Abnormal Use » Washington

Loogie on a Burger: What’s the Harm?

Nick Farr — Tue, 05 Feb 2013 12:30:39 +0000

Clark County (WA) Deputy Sheriff Edward Bylsma had an “uneasy” feeling after ordering a Whopper from a Burger King drive-thru. After lifting the bun from the burger, his suspicions were confirmed. As if living an urban legend, he allegedly discovered a large glob of spit on his burger. Fortunately, Bylsma had yet to take a bite out of the burger. Nonetheless, he claims that he now suffers ongoing emotional distress, including vomiting, nausea, food aversion and sleeplessness. After his subsequent lawsuit was appealed to the Ninth Circuit, the Washington Supreme Court was faced with the certified question of whether emotional distress absent physical injury is recoverable under the state’s product liability statutes. See Bylsma v. Burger King Corp., No. 86912-0 (Wa. Jan 31, 2013)

The Model Uniform Product Liability Act (UPLA) includes mental anguish within its definition of the “harm” necessary to maintain a product liability cause of action so long as it is accompanied by some physical manifestation. Washington’s Product Liability Act (WPLA) chose not to adopt the definition but, rather, to follow trends in developing case law. Without any guidance from the WPLA, the Court turned to precedent involving emotional distress from other torts. As it turns out, Washington has permitted recovery in the absence of physical injury in situations involving emotionally laden personal interests such as the improper burial of an infant child. Like these cases, the Court concluded that food consumption is a personal matter and its contamination is associated with disgust and emotional turmoil. As such, emotional distress arising out of food contamination is recoverable under Washington law.

Now that the question is answered, it will be interesting to see how Bylsma’s suit develops. If his case is remanded back to the trial court, he still must prove his emotional distress. Despite the recent “victory,” proving injury may nonetheless be difficult given the fact he did not actually consume the contaminated product. Admittedly, we too would be disgusted to discover that someone had spit on our burger, but it’s not like the resulting fear would be anything new. Isn’t the risk of food loogies an assumed risk of eating fast food? In addition, Bylsma’s newfound aversion to fast food may not be a “damage” at all.

The point of the physical injury requirement is to temper fraudulent emotional distress claims. Emotional distress is completely subjective and very difficult to evaluate. While the Washington Supreme Court’s decision appears to be limited to the food context, it will be interesting to see how many purchasers, but not users, of defective products try to test its bounds.

Of course, what’s the harm in trying?

The Hazards of Molten Glass May Not Be Obvious in Washington

Nick Farr — Wed, 31 Aug 2011 11:30:04 +0000

Recently, in Kirkland v. Emhart Glass S.A., — F. Supp. 2d —-, No. C10-5125BHS, 2011 WL 1435454 (W.D. Wash. April 14, 2011), the District Court for the Western District of Washington denied a manufacturer’s motion for summary judgment on an injured glass worker’s claim under the Washington Product Liability Act (“WPLA”). The plaintiff, injured by molten glass while operating an Individual Section Machine, alleged that the machine lacked adequate warnings and failed to protect workers from injury resulting from “contact with red hot bottles on the conveyor while performing mold changes.” The manufacturer’s defense? The plaintiff’s injuries were not proximately caused by its failure to warn because the dangers of molten glass were open and obvious. Sounds reasonable. After all, in order for glass to be “molten,” it must be exceedingly hot. We doubt the plaintiff was wearing his winter coat while operating the machine.

However, the Court wasn’t buying it.

Sometimes the difference between winning and losing an argument isn’t the facts, but rather how the argument is framed. In opposition to the manufacturer’s motion, the plaintiff argued that its failure to warn claim was based on the manufacturer’s failure to provide adequate instructions to the plant operator

[a]bout how to reduce or eliminate the known hazard of workers coming into contact with extremely hot bottles on the conveyor when working over the conveyor, despite expressly acknowledging the need for such instructions in [their] Technical Report regarding Individual Section machines. (emphasis added)

See what they did there? They incorporated the open and obvious nature of the molten glass right into their argument. I’ll take your “open and obvious” and raise you one “failure to provide instructions.” The dangers remain open and obvious, but apparently, it’s the manufacturer’s fault for not providing a remedy. To support his argument, the plaintiff produced evidence that the plant operator installed a protective shield following the plaintiff’s accident. (Don’t worry, the Ninth Circuit previously held Federal Rule of Evidence 407 only applies to a defendant‘s remedial measures).

The manufacturer was right. The dangers of molten glass are open and obvious. However, sometimes being right just isn’t enough.

A Rose by Any Other Name: The Economic Loss Rule and the Independent Duty Doctrine

Frances Zacher — Tue, 01 Mar 2011 13:30:00 +0000

There has been a lot of buzz about the recent Washington Supreme Court decision in Eastwood v. Horse Harbor Foundation, Inc., 241 P.3d 1256 (Wash. 2010) concerning the economic loss rule. Or, rather, what used to be the economic loss rule in the State of Washington, and which has now been re-named and re-vamped as the independent duty doctrine.

As we all know, the economic loss rule bars recovery in tort for purely economic losses caused by a defective product. In other words, without injury to a person or to personal property, there can be no recovery for pecuniary loss. Several jurisdictions, of which Washington used to be one, subscribe to a more liberal interpretation, finding that the rule barred liability in tort cases between parties who had entered into a contract. The theory behind this expansive approach is that the parties could have built the risk of the loss into the contract. That was approach taken by the Washington Supreme Court previously in Alejandre v. Bull, 153 P.3d 864 (Wash. 2007).

Enter Eastwood, which involved the failure of a tenant to maintain a horse farm and centered on the tortious waste of property. Instead of following their own lead, the Washington Supreme Court performed the legal equivalent of a 180 and renamed the doctrine the “independent duty doctrine,” which now focuses on whether some separate duty of care exists independent of the parties’ contractual relationship, rather than focusing on the harm that was suffered:

In sum, the economic loss rule does not bar recovery in tort when the defendant’s alleged misconduct implicates a tort duty that arises independently of the terms of the contract. In some circumstances, a plaintiff’s alleged harm is nothing more than a contractual breach or a difference in the profits, revenue, or costs that the plaintiff had expected from a business enterprise. In other circumstances, however, the harm is simultaneously the result of the defendant breaching an independent and concurrent tort duty. Thus, while the harm can be described as an economic loss, it is more than that: it is an injury remediable in tort. The test is not simply whether an injury is an economic loss arising from a breach of contract, but rather whether the injury is traceable also to a breach of a tort law duty of care arising independently of the contract. The court defines the duty of care and the risks of harm falling within the duty’s scope.

Opinions about the implications of the new rule run the gamut, including speculation whether it is a new rule at all, or simply a narrowing of the interpretation of the economic loss rule. Indeed, the Eastwood court itself, in a footnote, argued that it was not disturbing “[t]he general rule . . . that a party to a contract can limit liability for damages resulting from negligence.” There is also a difference of opinion as to whether the new approach in Washington is a more, or less, fact-intensive inquiry for a court to undertake.

The real question is, given the wide range of interpretations of the economic loss rule across the country, how many courts will follow Eastwood? Will other states continue to narrow the interpretation? For that matter, how many other states will rename the doctrine something else entirely? Furthermore, will this have any immediate effect on the way parties build risk into their contracts and agreements? At least in Washington, that might be a good idea.

No Duty To Warn Of The Hazards of Cleaning Hazard-Protecting Equipment

Nick Farr — Tue, 15 Feb 2011 13:30:00 +0000

This past December, the Court of Appeals of Washington reversed a trial court’s denial of several respirator manufacturers’ motion for summary judgment on plaintiff’s claim that they failed to warn him of the dangers of asbestos exposure while cleaning respirators designed to protect against asbestos. Macias v. Mine Safety Appliances Co., 244 P.3d 978 (Wash. Ct. App. 2010).

Mine Safety Appliances Company, American Optical Corporation, and North Safety Products USA (collectively “respirator manufacturers”) manufactured respirators that could protect against a variety of contaminants dependent upon the contaminant-specific filter cartridge selected by the user. The plaintiff worked as a tool keeper at a Seattle shipyard, and as part of his duties, he was responsible for cleaning respirators after they were returned by shipyard workers at the end of their shifts. After working in the shipyard for over twenty-five years and handling hundreds of dirty respirators on a daily basis, the plaintiff was diagnosed with mesothelioma and commenced this action against the respirator manufacturers.

The plaintiff alleged that the manufacturers were negligent and strictly liable for failing to warn him of the dangers of asbestos exposure. In response, the respirator manufacturers argued that they had no duty to warn of the dangers associated with asbestos in another company’s product. In support of their argument, the manufacturers cited the Washington Supreme Court’s decision in Simonetta v. Viad Corp., 197 P.3d 127 (Wash. 2008), holding that the duty to warn is “limited to those in the chain of distribution of the hazardous product.”

The Court agreed with the respirator manufacturers and held that they did not have a duty to warn, neither under a negligence or strict liability theory, because the manufacturers did not manufacture, sell, or supply the asbestos and did not control the type of contaminants used at the shipyard. While the plaintiff argued that the court should consider the purpose of the product in its duty to warn analysis, the Court rejected the notion that a product manufacturer should have a duty to warn of the dangers of a hazardous substance when its product is designed for the purpose of protecting against those very hazards.

Even though the manufacturers should have expected, as pointed out in the concurring opinion, that those who perform the necessary cleaning of the respirators would be exposed to the hazardous substances which had been absorbed, the plaintiff should have also expected that he would have been exposed to asbestos as he was cleaning the respirators of the substance against which it was designed to protect. Manufacturers should not be expected to warn against every conceivable hazard created by others’ products especially when the purpose of the manufactured product is to protect against those hazards.

While we here at Abnormal Use have been known to venture into the outdoors with the UV-protection afforded by a decent pair of polarized sunglasses, we wouldn’t expect Costa Del Mar to warn us of the dangers of the sun exposure we undoubtedly will receive to the rest of our faces when we neglect to wear sun screen. Even though this opinion did not expressly create a duty on behalf of the consumer, consumers must recognize that there comes a point with the use of any product at which the manufacturer’s duty to warn must end and the user’s common sense must take over.

Smells Like Lung Disease

Kevin Couch — Thu, 22 Jul 2010 11:30:00 +0000

Fate, it seems, is not without a sense of irony. In his bid to quit smoking and improve his health, Larry Newkirk began eating microwave popcorn to suppress his appetite. What Mr. Newkirk could not have known, while on his course to eating five to seven bags of microwave popcorn each day for eleven years, was that the delectable treat (allegedly) caused his severe lung disease, bronchiolitis obliterans. We reported earlier on a recently filed case involving allegations that Diacetyl‘s “characteristic buttery odor” smelled more like lung disease than popcorn flavoring, but the Eastern District of Washington in Newkirk v. Conagra Foods, Inc., No. CV-08-273, 2010 WL 2680184 (E.D. Wash. July 2, 2010) has had a chance to examine the issue. It issued some Defendant-friendly rulings on a few motions on Daubert as well as summary judgment.

A large part of the opinion focuses on the expert testimony of Dr. David Egilman, the plaintiff’s expert, who is board certified in Occupational and Internal Medicine. Holding degrees from Brown and Harvard, Dr. Egilman is certainly no intellectual lightweight. Mr. Newkirk put forth Dr. Egilman to establish general causation and specific causation. The court excluded Dr. Egilman’s testimony and ultimately granted summary judgment.

Unfortunately for Mr. Newkirk, there was no scientific foundation for Dr. Egilman’s opinions, and, neither does it appear that there will be any scientific foundation, because “manufacturers of microwave popcorn stopped using diacetyl in or around 2007.” Previously, there had been some research on the employees in microwave popcorn plant, and that research tracked the employees according to their particular job function. In addition, there was an EPA study released in 2007 studying the chemicals released when a bag of microwave popcorn is opened. But the “scientific community has yet to determine a safe level of diacetyl exposure.” Dr. Egilman made leaps in logic, equating the diacetyl exposure of a manufacturing worker (those who worked around the large vats of flavoring tantalizingly called slurry) to the purported exposure of a consumer opening a bag of popcorn in the home.

However, there is nothing to support Dr. Egilman’s conclusion that is at the heart of this case: that the vapors emitted from a microwave popcorn bag contain the same proportion of chemicals or that all of the substances in the two instances are identical.

Newkirk at *9. The court pointed out this “analytical gap,” even to the point of quoting from Dr. Egilman’s affidavit and expert report (several times), followed by the explanatory parenthetical “citing nothing.” I might try that in my next response brief if I ever need to quote the plaintiff: “[Ridiculous point of law asserted by plaintiff.] (citing nothing).”

Unlike some plaintiffs, Mr. Newkirk has an actual injury. Unfortunately for him, there is no science supporting his allegation of the causation of his injury. We applaud the District Court for demanding science, and, seeing none, dismissing this case.