Recently, in Osorio v. One World Technologies, No. 10-1824 (1st Cir. October 5, 2011),the First Circuit Court of Appeals affirmed the denial of a table saw manufacturer’s motions for post-trial relief after it was hit with a $1.5 million verdict.  In that case, the plaintiff was severely injured when his hand slipped and slid into the blade of a BTS 15 table saw manufactured by Ryobi.  The saw was equipped with a blade guard and a guiding rip fence, but they had been removed by the plaintiff.  The plaintiff sued Ryobi for negligence and breach of the implied warranty of merchantability.  After an eight day trial, the jury returned a verdict of $1.5 million.  Ryobi moved for judgment as a matter of law and for a new trial.  The district court denied the motions, and Ryobi appealed.

The plaintiff argued the saw was unacceptably dangerous due to a defective design.  To support his claim, the plaintff relied primarily on the testimony of Dr. Stephen Gass.  In 1999, Dr. Gass invented a mechanism known as “SawStop” which immediately stops a blade from spinning when it makes contact with human flesh.   Dr. Gass pitched his product to a number of major table saw manufacturers, including Ryobi, but he didn’t catch any suitors.

Before we go any further, we must admit that we find this scenario perplexing on multiple levels.  First, if SawStop has been shot down by every major table saw manufacturer, Dr. Gass was certainly motivated to stick it to Ryobi at trial.  We can imagine the dollar signs flashing in the plaintiff’s head when he discovered Dr. Gass.  A witness harnessing some beef with the defendant who will also testify to an alternative design?  Sign him up.  Second, if SawStop is so revolutionary, why have all of the table saw manufacturers turned it down?  The plaintiff concocted the conspiracy theory that manufacturers avoided SawStop due to a collective agreement that if any of them adopted the technology, the others would face heightened liability exposure for not doing so.  While it is not in the reported opinion, we hear they also presented evidence that Buzz Aldrin’s moon landing was filmed in a Hollywood studio.

In reality, there may have been a more plausible explanation for not adopting SawStop.  There was some dispute over whether a small benchtop table saw could properly absorb the force necessary to stop a rapidly spinning saw blade.  Ryobi also questioned whether a saw equipped with SawStop could remain portable, a trait necessary for its many contractor customers.  Further, the addition of SawStop would nearly double the cost of the saw.  If that is not enough, Dr. Gass actually testified that SawStop’s flesh-detection system could be erroneously triggered when cutting wet or pressure-treated wood.  These are all factors that Ryobi, and presumably other manufacturers, considered when deciding between the cover blade or adopting SawStop.

On appeal Ryobi argued that instead of presenting a viable alternative design, the plaintiff

set out to prove that the entire category of lightweight, inexpensive, benchtop table saws to which the BTS 15 belongs was defective, in part because the saws’ manufacturers have not incorporated flesh-detection braking systems into their designs.

The First Circuit acknowledged that “categorical liability” claims are generally impermissible.  However, it noted that the defining characteristic of a categorical liability claim is the  absence of an alternative design.  Admittedly, the plaintiff clearly offered evidence of an alternative design.  Should the alternative design really count when it has been unanimously rejected by the field?  Even though there is that whole lingering conspiracy thing, its not like Ryobi was without reason for rejecting SawStop.  Perhaps the more viable alternative design would be a saw without a removable blade guard a guiding rail – less expensive and doesn’t affect the integrity of the saw.  Crazy theory, but then what would the plaintiff had done with his star witness?

In Niemela v. Imperial Manufacturing, Inc., — P.3d —, No. 20100682, 2011 WL 4485978 (Utah Ct. App. Sept. 29, 2011), the Utah Court of Appeals reconsidered a trial court’s grant of summary judgment against a postal worker who sued the manufacturer of mailboxes.  Patricia Niemela delivered mail for the United States Postal Service in a neighborhood in which mailboxes installed by Imperial Manufacturing had been installed.  According to Niemela, the mailboxes were defectively designed and manufactured, allowing them to take on water and freeze when the temperature dropped.  She was forced to use tools to break up the ice, which allegedly caused her to sustain hand injuries.  As noted by the court, Niemela brought claims for strict liability, negligence, and breach of implied warranty against the manufacturer:

In her products liability claim, Niemela alleges that the Imperial mailboxes contained design and manufacturing defects rendering them unreasonably dangerous. She seeks to demonstrate these defects by showing that the mailboxes did not conform to the 2001 USPS regulations, notwithstanding the fact that the mailboxes were designed and manufactured in 1995. Imperial responds that (1) the mailboxes must be presumed nondefective because they complied with federal regulations in effect when they were designed and manufactured, and (2) Niemela has not presented sufficient evidence to overcome this presumption.

The Court of Appeals affirmed the entry of summary judgment against Niemela and reiterated the trial court’s reasoning.  At the time the mailboxes were manufactured, they complied with the USPS regulations.   Citing a statutory presumption from the Utah Code, the appellate court observed:

There is a rebuttable presumption that a product is free from any defect or defective condition where the alleged defect in the plans or designs for the product or the methods and techniques of manufacturing, inspecting and testing the product were in conformity with government standards established for that industry which were in existence at the time the plans or designs for the product or the methods and techniques of manufacturing, inspecting and testing the product were adopted.

In order to overcome the presumption, the plaintiff must prove by a preponderance of the evidence that the product is unreasonably dangerous.  Niemela could not do so, because her bald accusations about certain aspects of the mailbox were not supported.  In the end, all she had was an allegation that she was injured, and therefore there must have been something wrong with the mailboxes.  It was not enough.

This past summer, the National Football League endured a 136-day lockout, the longest work stoppage in league history.  While current players spent the four month hiatus negotiating a new collective bargaining agreement, retired players had their own beef with the NFL.  Back in July, 75 former players sued the league and helmet manufacturer, Riddell, alleging that Riddell and the NFL concealed the harmful effects of concussions from coaches, players, and trainers.  Anderson v. National Football League et al., No. BC46842 (Cal. Sup. Ct.  July 19, 2011).  In addition, the players allege that football helmets were defectively designed and manufactured for attenuating the foreseeable force of impact.  Anderson was the first of three similar class actions filed in the Los Angeles County Superior Court.  On August 3, 47 additional players brought similar allegations against the NFL, Riddell, and a number of other sports entities.  Pear v. National Football League et al., No. LC094453 (Cal. Sup. Ct. Aug. 3, 2011).  On August 26, another 18 players entered the picture. Barnes v. National Football League et al., No. BC468483 (Cal. Sup. Ct. Aug. 26, 2011).  At this time, the three actions have not been consolidated.

Even with the protection of helmets and pads, concussions and injuries are still commonplace within the game.  While injuries still occur, they shouldn’t be attributed to any defect in the equipment.  Football is a dangerous game.  Players routinely collide into one another using incredible force.  If not for helmets and pads, injuries would be even more prevalent.  To our knowledge, there are no feasible alternative designs which could eliminate concussions.  The manufacturers are not responsible for the risks of the game.  They are responsible for doing what they can to minimize those risks.  Players should know of the potential harm their profession poses to their bodies.

Last year, we reported on the claim brought by a former player’s widow against the NFL and an equipment manufacturer.  In that case, the plaintiff alleged that helmets and shoulder pads were defectively designed and that the NFL failed to warn of the dangers of heat stroke.  By contrast, the recent string of claims allege that the NFL not only failed to warn, but intentionally concealed the dangerous effects of the game of football. We can’t speak as to what the NFL did or did not know about concussions. Whatever evidence may or may not be produced on that point, how can the players allege that they were completely oblivious to the dangers?

With scientific and medical research, we are constantly expanding our knowledge about the brain and the prevention of head injuries.  Accordingly, it is understandable that a player in the 1920’s may have had less knowledge about such things than a player in the 1990’s.  With the expansion of knowledge, the NFL and the equipment manufacturers have evolved their standards to protect players.  The abandonment of the old leather-helmets illustrate this point.  By the mid-1940s, football helmets were required by the NFL.  Obviously, the league recognized a need to protect the head.  We can only assume that players understood this same need every time they strapped on a helmet.

We recognize that protecting one’s self from the danger of an impact does not necessarily carry with it knowledge of long-term effects of concussions.  However, today’s scientific evidence was not available yesterday.  Indeed, one need not be a practicing physician to recognize that every time something is damaged, it doesn’t come back in quite the same position it was before.

We here at Abnormal Use love football.  We respect the players and recognize the risk they take on a daily basis for both the thrill of the game and our entertainment.  These latest lawsuits against the NFL, however, are misguided.  Football is dangerous.  Helmets are not just a placard for team logos.  They are worn for a reason.

Earlier this month, on July 12, the Third Circuit upheld a jury’s verdict in favor of a manufacturer of bicycle helmets, and in doing so, affirmed the lower court’s application of a relatively new interpretation of product liability law.  Covell v. Bell Sports, Inc., No. 10–3860, —F.3d—, 2011 WL 2690396 (3d Cir. July 12,  2011). The case was filed by the parents of a 36-year-old schoolteacher who sustained serious brain injuries when he was hit by a car while bicycling to work in 2007.  The parents, in their capacity as guardians, filed suit against the manufacturer of their son’s helmet, alleging that it was defectively designed and lacked adequate warnings.  At trial, over the plaintiffs’ “strident objections,” the court permitted the helmet manufacturer to introduce expert testimony regarding the Consumer Product Safety Commission’s “Safety Standard for Bicycle Helmets.” In turn, the plaintiffs responded with their own expert regarding the CPSC safety standard.  Both experts testified at trial that the CPSC standard forms the “starting point” for any bicycle helmet design, and both agreed that the helmet at issue satisfied CPSC standards in all respects.  At the conclusion of trial, the court instructed the jury that in determining whether the helmet was defective, it could consider evidence of standards in the industry, including the CPSC standards.

The Third Circuit recognized the “core conflict” that exists within provisions of the “strict liability regime” of the Restatement (Second) of Torts: that courts are to ignore evidence that the seller “exercised all possible care in the preparation and sale of his product,” yet imposes liability only for products that are “unreasonably dangerous.”  It is, of course, often impossible for a jury to determine whether a product is “unreasonably dangerous” without referencing evidence that the seller did or did not exercise “care in the preparation” of its product. Ultimately, the court held that federal courts applying Pennsylvania law are to use the Restatement (Third) of Torts to guide both their decisions regarding the admittance of evidence and in their usage of jury instructions.  In this regard, it allows for a more negligence-friendly products liability regime than previously recognized in Pennsylvania, where juries may properly consider industry standards and government regulations.  This is certainly a defense-friendly analysis and decision.  Short of doing away with strict liability laws in their entirety, incorporating more negligence-type concepts into the analysis of manufacturer liability is a positive approach.

Emily Pincow of the Product Liability Monitor blog has additional thoughts on the case here.

With summer in full swing, families head to their porches and patios to enjoy the long afternoons and evenings in the outdoors.  In two recently filed lawsuits, multiple plaintiffs allege that they suffered serious injuries during those afternoons outside when decorative firepots exploded or burst into flames, splattering them with flaming fuel gel.

Plaintiffs’ mega-firm Motley Rice, based in Charleston, South Carolina, has filed two lawsuits – one in state court in Charleston and the second in South Carolina federal court.  The first of those involves a West Ashley woman who suffered second- and third-degree burns on the lower half of her body when her firepot full of citronella gel allegedly exploded and engulfed her legs with flames.  Smilowitz v. Napa Home & Garden, Inc, et al., C.A. No. 11-CP-4202 (S.C. June 2011).  Charleston’s The Post and Courier covered the story near the May 21, 2011 incident, prior to the time suit was filed.  The second suit was filed by two Florida residents who allege in their complaint that on May 25, 2011, they were visiting relatives in Spartanburg, South Carolina, when a “torch-like” flame engulfed one individual, who was transported to a burn center in Augusta, Georgia, with second- and third-degree burns over 30% of her body.  The second plaintiff in that suit alleges he suffered serious burns while trying to extinguish the fire.  Satterfield v. Napa Home & Garden, Inc. et al., C.A. No. 7:11-CV-01514-JMC (D.S.C. June 2011).

Both of these South Carolina complaints name as defendants the manufacturer, Georgia-based Napa Home and Garden, as well as Fuel Barons, Inc. and Losorea Packaging, Inc.  They both involve Napa Firepots, which are outdoor glass or clay pots with open fuel gel containers.

These South Carolina incidents are not the only ones of record.  ABC News recently covered [link includes video] a similar incident involving a New York teenager who suffered third-degree burns to his face while preparing for a wedding reception in his cousin’s backyard.  The Consumer Products Safety Commission has reportedly since issued a warning on the gel fuel used in the firepots.  The “jelly-like” substance, it says, can easily get onto clothing and skin when on fire and can be difficult to put out with water or smothering.  With numerous reports of injury and an untold number of the products sold, additional lawsuits are likely to follow.

To be a good expert witness, a person should be extremely knowledgeable about the subject upon which he or she is opining.  The expert should preferably have a nice balance of practical and academic experience in his or her field, be good looking, well spoken, and able to articulate complex theories into easy to understand, layman’s terms. Oh, and one more thing.  The expert should probably wait until after he or she conducts testing on the product at issue in a case to draft his or her expert report.

In Cannioto v. Louisville Ladder, No. 8:09-CV-1892-T-30TBM, 2011 WL 2014260 (M.D. Fla. May 20, 2011), the plaintiff Robert Cannioto was allegedly injured when the 24-foot ladder he was standing on performing roofing work failed, causing him to plummet 16 to 18 feet to the ground.  The ladder was manufactured by LL. Cannioto and Home Depot, and Mr. Cannioto and his wife Bonnie Cannioto sued these two companies on theories of (1) strict liability against Louisville Ladder; (2) negligence of Louisville Ladder; (3) strict liability against Home Depot; (4) negligence of Home Depot; and (5) loss of consortium against Louisville Ladder.  The defendants filed a motion to exclude the testimony of the plaintiffs’ expert, Dr. Charles Benedict, and for summary judgment.

The plaintiffs hired Dr. Bendedict to render an opinion for them about the design and condition of the ladder at issue in the case.  Obviously, the plaintiffs wanted him to say there was something wrong with the ladder.  So, he did, writing a report in which he opined that the ladder was defectively designed.

Unfortunately, Dr. Benedict couldn’t quite get his tests, conducted after he wrote the report, to match his “findings” that the ladder was defectively designed:

In an attempt to prove his theory that the ladder failed as a result of the effect of torsional forces on a defectively designed foot, Benedict had one of his engineers set up a 24–foot extension ladder . . . in a manner similar to the one used by Plaintiff. He then had the engineer stand on the tenth rung of the fly or extended section of the ladder and violently jerk the left rail for almost 10 minutes in an effort to get the ladder to fail. The engineer also set the ladder on uneven ground and placed large weights near one of the feet in an effort to get the rail to fracture. Benedict’s assistants were unable to get the ladder rail to bend or break during the tests.

Don’t you hate when that happens?  So, the expert changed his theory from design defect to manufacturing defect.  In the middle of his deposition.  Without conducting any testing at all on the theory.

During his deposition, Benedict offered a new theory, one about a manufacturing defect rather than a design defect, as to why the subject ladder failed. He testified that the rungs were not properly or adequately attached to the rail and that the rung pulled out. This theory was not in Benedict’s expert report and Benedict admitted that he had not performed any testing to support this theory.

I used to have a professor who would say something like, “The best way to win a lawsuit is on a technicality.”  I think what he was getting at (as all law professors force you to guess what they are getting at, rather than actually coming out and saying what they are getting at) is that it is much easier to win and defend on appeal a clear procedural decision.  The converse of that is, the worst way to lose a lawsuit is on a technicality.  Even worse, it is absolutely no fun at all to explain to a client that you lost a lawsuit because of a technicality.  Today, through Chow v. Reckitt & Colman, Inc., No. 81, 2011 WL 1752234 (N.Y. May 10, 2011) [PDF], we are reminded that procedure matters.

I think we can all agree that drain cleaner is dangerous and can cause physical harm if not used correctly.  After all, anything that will eat through grease, hair, and other sludge would probably taint the delicate skin of a lawyer.  In Chow, a restaurant employee used Red Devil Lye to clear a drain in a Manhattan restaurant and was injured during that task.   There was no problem dispensing with the failure to warn claim, but the design defect claim was a different issue.  In its motion for summary judgment, the defendant said something like, “C’mon, this is lye.  We buy it specifically because it devours sludge.  It’s dangerous because it has to be dangerous to do its job. ”  But the Court of Appeals denied summary judgment.  New York rules require the movant to produce evidence at the summary judgment stage in order to perform the risk-utility test.  There was no such evidence in the record. On this point, the Court of Appeals noted as follows:

[D]efendants, in support of their summary judgment motion, produced no evidence of the absence of a safer but functionally equivalent alternative to lye. Defendants relied simply on a statement in an attorney’s affirmation that “the product at issue … cannot be designed differently without making it into an entirely different product” (emphasis omitted). The burden of making the necessary evidentiary showing might not have been hard to meet: an affidavit from someone knowledgeable in the industry—either a retained expert or an employee of one of the defendants—could have done it. But the burden was not met.

In other words, the defendant couldn’t just point to the absence of evidence for the plaintiff’s case.  Indeed, the court was clear that the plaintiff could not win at trial on the evidence before the court, and at trial, a directed verdict would be proper.  Nevertheless, New York procedure requires the submission of evidence in cases at the summary judgment stage in cases such as these.  It was not enough to say that the product was dangerous by nature, but proof that there was no functionally equivalent safer alternative was necessary.

So, the lesson for today is, we must look at all of our cases and think about how we could lose them.  There are entire blogs about frivolous lawsuits, and defense lawyers are notorious for thinking that at least half of all  lawsuits are trumped up lottery tickets.  Nevertheless, not looking at the motion critically had some real consequences in Chow.  But the plaintiff’s lawyer did what he intended to do, which is survive summary judgment.  Don’t take your cases for granted, defense lawyers.  An overlooked procedural detail may bite you.