The New Ultrahazardous Activity: Firing a Bottle Rocket from Your @#%

This case gives a whole new meaning to the phrase “blow it out your rear.”  As we all learned in law school, there’s strict liability when a person or entity chooses to engage in ultrahazardous activities.  Classic examples of ultrahazardous activities include really dangerous things like imploding a building or transporting hazardous waste.  Well now, according to a lawsuit out of West Virginia, ultrahazardous activities should include firing bottle rockets out of your anus.

Yes, you read that correctly.  A West Virginia student allegedly fell off the deck at his fraternity house when his fraternity brother fired a bottle rocket out of his own anus.  The student alleges the firing of the bottle rocket startled him so much that he jumped back and fell off of the deck.  The lawsuit claims that “firing bottle rockets out of one’s anus, constitutes an ‘ultrahazardous’ activity.”

We don’t think there’s any dispute that this alleged activity is certainly dangerous for the party attempting the stunt.  In fact, the bottle rocket reportedly failed to launch and blew up in the defendant’s rectum.  But is this the kind of ultrahazardous activity envisioned by the law, such that a defendant is subject to strict liability?

According to the Restatement (2d) of Torts, section 520, in determining whether an activity is ultrahazardous, courts should consider: 1) high risk of harm; 2) inability to eliminate risk; 3) extent to which the activity is not common; 4) appropriateness of the place where the activity is conducted; and 5) balance of community value of the activity versus the dangerous attributes.  There are some interesting and funny arguments to be made for both sides. For instance, we envision an argument from the defendant claiming that if a frat house is not the appropriate place for this kind of shenanigans, what location might be?

This case is still in its early stages, but we are certainly hoping it makes it to trial.  It should be interesting.

Filing Suit Against "Alternative" Product Manfucturers is Not Enough on Summary Judgment

Our post last Monday, Twombly and Iqbal Satisfied Even Where Plaintiff Cannot Identify Specific Manufacturer of Alleged Defective Product, highlighted a case which found a plaintiff could get past the motion to dismiss stage of litigation by naming “alternate” defendants as the manufacturers of the alleged defective product at issue. We stated that this type of pleading would often be used in the medication context and to watch for cases that determine how far a plaintiff can go naming “alternate” defendants. This question was answered by at least one court on June 21, 2010 in Kahle v. APP Pharms., LLC, No. 5:09-CV-78, 2010 WL 2521420 (N.D. W. Va. Jun. 21, 2010).

In Kahle, the decedent suffered from a intracerebral hemorrhage and was administered a “single low-dose heparin ‘lock flush’ that was allegedly used to ‘flush’ his intravenous line.” After the administration of this dose of heparin, the decedent suffered from heparin-induced thrombocytopenia, gangrene, and deep vein thrombosis. Kahle asserted that the heparin caused these complications,which led to the decedent’s death.

Kahle filed claims for strict liability, negligence, breach of warranty, negligent misrepresentation, fraud by concealment, and wrongful death against a number of defendants that manufactured heparin. During discovery, the hospital that administered the heparin produced documents showing that they purchased heparin products from two defendants, Hospira and APP Pharmaceuticals. However, the administrator of the hospital testified that he could not determine if it was Hospira’s or APP Pharmaceuticals’ product that was administered to the decedent.

Therefore, both Hospira and APP Pharmaceuticals filed motions for summary judgment on the grounds that Kahle failed to establish causation because she failed to prove whose product was administered to the decedent. In response, Kahle argued that “evidence that two manufacturer’s products were used in an area is enough to defeat a defendant’s summary judgment motion.” The Court disagreed finding the evidence Kahle had that established two manufacturers provided heparin products to the hospital “suggests a mere possibility that the decedent may have been exposed to [a certain defendant's] product.” This mere possibility was not enough. Therefore, the Court granted the defendants’ motions for summary judgment ruling Kahle failed to establish which defendant’s “product proximately caused the decedent’s injuries.”

This case instructs that while a plaintiff may be able to survive a defendant’s motion to dismiss when he or she files suit against “alternative” product manufacturers, courts may not be so lenient after discovery is complete and the plaintiff is still not able to establish which defendant manufactured the product that allegedly caused the plaintiff’s injuries.