Beware Jury Instructions (or At Least, Pay Attention to Them)

I have a really long list of really important things that no one taught me in law school. One lesson that always finds itself at or near the top is this: PAY ATTENTION TO JURY INSTRUCTIONS. The smallest error or inconsistency can provide the basis for an appeal, or in some cases an entirely new trial. Never mind whether the jury actually listens to them or not.

Jury instructions served as the basis for appeal in Kokins v. Teleflex, Inc., 621 F.3d 1290 (10th Cir. 2010) (PDF). This suit arose out of an accident involving a city park ranger, who was thrown from a boat after the boat’s steering cable snapped and sustained a permanent injury to her ankle. She sued the manufacturer of the steering cable, alleging that it was defectively designed and unreasonably dangerous. During discovery, the parties determined and agreed that the reason the cable snapped was because water had somehow entered the core of the cable and caused it to rust. The parties could not agree on how the water got there. The plaintiff alleged that the cable was defectively designed and that a simple fix to the design could have prevented the water from entering into the cable’s core. Teleflex, however, provided evidence at trial that the cable was improperly installed, and had not undergone routine maintenance.

The jury entered a verdict for Teleflex, and the plaintiff appealed, taking issue with two aspects of the jury charges. First, as the Court points out:

Colorado law provides two different tests. Under the “consumer expectation” test, the jury is instructed to find defectiveness if the plaintiff proves that a product is dangerous “to an extent beyond that which would be contemplated by the ordinary consumer who purchases it.” Under the “risk-benefit” test, the jury is instructed to conclude that a product is unreasonably dangerous if the plaintiff proves that the risks of a challenged design outweigh its benefits. Appellants submitted instructions proposing that the district court instruct the jury under both tests, but the district court gave only the risk-benefit instruction.

The second dispute focused on Colorado Revised Statute 13-21-403(2), which creates a presumption that a product is not defective once it has been on the market for ten years. Over the plaintiff’s objection that the statute was procedural, not substantive, the Court instructed the jury on the statute.

The Tenth Circuit affirmed the verdict for Teleflex. First, it held that there was no error by the trial court in providing only the “risk-benefit” test to the jury because the case involved primarily technical and scientific information, rejecting the plaintiff’s argument that the jury should also have been instructed on the consumer expectation test because “rust is not rocket science.”

Second, the Court held that the trial court did not err by instructing the jury about the statutory presumption, because the presumption was substantive, rather than procedural, state law.

Although the plaintiff ultimately failed to persuade the Tenth Circuit to reverse the trial court, she successfully convinced the appellate court to consider her arguments, solely on the basis of jury instructions. It’s a good lesson to learn and, as I pointed out, not one you’ll necessarily learn sitting in the typical law school class.

Wii Class Action Strikes Out: Hang on to Your Controller

I used to think the story was an urban myth. I’ve heard accounts of people who became so wrapped up in a spirited game of Nintendo Wii baseball or bowling that they let go of the controller, only to watch in horror as the strap around their wrist broke and the controller sailed across the living room and hit grandma, or, more likely, smashed their 62-inch high-def, plasma television:

Apparently not. In fact, there are so many people who have had this happen that some smart plaintiff’s lawyer filed a putative class action for them, perhaps hoping to get new $2,000 TVs for everyone. Or at least new $1.99 wrist straps.

Well, as Lee Corso would say, “Not so fast, my friend.”

On September 23, 2010, the U.S. District Court for the District of Colorado granted summary judgment for Nintendo in Elvig, et al. v. Nintendo of America, Inc., No. 08-CV-02616, 2010 WL 3803814 (D. Colo. Sept. 23, 2010) [PDF] on the class’ claims under the Colorado Consumer Protection Act, as well as theories of breach of implied warranty of merchantability and fitness for a particular purpose. (Hat tip: The Mass Tort Defense Blog)

We believe that Mass Tort Defense has it wrong, however, on the Court’s take on the implied warranty of merchantability claim:
On the implied warranty of merchantability, the court cited the lack of evidence that would indicate what the intended purpose of the strap was. One might plausibly assume, as plaintiff did, that the strap was intended to prevent a controller, inadvertently released by the player during vigorous activity, from hurling towards the player’s television (or towards another player) and causing damage. But equally, one might assume that the strap was simply intended to keep an inadvertently released controller in the vicinity of the player so that it could be easily retrieved and was was never intended to withstand the forces of high-speed controller release.

Honestly, we really hate siding with plaintiffs, especially when they’re running around filing lawsuits based on their own lack of common sense (“If I release this controller in the process of it swinging toward my TV . . . .). But to surmise that the wrist strap is designed to do anything but keep the controller strapped to your wrist is a bit of a stretch.

Still, we like the decision, because it reaffirms our sense of fair play. People who voluntarily join sports teams and leagues can’t complain when they are injured in the normal course of the game or match–indeed, as active members of our own city’s softball law league, we have seen more than our fair share of injuries. The same rule should be applied to full contact video games.

One final note: apparently, at least one TV manufacturer has now designed its television screens to withstand the force of a flying Wii controller. Take a look.

Bleeding Kansas? Not Any More!

No, today’s post is not a reference to Butler’s dismantling of my bracket when they defeated Kansas State to make this year’s Final Four. Furthermore, this post will not revisit the pre-Civil War conflict in the Kansas territory. Rather, today we will examine the recent decision handed down by United States District Court for the District of Kansas, Stephenson v. Honeywell Int’l, Inc., Nos. 07-2494-JWL, 07-2498-JWL, 07-2499-JWL, 07-2501-JWL, 2010 WL 1284469 (D. Kan. April 2, 2010).

The case arises out of a plane crash that occurred shortly after takeoff on January 21, 2005. Id. at *1. The crash resulted in the deaths of the pilot and all four passengers. Id. The Plaintiffs in this consolidated action were the heirs of the four deceased passengers. Id. The plane’s engines were manufactured by Honeywell’s predecessor-in-interest in 1979. Honeywell repaired the plane’s left engine in 2003 and subsequently declared that the engine was airworthy. Id. The Plaintiffs brought suit against Honeywell for wrongful death on three theories: (1) negligent repair of the left engine; (2) strict product liability; and (3) breach of implied warranty. Id.

The majority of the opinion dealt with each parties’ respective motions to exclude expert testimony. However, the most intriguing portion of the opinion was the court’s analysis of Honeywell’s Motion for Summary Judgment on the Plaintiffs’ strict liability and implied warranty claims. Honeywell argued that since it had only repaired the engine in 2003, Kansas law would not support a claim for strict product liability or breach of an implied warranty when there was not an accompanying sale of the product. Id. at *8.

The court began by recognizing the fact that the Plaintiffs had conceded that their claims for strict liability and breach of warranty were not based on an alleged defect in the engine when it was originally manufactured and sold in 1979. Id. The court then provided a brief summary of Kansas law with respect to strict liability and implied warranty claims. Specifically, the court stated that Kansas, with respect to strict liability claims, had adopted section 402A of the Second Restatement of Torts. Id. at *9. As such, liability attaches to one who sells a defective product. The court also reiterated that Kansas courts have required a plaintiff to show that the good’s defect was present when it left the manufacturer’s control and that an implied warranty arises out of a contract for the sale of goods. Id.

In response, the Plaintiffs argued that Honeywell’s repair of the left engine in 2003 was of such magnitude to have constituted a remanufacturing of the engine. Id. Nevertheless, the court stressed the fact that there was no evidence that the repair in 2003 constituted a sale: “[t]here is no evidence, however, that the title to the engine did not remain with the owner during repair or that the engine was re-sold by the defendant at that time.” Id. Furthermore, the court relied on Kansas law for the proposition that the term “manufacturer” includes one that remanufactures a product before its sale to a consumer. Id. Finally, the court held that under Kansas law, which is now in line with the majority of jurisdictions, a claim for strict liability or breach of an implied warranty will not extend to repair situations where there is not a sale of the product. Id.

Thus, in light of this opinion, it appears that the bleeding will now stop with regards to strict liability and breach of implied warranty claims arising out of a repair of a product that has already been sold.