Dear expert witnesses: Please perform testing prior to drafting your report. Thanks. Sincerely, The Plaintiffs.

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.
Not surprisingly, defense counsel argued at the hearing that Dr. Benedict should be excluded from testifying about the manufacturing defect because that particular theory had not been included in his expert report as required by Rule 26(a)(2)(B), FRCP.  Once the expert was excluded by the court, the plaintiffs could not support their theory of the case, and the defendants were granted summary judgment.

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

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.

Massachusetts: Summary Judgment For Manufacturer due to Plaintiff’s Lack of Causation

Recently, the United States District Court for the District of Massachusetts granted summary judgment in favor of a manufacturer of an injection molding machine on plaintiff’s claim that it was defectively manufactured, for lack of causation evidence. Brown v. Husky Injection Molding Sys., Inc., — F.Supp.2d —, No. 08-11840-RGS, 2010 WL 4638761 (D. Mass. Nov. 17, 2010). This case is interesting for the Court’s analysis of a manufacturing defect claim regarding a product that was manufactured and installed in the 1970s.

Defendant, Husky Injection Molding Systems, Inc. (“Husky”) manufactured a 1525 series injection molding machine with serial number 3350 (“3350 machine”) which was sold to WNA Comet East, Inc. (“Comet”) in 1974. Plaintiff, Jimmy Brown (“Brown”), began working for Comet as an injection molding machine operator in 2003. In 2006, while trying to clean the 3350 machine, his left hand got caught in the belt and pulley, suffering “crush injuries.” It was undisputed that the 1525 series was designed with a front pulley guard, and if it had been in place, the accident would not have happened. It was also undisputed that in 2000, Comet had “rebuilt the 3350 machine, stripping it to its base, and replacing or refurbishing constituent parts as needed.”

Brown asserted a claim against Husky alleging that the 3350 machine was defectively manufactured because Husky failed to install the front pulley guard. In response, Husky asserted that Brown had no evidence that the 3350 did not have the pulley guard when it was delivered to Comet. Husky filed a motion for summary judgment. In support of Husky’s position, the technician that installed the 3350 machine in 1974 testified that it had the front pulley guard when installed. In rebuttal, Brown offered testimony of a Comet employee that testified that he had never seen a guard on the 3350 machine. However, this employee did not begin working with these machines until 1976, two years after installation.

The Court first distinguished a claim for a design defect and a manufacturing defect. To prove the first, a plaintiff must only prove that a defect in the design existed at the time the product left the manufacturer’s control. To prove the latter, a plaintiff must show that the defect was caused by a manufacturing error affecting only one particular product and that it was not caused by intermediaries. The Court concluded that while Brown had testimony that no guard was on the machine in 1976, he could not rebut Husky’s installer’s testimony that at installation, a guard was on the machine. Further, Brown did not have testimony regarding the presence or absence of guards before and after the 2000 refurbishment. Therefore, the Court found that Brown could not prove causation and granted Husky’s motion for summary judgment.

This case exemplifies the difficulties in proving a manufacturing defect case, especially when a product is in the hands of an intermediary for a long period of time. Essentially, in this type of case, a plaintiff must be armed with testimony accounting for a product’s condition and non-alteration the entire period of time from the date it left the manufacturer’s control until the injury. Sometimes this can be extremely hard. But without that testimony, a defendant will be able to raise, like here, the potentially fatal absence of evidence of causation.