Florida Court Finds Exclusion of FDA Recall Harmless Error

Last week, a Florida appellate court affirmed a defense verdict in a products liability case despite finding that the trial court had erred by excluding evidence. The evidence that was excluded was that the U.S. Food and Drug Administration had later banned the substance at issue, ephedrine, some six years after the Plaintiff took it. In that case, Webster v. Body Dynamics, Inc., the appellate court found the exclusion constituted harmless error, in part because of the Plaintiff’s successful introduction of evidence indicating the risks of ephedrine through an FDA witness. See — So.3d —-, No. 1D08-5114, 2010 WL 624182 (Fla. Ct. App. Feb. 24, 2010) [PDF].

The Plaintiff, a twenty six year old university student at the time of the alleged injury, suffered a stroke in the summer of 1998. For four months prior to the stroke, he had been taking Super Mini/Mini Thin Natural pills, dietary supplements containing ephedrine alkaloids, which were later banned in 2004 by the FDA. The Plaintiff sued the manufacturer and the retail establishment at which he had purchased the pills. The defendants’ theory was, in part, that young men occasionally have strokes for unexplained reasons, and the appellate court noted that “[t]he jury apparently concluded this was one such case.” (Bolstering the defense theory was the fact that no ephedrine was found in the Plaintiff’s system at any time after the stroke.).

Both before and during trial, the judge refused to take judicial notice of the ban or otherwise permit evidence of it to be heard by the jury. The appellate court found that in excluding evidence of the ban the trial court “arguably” erred because such evidence can be introduced to establish that a later-recalled product was defective at the time of the litigated injury, even if that injury occurred before the recall. However, the court found that any error was harmless. In so doing, the court noted that the jury “may well have concluded that there was no convincing proof that ephedrine was in the plaintiff’s system when he suffered the stroke.” It also referenced the detailed testimony of Dr. Parisian, an FDA official who recounted the FDA’s pre-1998 public warnings on ephedrine and the substance’s risks, including the risk of adverse effects, such as strokes, in young people taking the substance. Dr. Parisian also testified that with each pill the Plaintiff had ingested more than three times the amount of ephedrine that she considered “unreasonably dangerous” in such supplements. Nevertheless, the appellate court rejected the the notion that Dr. Parisian should have been able to testify to the ban:

. . . Dr. Parisian’s testimony conveyed in great detail the health and safety concerns that underlay the FDA’s proposal to adulterate dietary supplements containing ephedrine alkaloids in excess of eight milligrams per pill, and ultimately led to the ban of dietary supplements (but not other over-the-counter medications) containing any ephedrine alkaloid at all. Dr. Parisian testified unequivocally that manufacturers continued to market dietary supplements containing ephedrine at levels not recognized as safe and effective by the FDA. She opined in no uncertain terms that the pills Mr. Webster allegedly consumed were “unreasonably dangerous.” The testimony that strokes had been associated with ephedrine use was uncontroverted.

Dr. Parisian’s testimony explained to the jury the reasoning behind the eventual ban of dietary supplements containing ephedrine, and the entire rationale eventually set forth in the text of the rule effecting the ban. The appellant has not demonstrated a reasonable probability that proof of the ban itself would have led to a different result.

See id. at *2 (Footnotes omitted).

The majority’s ruling drew a dissent from Justice Thomas, who argued that “[a] mandatory recall and ban is relevant evidence and demonstrates a product’s design defect, even where the recall and ban is issued after the date of the product’s manufacture.” Presumably, there’s still time for the Plaintiff to appeal this decision, so perhaps the Florida Supreme Court will address the issue.

Hey, Potential Tortfeasors: Do Business in Kentucky

Oh, Kentucky! I wax maudlin as the spring approaches, when the bluegrass begins to grow, and I am reminded of my love of fried chicken, mint juleps, and Billy Ray Cyrus. How wonderful art thou, great state of the Gray Squirrel and the greatest two minutes in sports! And even with all of these enticements to share a state of domicile with Rick Pitino, there is but one ultimate reason to make the move. Although Greenville is a fine place to live, if I were ever to maim or otherwise injure someone, I would hope to do so in Kentucky. I am surprised that the Kentucky Chamber of Commerce does not openly espouse its one year statute of limitations [PDF] on personal injury cases as a benefit of living, maiming, of doing business there. Unfortunately for Johnny Childress, he lived in Kentucky at the time of his injury, and his claim was dismissed because of it.

For reasons not clear in Childress v. Interstate Battery Systems of America, Inc., 2010 WL 600023, No. 1:09CV-54-M (W.D. Ky. Feb. 18, 2010), Mr. Childress did not bring suit within one year of his accident. On November 26, 2007, Mr. Childress drove home, exited his car, and “noticed the distinct odor of battery fumes emanating from his vehicle.” Id. Mr. Childress disconnected the battery, took the battery into his garage, and placed it on a workbench, where it exploded and sent shards of plastic and acid into Mr. Childress’ face and eyes. Childress, inexplicably, waited too late to file his products liability action, and, therefore, he had to assert a theory of recovery that would allow him to maintain his claim. He argued that his accident sounded in the Motor Vehicle Reparations Act, which allowed a two-year period to bring an action.

The two-year limitations period extends to those who were victims of a motor vehicle accident and whose injuries arose out of the use of a motor vehicle. Id. Because the blog adheres to the strictest of legal writing axioms, you already know what the court decided. Childress was not in his vehicle at the time of the explosion, and “it was the battery, not his vehicle, that was the sole cause of his injuries.” Id. Therefore, Childress was time-barred.

Maybe Childress had some bad facts in his claim that would have precluded a finding against the battery distributor, and he was trying to bring in his auto insurer. It’s unclear. But unfortunately for Mr. Childress, who at the very least had a real injury, and perhaps a valid claim, he can’t recover. Manufacturers take note and take advantage of Citizens United: Elect officials who support a one-year statute of limitations. Then I won’t have to move to Kentucky.

Plaintiffs’ Conspiracy Action Against Expert Witness who Allegedly Designed and Marketed Improved Product to Defendants Survives Motion to Strike

Arguably, a benefit of product liability litigation is that lawsuits demand that companies design products with greater safety measures and provide consumers with more pronounced, descriptive warnings. A guest speaker at my law school once told my class that engineers and automakers didn’t design many parts of the automobile — lawyers did. What he meant, of course, was that attorneys have filed suits against automakers when parts of a vehicle were allegedly unsafe or could have been designed with even greater safety measures in mind. This had, in turn, dictated the way that automakers designed that product from that point forward. The same guest speaker probably would not, however, have envisioned the alleged actions one California product liability attorney and his expert witness recently took in helping inspire this design process.

The California Court of Appeals recently refused to strike the plaintiffs’ complaint, where they filed suit against their attorneys and a consultant hired by their attorneys as an expert witness for negligence and conspiracy to commit fraud. Robles v. Chalilpoyil, —Cal.Rptr.3d—, (Cal. App. Jan. 27, 2010). The underlying action in Robles was a product liability claim initiated by the family of a man who burned to death when his wheelchair, which presumably was electric, ignited while he was occupying it. The family retained an attorney named Wills to represent them in their wrongful death action against the makers of the wheelchair.

According to the complaint, when the underlying case came up for trial, the family’s attorney requested a continuance on the basis that the plaintiffs’ expert witness had testified falsely in his deposition. The trial court thereby continued the trial to allow the attorneys to procure another expert witness. Before the new trial date, however, the attorney allegedly requested that each of the plaintiffs sign a waiver of any interest in a device that attorney Wills wanted to market to address the safety defects in the decedent’s wheelchair. Wills allegedly told the family members that the device would be designed and manufactured together with their former expert witness, based on research and information the expert witness had gathered in preparing for his expert testimony for trial.

After procuring each of the plaintiffs’ signatures and without retaining a new expert, the attorney “wrongfully pressured” the plaintiffs to settle the claim for $1 million. When several of the plaintiffs thereafter refused to accept the settlement proceeds, the Wills firm withdrew from the case and filed notice of lien for attorney fees.

The present case deals only with the issues of liability of the expert witness, as it was he who moved to strike allegations of the complaint as a SLAPP (Strategic Lawsuit Against Public Participation). According to the court, a SLAPP is a “meritless suit filed primarily to chill the defendant’s exercise of First Amendment rights.” The expert witness argued that his discussions with the attorney, during which the attorney solicited his agreement to allow his work product to be provided to the underlying defendants in the event of settlement, fell “comfortably” within the express terms of the anti-SLAPP statute. The California Court of Appeals disagreed, holding that such alleged discussions and agreements was not protected activity. It would not strike the plaintiffs’ complaint insofar as it alleged negligence and conspiracy to commit fraud against the former expert witness.

As noted, the court’s opinion deals with allegations of the complaint as alleged only against the expert witness. The attorney Wills, who represented the family in the underlying action, reportedly is the same person who was subsequently appointed to serve as a California Superior Court judge.

Product Liability Claim is Barred by the Economic Loss Doctrine

In New Jersey, where a sophisticated buyer enters into a contract with a sophisticated seller of an allegedly defective product that causes damage to the product itself as well as something other than the product, the buyer’s remedy against the seller may only be contractual. On February 5, 2010, the Third Circuit, in a diversity action, opined that the New Jersey Supreme Court would apply the economic loss doctrine, barring the product liability claims of a manufacturer of food and beverage items against the producer of the raw materials. Travelers Indemnity Co. v. Dammann & Co., No. 09-1225, 2010 WL 395915 (3d Cir. Feb. 5, 2010) [PDF].

The procedural posture of this case would likely bore you and create a lot of extra reading to get the important lesson from this case across to you. That said, I will only briefly recite the basic underlying facts of this case. Dammann is a producer of raw foods, including vanilla beans. Dammann sold IFF vanilla beans, by written contract, for incorporation into IFF’s food and beverage flavoring. IFF incorporated Dammann’s beans into its vanilla extract only later to find out that the beans were contaminated with mercury. As a result, IFF filed claims against Dammann for breach of express warranty, breach of implied warranty, and product liability.

The New Jersey District Court reasoned that IFF’s product liability claim sounded in contract and therefore, the economic loss doctrine barred the application of the New Jersey Product Liability Act to IFF’s claim. IFF appealed. On appeal, the Third Circuit had to determine whether, under New Jersey law, the economic loss doctrine barred claims such as IFF’s claim. The Court stated that no New Jersey case had specifically decided the sort of claim IFF alleged, which involved a defective product, the vanilla bean, and damage to other property, IFF’s flavoring products contaminated with mercury.

The Court found that there were two schools of thought resolving this question. The majority employs some variation of the following test:

Tort remedies are unavailable for property damage experienced by the owner where the damage was a foreseeable result of a defect at the time the parties contractually determined their respective exposure to risk, regardless whether the damage was to the goods themselves or to other property.

On the other hand, the minority test differentiates between damage to the product itself and other property. The Court held that the New Jersey Supreme Court would likely join the majority and apply the economic loss doctrine to bar IFF’s claim. The Court reasoned this way because New Jersey precedent consistently held that “contract law [was] better suited to resolve disputes between parties where a plaintiff alleges direct and consequential losses that were within the contemplation of sophisticated business entities with equal bargaining power and that could have been the subject of their negotiations.” Further, the Court found that IFF alleged damages, including scrapping of contaminated finished flavoring, claims from customers, testing costs, plant cleaning costs, and lost profits were purely economic damages.

Practitioners should be aware of both the majority and minority rules on this issue and be on the look out to see if the New Jersey Supreme Court resolves this issue as the Third Circuit predicted it would rule in this matter.