No Extra Snow for Arkansas; Litigation Ensues

According to the Internet, North Little Rock, Arkansas has a yearly average snowfall of just over four inches, and unfortunately for its residents, that number does not appear to be changing any time soon.  Aquapark Holdings, LLC, a company that owns Wild River Country, rented a 50-ton snow maker from SnowMagic, Inc., as it hoped to bring snow rides to the park during the 2013-2014 season.  According to Wild River, SnowMagic claimed that the 50-ton snow maker could create and maintain snow in 70 degree weather under direct sunlight.  However, in practice, Wild River found that the snow wouldn’t “stick” in 45 degree weather and turned to slush in direct sunlight.  After numerous customer complaints, “most customers did not return and, as word of the disappointing attraction spread, attendance at the snow park diminished drastically,” according to the pleadings filed by Wild River Country. Litigation started when SnowMagic brought suit against Wild River alleging that Wild River failed to play nearly half of the $215,000 bill for the equipment rental.  Wild River then counterclaimed for catastrophic damages allegedly caused by the snow maker’s failure.  Regardless of the outcome, the real victims of the litigation may be the residents of Little Rock, who will continue to be without the winter thrill. Oh, well.

A View of the Prempro Litigation from a Different Angle

In the midst of the ongoing, far-reaching Prempro litigation apparently sits a very colorful judge. Businessweek recently published this article, which takes a in-depth look at 70-year-old U.S. District Judge Bill Wilson of Little Rock, Arkansas, who presides over the MDL Prempro litigation.

As we previously reported here, more than 8,000 lawsuits have been filed against Pfizer’s Wyeth unit by former users of the company’s hormone-replacement pills, which are used to treatment menopause symptoms including hot flashes, night sweats, and mood swings. Plaintiffs have alleged that the drug causes breast cancer and other injuries, and that the drugmaker failed to properly warn of these risks.

Judge Wilson refused to consolidate the Prempro cases into a class action based on his conclusion that the suits did not have enough in common to justify proceeding as a group. The outcomes of these cases seem to confirm his conclusion. Jury verdicts in these cases have varied widely, with some juries holding that the drug played no part in Plaintiffs’ development of breast cancer, and others rendering verdicts for tens of millions of dollars. As reported by Businessweek, Pfizer’s Wyeth unit has lost seven of the 12 Prempro cases decided by juries since litigation began in 2006, although the drugmaker did succeed in having some of those verdicts thrown out at the post-trial stage or in having awards reduced.

According to the article, Judge Wilson, who presides over his courtroom from a rocking chair, relaxes during his time away from the bench by corralling his prize Tennessee walking mules on his 15-acre farm. A sign on the door of his barn reads: “The more I see of people, the more I prefer mules.” Businessweek reports that at one 2005 hearing, Judge Wilson asked the lawyers what year it was that Hank Williams died. When they couldn’t answer, he launched into a 210-word explanation, on the record, of the circumstances of the singer’s death and his blue 1952 Cadillac.

Judge Wilson, named to the bench by President Clinton in 1993, cemented his spot as Above the Law‘s “Judge of the Day” with a blunt letter he once wrote to a plaintiff’s counsel in 2008. See a copy of his letter here.

As Judge Wilson works his way through some of the thousands of Prempro lawsuits seeking damages from Pfizer, at least he’s sure to keep things interesting.

Hoteliers ≠ "Suppliers"

Always be prepared for business travel, and expect the unexpected. Like many, I am a traveler that generally forgets to pack a needed item when I take a business trip. It’s usually something harmless like a toothbrush or toothpaste. When this happens, though, I’m always grateful for the complimentary toiletries the hotel keeps in its closet behind the front desk. During such wayward journeys, I often think of the hotel as a supplier of necessities. After reading the recent case of Hammond v. John Q. Hammons Hotels Mgmt., No. CIV-09-652-M, 2010 WL 302233 (W.D. Okla. Jan. 20, 2010), I will never think of a hotel as a “supplier” again.

In that case, the Plaintiff, an Oklahoma City dental hygienist, was traveling with her husband to Hot Springs, Arkansas. Id. at *1. As Mrs. Hammond was preparing to iron a wrinkled garment, she reached for the clothes iron. The court recounted what followed:

As Plaintiff slid the clothes iron’s plug into the socket in her hotel room, the plug exploded in her right hand and a ball of fire shot out from the wall. As a result of the explosion, plaintiff’s hand was charred and her hand and arm were electrocuted, causing neurological damage.

Id.

The plaintiff then brought a products liability action against the hotel company under a strict liability theory. Id. The parties agreed that Arkansas law should apply to determine whether the hotel could be held strictly liable. Id. On that point, the Arkansas code states that:

[a] supplier of a product is subject to liability in damages for harm to a person or to property if: (1) The supplier is engaged in the business of manufacturing, assembling, selling, leasing, or otherwise distributing the product; (2) The product was supplied by him or her in a defective condition that rendered it unreasonably dangerous; and (3) The defective condition was a proximate cause of the harm to a person or to property.

Ark.Code. Ann. § 4-86-102(a) (2009).

The hotel company contended that the plaintiff’s complaint failed to satisfy the second statutory element. That is, the hotel argued that it was not engaged in the business of manufacturing, assembling, selling, leasing, or otherwise distributing the clothes iron that was at issue in the case. The Arkansas Code defines the term “supplier” as follows:

(6)(A) “Supplier” means any individual or entity engaged in the business of selling a product, whether the sale is for resale or for use or
consumption.

(B) “Supplier” includes a retailer, wholesaler, or distributor and also includes a lessor or bailor engaged in the business of
leasing or bailment of a product.

(C) “Supplier” shall not include any licensee, as the term is defined in § 17-42-103(10), who is providing only brokerage and sales services under a license;….

Ark.Code Ann. § 16-116-102(6) (2009).

In analyzing whether the hotel was a supplier under the statute, the court looked to the plain and ordinary meaning of the statutory term. Id. at *2. The court ultimately found that the hotel was not a supplier; its conclusion turned upon its finding that the hotel was not a wholesaler or supplier that sold chiefly to retailers and commercial users. Id. The court found that the hotel “…simply provide[s] amenities, including clothes irons, to their guests incident to the primary use of the hotel room.” Id.

The Hammond court’s analysis is sound. Hotels simply do not place incidental products such as clothes irons or toothpaste into the stream of commerce. It’s logical to conclude that they are not sellers or suppliers. As such, I really need to stop thinking of hotels as a supplier of my necessities or better yet, I need to start double-checking my luggage when I travel!