Thursday, January 13, 2011

Florida Federal Court Rules Manufacturers Have No Duty to Provide Bilingual Warnings

The United States has always been known as a “melting pot,” a place where people from all over the world come and settle and bring their food, culture, and language with them. What does this “melting pot” designation, however, mean for manufacturers, especially in a country where there is no official language? What duties do they have to people who do not speak or read English.

This was precisely the issue before the Southern District of Florida in the case of Farias v. Mr. Heater, Inc., et al., No. 09-CIV-23789, 2010 WL 4814660 (S.D. Fla. Nov. 19, 2010). On February 5, 2009, Plaintiff Lilybet Farias (“Plaintiff”), a naturalized American citizen who was Cuban-born, purchased two heaters from a Home Depot in Miami, Florida to heat her home during a cold snap. One heater was manufactured by Defendant Mr. Heater, Inc., and the other by Defendant Enerco Group, Inc. Plaintiff spoke little English and could read almost no English. Other than understanding the word “caution,” which was printed throughout the user’s manual, she could not understand any of the words on the heater’s packaging or read the users’ manuals.

Plaintiff took the two heaters home and hooked them up to propane tanks. She put one in her living room, two or three feet away from her sofa, and one in her bedroom. After watching television in her living room, she turned that heater off, turned on the heater in her bedroom and went to sleep. Later, she woke up when smoke from a fire in her living room woke her up. Her home suffered significant fire and smoke damage as a result.

Plaintiff filed suit against the two manufacturers of the heaters, as well as Home Depot. She sued the defendants on theories of negligent failure to warn and strict liability. The defendants filed for summary judgment. As the Southern District of Florida outlined:

A manufacturer must take reasonable precautions to avoid reasonably foreseeable injuries to the users of its products and thereby assumes a duty to convey to the users of that product a fair and adequate warning of the dangerous potentialities of the products so that the user, by the exercise of reasonable care, will have a fair and adequate notice of the possible consequences of the product’s use or misuse.

Nevertheless, Florida cases make clear that a manufacturer will not be held liable for damages in products liability cases, even if its warning is inaccurate, if the person did not read the warning or label, since in that case proximate cause cannot be established. As a result, the Court framed two issues before it: First, whether a manufacturer has a duty to provide warnings in Spanish, and second, whether a Spanish-speaking plaintiff can establish proximate cause when she cannot read English warnings provided by a manufacturer.

The Court held that, as a matter of law, the manufacturers of the heaters had no duty to provide bilingual warnings in this case. The Court distinguished the facts of Farias from a previous case, Stanley Industries, Inc. v. W.M. Barr & Co., Inc., 784 F. Supp. 1570 (S.D. Fla. 1992) in which the court imposed such a duty, because in Farias, the heaters at issue in the case were not marketed specifically to a Spanish-speaking population. The Court also noted that there was no statute imposing such a duty on manufacturers.

The Court also held that “any purchaser of the Heaters manufactured by Mr. Heater and Enerco who read the instructions would have understood the clear an unambiguous warnings not to sue the Heaters indoors in an enclosed space.” Relevant to the Court’s decision was the fact that Plaintiff had failed to further investigate the proper use of the heaters, despite her understanding of the word “caution.” She also understood the words “danger,” “warning,” and “stop.” In the words of the Court, “it would be improper to find such clear warnings inadequate because Plaintiff here was not well-versed in English and did not investigate the danger to which she had been alerted in the use of the Heaters.” In fact, the Court found that Plaintiff’s failure to seek out additional explanation was “willful ignorance . . . certainly akin — if not precisely the same — as refusing to read the warnings at all.” The Court granted summary judgment to the defendants on the cause of action for failure to warn.

Finally, the Court also held that the defendants were entitled to summary judgment on the strict liability cause of action because Plaintiff could not establish that either heater had been defectively designed.

The issue of bilingual warnings on consumer products will be an issue to watch in the future. This decision is an important one, because if manufacturers are required in the future to provide bilingual instructions and warnings, what languages are included? Spanish might be the obvious first step, but where would the line be drawn? If warnings are posted in Spanish and French, for instance, but the injured party is Korean, will the manufacturer be found negligent in a failure to warn case? Courts and legislatures need to be wary of imposing overly burdensome requirements on manufacturers in this area.

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Tuesday, December 28, 2010

Major Verdict Threatens to Bankrupt Maker of Exercise Equipment

A New York jury on December 8 awarded a 30-year old plaintiff $66 million in her suit against the maker of an exercise machine that fell on her, rendering her a quadriplegic. Barnhard v. Cybex International, Inc., No. 2368/2005 (Supreme Court, Erie County, New York). The plaintiff filed suit against Cybex International, which is a leading manufacturer of exercise equipment, and against her employer at the time, Amherst Orthopedic Physical Therapy. As reported by CNBC, the jury apportioned 75 percent of liability to Cybex, 20 percent to Amherst Orthopedic, and 5 percent to the plaintiff. Cybrex had only $4 million in insurance coverage.

At the time of her injury in 2004, the plaintiff was working as a physical therapist in Buffalo, New York. She reportedly was performing shoulder stretches and had one hand placed on top of a leg extension machine. As she stretched back with her shoulder and arm, the 500-pound machine fell on her, breaking two vertebrae and compressing her spinal cord.

The plaintiff alleged in her suit that Cybex sold a defectively designed, unstable product, and that it failed to provide adequate warnings and instructions in that it issued conflicting instructions regarding the machine’s installation and anchoring requirements. The jury also reportedly concluded that Cybex failed to provide notice or warning of the tip-over hazard after having received notice of other injuries on similar Cybex machines.

Cybex plans to appeal the recent verdict, which the Boston Herald reports will, if it stands, likely bankrupt the small company. It cites to a recent report of an analyst who concluded that Cybex’s earnings would not cover its operating expenses and the estimated $45 million it would need to borrow to cover the judgment. Cybex Chairman and CEO reportedly said of the outcome: “We strongly believe that Cybex was not negligent and was in no way responsible for this tragic accident. We will vigorously pursue all avenues to attain a reversal of this verdict.” Shares of the company’s stock plummeted 37 percent after its announcement of the verdict.

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Tuesday, December 7, 2010

Ohio: Duty to Warn that Football Helmet and Pads Could Cause Heat Stroke

In July 2009, the Southern District of Ohio decided, on the defendant-manufacturers’ motion for summary judgment, that a manufacturer of football equipment has a duty to warn that wearing full pads and a helmet could cause heat stroke. That case followed the well-publicized death of Korey Stringer of the Minnesota Vikings in 2001. Stringer v. National Football League, et al., No. 2:03-cv-665, 2009 WL 6885869 (S.D. Ohio Jul. 10, 2009).

Following Stringer’s death, his widow brought suit. After the summary judgment ruling, the defendant-manufacturers asked the Court to reconsider its decision denying the motion for summary judgment on plaintiff’s failure to warn claim. The defendants asserted that “this court committed clear error in holding that [defendant], as a matter of law, had a duty to warn of the risk of heat exhaustion and heat stroke, and in extending the duty to non-injured, non-users of the products, i.e. the Vikings’ trainers and coaches.” The court found no clear error in its July 2009 decision and denied the defendants’ motion for partial reconsideration.

The Court’s underlying July 2009 decision was brought to our attention as a result of this recent denial of the defendants’ motion for partial reconsideration. While this decision is more than a year old, it provides an interesting set of facts. In 2001, Minnesota Vikings player Korey Stringer died from complications of a heat stroke while practicing at training camp. Stringer was over 300 pounds, and he suffered heat stroke on a hot and humid day while wearing full pads and helmet. Stringer’s widow filed a lawsuit against the equipment manufacturers for failure to warn, design defect, breach of implied warranty and breach of express warranty.

The Court had granted the defendants’ summary judgment on all of the Plaintiffs’ claims except for her failure to warn claim. First, the court found that since the plaintiff could not show an alternative design for the equipment, it was not unreasonably dangerous and the plaintiff’s defective design claim failed. Second, the court found that “strict products liability has effectively preempted implied warranty claims where personal injury is involved.” Third, the court found no evidence that the defendants expressly warranted that the helmet and pads were safe for their intended use.

On plaintiff’s failure to warn claim, the court denied summary judgment because it found that “[d]efendants had a duty to warn of the specific risk of developing heat stroke because it was not an obvious risk, and because the connection between Stringer’s heat stroke and Defendants’ failure to warn was not remote enough to preclude liability as a matter of law.” Further, the court found issues of material fact about whether a warning would have changed the conduct of Viking trainers and prevented Stringer’s injuries.

The aspect of the court’s decision most intriguing to us is the court’s finding that the danger presented by the helmet and shoulder pads was not obvious. Stringer was a 300+ pound football player that was not new to the game and had likely practiced in full gear in the heat for many years prior. How could the danger not be obvious? In determining that the danger was not obvious, the court distinguished the general risk of becoming hotter when wearing a helmet and shoulder pads and the specific risk of developing heat stroke. The court stated that the first was obvious but the specific risk was not. We are still not convinced there is much a difference.
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Monday, November 29, 2010

The Unreasonably Dangerous Artichoke

Fellow blog The Hot Dish had an interesting post recently about a diner suing a restaurant owned by the Hillstone Restaurant Group because he was not properly instructed on how to eat an artichoke. Mr. Carvajal, the diner in question, ate the actual leaves of the artichoke, leading him to experience severe abdominal pain due to the leaves being lodged in his small bowel.

The Hot Dish asks the right question: “To what extent should restaurants be liable for the foods they serve?” For instance, should diners be warned not to eat the bones of barbecue ribs?

Other blogs have also provided commentary on this case; a post in the Miami New Times points out that Mr. Carvajal is a doctor originally from Cuba, and suggests that perhaps, he should have known better. Word of Mouth also posted on the suit, commenting that it raises questions about the balance between “helpfulness and over-familiarity” by servers. But perhaps the best commentary on the case from a legal standpoint comes from a post by On Point, which analyzes the negligence case Mr. Carvajal will be attempting to make against the restaurant as follows:

Florida, like other states, uses a “reasonable expectation” test in unfit food cases. A preparer of food “has the duty of ordinary care to eliminate or remove in the preparation of the food he serves such harmful substances as the consumer of the food, as served, would not ordinarily anticipate and guard against,” the Florida Court of Appeals said in Zabner v. Howard Johnson’s, 201 So.2d 824 (1967).

Carvajal, though, can’t recover damages for unfit food since there was nothing harmful per se in the artichoke he was served. It is not what he ate that allegedly caused his injury, but how he ate it.

***

Carvajal would have a better case if his server had given him incorrect instructions on how to eat an artichoke. As the case stands now, it would expose a restaurant to liability any time a server does not explain to a customer how to eat a lobster, relieving the customer of responsibility for asking the simple question, “How do I eat this?”

While I agree with this analysis as a whole from a public policy standpoint, I’m not sure it isn’t what Mr. Carvajal ate that wasn’t the problem–he ate the entire leaf of the vegetable, instead of just the meat inside it. For my part, that’s a what and not a how as On Point describes it. But to burden restaurants and servers with explaining to each diner how to eat his food–from shrimp to ribs to bone-in steak–would be to expand the concept of duty in a negligence action far beyond the scope that the law–and common sense–ever intended.

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Tuesday, November 9, 2010

Jury Orders Drugmaker to Pay $257 Million to State for Improper Marketing Practices

A Louisiana jury in mid-October issued a $257.7 million verdict against Janssen Pharmaceutica, Inc. and its parent company, Johnson & Johnson, finding that the drugmaker misled Louisiana doctors about possible side effects of its antipsychotic drug Risperdal. See Caldwell ex rel. State of Louisiana v. Janssen Pharmaceutica, Inc., 04-C-3967, 27th Judicial Court, St. Landy Parish, Louisiana. Businessweek reports that the basis of the suit, which was initiated by the state’s attorney general, was that J&J officials wrongfully touted its drug as superior to competing antipsychotic drugs and attempted to minimize its links to diabetes.

The state’s case was based on claims that J&J and Janssen sent 7,604 “Dear Doctor” letters to Louisiana medical providers and made a total of 27,542 sales calls, in which company representatives claimed that Risperdal was safer than competing antipsychotic drugs such as Eli Lilly’s Zyprexa and AstraZeneca’s Seroquel. (See our previous post here, where we took a look at the litigation involving claims that AstraZeneca failed to warn users of the diabetes risks associated with its antipsychotic drug.) The state’s local NBC news affiliate reported that J&J’s statements were in violation of the state’s Medical Assistance Programs Integrity Law (MAPIL), which requires that the attorney general protect medical assistance programs from companies that engage in fraud, misrepresentation, or other improper practices to obtain payments for which they are not entitled.

According to an article at Law360, which explores a bit of the history of lawsuits against J&J involving improper marketing practices, the jury in the present case issued penalties of $7,250 for each of J&J’s 35,542 alleged violations of the MAPIL, which amounted to one of the largest verdicts in the history of the state. Patrick Morrow of the Opelousas law firm of Morrow, Morrow, Ryan and Bassett, which actually tried the case on behalf of the state, said of the verdict: “You can’t come into Louisiana and disseminate false and misleading information.”

Although J&J has denied any wrongdoing in connection with these claims, this verdict certainly will have a lasting impact on the way drugmakers market their products to doctors and medical professionals.
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Thursday, August 26, 2010

Pennsylvania ATV Case Highlights the Difference Between Misuse and Unintended Use in Products Cases

In Smith v. Yamaha Motor Corporation, U.S.A., — A.2d —, 2010 WL 3239476 (Pa. Super. Ct. Aug. 18, 2010), an appeals court in Pennsylvania considered whether a trial court erred in granting summary judgment to Yamaha on claims of negligence and strict liability, and whether it erred by striking the report of Plaintiffs’ accident reconstruction expert in its entirety.

On September 23, 1999, Jeffrey Smith, an experienced ATV rider, was attempting to back his Yamaha ATV, more specifically a 1987 Yamaha Big Bear 350, down a hill when his foot slipped and struck the right-rear fender of the ATV. The fender collapsed, and his right leg became trapped between the frame and the wheel. The ATV then rolled back over Mr. Smith, causing him to suffer severe injuries that left him disabled and disfigured. According to the website, this ATV was Yamaha’s first 4×4 ATV:

Mr. Smith and his wife, Susan, sued Yamaha under theories of strict liability, negligence, and breach of warranty, and claimed that the rear fender and instrument panel were defective. Yamaha answered, and asserted that Mr. Smith was contributorily negligent by trying to back the ATV down the hill, and by consuming alcohol (Mr. Smith’s BAC was 75% below the legal limit) and taking drugs (he was ingesting prescription OxyContin for a degenerative back condition).
Yamaha’s motion for summary judgment as to Plaintiffs’ strict liability claims was granted on the grounds that Plaintiff was misusing the ATV at the time of the accident because the ATV manual, which Plaintiff acknowledged receiving, warned against consuming drugs or alcohol in connection with using the ATV, and also counseled against letting the ATV roll backwards on a hill. By doing all of these things, Yamaha argued, Mr. Smith was “operating the vehicle in an unintended manner” (emphasis added). Yamaha’s motion for summary judgment as to Plaintiffs’ claims for negligence was also granted, as was its motion to strike the expert report of Plaintiffs’ accident reconstruction expert, because it raised a new theory of recovery after the statute of limitations had expired.
The appellate court reversed the trial court’s striking of the expert’s report in its entirety, holding that even though part of the report did raise a new recovery theory following the statute of limitation’s expiration, the remainder of the report did not and, therefore, the offending portion should merely have been redacted. The expert, therefore, should have been allowed to propound his theories about the defectiveness of the design of the fender and the availability of alternative designs that would have prevented Plaintiff’s injuries.
With this part of the expert’s report back in evidence, Plaintiffs’ claims under the negligence theory were once again viable. The expert was allowed to opine that Yamaha’s design did not meet the state of the art at the time of design and manufacture of ATVs. The appellate court, therefore, reversed the trial court’s decision to grant Yamaha’s summary judgment motion on Plaintiffs’ negligence claims.
The most instructive portion of this decision, however, was the appellate court’s decision to reverse the granting of Yamaha’s motion for summary judgment on Plaintiffs’ strict liability claims. In doing so, the court explained that “the trial court conflated the doctrine of unintended use with the concept of misuse” (emphasis added). According to the appellate court, Plaintiff was indeed operating the ATV for its intended use–off-road riding. What he may have been doing, however, was misusing the vehicle by operating it in a manner not intended by the manufacturer–backwards and potentially under the influence of drugs and alcohol. Finally:

It is well-settled that a plaintiff’s misuse of a product cannot be grounds for granting summary judgment in favor of the manufacturer under a design defect theory unless it is established that the misuse solely caused the accident while the design defect did not contribute to it.

Because the evidence of Plaintiff’s riding on the date of the accident went to the issue of misuse, rather than unintended use, and because there was evidence that a design defect may have caused or at least contributed to the accident, the trial court’s grant of summary judgment was reversed.
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Wednesday, July 21, 2010

Counterfeiting in the Wine Industry on the Rise; Potential Liability for Manufacturers

Rummaging through an assortment of handbags from the trunk of a car in a New York City alleyway, there’s really no expectation from the consumer that she’s purchasing anything other than a counterfeit product. Counterfeit products are not, however, sold exclusively in alleyways, and makers of counterfeit products are becoming more sophisticated as industry effects to stop them become more widespread.

One industry that has seen an uptick in counterfeiting in recent years, and one that has garnered some significant attention in the press (see here, here), is the wine industry. Wine fraud caught the attention of the media with the 2006 lawsuit of wealthy American businessman William Koch, who alleged that bottles of wine he purchased at auction for approximately $500,000, which were held out to be wines originally owned by Thomas Jefferson, were frauds. Litigation of his claim is ongoing.

Several Freakonomics blog articles in The New York Times highlight some of the issues presented by wine-industry fraud. First, one of the articles examines a study of eBay auctions of empty wine bottles. The sale prices for empty, high-end wine bottles at the online auction site are often the prices full bottles of the wine would fetch in the marketplace. This presents “powerful” evidence that the empty bottles are being purchased to be filled and resold. The second of the articles discusses the fact that while high-end frauds like that alleged by William Koch garner significant attention and likely result in lawsuits, counterfeiting in the low-to-midrange wine market is much easier to get away with. This is true for several reasons, most notably that there’s little incentive for consumers to sue for fraud over what would likely be very little damages.

So how does this translate into manufacturers’ or sellers’ liability? A 2009 legal advisory published by the National Association of Wholesale-Distributors (NAW) notes that wholesalers selling counterfeit products face significant product liability exposure for any injury, business interruption, or other loss in connection with sale of counterfeit products. It notes that the wholesaler is likely the one ultimately to be held liable for the damages, as the “manufacturer” of the counterfeit product may be impossible to find, may be insolvent and/or uninsured.

Finally, a Wine Business Monthly article recently discussed the potential liability of legitimate wine manufacturers, as toxic materials are sometimes incorporated into the counterfeit products. While a company cannot be held liable for a counterfeit product, the articles notes, it can be open to liability if it knew about “an existing health threat to the consumer” and did not actively seek to “inform and protect the public.” An example, it notes, was the recent Colgate toothpaste recall by the manufacturer, where counterfeit tubes containing chemicals used in antifreeze had made it onto store shelves in the United States and South America, causing significant health issues and even death. The author argues that the wine industry would benefit from its trade and professional associations developing shared industry standards and techniques in fighting the fraud, rather than undertaking hundreds of uncoordinated approaches that would be less effective and more expensive.
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Tuesday, July 20, 2010

Adequate Warning?

For today’s post we will delve into the realm of Aesthetics. I promise that I will not wax eloquently about Aristotle and his views on the subject. Instead, I want to talk about the place where products manufacturers and the objects of their desire converge with the statutory and common law of your jurisdiction. Yep, you guessed it, I’m talking about warnings. More specifically, the placement of such warnings on a product. I can only imagine that one of the most difficult topics for manufacturers to discuss is where to put the warning(s) on a product. Just think about the sheer number of man-hours spent on deciding where a warning should be placed in order to adequately warn the consumer. I can only imagine executives having a meeting with the follow questions on the agenda: Will the warning be conspicuous enough? Is it in a place the consumer will look or be expected to look? Will the warning make our beautiful product look ugly if we put it here? Will our product look more like a NASCAR vehicle than the thing of beauty that our engineers designed? The United States District Court for the Middle District of Georgia, Athens Division, touched on this issue in a decision last week.

In Morris v. Harley Davidson Motor Co., No. 3:09-CV-74(CDL), 2010 WL 2723079 (M.D. Ga. July 7, 2010), the court addressed Harley’s Motion for Summary Judgment. The facts of the case were that the plaintiffs (husband and wife) were involved in a single motorcycle accident. Morris at *2. At the time of the accident, the plaintiffs were riding the motorcycle and pulling a trailer. Id. The rear tire failed, resulting in the accident and the death of the plaintiff’s wife. Id. The plaintiff also sustained serious injuries. The owner’s manual contained several warnings, including a warning to not exceed the motorcycle’s Gross Vehicle Weight Rating (GVWR) or Gross Axle Weight Rating (GAWR). Id. Based on the motorcycle’s GVWR from the factory, plus a full tank of gas, the motorcycle allows for an additional 420 pounds of weight capacity. Id. at *1. There was not a warning anywhere stating that the motorcycle was only rated to carry an additional 420 pounds. Id. at*2.

The manual also contained a warning against pulling a trailer with the motorcycle. In addition to the warnings contained in the manual, the motorcycle had warnings posted on the motorcycle itself. There was a warning placed inside the cargo compartment on the motorcycle and an information plate on the steering head, which listed the motorcycle’s GVWR. Id. The plaintiff testified that he did not see these warnings and apparently he did not read the owner’s manual either. Id. at *2-3.

Under Georgia law, there are two theories that a plaintiff can pursue to establish a breach of the duty to warn: first, by failing to adequately communicate the warning and second, by failing to provide and adequate warning of the potential risks associated with the product. Id. at *3. The plaintiff contended that the warnings were not adequately communicated to him. Interestingly, under this theory, failure to read the warnings does not act as a bar to recovery for a plaintiff. The court found that under such a theory, issues “as to location and presentation of the warning” are involved and thus there was a genuine issue of a material fact for the jury to determine.

This case is interesting to me as I consider my self somewhat of a car buff. Admittedly, there is a vast difference between cars and motorcycles, but I would suggest that there is one common ground between enthusiasts of cars and bikes. Most would agree that they prefer to drive or operate a vehicle that they think looks good. For me personally, I love the classic and venerable Jeep CJ-7. I simply love the way it looks. However, I can’t imagine I would want to drive a Golden Eagle that has a big ugly warning plastered all over the dash. In the case of a motorcycle, this issue is all the more problematic. There simply aren’t that many places on a motorcycle that a warning could be placed, due to the size of a bike, that wouldn’t detract from the aesthetics of the motorcycle. However, I do think that this is a real difficult issue where the manufacturer has to wrestle with finding a solution to try and meet the aesthetic requirements of the consumer and at the same time adequately communicate any warnings with the user.

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Tuesday, June 22, 2010

Google Failed to Warn Woman Not to Walk into Oncoming Traffic

McDonald’s hot coffee suit, take 2? A California woman blindly followed Google Maps walking directions on her Blackberry, walking directly into oncoming traffic on a four-lane highway where she was struck by an approaching vehicle. She filed suit against Google, in which she seeks actual damages in excess of $100,000, punitive damages, and compensation for lost wages, although she reportedly is unemployed.

Her attorney, Allen K. Young, has tried to justify his client’s actions with the argument that the Plaintiff was walking in an area she had never been before, and at a time when it was “pitch black” outside. As if this somehow diminishes her own negligence. Young argues that Google failed to warn the Plaintiff that walking routes may be missing sidewalks or pedestrian paths. This failure-to-warn claim has been flatly disputed by Google, which has said every software version for mobile devices has had that disclaimer since Google Maps was launched in 2008.

The crux of the Plaintiff’s lawsuit appears to be that the woman crossed the road believing there to be a sidewalk on the other side. According to her lawyer, on the other side of the road was a “totally snowpacked” walkway that was of no use to pedestrians. Irrespective of the existence and condition of the walkway on the other side of the road, the woman, according to her own lawyer, didn’t even make it to the median! She wasn’t half-way across the street before she walked directly into the path of an oncoming vehicle.

Although Young has said that there is “enough fault to go around,” which presumably means he recognizes his client is at least partially responsible for her injuries, the absurdity of some liability arguments, and extent some will go to shift blame, continues to surprise.

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Monday, June 21, 2010

Lawn Care Can Be Dangerous

At least it was for one Virgina man, Robert Mavity (“Mavity”), who was injured when his riding lawn mower overturned and landed on top of him while he was mowing his lawn on an incline. Mavity v. MTD Products, Inc., No. 1:09 CV 00027, 2010 WL 2169633 (W.D. Va. Jun. 1, 2010). As a result of the accident, Mavity claimed limited mobility due to weakness and neurological problems. Therefore, Mavity filed an action against the manufacturer, MTD Products, Inc. (“MTD”), asserting the that lawn mower was defectively designed, MTD failed to warn of the mower’s dangerous condition, and that MTD breached the implied warranty of merchantability and fitness.

MTD moved for summary judgment on the grounds that there was no evidence that the mower was defective, Mavity unforeseeably misused the product, the hazard was open and obvious, and there was no failure to warn that made the product unreasonably dangerous.

The District Court denied MTD’s motion, first finding that whether the product was defective and whether MTD failed to warn of this dangerous condition were jury issues because Mavity’s expert witness’ opinion — that the mower should have had control level dampers and that these dampers were commonly on mowers — was sufficient to show an unreasonably dangerous condition. The Court also found Mavity’s alleged misuse was a jury question because his expert opined that none of the changes he made to the mower had any effect on the accident. Additionally, the Court found that the question is not whether the defect was open and obvious, but whether the hazard was open and obvious, and Mavity was not aware of the characteristics of the mower that made it more hazardous to accelerate up a slope.

Rulings against MTD kept on coming. Judge Jones granted Mavity’s motion to prevent MTD from offering evidence of the alleged intervening negligence of the doctors that treated Mavity after the accident. The Court reasoned that “the initial medical treatment of Mavity was a reasonably foreseeable result of the initial accident [and any] third-party negligence is thus irrelevant to Mavity’s claim against MTD and must be excluded from the jury.” The Court also rejected MTD’s motion to exclude approximately 500 documents listed as “sources” by Mavity’s expert in evaluating whether the mower was defectively designed. While the Court found that these documents were of limited value, it provided that the parties could challenge trial exhibits at a later time.

Not all was lost for MTD, Judge Jones did rule in its favor on one motion. The Court agreed with MTD and barred Mavity’s expert from offering his future medical cost projections, including a preliminary life care plan, in the absence of proper qualifications of his expert to provide this type of opinion.

With seemingly credible expert testimony on design defect and failure to warn, Mavity was able to get past MTD’s motion for summary judgment and have a jury of his peers decide his case. This case is instructive to defendants that seek summary judgment in the face of expert evidence to the contrary.

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