No Small Peanuts: Food Exec Guilty In Deadly Salmonella Outbreak

Last month, a jury in Georgia convicted a former peanut company executive of conspiracy and fraud charges in a case stemming from a deadly salmonella outbreak between 2007 and 2009.  As a result of the outbreak, nine people died, and more than 700 others became ill.  The verdict marks the first federal felony conviction for a company executive in a food safety case. The jury’s verdict came after a several week long trial for Stewart Parnell, the president of Peanut Corp.  Mr. Parnell was charged with 76 federal counts linked to intentionally shipping salmonella-laced peanut products. Prosecutors presented thousands of documents and called nearly 50 witnesses to show that Parnell and others ignored safety in order to increase profits. Among other things, Mr. Parnell and Co. allegedly hid results that their peanut products tested positive for salmonella.

Perhaps the most damning evidence at the trial was a 2007 email from Mr. Parnell to a plant manager regarding the safety of the tainted products.  In response to concerns from the manager over the tainted products, Mr. Parnell replied: “Just ship it.” This verdict is not insignificant, as it comes in the midst of a new focus by the Department of Justice on food safety cases brought under the Federal Food, Drug and Cosmetic Act.  Last year, the owners of a cantaloupe farm pleaded guilty to misdemeanor charges related to a listeria outbreak. Earlier in this year, federal prosecutors filed charges against the executives at an egg company linked to a 2010 salmonella outbreak.

Mr. Parnell and the others convicted now await sentencing.

McDonald’s Cases: More Than Just Hot Coffee

Despite what you might think from reading our posts here at Abnormal Use, not all McDonald’s litigation concerns hot coffee.  As obsessed as we are with the subject, this revelation came as a bit of a surprise.  It is shocking to learn that in the post-Stella Liebeck era any non-coffee related information could be considering newsworthy – especially for a distinguished legal blog.  Thankfully, our eyes have been opened or else we would have missed out on these two incredible stories.

Back in July,  an intoxicated Florida woman was arrested after blocking a McDonald’s drive-thru in search of free Big Macs for breakfast. According to the Consumerist, the woman pulled up to the drive-thru around 6:00 a.m. and demanded two free Big Macs as retribution for past discrepancies.  After being told that Big Macs are not available for breakfast, the woman politely changed her demand to two free Egg McMuffins.  Sounds reasonable.  Unfortunately, McDonald’s balked at the idea of giving away free food and asked the woman to leave.  She valiantly responded by blocking the drive-thru until police arrived.  She was arrested for DUI and apparently taken to jail hungry.

Last week, a Georgia man called 9-1-1 after McDonald’s allegedly messed up his order.  According to reports, the man entered the restaurant and ordered 7 McDoubles, a McChicken, and an order of fries to-go.  When the man returned to his truck, he discovered that the employee placed not 7, but 6, McDoubles in the bag.    He then re-entered the restaurant and apparently got some “attitude” from the employee rather than his AWOL burger.  The man’s response?  Call 9-1-1 and report that his burger had been swapped with a serving of ‘tude.  The police were not fond of the man’s use of the emergency response system, arresting the man and having him spend a night in jail.

Even though these cases do not involve coffee, they share a common theme:  Mess with McDonald’s and expect to make the news.

Yamaha Continues Successful Defense of Rhino Claims

The Yamaha Motor Corporation has caught a lot of flack recently over the lack of doors on its two-seater Rhino all-terrain vehicle.  After it made some safety modifications to the Rhino in 2007, Yamaha was hit with a number of lawsuits - 175 in California alone.  The national media caught wind of the lawsuits and came down pretty harsh.  In response, Yamaha created its own website, TruthAboutRhino.com, and a Rally Around Rhino widget to garner support for the ATV.  We don’t the know effectiveness of Yamaha’s use of the Interwebs, but something must have worked.  Yamaha prevailed in all but one of the lawsuits.  As to the one that got away?  Well, that one was recently reversed by an appellate court.

Earlier this month, in Yamaha Motor Corp. U.S.A. v. McTaggart, No. A11A1022 (Ga. Ct. App. Nov. 15, 2011), the Georgia Court of Appeals reversed and remanded the case to the trial court with direction to enter judgment granting Yamaha’s motion for a directed verdict.  In 2008, the plaintiff filed suit against Yamaha after he flipped his Rhino and suffered a severe laceration to his leg.  The complaint alleged that his injuries were caused by a latent stability defect and the absence of doors.  (The stability defect claims were abandoned four weeks before trial).  Following a trial, the jury found that the Rhino’s defective design proximately caused the plaintiff’s injuries and returned a verdict in his favor for $317,002.

On appeal, Yamaha argued that the undisputed evidence at trial demanded a finding that the plaintiff assumed the risk of his injuries.  At trial, the plaintiff testified that the Rhino was useful to him “because it had no door.”  When he purchased the ATV, he declined the dealership’s offer to install an after-market door because he preferred the open access.  Further, the plaintiff admitted that he had seen and understood the significance of keeping his legs inside the Rhino during a rollover.  When the salesman reviewed the warning stickers on the Rhino, the plaintiff admittedly laughed and said, “Well, man, common sense would tell you not to do that, right?”  Looking at the evidence as a whole, the Court found that the plaintiff had significant experience operating the Rhino and was clearly aware of the potential danger of injury to his limbs.

Yamaha may champion this decision on its Rhino website, but it should be noted that this decision tells us little, if anything, about the alleged defective design of the Rhino.  That issue was not on appeal.  We can see how some may view doors as a necessary component of a vehicle.  But let’s get real.  We aren’t talking about driving a DeLorean down the freeway.  We are talking about a Rhino – an all-terrain vehicle.  Ever heard of Jeep?  No doors necessary.

Regardless of the potential design defect, the Court of Appeals got this one right.  Buying a product specifically because it doesn’t have doors, then suing for the same reason seems illogical.  The plaintiff admittedly was fully aware of the risks – always a good sign when trying to formulate an assumption of risk defense.

Georgia federal court finds preemption of breach of warranty claim

Plaintiff’s counsel and defense counsel are equally guilty of the well-known and respected legal strategy called “throw everything against the wall and see if something sticks” strategy.  It starts with the complaint when Plaintiff’s counsel pleads every cause of action under the sun.  It is perpetuated when defense counsel pleads every affirmative defense in the known universe (including our favorite, laches).  Both are hoping, sometimes beyond hope, that when the issues are finally clarified, and both sides begin to determine what the case is actually about, they will have pled correctly.

Sometimes, though, it doesn’t work out that way.  In Haynes v. Cyberonics, Inc., No. 1:09-CV-2700-JEC, 2011 WL 3903238 (N.D. Ga. Sept. 6, 2011), Plaintiff Cloys Haynes sued the manufacturer of a device called a Vagal Nerve Stimulator, which had been implanted in his neck to control epileptic seizures.  He claimed that a few months after the device was implanted, he suffered various symptoms, including feelings of electric shock and tingling.  He also alleged that he suffered permanent left side neurological damage and chronic pain in parts of his body, including his throat and ear.  Ultimately, Plaintiff underwent surgery to remove the original device and replace it with a new, identical device. Problem for Plaintiff:  During the surgery to replace the device, a diagnostic test was performed on the original nerve stimulator. It was found to be normal.  No other testing was done.

Plaintiff’s original causes of action included strict liability, negligence, breach of warranty, punitive damages, and loss of consortium. Plaintiff later amended the Complaint to add a negligent manufacturing defect claim. He also sought attorneys fees for his troubles.

Just prior to the expiration of the discovery deadline, Plaintiff moved to have the case dismissed without prejudice.  Not surprisingly, the defendant opposed the motion and filed a motion for summary judgment, as well.  It also subsequently filed a motion to allow for supplemental briefing based on new preemption law in the 11th Circuit.  That motion was granted by the Court.

The Defendant based its summary judgment motion on the doctrine of preemption and asserted that all of Plaintiff’s causes of action failed in the face of this super-defense.  We’ve blogged about this defense before.  It’s awesome.  As the Court in this case noted, “[u]nder the doctrine of federal preemption, state laws that conflict with federal law are ‘without effect.’”  The Court also provided a very nice articulation of the test used in such cases:

In Riegel v. Medtronic, Inc., the Supreme Court determined that this express preemption clause will bar common law claims arising from injuries caused by FDA-approved medical devices in many circumstances. Tracking the language of the statute, Riegel set forth a two-pronged test for deciding whether state claims are preempted. First the district court must determine whether the federal Government has established requirements applicable to the device. If so, the court must then determine whether the plaintiff’s common-law claims are based upon state law requirements (1) that are “different from, or in addition to” the federal ones and (2) “that relate to safety and effectiveness.”
Plaintiff did not dispute that the nerve stimulator, as a Class III medical device, was subject to federal requirements for purposes of a preemption analysis.  It also conceded that, as a result, his design claim was preempted.  He didn’t concede, however, that preemption barred his other causes of action.
As to Plaintiff’s cause of action for manufacturing defect, a strict liability claim, the Court held that the claim was preempted:
Clearly, the FDA regulates the manufacturing practices of Class III medical devices.  Further, a manufacturer could comply with all FDA regulations, but nevertheless produce a product containing an unintended flaw or abnormal condition. That being so, by holding a manufacturer liable under such circumstances, Georgia law would be in the position of imposing requirements “in addition to” federal law.  Accordingly, [as] defendant argues, plaintiff’s strict liability manufacturing defect claim is therefore preempted.
Even if the claim were not preempted, the Court reasoned, Plaintiff had failed to provide any proof that the device was negligently manufactured.  He also failed to provide evidence that the symptoms and/or injuries he suffered were caused by the device.  (There’s that pesky lack of expert testimony thing again).
Plaintiff also argued that the device contained an inadequate warning, which is a design defect under Georgia law.  An inadequate warning may amount to a design defect and permit the imposition of strict liability.  However, because the FDA regulates content and appearance of prescription medical device labels, Georgia law would be imposing “requirements” that were “in addition to” federal regulations. As such, this claim was also preempted.
Plaintiff almost succeeded in surviving summary judgment on his negligent manufacturing defect claim.  As the Court noted, a “negligent manufacturing claim would not be preempted to the extent it relied on an allegation that the particular device had not been manufactured in accordance with the FDA’s pre-market approval process.”  However, although Plaintiff survived preemption on this claim, he failed to survive the summary judgment motion because he had failed to offer any evidence of any manufacturing defect claim. Oh, well.
The most interesting analysis in this case, however, centered on the issue of preemption in the context of a breach of warranty claim.  The Court stated, “Riegel did not address a breach of express warranty claim.  Nor has the Eleventh Circuit decided whether a breach of express warranty claim can be preempted by the MDA. Other federal courts remain divided over the issue.”
The Court held that preemption does apply in the context of a breach of warranty claim.  Its reasoning follows:
In any event, the express representation claims in this case would interfere with the FDA’s pre-market approval regime. Plaintiffs claim that defendant expressly warranted the stimulator to be “safe, and generally fit for use as an implanted stimulator,” when in fact the device was not safe.  In order to prove that defendant breached this warranty, plaintiff would need to show that the stimulator was not safe: a finding that would directly conflict with the FDA’s pr-emarket approval of the device as reasonably safe and effective.  Moreover, if these warranties were made in materials approved by the FDA in the pre-market approval process, then allowing a claim to proceed under Georgia law would subject defendant to state duties above and beyond the federal requirements.  Such a claim would fall within [the] preemption clause prohibiting state requirements that are in addition to, or different from, federal requirements.
Accordingly, the Court concluded that Plaintiff’s express warranty claim was also preempted.

Political Question Doctrine Bars Relief in Products Liability Action

As lawyers practicing in the neat little world of products liability, we sometimes become complacent with our narrow world, which is more often than not populated by familiar concepts like strict liability, state of the art, and warranty disclaimers.  We’re comfortable with these concepts.  We use them every day, and we can recite by name and sometimes even citation the cases that stand for those fabled and familiar principles. But every once in a while, a case comes along that requires us to leave our comfort zone and do what our law school professors challenged us to do: think outside the realm of the class in which we were sitting at that moment, and reach into concepts we (at least arguably) learned from other classes.

This was the situation facing the defense lawyers in the case Armedi v. BAE Sys., Inc., 1:10-CV-01557-JOF, 2011 WL 1707251 (N.D. Ga. Apr. 22, 2011).  The case involved the unfortunate death of Rebar Amedi, a civilian contractor working as a translator for the U.S. Army in Iraq.  Mr. Amedi was killed when the Mine Resistant Ambush Protected (“MRAP”) vehicle called a Caiman in which he was riding was struck by an improvised explosive device, commonly known as an IED.  According to the facts agreed to by the parties:

There were eight occupants in the passenger compartment of the Caiman which was designed to hold only six people. None of the occupants wore a seat belt and the doors to the compartment were not combat locked. The equipment stored in the MRAP was secured only by bungee cords and parachute cord, instead of ratcheting straps. Even though the passenger compartment was intact, the rear doors came off and it appears that Mr. Amedi was thrown from the vehicle and he sustained fatal injuries.

Mr. Armedi’s widow brought suit against BAE Systems, Inc., BAE Systems Land & Armaments L.P.; and BAE Systems Tactical Vehicle Systems LP, on April 16, 2010, in the Superior Court of Fulton County, alleging product defect, negligence, and breach of warranty claims arising out of the death of Mr. Amedi.  The case was removed by the defendants, and they immediately filed a motion to dismiss not based on defenses they learned in products class, but based on the political question doctrine and the combatant activities exception to the Federal Tort Claims Act.

We will spare your digging through your home library for that dusty Con Law book, and remind you about the factors relevant to determining if a dispute raises a “non-justiciable political question.”  If only one of the factors is present, the court dismisses the case.  Those factors are:

1. a textually demonstrable constitutional commitment of the issue to a coordinate political department;
2. a lack of judicially discoverable and manageable standards for resolving it;
3. the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion;
4. the impossibility of a court’s undertaking independent resolution without expressing lack of the respect due coordinate branches of government;
5. an unusual need for unquestioning adherence to a political decision already made; or
6. the potentiality of embarrassment from multifarious pronouncements by various departments on one question.
Likening the case to a prior 11th Cicuit Court of Appeals case on the same issue, the Court held that because the events which led up to Mr. Armedi’s death resulted directly from miltary decisions, including the use of MRAP vehicles, the timing of the convoy, and, as a prior-decided case articulated, “at the broadest level . . . the military’s decision to utilize civilian contractors in conducting the war in Iraq,” the case involved a non-justiciable political question, ”because to evaluate Plaintiff’s complaint would require the court to re-examine military decisions.”  After reaching this conclusion and dismissing the case on those grounds, it did not reach the question regarding the Federal Tort Claims Act.
To us, the most interesting part of the case was the use of a defense found outside the realm of products liability.  The product itself never became the issue in the case, despite the allegations levied against them by the plaintiff on products theories.  We are used to making procedural arguments that operate the same way, but we wonder if there are other long-forgotten classes we are under-utilizing in our products cases.   Who knows?  Maybe that third-year “law in movies” class could provide some novel defenses for cases in the future.

Manufacturer of Rub Cream Wins Summary Judgment on Allegations of Diabetic Foot Injuries

Earlier this month, the U.S. District Court for the Northern District of Georgia considered the case of Kersey v. Dolgencorp LLC, No. 1:09-CV-898-RWS, 2011 WL 1670886 (N.D. Ga. May 3, 2011). The case involved a tube of Dollar General Maximum Strength Muscle Rub Cream, which was manufactured by defendant Faria and sold under the Dollar General brand. The Plaintiff brought suit against both Dollar General and Faria, alleging that the rub cream caused her to develop multiple diabetic ulcers secondary to chemical burns. Ms. Kersey had been diagnosed with diabetes in 1994, which caused her to have severe diabetic neuropathy in her feet. She had been using the rub cream since 2006 or 2007; these alleged injuries occurred in 2008.

The lawsuit alleged four causes of action against Faria and Dollar General, including (1) negligence, (2) strict liability, (3) breach of express warranty, and (4) breach of implied warranty. Both defendants moved for summary judgment. Plaintiff abandoned all of her claims against Dollar General, as well as the breach of warranty claims against Faria prior to the hearing on Defendants’ motion and, therefore, the court granted the Defendants’ summary judgment motions as to those claims.

The court discussed three claims alleged by Plaintiff in turn: design defect, manufacturing defect, and failure to warn. The court granted Faria’s summary judgment motion as to the design defect. First, it noted that Plaintiff had not even discussed the rub cream’s design, and because she had not presented any evidence of the product’s inherent risks, nor presented an alternative design. The court also noted that the rub cream had been tested by the Food and Drug Administration and determined its composition to be safe and effective.

The court also granted Faria’s motion for summary judgment based on the theory of the manufacturing defect. Plaintiff had not even had the product tested to back up any allegation she may have had that the particular tube of the rub cream was stronger or weaker than the standard formula. No genuine issue of material fact there.

Finally, the court considered the failure to warn claim. The warnings on the box containing the rub cream read as follows:

— For external use only.
— Use only as directed.
— Keep out of reach of children to avoid accidental poisoning.
— Discontinue use if excessive irritation o[f] the skin develops.
— Do not bandage tightly, apply to wounds or damaged skin or use with a
heating pad.
— If condition worsens, of if symptoms persist for more than 7 days or
clear-up and occur again within a few days, discontinue use of this product and
consult a doctor.
— If swallowed, get medical help or contact a Poison Control Center right
away.

The court made a number of findings before granting Faria’s motion for summary judgment on this theory. First, Plaintiff’s doctors stated only that Faria should have known that the rub cream would have been absorbed by the skin, not that this phenomenon would be injurious to diabetics. Second, this was the very first complaint that Faria had ever received about the product  after it had manufactured more than 8 million tubes of the cream. Finally, the court noted that Plaintiff had developed these injuries after using the cream and then putting on socks and shoes, which the court found to violate the warning on the box that advises against bandaging skin after using the product.

The final cautionary note can be found in the case’s only footnote, where the Court indicated without even being asked that Plaintiff’s case had “a strong proximate causation problem.” Indeed, Plaintiff had suffered diabetic-related foot injuries before and after this alleged incident, and had been using the product without incident for years before suffering these particular injuries. Plaintiff’s doctor also testified that he could not testify that, to a reasonable degree of medical certainty, that the complained-of injuries were caused by the rub cream at all.

When is a Product Sold? We Now Have the Answer!

Many months ago, we here at Abnormal Use discussed the critical question, “When does a bucket truck become a bucket truck?” At that time, we were discussing Campbell v. Altec Indus., Inc., 605 F.3d 839 (11th Cir. 2010) [PDF], which involved a plaintiff allegedly injured when a cylinder on a bucket truck owned by Georgia Power failed. The plaintiff sued not only the manufacturer of the truck but that of the lift cylinder, as well. The problem for the plaintiff, however, was the statute of repose, which limited the action to “ten years from the date of the first sale or use or consumption of the personal property causing or otherwise bringing about the injury.” If that seems unclear to you, well, the Eleventh Circuit wasn’t so sure about what it all meant, either. So, they certified the following question to the Georgia Supreme Court: Does the ten-year statute of repose begin to run when:

(1) a component part causing an injury is assembled or tested, (2) a finished product, which includes an injuring component part, is assembled, or, (3) a finished product, which includes an injuring component part is delivered to its initial purchaser?

Well, we finally have our answer. The Georgia Supreme Court recently issued its decision in Campbell v. Altec Indus., Inc., —S.E.2d—, 2011 WL 356110 (Ga. Feb. 7, 2011) [PDF]. The Court held that the statute of repose began to run on the action when the truck was delivered as new to its intended consumer (choice number 3 in the excerpt above, in case you are keeping track).
In coming to its decision, the Court relied heavily on statutory interpretation of OCGA section 51-1-11(b)(1), which imposes liability on a manufacturer “of any personal property sold as new property directly or through a dealer or any other person” when a person is injured because the manufacturer’s product “when sold by the manufacturer was not merchantable and reasonably suited to the use intended, and its condition when sold is the proximate cause of the injury sustained.” The Court reasoned that:
In crafting OCGA § 51-1-11(b), the General Assembly did not choose to begin the period of repose “on the date of the ‘first sale’ of a product by its manufacturer. [Rather, OCGA § 51-1-11(b)(2) ] provides that the period of repose commences on the date of the ‘first sale for use or consumption.’ The General Assembly could have chosen to begin the period of repose on the date that the product was last in the hands of the manufacturer, but it did not. The choice of “the date of the first sale for use or consumption” to trigger the running of the statute of repose is in keeping with OCGA § 51-1-11(b)(1)’s imposition of liability on a manufacturer who sells its product “directly or through a dealer or any other person” as new; regardless of any chain of middlemen, the end sale of the product as new is what brings the manufacturer within the ambit of OCGA § 51-1-11(b)(1), if the other conditions for imposing liability exist.

In so holding, the Court specifically overruled the prior decision of Johnson v. Ford Motor Co., 281 Ga. App. 166, 637 S.E.2d 202 (2006), which the Court called “wrongly decided.” The Court of Appeals had held in that case that the statute of repose began to run when a defective switch, the cause of the plaintiff’s injuries in that case, was installed in the Ford automobile (choice number 2 from the certified question above). Instead, the Campbell Court adopted the reasoning of Pafford v. Biomet, 264 Ga. 540, 448 S.E.2d 347 (1994), which drew the distinction between the sale of a product to “the individual who initially purchased a manufactured product for mere static retention in his inventory” and the individual who purchases the product and intends to actually use it. It is only when the purchase is made to the user that the statute of repose begins to run, because, in the words of the Pafford Court “it is that individual who is the intended beneficiary of the liability imposed” through the statute.

This ruling means that a manufacturer of a defective component part will not be able to avoid liability to an injured plaintiff when the end-product simply sits on the retailer’s shelf for a long time before being sold to the user, effectively shortening the statute of repose. The decision does not undermine a plaintiff’s burden to prove that the product is actually defective, or that the allegedly defective product proximately caused his or her injuries; it simply closes the procedural loophole that Johnson created.

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.

Don’t Go To The Beach

Beach season is upon us. Although we here at Abnormal Use advocate staying inside at all times, maximizing the time that we can bill and blog, we understand that some of you yearn to have the sun forcibly remove layers of your skin. If you are one of those people, please read the following before going outside.

Karen Mather purchased some sunless tanning lotion that she alleged caused her injury. Mather v. L’Oreal USA, Inc., No. A10A0458, 2010 WL 2015337 (Ga. Ct. App. May 21, 2010). Mather has multiple sclerosis and “direct sunlight causes her pain.” Nevertheless, it’s beach season, and Mather decided to go to the beach. (The opinion does not reveal why someone who is sensitive to direct sunlight goes to the beach for recreation.) Just before leaving for the beach, Mather purchased two tubes of L’Oreal Paris Sublime Bronze self-tanning lotion, which she used “twice a day for three days and experienced no problems.”

On the drive home, Mather developed some problems “where the sunlight touched her skin through the car windows.” (Again, it is unclear why this plaintiff with such sun sensitivity refuses to wear a long-sleeve shirt). Mather’s skin reddened, and she developed small pustules. Her condition worsened, and she developed abscesses filled with pus, with lesions everywhere, and her multiple sclerosis was exacerbated. In fact,

“Mather testified that, as a result of using the self-tanning lotion, ‘[m]y organs will never be the same.’ “

That is true Plaintiffspeak if I have ever heard it. Dear Defendant, your $10 product affected me to the point where my organs will never be the same. Lots of money will fix my organs.

As you may have guessed, L’Oreal moved for and was granted summary judgment. Mather sued on a failure to warn theory, and, strangely enough, Mather had no evidence that L’Oreal should have known about a reaction such as Mather’s. L’Oreal showed that the active ingredient, hydroxyacetone, is common and safe for use by most people. Even during the product’s testing, of those that experienced some reaction, no reaction resembled Mather’s. This appears to be a case where Mather’s lawyer thought that he might find something decent in the discovery phase to support his case. That was not the case. In the end, Mather had no evidence contradicting L’Oreal’s assertion that the testing process was insufficient. Therefore, feel free to pick up some sunless tanner, or get out in the sun and give yourself lesions naturally.

The Perils of "Free" Experts and Their Testimony

Oftentimes, practitioners will get lazy. They will seek to use the treating physician as the expert in their case. This is typically the case when the issue of causation seems clear. However, intuition and surmise are not enough to survive a summary judgment motion . . . at least not in the federal courts. In a recent opinion, the United States District Court for the Middle District of Georgia granted the defendant’s motion for summary judgment. In Williams v. Mast Biosurgery USA, Inc., No. 7:08-CV-114(HL), 2010 WL 2104955 (M.D. Ga. May 24, 2010), the court found that the plaintiff’s case must be dismissed for her failure to present evidence that the product was defective.

The plaintiff in Williams had undergone an exploratory laparotomy procedure conducted by Dr. David W. Adcock, II. Williams at*1. The purpose of the procedure was to remove adhesions that had formed after a prior surgery. Id. During the procedure, Dr. Adcock utilized a product, SurgiWrap, to “prevent future adhesions and to enhance Plaintiff’s likelihood of conception.” Id. Approximately two months after this procedure, the plaintiff developed pain in her sides as was admitted to the hospital whereupon a colonoscopy revealed the plaintiff had a perforated colon. Id. The physician that performed the procedure to repair the plaintiff’s perforated colon, “discovered and removed several pieces of ‘pliable’ plastic.” Id. The plaintiff then brought suit against the manufacturer of SurgiWrap upon a theory of strict liability. She contended that the product was defective since it did not properly dissolve inside her body. Id. On the issue of causation, the plaintiff sought to utilize Dr. Adcock (the physician that utilized the product at issue during the first surgery), Dr. George E. Yared (the physician that performed the colonoscopy), Dr. Robert Brown (the physician that repaired her colon) and Dr. Robert Nelms, Jr. (the pathologist that examined the removed pieces of plastic from the plaintiff’s body) to establish that the removed pieces of plastic were in fact SurgiWrap and that the product was defective. Id.

The defendant filed a Motion to Exclude Plaintiff’s Expert Testimony, and these physicians were prevented from testifying regarding the identification of the product and whether the product failed to operate as intended by the manufacturer. Furthermore, three of the physicians were prevented from testifying on the issue of causation. Id. The court essentially found that these physicians did not have the requisite familiarity with the product at issue in order to testify that the product was defective and that the alleged defect caused the plaintiff’s injury. Id. at*1-2.
There are multiple lessons to be learned from this case. First, if you represent a plaintiff in a products case you should be wary of settling for the treating physicians to establish the prima facie case. Second, and most importantly, if you a representing a manufacturer don’t give up so easily. The physician that is trained to utilize your surgical device may not be qualified to sufficiently identify the product, much less testify that it is defective. Daubert challenges to treating physicians are always worth the effort.