When does a products liability action become inextricably intertwined with family law? Apparently, when the case is brought in Texas. In Crenshaw v. Kennedy Wire Rope & Sling Co., — S.W.3d —, 2010 WL 2601662 (Tex. App. – San Antonio 2010, no pet. h.), the court of appeals was confronted with issues relating to the alleged defectiveness of a wire rope sling as well as the elements of common law marriage in Texas.
That wrongful death case centered around the death of a floorhand who was killed while “moving two casing bails with the use of a braided wire rope sling.” The Defendants were Newco Manufacturing Company, the maker of a component hook, and Kennedy Wire Rope & Sling Company, the manufacturer of the integrated sling itself. Although the action was initially brought by the floorhand’s parents (who later settled), the appeal centered around the claims of the intervenor-common law wife of the floorhand, against whom a take nothing judgment was entered because the jury found that they had never been married. Thus, the jury never reached any of the liability issues in the case. However, the two defendants cross-appealed, contending the trial court erred in refusing to grant their motions for directed verdict, both on the issue of common law marriage as well as the underlying products liability claims.
After a lengthy analysis, the court ultimately concluded that the trial court’s jury instruction on common law marriage was flawed. Accordingly, it turned to the products liability issues.
In its appeal, Newco argued that “the evidence conclusively established that its component hook did not fail, and that it was not in any way involved in the design of the integrated wire rope sling.” Agreeing, the court of appeals rejected the common law wife’s reliance on the testimony of a Newco manager and the Plaintiff’s petroleum engineering expert. Although the common law wife had argued that the Newco manager had essentially admitted the hook was defective, the court noted that the manager’s testimony indicated only that the manager believed that the “whole assembled product” was dangerous, and only then under certain conditions, when there was slack in the line. As for the testimony of the retained expert, the court noted that he had conceded that the Newco hook had in no way broken or failed and that his belief was that slack in the line caused the accident, not the hook. Accordingly, the court of appeals found that Newco was entitled to summary judgment on the stated liability grounds.
Kennedy Wire was not so lucky. In rejecting its cross appeal, the court found that “reasonable minds could differ” on the application of Texas’s five risk-utility factors (which, as the court noted, “are used to determine whether the defective design of a product rendered it unreasonably dangerous”). In so doing, the court explained:
The evidence established that the particular design of the braided wire rope sling with a Newco hook was chosen by Kennedy. Before recommending the “improved” sling product to H & P, Kennedy made the decision to use braided wire rope, rather than single wire rope, and then chose the Newco number 3 choker hook for assembly with the braided rope, knowing it did not have a safety latch. Ryles testified that not only does Newco sell a similar hook with a safety latch, although only for use with single wire rope, but a competitor, Crosby, also sells a hook with a safety latch that can be used with braided wire rope. In addition, Ryles testified that the sling should have incorporated a hook with a safety latch in order for the whole product to be as safe as possible for lifting overhead loads-in case slack got in the line. McClay testified that the hook without a safety latch was “inappropriate for that particular job;” specifically, McClay stated that, although the hook itself was not defective and did not fail, the sling design incorporating a hook without a safety latch allowed the load to come unhooked when slack got in the line, causing the accident. In addition, there is evidence that Kennedy had the ability to make the integrated sling product safer for lifting overhead loads without impairing its usefulness or significantly increasing costs. Further, the testimony of Hubler and Garland Kennedy shows that Kennedy was well aware of H & P’s prior problems with chain slings that broke or failed and its need for a safer sling for use on it rigs, and yet recommended a sling that incorporated a hook without a safety latch. Hubler testified he would have liked to know about the option of using a hook with a safety latch, and that the additional cost would not have been an issue. Kennedy testified that incorporating a choker hook with a safety latch was feasible and would not have reduced the sling’s utility.
Accordingly, the court of appeals remanded that portion of the case back to the trial court.
As we recently reported here, this summer the Kellogg Company voluntarily recalled boxes of its Corn Pops, Honey Smacks, Froot Loops, and Apple Jacks due to “an off-flavor and odor” emanating from the cereal. We can’t believe that Toucan Sam, who always seems to be bragging about his nose, missed those foul-smelling boxes.
The FDA recently provided an update on the recall, explaining that the culprit causing the bad smell and taste appeared to be the wax paper liners in the boxes. According to the FDA, only about 50 reports of the foul smell were reported, and no one sustained a serious injury. One of the question-and-answer notes in the update caught our eye:
Are Waxed Papers Legal and Safe to Use in Food Packaging?
Yes, but only when they are manufactured and used in compliance with Federal Food, Drug and Cosmetic Act requirements and FDA regulations.
It comes as a reminder that the FDA does not only regulate the food on our shelves, but also its packaging, known in government-speak as “Food Contact Substances.” Other items with which you may be familiar in terms of the regulation of packaging that comes into contact with food include the debate that rages concerning the level of Bisphenol A, also known as “BPA,” in plastic containers and baby bottles.
More information about the regulation can be found on the FDA website page devoted to the wide world of packaging. In the meantime, we can apparently eat our favorite sugary cereal without first subjecting it to the smell test.
Personal representatives in South Carolina cannot recover damages for those last few seconds of life when their decedent knew for a fact that they would die. Last week, the South Carolina Court of Appeals rejected a Plaintiff’s ability to recover damages for “pre-impact fear.” See Rutland v. South Carolina Dep’t of Transp., No. 4721 (S.C. Aug. 4, 2010).
That case involved a wrongful death action brought by the personal representative of the estate of a passenger killed following a highway automobile accident during a heavy rain storm. The Plaintiff sued various defendants, but all but the Department of Transportation settled out before the trial. (It’s unclear from the facts of the opinion what the Plaintiff’s theory of recovery was against the State.). The jury awarded the Plaintiff $300,000, but the trial court granted the Department’s post trial motion for set-off and reduced the verdict to zero.
The Plaintiff appealed. In its opinion, the Court of Appeals addressed various appellate points, but it is the Plaintiff’s second appellate point that is of interest. The Plaintiff had argued that “pre-impact” fear was recoverable in a South Carolina survival action “when the decedent suffered mental trauma before actual physical injury resulting in the decedent’s death.”
Citing some recent federal authority, and distinguishing an 80 year old case the Plaintiff had invoked in support of his theory, the Court of Appeals disagreed, noting as follows:
South Carolina does not recognize “pre-impact fear” as a compensable cause of action. See Hoskins v. King, 676 F. Supp. 2d 441, 451 (D.S.C. 2009) (concluding South Carolina law does not permit recovery for pre-impact fright). Also, we decline to extend the holding in [Spaugh v. Atlantic Coast Line Railroad. Co., 158 S.C. 25, 155 S.E. 145 (1930)] for the proposition that “pre-impact fear” is recoverable in this State.
In Hoskins, a case involving a cyclist killed after an automobile accident, Judge Joseph F. Anderson, Jr. had found that there was no support in South Carolina law for the recovery of such damages:
However, in addition to seeking the more established post-impact survival damages, Hoskins seeks damages for the split-second between when the rear tire of the bicycle touched the front bumper of the Pacifica and the impact of Thomas Hoskins on the windshield. However, this position does not find support under South Carolina law. Hoskins has cited many cases, from other jurisdictions which recognize recovery for pre-impact fright. In nearly all of these cases the victims knew they were going to die for a period of at least some seconds, not fractions of a second. Moreover, there was evidence in almost all of the cases that the victim saw their ending coming and there was no question that the victim consciously perceived the cause of his or her death-such as a car crashing in to the back of a tractor trailer, an imminent plane crash, or a pedestrian trapped on roadway.
In this case the King’s car closed from the rear at a high rate of speed, causing a tremendous impact-throwing Thomas Hoskins seventy-five feet in the air-and instantly killing him. A survival claim requires that the deceased consciously endure pain and suffering. Due to the severity of the impact, the court finds that the evidence does not demonstrate that the decedent had time to consciously perceive the means of his death, much less consciously suffer pain.
Further, the Court of Appeals had distinguished Hough as a case involving “a woman who became physically ill after experiencing a nervous breakdown when she was stranded by a train company” and that in that case the South Carolina Supreme Court had determined that there was sufficient evidence to conclude that the plaintiff had actually suffered “bodily injury.”
You know him well. He is the professional expert. No matter the issue, the case, or the product, there he is, opining that your client’s product is unreasonably dangerous, and unquestionably caused the plaintiff to suffer personal injuries, psychological damage, and lost income. In fact, as soon as you see this expert’s name at the top of the report, you can recite its contents, eyes closed and one hand tied behind your back.
Not so fast. In Beam v. McNeilus Truck and Manufacturing, Inc., 697 F. Supp. 2d 1267 (N.D. Ala. 2010), the Northern District of Alabama considered the defendant’s motion to exclude the testimony of Dr. L.D. Ryan, a mechanical engineer and professional expert, as to the defectiveness of the design of a garbage truck. The case involved an accident in which the plaintiff’s decedent, a garbage collector, fell or stepped off of the riding step of a garbage truck and died as a result of his injuries. The central issue of the case was whether the truck was defectively designed with regard to the riding steps.
The court carefully considered Dr. Ryan’s qualifications, noting that “Plaintiff’s expert . . . has little or no experience in the world of refuse collection, road-vehicle design generally, or garbage truck design specifically.” Furthermore, although Dr. Ryan had watched “three hours of videos on ‘YouTube,’ he has no training or experience in designing waste-hauling routes” and has no knowledge “about the history or evolution of rear-loading garbage-truck designs.” In fact, the court stated, the “mere fact that Dr. Ryan is a licensed engineer is, in and of itself, insufficeint to qualitgy him as an expert in this case.”
The court’s harshest criticism of Dr. Ryan’s so-called qualifications, however, was reserved for his status as the professional expert. The court made several references to the fact that Dr. Ryan had acted as an expert in hundreds of cases. In fact, the court devoted an entire footnote to Dr. Ryan’s career expertise, opining that “Dr. Ryan has been involved in hundreds of cases invovling a variety of products, and his testimony has been at issue in a number of those cases,” and providing a list of some of those cases.
With no actual expertise on the subject of garbage truck design, the court excluded Dr. Ryan and his reports. Without expert testimony as to the defective design, the plaintiff could not make her case, and therefore the defendant’s motion for summary judgment was also granted.
Bravo, Northern District of Alabama. Abnormal Use salutes you. Next time, plaintiffs, make sure your expert does more than watch YouTube.