Five Toe Discount – A Conclusion To The Vibram FiveFingers Suit

Back in April of 2012, we blogged about the class action lawsuit filed against Vibram over its product FiveFingers, the minimalist running slippers.  In our initial blog post, we (read: a fellow contributor who admitted to owning two separate pairs of barefoot running shoes) were skeptical over the evidence proffered by Plaintiff in this case.  However, a 2013 study found an increased in bone marrow edema, the precursor to a stress fracture, in at least one bone after 10 weeks of running in the Vibram foot-gloves.

After two years, the suit has come to resolution. Remember it’s a marathon, not a sprint.  Vibram has agreed to pay $3.75 million in refunds to anyone who has purchased the shoes since March 21, 2009.  Vibram is required to take out ads on social media sites notifying potential claimants of the settlement and also establish www.fivefingerssettlement.com. The remaining proceeds not doled out to claimants will be donated to the America Heart Association.

Jury Awards $20 Million, CPSC Decides to Respond

Back in 2011, Toys ‘R’ Us was hit with a $20.6 million verdict by a Massachusetts jury in a products liability case arising out of the death of 29-year old Robin Aleo.  The woman was killed while sliding down a 6-foot inflatable pool slide manufactured in China by Manly Toys and sold in the U.S. by Toys ‘R’ Us.  As the woman neared the bottom of the slide, it partially collapsed, causing her to strike her head on a concrete pool deck.  After a nearly two week trial, the jury awarded Aleo’s estate $2.6 million in compensatory damages and $18 million in punitive damages.  Toys ‘R’ Us appealed the jury award, and the Massachusetts Appeals Court heard oral arguments in the case last week.

Aside from the amount of the jury’s award, the more intriguing issue in this case is the role of the Consumer Product Safety Commission.  At trial, the estate argued that the slide did not comply with federal safety standards for swimming pool slides, citing to standards set forth by the CPSC in 1976.  Toys ‘R’ Us contends that the 1976 regulations do not apply to inflatable slides, but only to rigid pool slides.  According to the toy retail chain, inflatable slides were not around in 1976 and, thus, were not contemplated by the standards.

Nonetheless, the slides apparently were imported and never certified that they met any standards.  Regardless of whether Toys ‘R’ Us should be held responsible for this regulation snafu, it’s the CPSC’s response that draws our ire.  The CPSC did not recall the slide until May 2012 – months after the verdict and years after the 2006 incident.  The CPSC was also aware of at least two other cases of serious injury arising out of use of the slide.  If the slide really is afoul of CPSC regulations and has allegedly caused several cases of serious injury and/or death, then why wait until a jury verdict to issue a recall?  It is not like the CPSC has a firm rule to exercise due diligence in these things.  Remember Bucky Balls?

We have been critical of the CPSC in the past over its draconian measures.  Regardless, if the CPSC knows it is going to issue a recall, it might as well go ahead and do it – especially if the only fact that changed between the 2006 accident and the 2012 recall is a Massachusetts jury deciding the issue is worth $20 million.

Summary Judgment For Crocs in Massachusetts Escalator Injury Case

In July, 2010, an eight-year-old girl referred only as “N.K.” in court documents sustained injuries when her foot became caught in the side skirt of a moving escalator at the Massachusetts Bay Transportation Authority (MBTA) Aquarium Station.  At the time, N.K. was wearing Crocs-brand sandals and riding a few steps ahead of her parents.  N.K.’s parents and other witnesses tried to stop the escalator by using its emergency stop switch, but that didn’t work.  A good samaritan finally managed to pull N.K.’s foot out of the escalator before it reached the top. N.K.’s mother, Nancy Geshke, brought a products liability action in Massachussetts federal court against Crocs, Inc.    We’re not sure if the elevator manufacturer or the MBTA were ever parties to the action, but in any event, the case proceeded against Crocs.  In its opinion granting Crocs’ motion for summary judgment, the district court discussed the various warnings posted on the escalator itself, portraying children getting caught in the escalator and warning of the same in writing, so perhaps Plaintiff chose not to pursue that avenue. See Geshke v. Crocs, Inc.,  No. 10-11567-RGS (D. Mass. Sept. 7, ,2012) [PDF].

In the suit, Plaintiff alleged a design defect in the CROCS shoe and a failure on the part of Crocs to warn of the latent danger CROCS shoes posed to young children riding escalators.  Plaintiff relied primarily on a Japanese study, which purported to conclude that Crocs-type sandals were extremely apt to getting caught in escalators, perhaps more than other styles or brands of children’s footwear.

Crocs, Inc. filed a motion for summary judgment, and it was granted by the district court.  The court held that the study was never properly authenticated as a foreign document; it was inadmissible because no expert had been identified to explain the results of the study.  In addition, the warning signs on the escalator depicting and warning of the danger of children’s shoes getting caught in the escalator precluded a failure to warn theory against Crocs.  Finally, because Plaintiff’s negligence theories of defective design and failure-to-warn failed as a matter of law, her breach of warranty claims did as well.

This case is an interesting twist on the failure to warn theory.  Crocs, the manufacturer of the footwear, relied on the warnings on the escalator as evidence that Plaintiff was warned about the risk of injury from exactly this type of accident.  A good reminder that the warnings don’t always have to come from the actual product that a plaintiff alleges was the proximate cause of the injury – the warning itself is the issue, not what party is responsible for giving it to the user.

Funny Shoes = Funny Lawsuit?

Virbram, the maker of those funny looking “toe shoes” called FiveFingers, has been sued over claims made in its advertising relating to the purported health benefits of its products.  The FiveFingers shoes are meant to mimic barefoot running, which Vibram claims is actually healthier than running in a traditional shoes.  The class action lawsuit filed in federal court in Massachusetts alleges that Vibram made deceptive statements about the benefits of running barefoot.

According to the complaint:

“Defendants have claimed that running in FiveFingers, inter alia, improves posture and foot health, reduces risk of injury, strengthens muscles in feet and lower legs, and promotes spine alignment. Defendants have used these claims to charge a premium for FiveFingers that consumers readily paid, believing FiveFingers would confer upon them significant health benefits. Unbeknownst to consumers, Defendants’ health benefit claims are deceptive because FiveFingers are not proven to provide any of the health benefits beyond what conventional running shoes provide.”

Interestingly, the plaintiffs’ lengthy complaint repeatedly claims that the FiveFingers product causes injury, yet presents no scientific evidence to support this claim.  Basically, the plaintiffs argue that there are no studies to support Vibram’s claims.  The plaintiffs then turn around and present no science to dispute Vibram’s claim.  Plaintiffs don’t rely on any type of scientific and controlled testing that they expect of Vibram.  Instead, they offer on the same anecdotal “evidence” that they criticize Vibram for using.  They quote a story in which a podiatrist says that 85 percent of her patients sustained injuries trying to transition to minimalist shoes.  They, of course, fail to note that a podiatrist is unlikely to be examining runners who have not sustained some sort of injury.  They also fail to mention whether that podiatrist’s patients followed Vibram’s warnings against over training.

Where this suit goes from here could have wide reaching impact on the footwear industry.  Many other shoe companies have been jumping on the barefoot running bandwagon, including New Balance, Merrill, and Adidas.  These companies use technology similar to that of the Vibram FiveFingers.   Merrill seems to have  aggressive advertising materials similar to that of  Vibram.  However, New Balance and Adidas tend to make far less claims as to the benefits of barefoot running.

In the interest of full disclosure, I actually own a pair of FiveFingers and a pair of the New Balance Minimus.  I’m happy to report that haven’t sustained any running injuries while using theses shoes.  Then again, I don’t think anyone would accuse me over training.

Philip Morris Not Liable for Fire Started by Cigarette

Recently, in Sarro v. Philip Morris USA, Inc., No. 08-10224-MLW (D. Mass. Mar. 7, 2012), a Massachusetts federal court held that Philip Morris (“PM”) was not liable for a fire that killed a woman when she fell asleep with a lit cigarette. In 2007, the plaintiff, as administratrix of the woman’s estate, sued the tobacco giant in Massachusetts state court alleging that the defective design and manufacture of the cigarettes caused the fire. After the case was removed, the federal court dismissed the product liability claims in 2009. Until the court’s recent decision, the plaintiff maintained a separate claim alleging that the woman was killed by PM’s willful and wanton conduct.

The woman started smoking on July 31, 1968, her fourteenth birthday, allegedly due to PM’s marketing campaign. In the years that followed, she became addicted to cigarettes. In 2004, while in an impaired state, the women lit and fell asleep with the Marlboro cigarette that caused the fire at her home. Essentially, the plaintiff alleged that had PM not engaged in the willful and wanton conduct of advertising cigarettes to consumers in 1968, the woman would have not fallen asleep with a lit cigarette in 2004. Even though the theory tests the outer limits of proximate causation, it does make some sense in a crazy temporal but-for-this, but-for-that way.  We suppose.

The Court indicated that PM could be held liable only if

[T]he evidence is sufficient to prove that prior to July 31, 1968, it knew, or had reason to know, of facts creating a high degree of risk or physical harm to others, but it did not realize or appreciate the high degree of risk involved, although a reasonable actor in its position would have done so.

Unable to find any evidence that PM, in marketing cigarettes prior to July 31, 1968, should have been aware of the probability that the woman would become addicted, smoke while impaired, and die due to a fire started by a cigarette, the Court granted PM’s motion for summary judgment. The Court got this one right.  Not only does this case present a series of “but for” facts reminiscent of a Torts exam, it also begs the question:  Don’t we assume the risk of fire when falling asleep with a lit object?  Regardless of PM’s culpability in marketing cigarettes, the hazard of falling asleep with a lit object should be apparent to us all.  Perhaps the plaintiff could have presented a reasonable alternative design for a self-terminating cigarette had her product liability claims not been dismissed back in 2009.  While we wait for those results, we may want to consider electronic cigarettes.

Asbestos Exposure, Summary Judgment and Replacement Parts

Just this past Monday, in Massachusetts, that state’s appellate court released an asbestos causation opinion. In most states, to prove causation in an asbestos case, the plaintiff must establish (1) that the defendant’s product contained asbestos (product identification), (2) that the victim was exposed to the asbestos in the defendant’s product (exposure), and (3) that such exposure was a substantial contributing factor in causing harm to the victim (substantial factor). Whether or not the plaintiff had established these three elements was the issue in Morin v. AutoZone Northeast, Inc., — N.E.2d —, 2011 WL 834160 (Mass. Ct. App. March 14, 2011).

From 1952 to 1991, Geraldina Medeiros and her husband Anthony Medeiros ran Bedford Fruit Company. Fifteen years later, Ms. Madeiros died of malignant mesothelioma. Her daughter, as the administratrix of her estate, sued approximately forty (yes, that’s 40) defendants, mostly brake manufacturers which the plaintiff asserted had exposed the decedent to asbestos fibers in the course and scope of her work around the delivery truck and trailer. Although some defendants settled with the estate, many defendants moved for summary judgment on the issue of causation. After the motions were granted, the plaintiff appealed the ruling as to three defendants: AutoZone Northeast, Inc., Great Dane Trailers, Inc., and Orleans Auto Supply, Inc.

As the Court of Appeals pointed out, the main issue before it was that of causation:
Several characteristics of the generation of disease and death by asbestos inhalation have moved courts to adapt the standard of proof of causation. Those characteristics are the prolonged latency of the induced disease, the multiple points of exposure of the victim, and the indistinguishability of contributory exposures. Because the resulting injury may not emerge for years or decades after exposure, the law does not require the plaintiff or his or her witnesses to establish the precise brand names of the asbestos-bearing products, the particular occasions of exposure, or the specific allocation of causation among multiple defendants’ products. Evidence will be sufficient to reach the fact finder if it permits the reasonable inference of the presence at a work site of both the plaintiff and the defendant’s asbestos-containing product for an appreciable period of exposure.

So, the crux of any asbestos suit is this: the level of exposure to asbestos in a particular product, and the duration of the exposure. The Court of Appeals affirmed summary judgment for Great Dane Trailers, but reversed as to Orleans and AutoZone.

The case itself is pretty straightforward in terms of its analysis, but it highlights one of the hot topics in asbestos litigation right now. (Yes, apparently there are still “hot” topics in asbestos law, after more than thirty years!) The decedent’s exposure to asbestos brake pads and linings from these three defendants occurred during brake jobs where the asbestos-containing parts were replaced. What liability does an original manufacturer have for replacement parts? If we assume that the manufacturer knew that the brake parts on the truck and the trailer used to transport fruit would have to be changed, and would likely be replaced with parts containing asbestos, what liability does that manufacturer have? Watch this issue to be raised again and again in your state.

Booze Cruise

You may remember our very recent Dennis Kucinich olive pit lawsuit post in which we intimated, unlike some defense counsel, that some lawsuits may actually have merit. Today, we return to the bounds of legal ridiculousness to discuss injury by chair, specifically on a booze cruise (technically a dinner cruise, but come on!). In Tillson v. Odyssey Cruises a/ka Premier Yachts, Inc., No. 08-10997-DPW, 2011 WL 309660 (D. Mass. Jan. 27, 2011), the Court tells it best:

On June 15, 2007, [Plaintiff] and his wife boarded the M/V ODYSSEY, owned and operated by Premier Yachts, at Rowes Wharf in Boston to attend a cruise dinner. Tillson sat down on a chair at his table for the first time at 7:30 p.m. During the three-hour dinner, [Plaintiff] left his table on three occasions. Upon his return to the table at 10:45 p.m., [Plaintiff] attempted to sit on the chair he had been occupying throughout the evening. At that time the chair’s left rear leg “gave way or broke.” As the chair was settling to the left and rear, [Plaintiff] slipped to his left, while remaining seated, and eventually landed on the floor.

The Court’s description of the event enables us to imagine the event in slow motion. It seems like it did occur in slow motion, as gravity acted on the Plaintiff’s body in a such a way that the best way to describe its coming to rest was through the word “eventually.” We”ve seen many falls in our day, but we were fairly certain that gravity acted on all objects equally. The Plaintiff’s body has some sort of air buoyancy. The court recited additional facts as follows:
After walking off the vessel, [Plaintiff] and his wife boarded a water taxi and then walked for about a quarter mile to their hotel. [Plaintiff] contends that the collapse of the chair caused him to endure back and leg pain, headaches, as well as episodic urinary incontinence.

Far be it from us to suggest that anyone ever fell down on a booze cruise, from a seated position, no less. Odyssey had the unfortunate circumstance of having a chair that “failed due to a cracked weld on its left rear leg.” Also, far be it from us to suggest that anyone would lose control of their bladder on a booze cruise. We will point out that episodic is not defined, and perhaps is limited to episodes where the Plaintiff participates in a booze cruise.

The Plaintiff was so confident in his liability case that he moved for summary judgment. He lost, of course, based on the court’s finding that the evidence of whether Odyssey had notice of the particular dangerous condition at issue presented a question of fact. But, if you plan to allege urinary incontinence from a fall during which you were partially supported by a deck chair, then you must be pretty confident about your case.

So what did we learn? The Plaintiff should have stayed on the deck and demanded a water ambulance. Nothing smacks of a made up lawsuit more than an injury, walking around as if nothing had happened, and then having back pain after the fact. Second, there will soon be a generation of plaintiffs who will demand a water ambulance. You see, with so many law graduates being unemployed, there will be a class of plaintiff who will immediately install a litigation plan, know what to do immediately upon injury, and have a mountain of student loan debt to pay off. Perhaps cases like this, where a plaintiff sues after walking away from the injury, will become less frequent.

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.

Summary Judgment on Dental Injury in Massachusetts

If a picture paints a thousand words, do you still want to eat ground beef? Today’s post serves as a reminder that breaking a tooth while trying to eat the Old 96er does not give rise to a cause of action. Daniel Burns’ case didn’t survive summary judgment, and his appeal to the Appellate Division of the Massachusetts District Court does not begin well: “ Eating a McDonald’s double cheeseburger while driving his truck, the plaintiff, Daniel L. Burns, Jr. (“Burns”), felt a molar break on a hard object, which he did not recover.” Burns v. McDonald’s Corp., No. 10-ADMS-40001, 2010 WL 4226278 (Mass. Ct. App. Oct. 20. 2010). It turns out that Burns should have tried harder to recover the gristle, for without the foreign object he could not be successful as a matter of law.

The court sets up the facts well:

On October 20, 2006, Burns bought a double cheeseburger at a McDonald’s restaurant drive-through window in Raynham. As he drove his pickup truck onto Route 44 while finishing the cheeseburger, Burns had to brake so suddenly because of traffic that he had to restrain with his right hand his 75-pound dog, which had “started to go flying,” and then grab the steering wheel with both hands to keep his truck under control. Indeed, he “needed to push” the cheeseburger into his mouth so he could grab the wheel. While braking, with cars around him swerving, including the car behind him “swerv[ing] out from underneath the truck and into the breakdown lane,” Burns bit onto something and felt pain in the whole right side of his mouth. With his tongue, he felt a round and “hard and bumpy” object about the size of a “small pea.” He spit the contents of his mouth into a napkin. Examining that material later, he found what might have been tooth fragments, but not the offending object, which he never saw or felt, except with his tongue. Burns reported the incident to the restaurant on the day it occurred, and was examined by his dentist later the same day.

Might I suggest to Mr. Burns that, if you were to get in a similar situation again, please, drop the double cheeseburger. Then, reply to this post, and I will wire you the $1.49 to buy a replacement double cheeseburger. If you were to ever get into a car accident with me, and I found out that it was because you were unwilling to relinquish your death grip on your midday artery clog, I would be more than mildly upset. Cramming the sandwich into your gullet is not the decision of a rational actor.

But wait, there’s more: “Almost exactly a month before this incident, on September 19, 2006, a piece of the tooth at issue here simply “had come off” while Burns was eating.” Hmm. Burns cracks his tooth on an object that he didn’t preserve and can’t identify, and the affected tooth suffers from some pre-existing enamel-ady. Sounds Filet-o-fishy. Yes, I actually wrote that.

And it turns out that “Burns had no expectation of either demonstrating the identity of the object on which he allegedly bit, or, it follows, of establishing that object or substance was one that a consumer should not reasonably have expected to find in a cheeseburger.” Summary judgment upheld. What are the lessons to be learned here? 1) Be able to identify the foreign object in your burger. 2) Ensure that it is of such a quality that a consumer would not have expected to find said object in his burger. 3) This opinion would have been better if Burns had ordered the “Big N’ Tasty,” with the Court having to repeat “Big N’ Tasty” throughout the opinion. 4) All of you must immediately head to your local McDonald’s, because the McRib is back for a limited time. No I am not kidding. Try it, and you will love it.

Test for a New Trial Based on Alleged Erroneous Jury Instructions Analyzed by the District Court of Massachusetts

The District Court of Massachusetts was recently asked to grant a new trial under Federal Rule of Civil Procedure 59(a)(1)(A) on the ground that the jury instructions delivered to the jury were erroneous. O’Neil v. Electrolux Home Prods., Inc., No. 06-10433-DPW, 2010 WL 3504191 (D. Mass. Sept. 7, 2010). What makes this case of interest is the fact that Plaintiffs, who base their motion for a new trial on the alleged erroneous jury instructions given, submitted the identical instructions to the court and did not object to the oral recitation of these instructions to the jury prior to deliberation. It was only after the jury requested a typed copy of the instructions that Plaintiffs objected.

This is a products liability action involving an accident in which Plaintiff backed over his young son with a lawn mower. Plaintiffs filed suit against the manufacturer, asserting among other claims, breach of warranty by design defect. At the trial of this action, the following jury instructions were given:
To determine whether there was a design defect you should consider whether the product has a potential, sometimes referred to as a propensity, resulting from the manufacturer’s conscious design choice that rendered the product unreasonably dangerous to foreseeable users and, therefore, unfit for its ordinary foreseeable uses . . .

The phrase at issue is italicized above — “unreasonably dangerous to foreseeable users.” As stated above, the instructions requested by Plaintiffs included this very language and Plaintiffs made no objections when orally given by the Court. Hours into deliberation, the jury asked for criteria to determine when a product is “unreasonably dangerous.” The Court proposed sending a typed copy of the prior instructions to the jury. Plaintiffs objected to the phrase above and suggested the following phrase as a replacement — “unreasonably dangerous to foreseeable users or foreseeable bystanders.” The Court declined Plaintiffs’ suggestion and submitted the original instructions to the jury. Shortly thereafter, the jury found in favor of Defendants.

Then, Plaintiffs sought a new trial on the ground of erroneous jury instructions. The District Court of Massachusetts first stated that the test was a two-part test: 1) whether the objection was waived and 2) whether the instruction was erroneous.

The Court’s analysis of the first part of the test is most interesting. Defendants claimed that since Plaintiffs did not object to these instructions orally given, they cannot now object to the same exact language being given to the jury in hard copy. The Court disagreed with Defendants on this point, stating that Plaintiffs only “waived any challenge to that instruction at that time,” but not the supplemental instructions, even if they had the same content. Under the second prong of the test, Plaintiffs argued that failure to include “foreseeable bystander” in the instruction was “misleading and gave an inadequate understanding of the law.” The Court now disagreed with Plaintiffs, finding that the instructions as written were in line with Massachusetts law and the jury was fully aware that Defendants could be liable for injury to Plaintiffs’ son as a bystander from both parties’ opening and closing arguments and through the testimony at trial. Therefore, the Court found no error and denied Plaintiffs’ motion for a new trial.

We thought that the Court’s finding no waiver was interesting: it is a “second bite at the apple” for Plaintiffs. Therefore, practitioners should be aware of how this Court analyzed this issue if faced with a similar argument on a motion for a new trial.