Tuesday, October 5, 2010

Test for a New Trial Based on Alleged Erroneous Jury Instructions Analyzed by the District Court of Massachusetts

The District Court of Massachusetts was recently asked to grant a new trial under Federal Rule of Civil Procedure 59(a)(1)(A) on the ground that the jury instructions delivered to the jury were erroneous. O’Neil v. Electrolux Home Prods., Inc., No. 06-10433-DPW, 2010 WL 3504191 (D. Mass. Sept. 7, 2010). What makes this case of interest is the fact that Plaintiffs, who base their motion for a new trial on the alleged erroneous jury instructions given, submitted the identical instructions to the court and did not object to the oral recitation of these instructions to the jury prior to deliberation. It was only after the jury requested a typed copy of the instructions that Plaintiffs objected.

This is a products liability action involving an accident in which Plaintiff backed over his young son with a lawn mower. Plaintiffs filed suit against the manufacturer, asserting among other claims, breach of warranty by design defect. At the trial of this action, the following jury instructions were given:

To determine whether there was a design defect you should consider whether the product has a potential, sometimes referred to as a propensity, resulting from the manufacturer’s conscious design choice that rendered the product unreasonably dangerous to foreseeable users and, therefore, unfit for its ordinary foreseeable uses . . .

The phrase at issue is italicized above — “unreasonably dangerous to foreseeable users.” As stated above, the instructions requested by Plaintiffs included this very language and Plaintiffs made no objections when orally given by the Court. Hours into deliberation, the jury asked for criteria to determine when a product is “unreasonably dangerous.” The Court proposed sending a typed copy of the prior instructions to the jury. Plaintiffs objected to the phrase above and suggested the following phrase as a replacement — “unreasonably dangerous to foreseeable users or foreseeable bystanders.” The Court declined Plaintiffs’ suggestion and submitted the original instructions to the jury. Shortly thereafter, the jury found in favor of Defendants.

Then, Plaintiffs sought a new trial on the ground of erroneous jury instructions. The District Court of Massachusetts first stated that the test was a two-part test: 1) whether the objection was waived and 2) whether the instruction was erroneous.

The Court’s analysis of the first part of the test is most interesting. Defendants claimed that since Plaintiffs did not object to these instructions orally given, they cannot now object to the same exact language being given to the jury in hard copy. The Court disagreed with Defendants on this point, stating that Plaintiffs only “waived any challenge to that instruction at that time,” but not the supplemental instructions, even if they had the same content. Under the second prong of the test, Plaintiffs argued that failure to include “foreseeable bystander” in the instruction was “misleading and gave an inadequate understanding of the law.” The Court now disagreed with Plaintiffs, finding that the instructions as written were in line with Massachusetts law and the jury was fully aware that Defendants could be liable for injury to Plaintiffs’ son as a bystander from both parties’ opening and closing arguments and through the testimony at trial. Therefore, the Court found no error and denied Plaintiffs’ motion for a new trial.

We thought that the Court’s finding no waiver was interesting: it is a “second bite at the apple” for Plaintiffs. Therefore, practitioners should be aware of how this Court analyzed this issue if faced with a similar argument on a motion for a new trial.
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Monday, October 4, 2010

Abnormal Interviews: Law Professor Susan Rowe

Today, Abnormal Use continues its series, “Abnormal Interviews,” in which this site will conduct brief interviews with law professors, practitioners and other commentators in the field. For the latest installment, we turn to law professor Susan Rowe of the Charlotte School of Law in Charlotte, North Carolina. The interview is as follows:

1. What do you think is the most interesting development in products liability or torts litigation of the last year?

The obvious one is the Toyota gas-pedal acceleration issue. Very recently, Toyota settled the Saylor lawsuit in California where a California Highway Patrol officer and three of his family members were killed in August 2009 when driving a Lexus ES 350 that crashed going about 100 mph. Also, last week, a California judge set a deadline of October 12 for parties to identify claims that are not currently part of the complaint in the multi-district litigation or those claims will be dismissed from the multi-district litigation. There are about 186 class action cases for economic damages based upon unintended acceleration in 39 states, including D.C. and Puerto Rico. Some claims allege a defect in the electronic engine control system, while others allege defects related to floor mat placement. Toyota says its investigations have never found any problems with the electronic engine control system. It will be very interesting to see how these cases are ultimately resolved and whether it will be proven that there was an electronic problem.

2. What rule or concept in modern products liability jurisprudence do you believe is the most outdated? How would you change it, and why?

Contributory negligence and assumption of the risk being complete bars to recovery in products cases are probably the most outdated rules since most jurisdictions have moved to comparative fault, which reduces a plaintiff’s ability to recover but is not a complete bar to recovery. I think comparative fault is more fair. For the few jurisdictions that retain contributory negligence and are concerned about moving away from it, I would probably change the rule to a modified comparative fault regime that requires that a plaintiff be less than or equal to 50 percent at fault in order to recover.

3. North Carolina retains the concept of pure contributory negligence. How does this affect products liability and torts suits filed in that state?

Yes, North Carolina does retain contributory negligence, which remains a complete bar to a plaintiff’s recovery in any tort suit in North Carolina. The doctrine of last clear chance also applies in North Carolina, but it is unlikely to help a plaintiff in a products suit because a manufacturer will rarely have a chance to avoid the injury to a plaintiff before she is injured. A North Carolina bill to change to comparative negligence recently failed to make it through the Senate.

Chapter 99B of the North Carolina General Statutes contains North Carolina’s Products Liability Act. This statute explicitly provides that contributory negligence applies in products liability actions and that there is no strict liability in products liability cases. Instead, plaintiffs must rely upon other causes of action such as negligence, unfair trade practices, misrepresentation, or warranty. The North Carolina Supreme Court has held that the defenses under 99B, including contributory negligence, apply to breaches of the implied warranty of merchantability regardless of whether negligence is also alleged, which is a bit unnatural that contributory negligence may bar recovery to a suit brought under the UCC where negligence is never alleged.

4. What advice would you give to lawyers practicing the field of products liability litigation?

I would say that lawyers should watch how jurisdictions approach the Restatement (Third) of Torts. Jurisdictions are beginning to use this Restatement some when deciding products cases. The Restatement (Third) retains strict liability for manufacturing defect cases, but tends to move toward negligence when deciding design defect and failure to warn cases. Under the Third Restatement, a design defect occurs “when the foreseeable risks of harm posed by the product could have been reduced or avoided by the adoption of a reasonable alternative design.” A failure to warn defect occurs “when the foreseeable risks of harm posed by the product could have been reduced or avoided by the provision of reasonable instructions or warnings.” Thus, the use of the terms “foreseeable” and “reasonable” lean more toward a negligence standard.

5. What federal or state court opinion has been the biggest surprise for you of late, and why?

I think the New Jersey Superior Court, Appellate Division decision in Kendall v. Hoffman-La Roche, Inc., No. A-2633-08T3, 2010 WL 3034453 (N.J. Super. A.D. Aug. 5, 2010) is interesting. In that case, the Appellate Division overturned a $10.5 million verdict for a plaintiff who developed ulcerative colitis after taking Accutane and remanded for a new trial. The trial judge initially prohibited Roche (the manufacturer) from using any numbers related to the number of incidences of IBD that developed in the general population as a way to show when Roche should have had signals that it needed to change its warnings. On the eighth day of trial near the conclusion of plaintiff’s case, the trial judge changed her mind and allowed the numbers to be used but issued a cautionary instruction to the jury, in part, that stated “[t]he comparison of a background incidence of . . . IBD, in the general population, to the reported incidence of IBD in patients taking Accutane, is not a scientifically accepted method of proving whether a particular product … acts as a trigger for, and, therefore, is a cause of a particular side effect.” She also sustained an objection by plaintiff’s counsel during defense counsel’s closing argument when defense counsel was going through Accutane usage numbers.

The Kendall court ruled that Roche had been prejudiced by the delay in allowing it to use the numbers and by the jury instruction and objection during defense counsel’s closing. The court also held that Roche could use the numbers not only to try and prove it acted reasonably in modifying its warnings, but also to disprove causation. The court based its reasoning on a similar decision by the same court that came out after the Kendall trial and before the appeal. In the prior case of McCarrell, Roche was never allowed to use the numbers. When McCarrell was retried, the jury returned a bigger verdict, so defendant’s use of the numbers may not be as helpful as one might think.

BONUS QUESTION: What do you think is the most humorous depiction of a torts lawsuit in popular culture, and why?

Since we’ve been talking products liability, the depiction of Kramer from “Seinfeld” being burned by the hot coffee that he sneaked into the movie theater is a good one. His lawyer, Jackie Chiles, alleged that the top was defective. Kramer subsequently puts on some balm given to him by The Maestro, which heals the burn very quickly. Thus, he and Chiles think he has tanked the potential lawsuit. The company was going to settle for $50,000 to avoid the bad publicity, but when Chiles and Kramer go to meet with the company executives, Kramer accepted a lifetime of free coffee before the executives could finish making the offer. I was reminded of this due to the recent lawsuit filed by a woman in New York against Starbucks when she was burned by hot tea. She alleges the tea was unreasonably hot and that the containers were defective.

BIOGRAPHY: Susan L. Rowe joined Charlotte School of Law in June 2006 as the Director of Legal Writing and Research and Assistant Professor. Prior to joining CharlotteLaw, Professor Rowe practiced in the Business Law Group in the Charlotte office of Parker, Poe, Adams & Bernstein, LLP, primarily working in the areas of mergers and acquisitions, commercial contracts, and bank financing. She also worked for six years in the Columbia office of Nexsen Pruet Adams Kleemeier, LLC, practicing in the areas of business entity formation and general corporate work, mergers and acquisitions, securities law, bankruptcy law, and antitrust law. She currently teaches Commercial Law and Torts.

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Friday, October 1, 2010

Friday Links

Above, you’ll find the cover of Batman #163, an issue published way back in 1964. We think that defendant Batman may have grounds for a motion for recusal of the the judge, but we doubt it will be granted. And if that’s the jury, we’d hate to see the venire panel.

Don’t forget: You can still nominate our fair site, Abnormal Use, for consideration in the ABA Journal‘s Top 100 Legal Blogs contest. But today is the very last day you can do so. The last day! See our earlier tongue in cheek plea for support here (which also provides instructions how to submit your nomination, which you know you want to do).

Blogger and Law Professor Alberto Bernade at The John Marshall Law School asks, “What’s with all the lawyer shows on tv?!” That, dear readers, is a question that we feel must be asked, especially in light of our recent reviews of the new legal dramas “Outlaw” and “The Defenders.” Just once, we’d like to see a television show in which the first year associates are enduring a harrowing week of document review. Or, perhaps, a program in which one junior associate’s problem of the week is a senior partner’s fondness for serial commas in a particular memorandum of law? Or an episode in which a first year associate’s biggest dilemma is how long it took he or she to draft an answer to a complaint?

Today sees the release of The Social Network, a film about the Facebook, a website. As the operators of a website, we here at Abnormal Use look forward to the day when Aaron Sorkin and David Fincher will craft a film about us. However, our contributor Kevin Couch insists that Leonardo DiCaprio play him in any such film, but we just don’t see it.

Apparently, there is a new law blog dedicated to legal productivity called, of all things, Legal Productivity. We’ll be checking it out. (Hat Tip: The Mac Lawyer).

Eric Goldman of the Technology and Marketing Law Blog has an interesting post on a new New York state case on the discoverability of deleted social networking profile data for impeachment purposes. Remember: Just because your Plaintiff has deleted those incriminating photographs and statements from their Facbeook profile, that doesn’t mean they’re gone forever, at least not yet.

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