Ear Candler Presents Issue of Fact

“Your Honor, don’t let stupidity create an issue of fact.”

Surely, someone, somewhere has uttered this sentence. Perhaps counsel for one of the defendants in Danaher v. Wild Oats Markets, Inc., No. 08-22930-DJW, 2011 WL 903878 (D. Kan. March 14, 2011). In a case with multiple defendants, Wild Oats Markets could not reach summary judgment on the plaintiff’s products liability claims related to ear candling. I have to admit that I was gainfully employed in the early 2000s and had not heard of the ear candling fad. Prior to reading the remainder of the post, I would recommend that you visit the Wikipedia page on ear candling, which contains such unintentionally humorous sentences as “According to medical researchers, [ear candling] is both dangerous and ineffective.”

The immediate takeaway from the case is that retailers should honestly consider whether carrying certain products is worth the risk of litigation. The basic facts of the case are as follows: Plaintiff buys an ear candle at Wild Oats in 2003. For some reason, by 2006, she still possesses the ear candle and decides that she would like to use it. She calls Wild Oats for a recommendation of an ear candler, they refer her to another store, and she eventually finds a person to perform the ear candling procedure, during which, Plaintiff inexplicably suffers a burn to her ear drum, when wax from the candle rolls into her ear. Although the manufacturer promulgated warnings about ear candles in the packaging, Plaintiff did not remember any warnings. Without reciting the entirety of the case, Plaintiff was able to survive a motion for summary judgment on warning defect and breach of implied warranty.

We may be somewhat defendant-friendly here at the blog, so let me offer potential defendants some advice. Do not sell devices designed to combust in the middle ear. It is not worth the $2 you will generate in revenue. Sell something else. In all seriousness, this product is at the very least some homeopathic harmlessness, but there should be some thought (foreseeable use) about the economics of the business. Is it reasonable to anticipate someone being injured from using the product in a reasonable way? If so, how much money can you make, taking into account the likely cost of insurance/litigation? It’s hard for me to believe that the manufacturer/distributor/retailer of the candle sat down with a lawyer at the inception of the business and the selling of this absurdity was determined to be an economically rational choice. But lawyers are good at telling entrepreneurs why things won’t work, and, if all entrepreneurs listened, we would not have such grand creations as the ear candle, Ford Pinto, or the Hindenburg. Today’s lesson is to examine the inventory that you sell for $10 or less. It might not be worth it.

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