Wednesday, March 2, 2011

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.

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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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Thursday, June 10, 2010

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.

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Thursday, June 3, 2010

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.
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