Colorado Federal Court Considers Motion to Dismiss in Knee Replacement Case

As you know, we here at Abnormal Use love writing and blogging, so much so that our editor Jim Dedman is now contributing posts to other venues.  Recently, his piece, “Colorado Federal Court Considers Motion to Dismiss in Knee Replacement Case,” was published in an October 2014 issue of the Defense Research Institute’s The VoiceHere are the first two paragraphs of the article:

Recently, a Colorado federal court considered a motion to dismiss in a medical device product liability action arising from a plaintiff’s allergic reaction to a cobalt and nickel knee replacement system. See Haffner v. Stryker Corp., et al, No. 14-CV-00186, 2014 WL 4821107 (D. Colo. Sept. 29, 2014) (unpublished). Observing that there appeared to be “few medical device tort cases in Colorado,” the court addressed the defendant’s motion to dismiss the plaintiff’s four causes of action: strict product liability, negligent product liability, the breach of implied warranties of merchantability and fitness, and the breach of an express warranty.

The case arose after the plaintiff underwent a surgical procedure in which his left knee was removed and replaced with a knee system manufactured by Stryker Corporation. The plaintiff alleged that he was unaware of his apparent allergy to cobalt and nickel, certain components of the system. As a result of his allergy, he experienced a reaction that caused “pain, inflammation, swelling, bone loss, and limited mobility.” He ultimately underwent a revision surgery to ameliorate the issue and to replace the original knee system. The plaintiff filed a product liability lawsuit in the state court in Colorado, but as you might suspect, the defendants removed the case to the federal court.

You can read the rest of the article here.

TinctureBelle Responds To Pot-Candy Trademark Suit

Last week, we wrote about a new trademark infringement lawsuit filed by Hershey against marijuana-candy manufacturer TinctureBelle. The gist of the Hershey’s lawsuit is that TinctureBelle allegedly ripped-off the branding of Hershey candy in marketing the pot candy. Now, TinctureBelle President Char Mayes has responded to the lawsuit with the following statement:

The lawsuit from Hershey came as a huge surprise to us because we changed our entire label line approximately 6 months ago, long before these allegations surfaced last week. Our new packaging looks nothing like Hershey’s or anyone else’s. . . . The suggestion made by some media reports that our products are available to children, and even sold side-by-side with Hershey products, is dumbfounding, and shows a profound lack of awareness of how infused cannabis products are regulated, manufactured, and sold under Colorado’s strict regulatory regime.

Mayes provided the Washington Post with the following photos as evidence of the change:

hasheats

hashees

ganjajoy

We here at Abnormal Use must admit that we much prefer the original Hersheyesque packaging to the TinctureBelle revisions. Of course, opinions similar to these are probably what inspired the suit in the first place. If the packaging was, in fact, changed six months ago, however, what is Hershey really seeking to accomplish? A share of TinctureBelle’s pre-alteration proceeds? Seeing as all marijuana has only been legal in Colorado for six months and, thus, the only pre-alteration proceeds would have been from the medicinal sale of the candy, we doubt Hershey will have a lucrative end game.

This lawsuit has all the makings of a Bucky Balls-type fight. We will be sure to keep you posted as events transpire.

Legal Marijuana Candy Sees First Trademark Suit in Colorado

image

A hot topic of recent months has been the legalization of marijuana. After the State of Colorado legalized it, we here at Abnormal Use wondered what legal problems might arise when those laws went into effect earlier this year. We certainly suspected that there would be litigation, but a new suit filed in federal court  is not exactly what we had in mind. The Hershey Company has filed suit against TinctureBelle, LLC, alleging that the Colorado candy manufacturer’s marijuana-infused chocolates improperly mimic the names of famous Hershey products. According to a report from Denver’s ABC-7:

The lawsuit argues: “Defendants, who are well aware of the fame and popularity of these Hershey products and marks, are manufacturing and selling cannabis- and/or tetrahydrocannabinol-laced chocolate and candy products using names, marks and designs that are knock-offs of Hershey’s famous REESE’S, HEATH, ALMOND JOY and YORK trademarks and trade dresses, in order to increase sales of defendants’ cannabis and tetrahydrocannabinol candy products, draw additional attention to their products, confuse consumers as to the source of their products, call to consumers’ minds Hershey’s famous and beloved brands, and otherwise to trade on the goodwill of Hershey and its brands.”

We understand Hershey’s concerns about trademark infringement, but surely it is an honor to be the first company honored by legal pot candy. It is difficult to get too upset with TinctureBelle when its creativity inspired names such as “Hashees” (Reese’s) and “Ganja Joy” (Almond Joy). Again, Hershey has the right to be concerned about trademark confusion, and we certainly understand the basis for the litigation. On the other hand, we seriously doubt consumers are buying these products because of their resemblance to Hershey products. After all, TinctureBelle has its own secret ingredients.

Liability for the Snow: Who is Responsible?

Last week, our Gallivan, White & Boyd offices were trapped in the middle of a Southern Snowpocalypse, so we here at Abnormal Use were able to spend a few days enjoying the snow with our families.  We partook in the customary activities of sledding, building snowmen, and throwing snowballs.  We also observed others engaging in not-so-standard activities like pulling kayaks across snow-packed roads with golf carts.  As lawyers, we naturally started thinking about the potential liability for any injuries to said snow kayakers.  Beyond the operator of the golf cart, it is hard to identify any other obvious potential tortfeasors.  But, what about the Homeowners Association?  Could it be held liable for permitting such activities on its roads during the wrath of Mother Nature?  Sounds absurd, we know.  But, what duty should an entity have to warn of the dangers of weather?

Last week, in Fleury v. IntraWest Winter Park Operations, the Colorado Court of Appeals held that a Colorado ski resort was protected from such liability.  According to CBS-Denver, a man was killed by an avalanche while skiing at the Winter Park ski resort back in 2012.  On the morning of the man’s death, the Colorado Avalanche Information Center issues a warning that the chance of avalanche was high due to high winds and heavy snow.   The man’s widow sued IntraWest, the owner and developer of the resort, claiming that the ski area should have been roped off and her husband not allowed to ski due to the warning.  The trial court dimissed the case on the grounds that ski resorts are shielded from liability for accidents caused by avalanches.  The Court of Appeals affirmed, holding that the avalanche was caused by new snowfall, weak and unstable snowpack, and a steep slope – all of which are covered by the state law.

This case is obviously one in which the state legislature had already addressed the issue.  Even if it had not, we believe the result should be the same.  This isn’t a case in which the avalanche was caused by some act of the resort.  The result may be different if the resort was blasting nearby to pave the way for a new hotel. This case is about an act of weather.  Mother Nature plays havoc on us all and is often unpredictable.  We should all appreciate the unpredicatable nature of the weather when we partake in any activity.  The plaintiff in this matter claims that this accident could have been avoided had the resort listened to the Colorado Avalanche Information Center warning and closed off the ski area.  Interestingly, however, those claims are misplaced.  The Information Center only warned of the possibility of avalanches and actually urged skiiers to “enjoy the powder in the safety of the ski area.”

Clearly, a skiier trapped in an avalanche is not comparable to a kayak pulled behind a golf cart.  One involves a standard activity.  The other involves a couple of individuals adding some Southern flare to customary activities.  Nonetheless, Mother Nature treats us all the same.  And, so should the liability.

Imaginary Weapon, Real Suspension

These days, guns and school safety are the biggest hot button topics around.   No one wants innocent children being harmed, whether it be by a crazed gunman or some other student who decided to bring a parent”s pistol to school.  But, at some point, we must remember that we can’t abandon common sense in the name of safety.  That advice goes particularly to a Colorado elementary school that suspended a second grader who was exercising his imagination during recess by pretending to stop imaginary bad guys with an imaginary weapon.

The seven year-old boy was playing a game he made up called “rescue the world” at Loveland, Colorado’s Mary Blair Elementary.  During the course of this game, the boy threw an imaginary grenade into a box where his imaginary evil forces were hiding.   There were no threats to other students.  There was no real weapon or dangerous object involved.  Just a boy pretending to be a hero.

So, why exactly, was the boy suspended?  Apparently, the school has a list of “absolute” safety rules that result in automatic suspension if broken.  The list proscribes fighting and weapons, which makes perfect sense.  The list also bans “imaginary” fighting or weapons.  So we’ve got a school that can suspend kids for the strict liability crime of using their imagination.

It might be time for everyone to step back and take a deep breath.

Colorado Court Conducts “Substantially Similar” Test in Carseat Case

On June 10, 2005, a four-month-old child, identified only as “A.H.” was injured when the car in which he was riding was T-boned by another vehicle.  A.H. was riding in an Evenflo Discovery Model 316 car seat at the time.  During the accident, the seat detached from its base,and was found in the rear cargo compartment after the crash. Following the accident, A.H.’s father sued Evenflo in the United States District Court for the District of Colorado.  Evenflo filed a motion in limine, seeking to exclude evidence of car seat models not involved in the accident.  The Court issued its opinion on October 31, 2012. See Hadjih v. Evenflo Company, Inc., No. 10-cv-024345-RBJ-KMT, 2012 WL 5363332 (D. Col. Oct. 31, 2012).

The major issue: the plaintiff’s desire to introduce evidence of testing by the National Highway Traffic Safety Administration on the Evenflo 390/391, the model that succeeded the 316.  During testing, the 390/391 detached from its base during side-impact crashes.  No testing had been done on the 316, because it was designed and manufactured before testing by the NHTSA started. Evenflo sought to exclude evidence of the 390/391 generally, and specifically, with regard to the testing.  In both instances, the Court undertook a “substantially similar” analysis.  As the Court noted, “in products liability actions, substantially similar acts or occurrences are often permitted to demonstrate the existence of a defect, to prove notice, or to refute testimony given by defense witnesses.”  A higher degree of similarily is required if the plaintiff is using the other product to show causation than if the plaintiff is simply using the product to show notice.  In this case, the plaintiff was using the 390/391 model to prove the defect, so a higher degree of similarity was required.

The Court held that both general evidence of the 390/391 model, and evidence of the testing involving the 390/391 model, could be used by the plaintiff, and denied Evenflo’s motion in limine.  In both cases, the focus of the court remained squarely on the plaintiff’s theory of the case. The plaintiff’s theory of the defect in the 316 model was that the plastic latching mechanism did not work properly.  Evidence in the case tended to show that the two carseat models had nearly identical latching mechanisms; in fact, the carseats could each latch into the bases designed for either model.  Other differences between the models, the court ruled, would go to the weight of the evidence, but not its admissibility.

In terms of the specific testing by the NHTSA, Evenflo argued that the testing itself involved crashes that were substantially dissimilar to the accident at issue in the case and, therefore, the testing results should be excluded.  Again, the court focused on the plaintiff’s theory, which was that the car seat carrier dislodged from its base because of intertial forces.  The court held that the difference in delta-v forces, the weight of the child/dummy, and other differences went to the weight that the jury will give to the evidence, and let the evidence in.

We will watch to see if this case continues to trial and try to determine what impact these rulings have on the judgment, if any, rendered in the case.  This is a good refresher on the “substantially similar” test, at least in terms of how Colorado interprets it.

Popcorn Lung is Popping (Up) Again

As we posted last week, there’s a new “popcorn lung” case on the block.  Plaintiffs’ attorneys everywhere must be licking their chops (and fingers) with news of the $7.2 million verdict in that fateful Colorado case.  While popcorn lung cases are certainly not new, this one is somewhat different. So, we figured it deserved more in depth treatment.  Typically, popcorn lung cases involve occupational exposure of employees who worked in a plant where a particular chemical was used as an ingredient in butter flavoring.  This new case involves a Plaintiff who just REALLY liked popcorn.  He brought suit claiming that eating popcorn injured him, and a jury paid him handily.

Popcorn lung is the term coined to refer to a relatively rare lung disease called bronchiolitis obliterans, which is somewhat similar to asbestosis.  One purported cause of bronchiolitis obliterans is the chemical diacetyl.  Diacetyl was used for many years as ingredient in artificial butter flavoring like the kind used on microwave popcorn.  The chemical was the subject of a number of lawsuits and multi-million-dollar verdicts in 2004 and 2005 arising from factory workers testing and inhaling the fumes from hundreds of bags of microwave popcorn a day.  At least some popcorn makers removed the chemical back in 2007

So how did this particular Plaintiff, who never worked around diacetyl, get popcorn lung?  By eating popcorn.   A LOT OF POPCORN.  This Plaintiff claims to have eaten two bags of popcorn everyday for 10 years.  He brought suit in 2008 against Glister-Mary Lee and Kroger, among others, claiming that by cooking and eating popcorn he developed bronchiolitis obliterans.  While eating two bags a day for 10 years may seem like a stretch, hospital workers apparently performed chemical testing in his kitchen and found levels of diacetyl similar to factory conditions (between .5 and 3 parts per million).  The Plaintiff’s attorneys argued that the defendants should have warned customers that inhaling the buttery aroma could put them at risk of lung damage.  A jury agreed with these claims and gave him $2.3 million for his reduced lung capacity and other damages.  They threw a $5 million in punitive just for good measure.

The question: will we see more such cases in the future or is this a one time fluke for a popcorn junkie?

The “Popcorn Lung” Case: A Lesson in Marketing to the Jury

There has been a $7 million verdict in Wayne Watson v. Dillon Companies, Inc. et al., in Colorado. Watson is a products liability case, and the basic allegation is that microwaveable popcorn gave the Plaintiff lung disease. Hence, the “Popcorn Lung” case, as these cases are being called. When I first heard of this type of litigation, my first thought was that this was yet another case mocking the integrity of the American judicial system, and I was frankly surprised that a federal judge had allowed this abomination to survive summary judgment. After all, the thought that microwaveable popcorn—of all things—could cause lung disease strikes me as utterly preposterous.

But after some investigation, I’ve been forced to temper my initial judgment.

Don’t get me wrong. I’m not saying I’m buying what the plaintiff is selling, even though the jury apparently did. I’m just saying I don’t think it’s as implausible as I first believed. Here’s why.

The theory of the case was not that microwaveable popcorn per se causes lung disease. It’s that a particular chemical that was commonly used to give microwaveable popcorn its buttery taste—diacetyl—can cause lung disease. And this argument is not new. In the early 2000s, there were a series of cases brought by folks who worked in commercial popcorn production facilities who made the same claim; that because of their long-term exposure to significant amounts of diacetyl in the air, they developed certain forms of lung disease. So ostensibly, there may be some science to back up the claims in those cases, which may be applicable to the Watson case.

Let’s assume – just for the sake of this post, mind you – that the research in the commercial popcorn workers’ cases is somehow founded. We’ve not reviewed all that literature, nor have we looked into the expert reports in the Watson case. But bear with us. Even if that research is founded, there seems to be a leap of faith that must be taken to get from those cases to Watson’s. Watson wasn’t a commercial popcorn worker. However, his claim is that during the corn-popping process, diacetyl is vaporized into aerosol form, and like the commercial popcorn workers, he inhaled the diacetyl which is now claimed to have caused his lung disease. We would expect Watson’s dose to be significantly less than the doses presumably inhaled by commercial popcorn workers—even though Watson claims to have eaten 2 to 3 bags of microwaveable popcorn every day for several years. The critical scientific question, then, is where does a person’s exposure to diacetyl cross the line into the danger zone?

I don’t think the importance of this question can be overstated. After all, I’ve eaten microwaveable popcorn. You’ve eaten microwaveable popcorn. And probably every member of that jury has eaten microwaveable popcorn (although after the trial, we suspect that the jurors who found the defendants liable may be cutting down on their microwavable popcorn intake). Yet, somehow, the icy hand of Orville Redenbacher reached out from beyond the grave and struck Watson down with popcorn-induced lung disease? That seems hard to believe. To win this case, plaintiff’s counsel needed to enable the jury to overcome their natural suspicion towards these claims, and the science is going to have to be pretty darn good.  Apparently, it worked.

But there’s a marketing point here to be made. “Popcorn Lung” sounds ridiculous. The name trivializes the purported issues and conjures up the same ghosts that haunt the “McDonald’s Coffee” case. To many an average person, this verdict will represent everything that is wrong with the American judicial system. The proposition that microwaveable popcorn—a staple of each American household and every family movie night—is associated with lung disease will be difficult for many readers to overcome.  The jury somehow overcame that skepticism. If I’m plaintiff’s counsel, the enemy here should be diacetyl, if the science truly supports that theory. Sure, it was applied to microwaveable popcorn. But that product is safe. Perhaps that explains it.

Lawsuit Looms in Wake of Colorado Theater Shootings

Does a business establishment, such as a restaurant, shop, or theater, owe patrons a duty of care to protect them against psychopaths with body armor and semi-automatic weapons?  According to the families of some the Aurora, Colorado movie theater shooting victims, the answer is “yes.”  Families of the victims are threatening a lawsuit against the owner of the Aurora, Colorado movie theater where the shootings took place.

The law firm of Napoli, Bern, Ripka, and Scholonik claims that Cinemark, the company that owns the Aurora movie theater, is liable for the tragedy and should compensate the victims and their families for their loss.  One of the firm’s attorneys, Marc Bern, told CBS News, “We have the experience and the contacts to hopefully end this litigation quickly. The victims here are some of the worst types of injuries that I have seen in over 37 years of practice.  I believe that the primary responsibility at this point rests with Cinemark.”  Apparently, their theory is that Cinemark should have had the additional security necessary to prevent the shootings.

It is interesting that Mr. Bern chose to say the “primary responsibility” for the shooting lies with Cinemark.  I would have probably placed the primary responsibility on the guy with the gun who was actually doing the shooting.

I feel a lot of compassion for the victims and the families of the victims of this heinous crime.  I really do; no one can imagine that fear and anguish that they experienced that terrible night and very likely continue to suffer.  However, I just do not see how the movie theater has any responsibility to pay for the actions this psychopathic killer.   Of course, a theater owes a duty to its patrons to keep them safe within reason.   But the shooter bought a ticket, left the theatre through an emergency exit and propped it open, donned a full suit of body armor, returned into the theatre, and then opened fire with a military grade semi-automatic weapon.   Was it reasonable to expect a movie theater to be prepared to protect patrons against the actions of an unexpected intruder in body armor with a semi-automatic weapon?  As recent events have show, even the military struggles to protect their own under similar circumstances.

If this case makes it to court, it has the potential of setting a dangerous precedent for the duty that business owners owe to patrons.  It could now be up to the business owners to anticipate nearly any crimes committed on their premises and be prepared to take steps to keep them from happening.  This is a very expensive proposition. It would, of course, ultimately lead to increased security costs and insurance premiums.  These costs will undoubtedly be passed on to the consumer.

Ultimately, this suit would likely fail, as courts have generally recognized that crime fighting is an inherently governmental function.  Courts usually will not impose a duty to protect upon a business unless there have been similar prior incidents or the incident was foreseeable under the totality of the circumstances.

 

Ski Instructor Not Qualified to Testify About Ski Design

Colorado’s Stanley Gale is a lot of things.  A skier with a Level I Alpine certification.  An alumnus of the Alpine Ski Patrol.  An expert qualified in the areas of ski safety and accident reconstruction.  However, in Squires v. Goodwin, No. 10-cv-00309, 2011 WL 5331583 (D. Col. Nov. 7, 2011), a Colorado federal court held that he wasn’t qualified to testify as to the design, manufacture, or risk associated with bi-ski adaptive skiing equipment.  Preposterous, you say?  How can a man with 38-years of experience as a ski patrol officer not qualify him as an expert you ask?  Certainly, the court must be in error.

In Squires, the case arose out of a 2008 ski accident at the Breckenridge Ski Resort in Colorado.  The plaintiff, a 17-year old girl with cerebral palsy and legal blindness, was injured when her ski instructor lost control of the tethers connected to a bi-ski manufactured by Mountain Man, Inc.  After the instructor lost control of the tethers, the plaintiff continued down a ski slope in the bi-ski until it collided with a tree.  The plaintiff filed suit against the instructor and the Breckenridge Outdoor Eduction Center.  Thereafter, she amended her complaint, adding claims for strict products liability, breach of implied warranty of fitness, common law negligence, and breach of express warranty against Mountain Man.  The plaintiff retained Gale as an expert to testify regarding the inherent danger presented with the design of the bi-ski.

Mountain Man moved to strike the opinions of Gale on the grounds that they failed to satisfy the requirements of Rule 702 of the Federal Rules of Evidence or the standards outlined in Daubert.  According to the plaintiff, Gale was qualified to testify about the alleged deficiencies in the bi-ski because he has “extensive knowledge and experience with ski patrol equipment and mountain terrain safety.”  Further, the plaintiff argued Gale’s opinions were based on “sound principles.”  However, these “sound principles” were never articulated.

The Court conceded that Gale may be qualified to testify as an expert in certain fields – but not in the areas of product design, manufacture, and product warnings.  Gale has never been employed by a ski equipment manufacturer and has no formal training in the field.  While experts are granted wide latitude to offer opinions, the Court indicated that these opinions must have some reliable basis.  Despite the apparent lack of ski product design experience, Gale opined that the bi-ski was “inherently unsafe and not designed for powerful forces” because “all of the plastic buckles on the bi-ski seat broke.”  Gale identified no formal methodology as a basis for his opinions.

Gale’s opinions did not cease with his “broken buckle” logic.  He also proposed an alternative design for the bi-ski involving “some sort of braking device which could be controlled by the person strapped to the bi-ski.”  While Gale’s hypothesis sounds intriguing, he offered no specifications for the design, demonstrations of its feasibility, or explanations of how it would be employed by a person with physical impairments.  The Court described his opinions on the alternative design as a “subjective belief that unknown individuals with actual qualifications could ‘come up with something.’”  Apparently, these opinions are not the reliability envisioned by Rule 702.

Knowing the significance of expert testimony in products litigation, we must question the plaintiff’s choice of Gale.  Sure, he is an experienced ski instructor, but couldn’t the plaintiff find someone more linked-in to ski design and manufacture?  Maybe the plaintiff prepped for the Daubert hearing by reviewing the qualification of Mona Lisa Vito (Marisa Tomei) in My Cousin Vinny.  If Vito is qualified to testify in general automotive knowledge because she comes from a family of mechanics, Gale’s skiing experience should qualify him to talk about the design and manufacture of skis right?  After all, with 38 years of experience on the slopes, Gale has seen a lot of skis.  Unfortunately for the plaintiff, the Court was not as impressed as Jim Trotter (Lane Smith) and Judge Chamberlain Haller (Fred Gwynne).

Fortunately for Mountain Man, the Court got this one right.  Gale was not qualified as an expert in product design and the Court granted Mountain Man’s motion for summary judgment as a result.  As for Gale, well he won’t be able to add “ski equipment expert” to his CV.  Maybe he can spend his time away from the trial, designing that braking device.