April 2009
dent may have been aware that a tractor would move if it’s bypass started while it was in gear, but nothing in the record showed that the decedent also knew that a tractor that appeared to be in neutral could in fact be capable of unexpected movement. The court found that the warning label related to dangers of bypass starts generally, but did not overcome the more specific danger of a potential “false” or “apparent” neutral transmission setting that may further endanger farmers who may have choose to bypass start as a stopgap measure. The court reversed the district court’s grant of summary judgment in favor of Deere.
A. Colorado
Tort Reform:
Lanahan v. Chi Psi Fraternity , 175 P.3d 97 (Colo. 2008). The plaintiff commenced a wrongful death action against the Chi Psi Fraternity, Alpha Psi Delta Corporation, and seven Chi Psi members, seeking to recover for the death of her son caused by excessive drinking during his initiation into the University of Colorado-Boulder chapter of the Chi Psi fraternity. The Colorado Wrongful Death Act caps the plaintiff’s potential recovery of noneconomic damages at $250,000, adjusted for inflation. The trial court ruled that this cap applies on a per-claim basis rather than a per-defendant basis. The plaintiff filed a Rule 21 petition seeking relief from the trial court’s order, and the supreme court issued a rule to show cause. The court held that the Colorado
Wrongful Death Act’s noneconomic damages cap applies on a per-claim basis. The court therefore discharges the rule.
Preemption:
Parker v. Stryker Corp., 2008 WL 4716879 (D. Colo. Oct. 22, 2008). The plaintiff underwent a total hip arthroplasty during which she was implanted with the Trident Ceramic Acetabular System (“Trident System”).
The plaintiff complained of constant irritation and discomfort, additional bone loss, and increased risk for future revision surgery. The plaintiff sued manufacturer under Colorado state law for failure-to-warn, manufacturing defect, design defect, breach of express and implied warranties, breach of implied warranty of fitness, breach of implied warranty of merchantability, and negligence and recklessness. Manufacturer moved to dismiss, claiming that all plaintiff’s state-law causes of action were preempted under the MDA. The district court, interpreting the recent Supreme Court decision of Reigel v. Medtronic, Inc.
, 128 S. Ct. 999 (2008), which in turn interpreted the preemptive scope of the 1976 Medical Device Amendments (“MDA”), to the Federal Food,
Drug and Cosmetic Act of 1938 (“FDCA”), agreed with the manufacturer that plaintiff’s claims were preempted under the MDA. The court recognized that only claims that parallel the federal requirements of the MDA are not preempted; however here, plaintiff failed to provide any factual detail to substantiate the crucial allegation of parallel claims versus different or additional requirements under the MDA.
Environmental or “Green” Products Litigation : No cases reported in this area.
Market Share or Other New Theories of Liability : No cases reported in this area.
Class Action Fairness Act (CAFA):
Apodaca v. Allstate Ins. Co.
, 2008 WL 113844 (D. Colo. Jan. 2008). This case came before the court on the parties disagreement over whether the phrase, “the claims of the individual class members,” refers to the common claims of such members, or any claims of individual class members. CAFA provides that “[i]n any class action, the claims of the individual class members shall be aggregated to determine whether the matter in controversy exceeds” the jurisdictional minimum. 28 U.S.C.A. § 1332(d)(6). The court held that the phrase refers solely to the common claims of class members, and not to the plaintiffs’ individual additional personal injury protection claims. As support for this holding, the court found that that Congress’s expressly stated pur-
Red, Orange, Yellow, Green, Blue, Indigo, Violet: Full Spectrum of...
v Arends and Mayfield v 335
pose in CAFA of “providing for Federal court consideration of interstate cases of national importance ” precludes the interpretation of this phrase as referring to any claims of individual class members.
Other :
Cantrell v. Cameron , 195 P.3d 659 (Colo. 2008). The right to an individual’s computer is not absolute.
The supreme court held that the trial court abused its discretion in failing to issue a protective order to limit the scope of discovery with respect to petitioner’s laptop computer. When the right to confidentiality is invoked to prevent discovery of personal materials or information, the trial court must balance the individual’s right to keep personal information private with the general policy in favor of broad disclosure. Because the trial court neglected to balance these interests or to make findings on how disclosure might occur in a manner least intrusive to petitioner’s privacy interests, the supreme court vacated the order compelling production of the laptop and instructed the trial court to issue a protective order limiting the scope of the laptop inspection.
Cardenas v. Jerath, 180 P.3d 415 (Colo. 2008). In this case, the hospital where a child was born with severe neurological injuries, failed to conduct a routine investigation of its own. Instead, the hospital retained an attorney who created notes of his interview with a labor and delivery nurse and of his communications with the hospital’s risk-management personnel, as well as of his review and evaluation of relevant medical records.
These notes represent the only investigative report that exists of what happened before, during, and after the child’s birth, and may contain unique factual information, such as the contemporaneous sense impressions of a fact witness taken nearly four years ago, regarding the child’s birth. The supreme court holds that, under these circumstances, the factual portions of the attorney’s notes are not shielded from discovery by the work product doctrine, because the plaintiffs have demonstrated a substantial need for the attorney’s notes and an inability to obtain the information contained in the notes by any other means.
B. Kansas
Tort Reform : No cases reported in this area.
Preemption :
Troutman v. Curtis, M.D.
, 185 P.3d 930 (Kan. 2008). Patients brought state tort law claims against manufacturer of suturing device after suffering complications following cardiac catheterization procedures. The plaintiffs alleged in their Petition that defendant was negligent in its design, testing, inspection, manufacturing, sale, [and] warning post and pre-sale” of its suturing device and that defendant was strictly liable for plaintiffs’ injuries. In accord with the Supreme Court decision in Riegel v. Medtronic, Inc.
, 128 S. Ct. 999 (2007), the court held that successful pursuit of and compliance with the premarket approval process of the FDA means that state tort law claims arising out of use of an approved device are subject to federal preemption under 21 U.S.C.
§ 360k(a) (2000) of the MDA. However the preemption clause of the MDA does not prevent a state from providing a damages remedy for claims premised on a violation of FDA requirements; the state’s duties in such a case parallel, rather than add to federal requirements. The court ultimately held that the plaintiffs’ petition was minimally adequate to raise a claim not subject to federal preemption as their controversion of one allegation of uncontroverted fact was sufficient to keep that claim alive. Nevertheless, the district court did not abuse its discretion by denying plaintiffs more time to build their case and grant the defense motion for summary judgment.
Environmental or “Green” Products Litigation : No cases reported in this area.
Market Share or Other New Theories of Liability : No cases reported in this area.
Class Action Fairness Act (CAFA) : No cases reported in this area
Other :
336 v Product Liability Conference v April 2009
Vanderwerf v. Smith, Kline, Beecham Corp.
, 529 F. Supp. 2d 1294 (D. Kan. 2008). Family and estate of patient who committed suicide brought products liability suit against manufacturer of antidepressant and antipsychotic drug Paxil that patient was taking at time of death. Manufacturer moved for summary judgment and to exclude testimony of physician. Physician. The court held that the physician’s testimony as to causation was inadmissible and that based on the facts the plaintiffs could not show general or specific causation. The plaintiffs were required to produce evidence that paxil caused the behavior of which they complain, at least in some people. The plaintiffs could not meet their burden of proving medical causation without expert that paxil can cause suicide and that paxil more likely than not caused patient’s suicide. And the plaintiffs could not show proximate causation because defendants provided adequate warnings to patient’s physicians and additional warnings would not have changed their course of treatment.
C. New Mexico
There are no reported cases.
D. Oklahoma
Tort Reform : No cases reported in this area.
Preemption :
Dobbs v. Wyeth Pharmaceuticals , 530 F. Supp. 2d 1275 (W.D. Okla. 2008). The plaintiff brought action against pharmaceutical company alleging that her husband committed suicide as a result of taking a prescription antidepressant drug. The plaintiff argued that the defendant was liable under Oklahoma common law for failing to adequately warn that Effexor could cause suicide, asserting claims based on strict products liability, failure to warn, negligent failure to warn and misrepresentation. The defendant filed a motion for partial summary judgment arguing preemption by the FDA. In essence they claimed that the FDA had concluded that the warning proposed by plaintiffs was unsupported by scientific evidence. The court held that where the FDA has evaluated scientific evidence regarding an alleged risk associated with a drug, has considered whether that evidence warrants a labeling warning, and has expressly rejected the need for such warning as not supported by credible evidence, a state-law determination that such a warning is required creates a conflict for the manufacturer as between federal and state law, and imposes inconsistent federal and state obligations. Summary judgment was granted.
Environmental or “Green” Products Litigation : No cases reported in this area.
Market Share or Other New Theories of Liability : No cases reported in this area.
Class Action Fairness Act (CAFA) : No cases reported in this area
Other :
Spence v. Brown-Minneapolis Tank Co.
, --- P.3d ---, 2008 WL 486300 (Okla. Civ. App. 2008). Employees of builder of industrial tanks injured at a job site brought action for negligence and strict products liability against parent company of builder. The defendant’s summary judgment motion argued in part that as a seller of a used product in the same condition as received, it bore no liability under either products’ liability or negligence theories and that it was not a commercial seller of products in any sense and therefore not subject to strict product liability. The court held that parent company’s acquisition of assets and dispersing of them among its companies, did not make parent company a “seller” subject to strict products liability, and relationship between parent company and related companies transferring equipment between them did not give rise to legal duty of care for negligence claim.
Red, Orange, Yellow, Green, Blue, Indigo, Violet: Full Spectrum of...
v Arends and Mayfield v 337
E. Utah
Tort Reform : No cases reported in this area.
Preemption : No cases reported in this area.
Environmental or “Green” Products Litigation : No cases reported in this area.
Market Share or Other New Theories of Liability : No cases reported in this area.
Class Action Fairness Act (CAFA) : No cases reported in this area
Other :
Yirak v. Dan’s Supermarkets, Inc., Dole Food Co., Inc., and Dole Fresh Vegetables , 2008 Utah App. 210
(May 30, 2008). This case stems from an appeal from a granting of summary judgment regarding a case involving a supermarket that was sued when a piece of glass was found within a package of salad. The trial court had granted Dan’s summary judgment on the ground that Dan’s fell under the passive retailer exception to strict liability under the Utah Product Liability Act, Utah Code Ann. sections 78-15-1 to -7 (2002). Yirak argued on appeal that Dan’s was not a passive retailer because glass that was identified within a package of salad could have entered the salad bag while it was in the possession of Dan’s.
The court held that an entity trying to establish they are a passive retailer must present evidence sufficient to establish that they are a passive retailer pursuant to the definition and there are not material issues of fact. Once the retailer presents sufficient evidence, the burden then shifts to the disputing party to identify contested facts or legal flaws in the application of the passive retailer exception. In this case, Dan’s presented evidence that it is a passive retailer by submitting an affidavit from its store director stating that it does not manufacture, design, repackage, label or inspect the packaged salad supplied by Dole. In order for Yirak to contradict the evidence, Yirak would have had to present evidence that Dan’s performed any of those activities in connection with the prepackaged salad to create a genuine issue of material fact regarding application of the passive retailer exception. The only evidence presented by Yirak was that the glass entered the salad at some unidentified time, which the court held insufficient to establish a material fact regarding the application of the passive retailer exception.
Downing v. Highland Pharmacy d/b/a United Drug Highland Pharmacy , 2008 Utah 65 (Sept. 16, 2008).
Two questions were raised on appeal: (1) whether a pharmacy may be held liable in negligence for continuing to fill prescriptions for a drug that has been withdrawn from the market by the Food and Drug Administration and/or the manufacturer; and (2) whether a pharmacy may be held liable in negligence for failing to warn the patient of the drug’s status. The trial court applied the learned intermediary doctrine from products liability law when deciding that under no set of circumstances could the pharmacy be held liable for negligence in filling prescriptions issued by a physician. The court of appeals held that the learned intermediary doctrine did apply to negligence as well as strict liability claims; however, the learned intermediary rule does not preclude as a matter of law the negligence claim against a pharmacist from dispensing a prescribed drug that has allegedly been withdrawn from the market and that pharmacists under such circumstances owe their customers a duty of reasonable care. The learned intermediary doctrine would preclude a negligence claim concerning some actions by a pharmacist but not the fact specific actions subject to this case.
Utah Local Government Trust v. Wheeler Machinery Co.
, 2008 Utah 84 (Dec. 12, 2008). The plaintiff sued the defendant alleging that one of the generators sold, supplied, assembled and installed by the defendant caused the fire that damaged the city’s property. The defendant challenged the complaint alleging that it was barred by the two year Utah Product Liability Acts’ statute of limitation. A question was raised as to whether this was actually a product liability claim. On appeal, the supreme court stated that defining product and sale under the Product Liability Act were issues of first impression and held that the appropriate test for determin-
338 v Product Liability Conference v April 2009
ing whether a claim is a product liability claim is (1) whether the transaction primarily concerned a product; and (2) whether the product was defective when it was sold. The Utah Supreme Court, in order to determine if a hybrid tort claim concerns a product or service the Utah Supreme Court adopted the “Beehive Brick test,” which states that if service predominates, and the transferred title and personal property is only an incidental feature of the transaction, the transaction is a service claim, not a product liability claim, i.e., look at the predominant purpose of the transaction. The court then adopted a definition for sale as set forth in the UCC. Specifically, “a sale occurs with the passing of title from the seller to the buyer for a price.” Utah Code & Ann. § 70A-2-106(1)
(2001). Section 70A-2-401(2) states that “unless otherwise explicitly agreed, title passes to the buyer at the time and place at which the seller completes his performance with reference to the physical delivery of the goods.”
What constituted the performance with respect to physical delivery of the goods is an issue of fact that will depend on what the parties agreed to. Therefore, the two-year product liability statute of limitations will apply only if a claim alleges damage from a product and if that product was defective when sold. Because the tort in contract actions contained within product liability share common roots, whether a transaction involves a product can be determined by using the UCC test for determining whether the transaction was for goods. In determining the purpose of the hybrid transaction, courts look to the predominant purpose of the transaction.
Herrod v. Metal Power Products, Inc., 2008 WL 5191702 (D. Utah). An automobile accident occurred as a result of the wheel assembly coming off of a trailer, the wheel assembly bounced over the center cement divider and crashed into an oncoming vehicle. The plaintiffs filed a product liability action against a number of entities. However, in pertinent part, the plaintiffs filed suit against the manufacturer of the wheel assembly and the successive company that purchased the assets of the alleged defective product seven years after the product was originally manufactured. The successor entity, Stemco, filed a motion for summary judgment arguing that the plaintiffs could not meet their burden to establish successor liability or an independent duty to warn against Stemco. The district court held that the successor entity was not a continuation of the original manufacturing entity and no successor liability could attach to the successor entity as a matter of law. As far as the plaintiffs’ independent cause of action for the successor entity failing to warn of a product defect, Utah does impose successor liability for failing to independently warn of risks of which it is aware. An independent duty to warn is appropriate only if a successor entity enters into a “similar” relationship. The commonly accepted interpretation is that the word “similar” refers back to the previous language that discusses the services of the successor for maintenance or care. A successor cannot be held liable under a duty to warn theory unless its repair, maintenance, or other service related actions have led to its knowledge of a potential for harm.
F. Wyoming
There are no reported cases.
XI. Eleventh Circuit
By Enrique “Henry” Gimenez, Jeffrey S. Bazinet, and Joshua C. Webb
Enrique “Henry” Gimenez provided research and analysis from the state of Alabama. Henry is an associate in the Birmingham, Alabama, law firm of Lightfoot, Franklin & White. In addition to DRI, he is a member of the American Bar Association, the Hispanic National Bar Association, the Alabama State Bar, and the Alabama Defense Lawyers Association, where he sits on the board of directors of the Young Lawyer’s Section.
Jeffrey S. Bazinet provided research and analysis from the state of Georgia. Jeff is a senior associate with the firm of Peters & Monyak, LLP in Atlanta, Georgia. His practice includes the defense of products liability and professional malpractice actions, as well as commercial litigation and appellate practice.
Red, Orange, Yellow, Green, Blue, Indigo, Violet: Full Spectrum of...
v Arends and Mayfield v 339
Joshua C. Webb provided research and analysis from the state of Florida, and edited the overall Eleventh Circuit section . Josh is an associate with Hill Ward Henderson in Tampa, Florida, and his practice involves a variety of commercial disputes and construction-related litigation matters.
Tort Reform : No cases reported in this area.
Preemption : No cases reported in this area.
Environmental or “Green” Products Litigation : No cases reported in this area.
Market Share or Other New Theories of Liability : No cases reported in this area.
Class Action Fairness Act (CAFA) : No cases reported in this area.
Other :
Hamatie v. Louisville Ladder, Inc.
, 293 Fed. Appx. 681 (11th Cir. 2008). Louisville Ladder asserted that it was denied a fair trial because the plaintiff presented evidence regarding Louisville’s plant relocation to Mexico and because the plaintiff suggested in closing that the damages calculation should factor in the amount saved by
Louisville due to the relocation. The Eleventh Circuit affirmed the trial court’s denial of Louisville’s motion for a new trial on these grounds, finding that the location of the plant and its manufacturing guidelines were relevant to the issue of liability in the negligent manufacturing case, and that the plaintiff’s damages award was far below the amount that would have been awarded had the relocation savings been taken into account.
A. Alabama
Tort Reform:
Carr, Jr. v. International Refining Manufacturing Co.
, 2008 WL 4892048 (Ala. 2008). In this action, former employees of an automotive-muffler manufacturing plant amended their complaint to allege wanton conduct against various new defendants that allegedly manufactured or sold to the plaintiffs’ employer chemicals and equipment that injured the employees. Accepting the defendants’ argument that the newly asserted wantonness claims were based on the plaintiffs’ original products-liability theory, the trial court dismissed the wantonness claim as barred by the two-year statute of limitations. Citing in detail McKenzie v. Killian, 887 So.
2d 861 (Ala. 2004), the Alabama Supreme Court reversed the dismissal and held that wanton conduct, when it resulted in injury, was actionable in trespass and was governed by the six-year statute of limitations under Alabama Code section 6-2-34(1), and not the two-year statute of limitations.
Preemption : No cases reported in this area.
Environmental or “Green” Products Litigation:
Griffin v. Unocal Corp.
, 990 So. 2d 291 (Ala. 2008). This wrongful death action was brought against various chemical companies alleging that the decedent-employee’s leukemia was caused by exposure to various chemicals during his employment at a tire manufacturing facility. The trial court dismissed the executrix-wife’s claims based on Garrett v. Raytheon Co., 368 So. 2d 516 (Ala. 1979), which held that any personal injury action based on her late husband’s exposure to hazardous chemicals accrued on the date of his last exposure to those chemicals; consequently, because he did not file an action within two years of the date of his last exposure, the claim was barred by the two-year statute of limitations. On appeal, the supreme court reversed the dismissal and expressly overruled Garrett.
The Alabama Supreme Court held that the claim did not accrue on the date of last exposure to those chemicals but, rather, accrued when the injury manifests itself by observable signs or symptoms or is medically identifiable, even if the injured person is not personally aware of the injury or knows of its cause or origin. Other than in the subject case, the court’s new accrual rule for toxic-substance-exposure cases was deemed to apply prospectively.
340 v Product Liability Conference v April 2009
Market Share or Other New Theories of Liability : No cases reported in this area.
Class Action Fairness Act (CAFA) : No cases reported in this area
Other :
Ex Parte Mckenzie Oil Co.
, 2008 WL 3877754 (Ala. 2008). This forum-non-conveniens decision resulted from an Escambia County motor vehicle accident in which the plaintiff, a Clarke County resident, sued the other driver and a corporate convenience store owner in Barbour County, the headquarters for the convenience store owner. After the trial court denied the defendants’ motion to transfer, the defendants petitioned the supreme court for a writ of mandamus to compel the circuit court to transfer the case to Escambia County, the location of the accident. The Alabama Supreme Court issued the writ and ordered the case transferred pursuant to the “interests of justice” prong of Alabama Code section 6-3-21.1, Alabama’s forum non conveniens statute.
The court found that application of Alabama Code section 6-3-21.1 was compulsory and required the trial court to transfer the action from a county with little, if any, connection to the action, to a county with a strong connection to the action. The fact that the convenience store’s corporate headquarters was in Barbour County was determined to be of “little” significance in comparison to Escambia County’s “strong” interest in litigating allegedly tortious conduct occurring within its borders. See also Ex parte Indiana Mills & Manufacturing, Inc.,
2008 WL 5105451 (Ala. 2008); Ex parte First Tenn. Bank Nat’l Ass’n , 994 So. 2d 906 (Ala. 2008).
Hereford v. D.R. Horton, Inc.
, 2008 WL 4097594 (Ala. 2008). In this arbitration case, the Alabama
Supreme Court held that an arbitrator’s “manifest disregard of the law” is no longer recognized as a valid ground for relief from an arbitration award. In dismissing the plaintiff’s appeal in which his only asserted ground was manifest disregard of the law, the court cited Hall Street Associates, LLC v. Mattel, Inc.
128 S. Ct.
1396 (2008), in which the United States Supreme Court rejected the many state and federal decisions that had assumed the existence of this additional, nonstatutory ground for relief.
Ex parte Phil Owens Used Cars, Inc.
, 2008 WL 2942132 (Ala. 2008). This personal jurisdiction action arose when the passengers of a conversion van were killed when one of its tires allegedly deflated, resulting in a loss of control and ultimate ejection of the passengers. The plaintiffs brought an action against Owens Used
Cars (“Owens”), which had performed work on the van. In appealing the denial of its motion to dismiss for lack of personal jurisdiction, Owens argued that it did not have the continuous and systematic contacts with
Alabama to allow general jurisdiction, and that the plaintiffs’ theories of liability did not arise out of its limited contacts with Alabama so as to confer specific jurisdiction. While Owens had limited contact with Alabama in the mid-1980s, the Alabama Supreme Court considered those contacts too remote in time from the accrual of the plaintiffs’ causes of action and the filing of their complaint to form a constitutionally satisfactory basis for general jurisdiction. In rejecting claims of specific jurisdiction, the court determined that the plaintiffs’ causes of action did not arise out of or relate to any alleged defect in one of the vans Owens produced specifically for the Alabama market. In granting Owens’ petition and dismissing the case, the court held that the plaintiffs could not produce any evidence that Owens conducted any marketing activities in Alabama that might have induced the purchase of the van or that Owens sought to serve the Alabama market through sales of its vans to a Georgia car dealership.
B. Florida
Tort Reform:
BDO Seidman, LLP v. Banco Espirito Santo International, Ltd.
, 2008 WL 1734148 (Fla. 3d Dist. Ct.
App. 2008). After judgment was entered in favor of Banco Espirito, BDO sought review of trial court’s denial of motion to quash Banco Espirito’s notice of taking deposition duces tecum in aid of execution. BDO claimed that
Red, Orange, Yellow, Green, Blue, Indigo, Violet: Full Spectrum of...
v Arends and Mayfield v 341
it properly posted a $50 million bond to stay execution, pursuant to section 45.045, Florida Statutes, but Banco
Espirito countered that the trial court properly refused to say execution because section 45.045 unconstitutionally infringed upon the Florida Supreme Court’s rulemaking authority over procedural matters, specifically evidenced by the Florida Rules of Appellate Procedures provisions on bonds for staying execution of money judgments. However, the Third District Court of Appeal reversed the trial court’s decision, holding that section
45.045 concerned substantive rights to property and to appeal, and therefore was not an impermissible intrusion on the procedural practices of the court. The Florida Supreme Court’s November 6, 2008, decision denying review can be located at 2008 WL 4822516.
Williams v. American Optical Corp.
, 985 So. 2d 23 (Fla. 4th Dist. Ct. App. 2008). The plaintiffs in several cases brought claims for damages against various defendants for exposure to asbestos, before the Florida
Asbestos and Silica Compensation Fairness Act took effect in 2005, which were dismissed by the trial court for failing to meet the requirements of the Act. In a consolidated appeal the plaintiffs argued that before the Act, asbestosis claims required a plaintiff to show only that an injury was suffered from an asbestos-related disease, but that the Act required a claimant to plead and prove an existing malignancy or actual physical impairment for which asbestos exposure was a substantial contributing factor. The plaintiffs contended that the retroactive application of the Act deprived them of their actions for money damages even if their injury had not yet become malignant or caused any physical impairment. The Fourth District Court of Appeal reversed the trial court’s dismissals, holding that the plaintiffs had a vested right to sue before the Act taking effect, despite a lack of accompanying malignancy or physical impairment, and that the Act could not constitutionally be retrospectively applied to require plaintiffs with accrued causes of action to show malignancy or physical impairment.
Stimpson v. Ford Motor Co.
, 988 So. 2d 1119 (Fla. 5th Dist. Ct. App. 2008). The plaintiff sued Ford claiming that a defect in her 1991 Aerostar van caused the vehicle to unexpectedly accelerate in October 2003, striking a pole and injuring the plaintiff. The trial granted summary judgment to Ford under section 95.031(2)(b),
Florida Statutes, which provided that no claim arising out of a product defect could be brought more than twelve years after the date of the first sale to a consumer. However, the Fifth District Court of Appeal reversed, holding that the plaintiff should be entitled to present evidence to a jury of whether the defect was concealed by
Ford, thus tolling the 12-year statute of repose under section 95.013(2)(d) and possibly making the plaintiff’s action timely.
City of St. Petersburg v. Total Containment, Inc.
, 2008 WL 5428179 at *25-26 (S.D. Fla. 2008). The defendant moved for summary judgment on the plaintiffs’ claims for punitive damages, asserting that the plaintiffs had failed to provide any evidence of the type of misconduct required under section 768.72, Florida
Statutes, to support claims for punitive damages. The court denied the defendant’s motion, ruling that disputed issues of material fact existed as to whether the defendant’s conduct qualified as intentional misconduct under section 768.72. The court found that evidence in the record suggested that the defendant knew of the alleged defect in the product at issue and of the likely resulting damage, and that the defendant also knew that the product was marketed and sold to potential customers as a superior alternative to other products, all of which created a factual issue for resolution by the jury regarding the question of intentional misconduct.
Vargas v. Enterprise Leasing Co.
, 993 So. 2d 614 (Fla. 4th Dist. Ct. App. 2008). The plaintiff was injured in a collision with a leased motor vehicle and brought a personal injury action against the vehicle’s lessor,
Enterprise, under a theory of vicarious liability. The trial court granted summary judgment to Enterprise, ruling that section 324.021, Florida Statutes, which placed damages caps on the amount of vicarious liability rental car companies could face under the dangerous instrumentality doctrine, was preempted by the Federal Graves
Amendment, which preempted state laws imposing liability on lessors of motor vehicles except when there was negligence or criminal wrongdoing. The Fourth District Court of Appeal affirmed the grant of summary judg-
342 v Product Liability Conference v April 2009
ment, holding that section 324.021 was a vicarious liability provision subject to preemption, not a financial responsibility provision that would have been exempt from preemption. See also Garcia v. Vanguard Car Rental
USA, Inc.
, 540 F.3d 1242 (11th Cir. 2008).
Preemption :
Design Pallets, Inc. v. Gray Robinson, P.A.
, 2008 WL 4534256 (M.D. Fla. Oct. 7, 2008). The plaintiff sued defendant alleging a number of state-law causes of action and federal RICO violations. In denying the defendant’s motion for attorneys’ fees and costs, the court found that Federal costs statute, 28 U.S.C. § 1920 et seq.
, preempted Florida’s offer of judgment statute with respect to the Federal claims at issue. Therefore, the court concluded that the defendant was not entitled to prevailing party attorneys’ fees under section 768.79, Florida
Statutes, since the court disposed of the plaintiff’s federal claims without addressing any of the Florida claims, which were dismissed by the court without prejudice after the court declined to exercise its supplemental jurisdiction.
Environmental or “Green” Products Litigation : No cases reported in this area.
Market Share or Other New Theories of Liability : No cases reported in this area.
Class Action Fairness Act (CAFA):
Clausnitzer v. Federal Express Corp.
, 2008 WL 4194837 (S.D. Fla. June 18, 2008). After denying certification of the plaintiffs’ putative class, the court found that jurisdiction under CAFA no longer existed, and the court dismissed the case for lack of subject matter jurisdiction. The court found that the question of whether a class existed was legal conclusion that district courts must reach through the certification process in order for jurisdiction to properly exist in the first place. As such, because the plaintiffs could no longer amend their complaint to possibly obtain class certification in the future, the court concluded that jurisdiction under CAFA no longer existed.
Innovative Health and Wellness, LLC v. State Farm Mutual Automobile Insurance Co.
, 2008 WL 3471597
(S.D. Fla. Aug. 11, 2008). The plaintiff moved to remand after the defendant removed under CAFA. The court found that under the Eleventh Circuit’s decision in Lowery , where the damages are unspecified in the complaint, the factual information establishing the jurisdictional amount must come from the plaintiff and that therefore the defendant can rely only on documents provided by the plaintiff. As such the court ruled that the defendant failed to meet its burden under CAFA of proving by a preponderance of the evidence that the amount in controversy exceeded $5 million because rather than relying solely on the plaintiff’s documents--the complaint and an exhibit--the defendant estimated the satisfaction of the amount in controversy requirement by using calculations in affidavits attached as exhibits to the Notice of Removal.
Innovative Health and Wellness, LLC v. Geico General Insurance Co.
, 2008 WL 3910979 (S.D. Fla.
Aug. 25, 2008). The defendant removed action under CAFA, and the plaintiff filed a motion to remand. The defendant filed a response in opposition to the motion to remand, and also submitted along with its response an affidavit setting forth the only evidence on the record as to the possible size of the class and the amount in controversy. The court found that under the Eleventh Circuit’s decision in Lowery v. Alabama Power Co.
, 483
F. 3d 1184 (11th Cir. 2007), the only evidence reviewable by the court in considering a remand motion is that evidence available at the time the motion to remand is filed. Therefore, the court remanded the action to state court, as the only evidence in the record—the affidavit—was not filed with the Notice of Removal, but rather only after the plaintiff filed its remand motion, along with the defendant’s response.
Cooper v. R.J. Reynolds Tobacco Co.
, 2008 WL 4093715 (M.D. Fla. Aug. 29, 2008). In this Engle progeny case, approximately 200 plaintiffs were grouped together in a state court action, which was removed by the defendants under CAFA. The plaintiffs filed a motion to remand the action back to state court, arguing that the
Red, Orange, Yellow, Green, Blue, Indigo, Violet: Full Spectrum of...
v Arends and Mayfield v 343
Federal district court would not have jurisdiction under CAFA if the court were to require individual trials for each plaintiff. In denying the plaintiffs’ motion, the court determined that the action qualified as a “mass action” under CAFA even if the trials were severed because at the time the complaint was filed, monetary relief claims of 100 or more persons were proposed to be tried jointly. The court further found that the event or occurrence exception to CAFA did not apply because the sales of cigarettes at issue in the case were not a single event or occurrence, and that the defendants’ remove-then-sever strategy did not necessarily defeat CAFA jurisdiction, as the plaintiffs’ packaging of “individual” claims in lots of 200 created class actions in disguise. However, the court ended its analysis by strongly recommending that the plaintiffs appeal the court’s order on an expedited basis to the Eleventh Circuit, so that the parties could be assured of the court’s subject matter jurisdiction.
Other :
Liggett Group, Inc. v. Davis , 2008 WL 5170616 (Fla. Dec. 11, 2008). The Florida Supreme Court reversed its earlier decision accepting jurisdiction to review a decision of Florida’s Fourth District Court of Appeal, and discharged jurisdiction of the appeal. In Liggett Group, Inc. v. Davis , 973 So. 2d 684 (Fla. 4th Dist. Ct. App. 2008), the Fourth District certified two questions as being of great public importance, based upon its earlier decision in the same case (973 So. 2d 467), in which the court affirmed a jury verdict in favor of the plaintiff smoker and held: (1) that the trial court erred in allowing the jury to consider a claim that Liggett was negligent in continuing the manufacture of cigarettes; but that (2) the trial court’s failure to include alternative design language in jury instructions did not constitute error. The two questions certified, which for now apparently will remain unanswered by the Florida Supreme Court based on its discharge of jurisdiction were: (1) whether a plaintiff is required to establish an alternative safer design in order to prevail on a design defect claim for an inherently dangerous product; and, (2) whether Florida should adopt the Restatement (Third) of Torts for design defect cases.
Brown v. R.J. Reynolds Tobacco Co.
, 576 F. Supp. 1328 (M.D. Fla. 2008). The defendants moved for a determination of the preclusive effects of the jury’s findings from the decertified state-court class action in
Engle v. Liggett Group, Inc.
, 945 So. 2d 1246 (Fla. 2006), arguing that the Engle findings should not apply because the jury made only general findings of wrongdoing by the Engle defendants. The defendants further contended that the Florida Supreme Court’s decision allowing use of the Engle findings violated their right to due process.
Without reaching the due process issue, Judge Schlesinger ruled that the Engle jury’s findings did not necessarily apply to the plaintiffs’ claims against the defendants in this case, concluding that certain findings could not be used to establish any element of an individual Engle plaintiff’s claim.
Reed v. Alpha Professional Tools , 975 So. 2d 1202 (Fla. 5th Dist. Ct. App. 2008). The plaintiff sued distributors of a marble edge polishing wheel after sustaining injuries when the wheel attached to a grinder he was using broke into pieces, at least one of which struck the plaintiff in the eye. However, the wheel, grinder, and the plaintiff’s glasses all disappeared from the offices of the plaintiff’s attorney, and the trial court dismissed the case as a remedy for spoliation of evidence. On appeal, the court held that the trial court erred in dismissing the case because the loss of the evidence did not necessarily preclude the plaintiff from proving his product liability claim, nor did it leave the defendant completely unable to defend the case, as the parties could be limited to use only of the same physical evidence: photographs of the missing evidence.
C. Georgia
Tort Reform:
Mason v. Home Depot U.S.A., Inc.
, 283 Ga. 271, 658 S.E.2d 603 (2008). Mason concerned the constitutionality of Official Code of Georgia section 24-9-67.1, the statute through which Georgia adopted Daubert .
The plaintiffs challenged the statute on several grounds, including equal protection and due process. The
Georgia Supreme Court upheld the plaintiffs’ challenge to the statute as a whole, but also upheld the trial
344 v Product Liability Conference v April 2009
court’s striking subsection (b)(1), which provides that facts and data on which experts rely must be admissible, on the ground that contradicts subsection (a), which provides that facts and data upon which experts rely need not be admissible.
The plaintiffs’ equal protection argument was that the statute places stricter standard on tort plaintiffs than on criminal litigants or litigants in civil condemnation actions (which are statutorily exempted from the
Daubert requirements). The Georgia Supreme Court rejected the plaintiffs’ equal protection challenge, finding that the plaintiffs did not have standing to challenge the statute on equal protection grounds because the plaintiffs could not establish they were similarly situated to other members of the class of persons who receive different treatment. The court reasoned that “for the purpose of evidentiary standards, only those accused of the same offense are similarly situated in the criminal law arena, only those asserting or defending against the same cause of action are similarly situated in the civil law arena, and the parties to civil cases are not similarly situated to those engaged in criminal prosecutions.”
The plaintiffs’ first argument concerning due process was that the trial court erred in not striking both of two contradictory subsection s concerning the facts and data on which experts may rely. (Subsection (a) states that facts and data upon which experts may rely need not be admissible while subsection (b)(1) states experts must rely on admissible facts and data. The trial court struck subsection (b)(1).) The court held that the trial court did not err by striking only subsection (b)(1) because invalid portions of a statute may be severed when they are “not mutually dependent on the remaining portions and legislative intent is not compromised.”
The plaintiffs also argued that subsection (f), which provides that in all civil cases Georgia courts should not be open to “expert evidence that would not be admissible in other states” and states that Georgia courts may draw upon Daubert -based opinions from federal courts, violated due process and improperly delegated legislative authority. The court held that the statute did not improperly delegate authority or invade the province of the judiciary because the statute did not require the application of federal law decisions, and instead stated a “permissive suggestion” that federal Daubert authority be followed.
Preemption :
American Home Products Corp. v. Ferrari , 284 Ga. 384, 668 S.E.2d 236 (2008). Ferrari involved claims relating to childhood vaccines containing thimerosal. The Georgia Supreme Court held that the National Childhood Vaccine Injury Act of 1986 “does not preempt all design defect claims against vaccine manufacturers, but rather provides that such a manufacturer cannot be held liable for defective design if it is determined, on a case-by-case basis, that the particular vaccine was unavoidably unsafe.” The supreme court reasoned that, while the section of the Act codified at 42 U.S.C. § 300aa-22(b)(1) “indicates that Congress intended to preempt some state law,” the history of the Act, and particularly the Act’s adoption of comment k to section 402A of the Restatement (Second) of Torts , indicated a congressional intent to preempt only claims in which it could be shown that the side effects of the vaccine were unavoidable “by means other than proper manufacturing and packaging.” In so doing, the court interpreted that the clause found in 42 U.S.C. § 300aa-22(b)(1) that states a manufacturer is not civilly liable “if the [vaccine-related] injury or death resulted from side effects that were unavoidable” is “conditional” and “contemplates the occurrence of side effects which are unavoidable, and for which a vaccine manufacturer may be civilly liable.”
Parks v. Hyundai Motor America , 668 S.E.2d 554 (Ga. App. 2008). Parks arose out of an automobile collision and concerned claims relating to a lap-only seat belt in the center rear seat of a 1989 Hyundai Excel. The version of Federal Motor Vehicle Safety Standard 208 applicable to the subject vehicle required the manufacturer to choose between installing either a lap-only belt or a lap/shoulder belt. The Georgia Court of Appeals held that FMVSS 208 impliedly preempted any claim that the subject vehicle was defective under state law
Red, Orange, Yellow, Green, Blue, Indigo, Violet: Full Spectrum of...
v Arends and Mayfield v 345
(whether under negligence or strict liability theories) because the manufacturer had installed a lap-only belt or other restraint system, and any claim that Hyundai failed to warn about the dangers of any preempted claim.
In so doing, the court of appeals noted that the “regulatory and rulemaking history of FVMSS 208 shows a comprehensive regulatory scheme in which the NHTSA considered technological constraints, child safety concerns, and cost efficiency issues applicable to restraint systems in the rear center seat and adopted a policy that expressly required [the manufacturer] to choose between installing a lap-only seat belt or a lap/shoulder seat belt,” and that any action by the plaintiffs that seeks to impose liability on the manufacturer for choosing to install a lap-only belt is preempted because it conflicts with and frustrates the policy of the National Traffic and
Motor Vehicle Safety Act of 1966, under which FVMSS was promulgated.
Environmental or “Green” Products Litigation : No cases reported in this area.
Market Share or Other New Theories of Liability : No cases reported in this area.
Class Action Fairness Act (CAFA) : No cases reported in this area
Other:
Denton v. DaimlerChrysler Corp.
, 2008 WL 5111222 (N.D. Ga. Dec. 2, 2008). This case arose from an automobile collision during which the passenger side airbag deployed and the driver side airbag did not. The trial court granted summary judgment to the vehicle manufacturer on the plaintiff’s punitive damage claims under Georgia law. The manufacturer conceded that the driver side airbag was designed to deploy in the type of collision at issue, and explained that the airbag did not deploy due to a malfunction. The operative facts on which the court based its decision were that the subject vehicle was equipped with a warning lamp, which all experts agreed had illuminated at least 32,000 miles before the subject collision and the manufacturer issued a comprehensive NHTSA-compliant recall and sent a recall letter to the vehicle owner’s address. The trial court reasoned that, while there may be factual issues as to whether the owner received the recall letter, no reasonable jury could find by clear and convincing evidence that the manufacturer’s action exposed it to liability for punitive damages.
Porter v. Eli Lilly & Co.
, 2008 WL 544739 (N.D. Ga. Feb. 25, 2008), aff’d, 2008 WL 4138115 (11th Cir.
Sept. 9, 2008). Porter arose out of the prescription of Prozac to a patient who committed suicide. The manufacturer did not defend the adequacy of the warnings, and argued that the plaintiff could not prove proximate causation because the prescribing physician had testified that a different warning would not have changed his decision to prescribe Prozac. The plaintiff contended that the defendant’s admission of warning inadequacy barred the use of the learned intermediary doctrine. Noting that Georgia courts “have never directly discussed the impact of an arguably inadequate warning on the element of causation,” the trial court found that Georgia courts would apply the presumption set forth in comment j to section 402A of the Restatement (Second) of
Torts . The court then found that Georgia courts would employ a “rebuttable presumption” approach (and not a heeding presumption) under which (1) the plaintiff carries the initial burden to produce evidence that the manufacturer failed to warn about a known risk; (2) if the plaintiff carries the burden, a rebuttable presumption arises that a physician would have heeded an adequate warning; (3) the defendant then must produce evidence to rebut the presumption; and (4) if the presumption is rebutted, the plaintiff must produce evidence sufficient to create a triable issue of fact as to causation. The court then granted the defendant’s summary judgment motion on the ground that the plaintiff failed to rebut the prescribing physician’s testimony. The Eleventh
Circuit affirmed the trial court in an unpublished opinion.
In December 2008, the United States District Court for the Northern District of Georgia granted summary judgment to a defendant in a factually analogous case, citing Porter as the operative precedent. See Dietz v. SmithKline Beecham Corp.
, 2008 WL 5329295 (N.D. Ga. Dec. 9, 2008).
346 v Product Liability Conference v April 2009
Trickett v. Advanced Neuromodulation Systems, Inc.
, 542 F. Supp. 2d 1338 (S.D. Ga. 2008). The product at issue in Trickett was an implanted spinal cord stimulator. Before the suit was filed, the manufacturer wrote a letter to the plaintiff in which the manufacturer agreed to pay certain medical expenses incurred in addressing issues with the stimulator. The manufacturer later declined to pay the expenses. The trial court denied the manufacturer’s summary judgment motion on the plaintiff’s breach of express warranty claim, holding—without citing any authority for the proposition—that the manufacturer’s letter in which it agreed to pay certain expenses modified the manufacturer’s express warranty, which contained a clause stating that the warranty could be modified in a writing signed by the manufacturer.
XII. District of Columbia Circuit
By Michael Sepanik
Michael Sepanik is a trial attorney and partner with Carr Maloney, P.C., in Washington, D.C. He defends corporations in litigation involving consumer products, construction equipment, medical devices, and food products. He also defends construction entities in contract disputes and employment litigation. He is an active member of DRI and the Maryland Defense Counsel. He has published two articles in DRI’s For the
Defense magazine, served on DRI’s marketing committees, and served as Maryland’s state liaison to DRI substantive law committees.
Tort Reform : No cases reported in this area.
Preemption : No cases reported in this area.
Firearms’ Manufacturers:
District of Columbia v. Beretta U.S.A. Corp., 940 A.2d 163 (D.C. 2008). This appeal arose from the trial court’s dismissal of claims brought by the District of Columbia and individuals against gun manufacturers, importers and distributers under the District of Columbia Assault Weapons Manufacturing Strict Liability Act of 1990 (“SLA”). The court of appeals affirmed the trial court’s decision that the Protection of Lawful Commerce in Arms Act (“PLCAA”) mandated dismissal of plaintiffs’ suit. The SLA was enacted to hold manufacturers, importers, or dealers of assault weapon or machine guns strictly liable for bodily injury or death caused by the use of the firearms in the District of Columbia. While the action was pending before the trial court,
Congress enacted the PLCAA, which prohibits suits against manufacturers, dealers, and distributors for harm caused by the criminal or unlawful misuse of firearms. While a “predicate exception” to the PLCAA allows suits to proceed against manufacturers and sellers whom knowingly violate a state or federal statute applicable to the sale or marketing of firearms, the court of appeals held the plaintiffs did not prove their claim fell within the predicate exception to the PLCAA.
Pharmaceuticals :
Association of American Physicians & Surgeons, Inc. v. Food & Drug Administration, 539 F. Supp. 2d
4 (D.D.C. 2008). The Association of American Physicians & Surgeons, Inc. and others brought suit against the
United States Food and Drug Administration and Barr Pharmaceuticals, Inc. (“Barr”) challenging the FDA’s approval of Barr’s “Plan B” product. The FDA’s approval permitted Plan B’s over-the-counter sale at licensed pharmacies and health care clinics to consumers over the age of 18. The FDA and Barr filed motions to dismiss for lack of subject-matter jurisdiction and for failure to state a claim upon which relief can be granted. The
United States District Court for the District of Columbia granted defendants’ motions to dismiss, holding that plaintiffs—organizations representing physicians, pharmacists, and interest groups—did not have standing, and the claims were nonjusticiable since plaintiffs failed to exhaust all administrative remedies. The court also rejected plaintiffs’ increased risk of harm argument as the complaint failed to allege an injury in fact. Finally,
Red, Orange, Yellow, Green, Blue, Indigo, Violet: Full Spectrum of...
v Arends and Mayfield v 347
the court held that the allegations in the complaint did not support procedural standing because plaintiffs never identified a legally protected interest that was infringed upon by the FDA.
Forum Selection/Transfer:
The United States District Court for the District of Columbia decided a trio of forum transfer motions in product liability actions brought against the manufacturers and distributors of Diethylstilbestrol (“DES”).
In Mahoney v. Eli Lilly & Co.
, 545 F. Supp. 2d 123 (D.D.C. 2008), Eli Lilly moved to transfer the suit to the District of Massachusetts ten days before the close of discovery. The request was denied based on the timing of the request and as the balancing of equities did not favor a transfer since any potential prejudice to private and public interests in litigating the action in the District of Columbia were negligible. In MacMunn v. Eli Lilly &
Co ., 559 F. Supp. 2d 58 (D.D.C. 2008), Eli Lilly moved to transfer the suit to the District of Massachusetts. The transfer was granted as the case was in the early stage of discovery and an “overwhelming” number of contacts with Massachusetts were established. In Robinson v. Eli Lilly & Co., 535 F. Supp. 2d 49 (D.D.C. 2008) , Eli Lilly moved to transfer the suit to the District of Massachusetts. The request was denied because the balancing of private and public interests weighed against transfer, especially since plaintiffs agreed to voluntarily produce witnesses outside the court’s subpoena power at trial, and as the medical records of the plaintiffs were located outside Massachusetts.
Long-Arm Jurisdiction:
Quality Air Services, L.L.C. v. Milwaukee Valve Co., Inc ., 567 F. Supp. 2d 96 (D.D.C. 2008). The plaintiff’s products liability action alleged that HVAC valves were improperly designed and/or manufactured by defendant. The defendant moved to dismiss the complaint for lack of personal jurisdiction. The United States
District Court for the District of Columbia denied the motion, holding that the defendant was subject to personal jurisdiction pursuant to the District of Columbia long-arm statute since the defendant’s network of authorized distributors included companies located in Maryland and Virginia, whose geographic proximity targeted contractors in the District of Columbia. The court also held that the defendant purposefully availed itself of the benefits of doing business in the District of Columbia by shipping its valves directly to District of
Columbia job sites at the request of its distributors.
“ Green” Products Litigation : No cases reported in this area.
Market Share or Other New Theories of Liability : No cases reported in this area.
348 v Product Liability Conference v April 2009