Thursday, March 24, 2011

Hall v. Sunjoy Industries and Kmart: How NOT to litigate a products liability case

Growing up, we here at Abnormal Use were told more than once that one can learn more from failures than successes. If that’s the case, the perpetrators of one recent Florida lawsuit may have learned a great deal recently. See Hall v. Sunjoy Indus. Group Inc., No. 8:09-cv-2032-T-30MAP, 2011 WL 589830 (M.D. Fla. Feb. 18, 2011).

The facts are simple. Plaintiff Dorothy Hall sat on a patio chair displayed in the garden center at her local Kmart. The chair collapsed, causing her to allegedly suffer “various injuries, including a painful back condition.” Hall and her husband sued Kmart as the retailer, and Sunjoy as the alleged manufacturer on theories of strict liability for a manufacturing defect, negligence for failing to inspect and test the chair, and negligent failure to warn. They also sued Kmart on a fourth count, res ipsa loquitur for displaying the chair. Both defendants filed summary judgment motions on all counts, as well as a motion to dismiss based on the plaintiffs’ dishonesty during their depositions. The plaintiffs also filed a motion to establish a rebuttable presumption of negligence based on the fact that the chair was not preserved.

Here are the lessons that we can take from this case:

Lesson #1: Make Sure You Sue the Correct Manufacturer. This may be obvious advice, but these plaintiffs could have used it before facing the court on this issue. Apparently, Sunjoy was not the chair manufacturer. In fact, the record was undisputed as to that fact. In order to avoid Sunjoy’s motion for summary judgment, the plaintiffs filed a motion to voluntarily dismiss Sunjoy without prejudice. The court wasn’t buying their trick and remarked:

When the parties have expended considerable resources to fully develop a case, a court may infer that a plaintiff seeks a voluntary dismissal solely to avoid a pending motion for summary judgment.

In those cases, it is appropriate to do as this court did: deny the motion for voluntary dismissal without prejudice and grant the summary judgment motion.

Lesson #2: Hire the Necessary Experts. The plaintiffs’ first count against both defendants was a strict liability claim for a manufacturing defect. Step one in building such a case is to establish that there is, in fact, a defect. Expert testimony is necessary on this issue if the defect is latent, i.e., not obvious, as in this case. In fact, the plaintiffs needed to establish, through expert testimony, that the chair malfunctioned when it collapsed. While this may appear to be an easy question because the chair in fact collapsed, the court explained that “While the chair may have broken after Plaintiff sat on it, this does not automatically mean the chair ‘malfunctioned.'” The plaintiffs also sacrificed their design defect claim by failing to hire an expert who could provide expert testimony about whether or not testing or an inspection could have revealed a design defect. Finally, the plaintiffs’ negligent failure to warn claim failed because of a lack of expert testimony. “A claim that a warning is necessary and that the failure to warn rendered a product unreasonably dangerous and defective requires a warnings expert,” the court noted.

Lesson #3: Vet Your Clients Properly. The plaintiffs also filed a claim of res ipsa against Kmart. The court granted summary judgment on this claim for two reasons: First, the plaintiffs could not prove that the chair was in the store’s exclusive control because it was in the garden department where people, like Ms. Hall, could sit in it. Second, the court held that the plaintiffs had not presented “any evidence that the reason for the chair’s collapse was some act of the Defendants as opposed to Ms. Hall’s excessive weight” of over 350 lbs.

Even more on this point. The court’s opinion in this case included several footnotes alluding to the fact that both Mr. and Mrs. Hall appear to have perjured themselves, in either their depositions or in affidavits, or both. Not only is that a problem for them, but it could be a problem for their lawyers. It appears that the court did not find the legal theories any more admirable than the Plaintiffs, as evidenced by the reference to the Rule 11 motion which was filed by Sunjoy, based on the fact that Sunjoy was not the manufacturer of the chair.

Lesson #4: Keep the Evidence. The plaintiffs also filed a motion asking the court to grant them a rebuttable presumption of negligence based on the fact that Kmart didn’t preserve the chair at issue in the case even after a preservation letter was sent. Apparently, Kmart kept it initially, but discarded it after seven months, thinking the case was “old.” Because the court found no evidence of bad faith by Kmart, it denied the plaintiffs’ motion. Still, this is one of the cardinal rules of defending a products case: keep track of the evidence, or it may lead to a presumption of negligence later.
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Wednesday, March 23, 2011

The McDonald’s Broken Toilet Case

Plaintiffs certainly have high expectations for what McDonald’s should “know” in civil litigation these days. Back in the early 1990s, in the infamous Stella Liebeck McDonald’s hot coffee case, the plaintiff asserted that the fast food chain should have known that the beverage could cause serious harm to a person who did not appreciate the dangers that steaming hot drinks perched in laps could inflict. Now, just last week, an Illinois woman sued McDonald’s based on her claim that the restaurant should have known that a toilet located in its restroom was dangerous.

The Chicago Sun-Times reports that Plaintiff Cherry Hardie has filed a lawsuit against a Chicago-area McDonald’s after allegedly suffering injuries to her left arm and shoulder after the toilet upon which she sat broke underneath her. She has asked for damages exceeding $30,000.00 and claims to have suffered a “shock to her nervous system” and become disabled.

Now, if we were the lawyers taking this Plaintiff’s deposition, we would have a few interesting questions for her. First, we might ask why she thought it was okay to sit down in the first place, given the cleanliness of most fast food chain restaurant restrooms we’ve seen of late. Assumption of the risk, indeed. Next, we might ask what kind of notice she believed the restaurant may have had that a solid piece of commercial-grade porcelain might collapse. Finally, since Ms. Hardie claims she suffered severe, disabling personal injuries as a result of the mishap, we would ask about any prior personal injury suits. In fact, during our cursory online search for a copy of her complaint in this matter, we stumbled across this prior suit. Is it possible that the pro se Cherry Hardie in that prior Illinois lawsuit is the same woman now claiming to be victimized by the McDonald’s toilet? And what injuries was she claiming in this prior suit?

Cynical? Perhaps. But an important issue to explore nonetheless.
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Thursday, March 17, 2011

Expert Witness Testimony: The Difference Between Testing Scientific Principles and Determining Cause

We can’t resist writing about recent judicial opinions in which a Plaintiffs’ expert is excluded, and last month, the Eighth Circuit affirmed a lower court’s decision to do just that. In Dunn v. Nexgrill Industries, Inc., —F.3d —, 2011 WL 668062 (8th Cir. Feb. 25, 2011) [PDF], the Eighth Circuit considered whether the trial court abused its discretion when excluding the testimony of an expert witness as well as the trial court’s granting of the defendant’s summary judgment motion. In so doing, the Eighth Circuit held that 1) the district court did not abuse its discretion in excluding the Plaintiffs’ expert’s testimony, and 2) that without the expert testimony, the plaintiffs could not establish that the grill was unreasonably dangerous or defective. As a result, the Court affirmed the trial court’s rulings.

Thomas and Thelma Dunn filed a complaint against Nexgrill Industries, Inc., the designer, manufacturer, and seller of a propane grill they claim caused a fire at their home. They claimed that the grill was defectively designed, such that the grease tray came into contact with the rubber regulator hose, which melted and allowed propane gas vapors to escape and ignite.

To prove their case, the Dunns presented the testimony of purported expert Randy Bicknese. He attended the initial investigation into the cause and origin of the fire, which determined that the fire originated in the bottom cabinet of the grill and was caused by the escape of propane gas from the fuel delivery system. Bicknese also conducted additional tests by using a used grill of the same make and model, since the specific grill at issue was no longer manufactured. In his affidavit, Bicknese stated that the purpose of the testing was as follows:

. . . to establish certain scientific principles: (1) to determine whether or not the propane hose can deteriorate sufficiently to leak when in contact with the grease tray during grill operation; (2) to determine if propane leaking from the deteriorated hose can be ignited by the operating burner; (3) to determine if a propane hose fire in the cabinet can be sustained after the burner controls are turned off; (4) to determine if a propane hose fire in the cabinet is readily detectable from outside the grill with the grill lid open and the cabinet door closed; (5) to document the operating characteristics of the grill’s propane distributing system; (6) to determine the consumption rate of the propane hose as a result of the ignited leak.

Bicknese also performed a subsequent round of testing, after which he reported that “the second test continued to support his theory that the fire was the result of the deterioration of the rubber propane hose caused by contact with the heated grease tray.”

Nexgrill filed a motion to exclude Bicknese’s testimony and testing, which was granted because in the opinion of the district court the testing “was done to recreate the fire at the Dunns‘ residence to determine the cause of the fire, not to test scientific principles.” The court further concluded that the test was not substantially similar to what happened during the fire at the Dunns‘ house. After the court excluded Bicknese’s evidence, Nexgrill filed a motion for summary judgment, which was also granted.

The Eighth Circuit affirmed the ruling, finding that the district court had not abused its discretion. As that court noted, “The Dunns‘ main argument is that the tests were conducted to test scientific principles and Bicknese’s hypothesis, not to show exactly how the accident occurred.” Although the line between these two testing principles is “very difficult to draw,” the Eighth Circuit determined that it was unable to say that the lower court abused its discretion.

Without expert testimony, the Dunns were in a real pickle in terms of proving that the grill was actually defective. They tried the only route they had left: they argued that they should be allowed to present circumstantial evidence of the products defect, despite the fact that they failed to plead res ipsa in their complaint. The Eighth Circuit prohibited this type of proof not only because of the improper pleading, but also because “grills are designed specifically to ignite,” and therefore, the fact that the grill actually ignited did not prove a defect. As a result, the Eighth Circuit affirmed summary judgment for Nexgrill.
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Wednesday, March 16, 2011

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.
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Wednesday, March 2, 2011

When is a Product Sold? We Now Have the Answer!

Many months ago, we here at Abnormal Use discussed the critical question, “When does a bucket truck become a bucket truck?” At that time, we were discussing Campbell v. Altec Indus., Inc., 605 F.3d 839 (11th Cir. 2010) [PDF], which involved a plaintiff allegedly injured when a cylinder on a bucket truck owned by Georgia Power failed. The plaintiff sued not only the manufacturer of the truck but that of the lift cylinder, as well. The problem for the plaintiff, however, was the statute of repose, which limited the action to “ten years from the date of the first sale or use or consumption of the personal property causing or otherwise bringing about the injury.” If that seems unclear to you, well, the Eleventh Circuit wasn’t so sure about what it all meant, either. So, they certified the following question to the Georgia Supreme Court: Does the ten-year statute of repose begin to run when:

(1) a component part causing an injury is assembled or tested, (2) a finished product, which includes an injuring component part, is assembled, or, (3) a finished product, which includes an injuring component part is delivered to its initial purchaser?

Well, we finally have our answer. The Georgia Supreme Court recently issued its decision in Campbell v. Altec Indus., Inc., —S.E.2d—, 2011 WL 356110 (Ga. Feb. 7, 2011) [PDF]. The Court held that the statute of repose began to run on the action when the truck was delivered as new to its intended consumer (choice number 3 in the excerpt above, in case you are keeping track).
In coming to its decision, the Court relied heavily on statutory interpretation of OCGA section 51-1-11(b)(1), which imposes liability on a manufacturer “of any personal property sold as new property directly or through a dealer or any other person” when a person is injured because the manufacturer’s product “when sold by the manufacturer was not merchantable and reasonably suited to the use intended, and its condition when sold is the proximate cause of the injury sustained.” The Court reasoned that:

In crafting OCGA § 51-1-11(b), the General Assembly did not choose to begin the period of repose “on the date of the ‘first sale’ of a product by its manufacturer. [Rather, OCGA § 51-1-11(b)(2) ] provides that the period of repose commences on the date of the ‘first sale for use or consumption.’ The General Assembly could have chosen to begin the period of repose on the date that the product was last in the hands of the manufacturer, but it did not. The choice of “the date of the first sale for use or consumption” to trigger the running of the statute of repose is in keeping with OCGA § 51-1-11(b)(1)’s imposition of liability on a manufacturer who sells its product “directly or through a dealer or any other person” as new; regardless of any chain of middlemen, the end sale of the product as new is what brings the manufacturer within the ambit of OCGA § 51-1-11(b)(1), if the other conditions for imposing liability exist.

In so holding, the Court specifically overruled the prior decision of Johnson v. Ford Motor Co., 281 Ga. App. 166, 637 S.E.2d 202 (2006), which the Court called “wrongly decided.” The Court of Appeals had held in that case that the statute of repose began to run when a defective switch, the cause of the plaintiff’s injuries in that case, was installed in the Ford automobile (choice number 2 from the certified question above). Instead, the Campbell Court adopted the reasoning of Pafford v. Biomet, 264 Ga. 540, 448 S.E.2d 347 (1994), which drew the distinction between the sale of a product to “the individual who initially purchased a manufactured product for mere static retention in his inventory” and the individual who purchases the product and intends to actually use it. It is only when the purchase is made to the user that the statute of repose begins to run, because, in the words of the Pafford Court “it is that individual who is the intended beneficiary of the liability imposed” through the statute.

This ruling means that a manufacturer of a defective component part will not be able to avoid liability to an injured plaintiff when the end-product simply sits on the retailer’s shelf for a long time before being sold to the user, effectively shortening the statute of repose. The decision does not undermine a plaintiff’s burden to prove that the product is actually defective, or that the allegedly defective product proximately caused his or her injuries; it simply closes the procedural loophole that Johnson created.

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Tuesday, March 1, 2011

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

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.
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Thursday, February 10, 2011

Florida Court: Members of Decertified Tobacco Class Action May Use Factual Findings in Individual Cases

Cigarettes and asbestos are two products that refuse to phase out of products liability cases. And, in the case of cigarette smoking, that long litigation history recently came back to haunt R.J. Reynolds Tobacco Company in an appeals court in Florida in the case of R.J. Reynolds Tobacco Co. v. Martin, 2010 WL 5074839 (Fla. Ct. App. Dec. 14, 2010).

A little background. In 1994, a class action was filed against cigarette companies, including R.J. Reynolds, seeking damages for smoking-related illnesses and deaths. The class was eventually decertified by the Florida Supreme Court in Engle v. Liggett Group, Inc., 945 So.2d 1246 (Fla. 2006). The case didn’t die there, though; as the Court in Martin stated, the Florida Supreme Court “allowed certain jury findings from the class action to have res judicata effect in any subsequent lawsuits by individual class members seeking damages from the defendants.”

The Engle trial was divided into three phases. During Phase I, the jury was asked to consider “common issues relating exclusively to the defendants’ conduct and the general health effects of smoking” and entitlement to punitive damages. Phase II dealt with whether the three class representatives received compensatory damages and the amount of class punitive damages they would receive, if the jury found entitlement to punitive damages during Phase I. Phase III would deal with liability to and compensatory damages for the remaining class members.

During Phase I, the jury found evidence to prove several claims against the tobacco defendants, and it also concluded that there was sufficient evidence for an award of punitive damages. Following Phase II, the jury awarded $12.7 million to the class representatives, and $145 billion in punitive damages to the class. (Note: yes, we said billion, with a “b.”) The defendants appealed before Phase III began.

The Martin case was the first to consider the appeal of the preclusive effect of the Phase I findings as to individual class members. At the trial phase of Martin, the jury awarded Plaintiff $5 million in compensatory damages (later reduced to $3.3 million based on apportionment of fault) and $25 million in punitive damages. On appeal, the Court framed the issues as follows:

RJR primarily contends that the trial court gave the findings approved in Engle overly broad preclusive effect and thus relieved the plaintiff .
. . of her burden to prove legal causation on her negligence and strict
liability claims. RJR also asserts [Plaintiff] failed to prove the reliance
element of her fraudulent concealment claim, and that the punitive damage award
is excessive and unconstitutional.

The Court of Appeals affirmed the trial court’s use of the Phase I findings from Engle, stating that during Phase I of Engle, “the jury considered and determined specific matters related to the defendants’ conduct” and that, in trying to minimize the preclusive effect of the Engle decision, “[R.J. Reynolds] urges an application of the supreme court’s decision that would essentially nullify it.” The Martin court also declined to follow an Eleventh Circuit decision in Brown v. R.J. Reynolds Tobacco Co., 576 F. Supp. 2d 1328 (M.D. Fla. 2008), stating that “we find it unnecessary to distinguish between [issue preclusion and claim preclusion] or to define what the supreme court meant by ‘res judicata.'”

The decision goes on to discuss several related issues, but the damage was done primarily by this holding, which is just dangerous. As mentioned earlier, tobacco and asbestos are two products with long histories in the courts. True, Engle specifically discussed, considered, and ruled that class members who were purported members of the decertified class action could use the findings later as they brought individual suits and it is possible that the issue will stay relatively contained and limited to those cases. However, the Engle and Martin decisions also crack the door just enough to give plaintiffs the idea that they can reach back years, if not decades, to discover findings against defendants that may benefit them if their own court allows them to use the findings for their own advantages.

Unfortunately, there is also a huge potential incentive to trial courts to use these prior findings as well. Here in South Carolina, and probably across the nation, court systems are struggling to keep pace with long dockets and reduced budgets, and it would be very easy for a court to cut corners, save time, and rely on prior findings against a defendant who routinely comes before it. Strangely, this approach could backfire–in jurisdictions where past holdings rule, plaintiffs will race to file their claims there, creating just the problem the courts sought to avoid.
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Wednesday, February 2, 2011

Marketing vs. The Market: A Debate About Bilingual Warnings

A few weeks ago, we commented upon the recent Florida case of Farias v. Mr. Heater, Inc., — F. Supp .2d —, No. 09-CIV-23789, 2010 WL 4814660 (S.D. Fla. Nov. 19, 2010) to start a discussion on bilingual warnings and what, if any, duty a manufacturer has to provide them. In so doing, we questioned what, if any, responsibility a manufacturer should have to provide bilingual warnings here in the United States, since the country has no official language and prides itself on its rich cultural and linguistic diversity.

Friend of the blog and John Marshall Law School professor Alberto Bernabe recently responded to our post on his own blog, and he made a number of interesting points. Just as the Farias court did, Professor Bernabe focused on the issue of marketing. The Farias court held that the heater manufacturers had no duty to provide a warning in Spanish in part because the heaters had not been marketed directly to a Spanish-speaking population, distinguishing the case factually from an earlier decision in a Florida federal court, Stanley Indus., Inc. v. W.M. Barr & Co., Inc., 784 F. Supp. 1570 (S.D. Fla. 1992), in which the product had been directly marketed to a Spanish-speaking population.

Professor Bernabe asked the following question in response to the Farias decision and our post:

If we are ready to say that we should recognize a duty if the product is marketed to a specific audience, is it that much of a leap to say we should recognize a duty if the product is marketed in a particular market. By this I mean, there are specific areas in this country that are known to be centers of foreign populations. And if there is a great example of this it is Miami! Let’s face it, Miami is a bilingual city. A large portion of the city is known as “Little Havana.” Everyone knows this. So is it really that burdensome to suggest that labeling should be different for that market?

His question, therefore, is whether the concept of duty in this situation should be based on marketing, or just market. As Professor Bernabe himself appears to acknowledge, this would absolutely extend the concept of duty beyond reasonable limits. Miami is the easy case – there are parts of the city in which road signs are written only in Spanish.

But what about places like New York City, where huge populations of non-English speakers are concentrated in particular areas, but also run right into each other? For years the areas of the city known as “Little Italy” and “Chinatown” have been separated by little more than about a half a city block. There is also a huge Puerto Rican population in the city, along with countless other pockets of peoples of different nationalities and language in that city.
If we were to focus on the “market” itself, rather than the “marketing,” then manufacturers that sell any product in New York City would have to hire the United Nations to translate warnings into virtually every language spoken on the earth. Any manufacturer who bought advertising time on a national basis on the networks would have similar problems.

We’re not suggesting there is an easy solution. While we think there needs to be a reasonable limit to the duty imposed on manufacturers, it would also be unreasonable for us to say that manufacturers should be able to stick their collective heads in the sand and ignore the fact that there are people in this country who can’t read or understand English. For now, the marketing issue seems to be the best we have.

(Back in November, we interviewed Professor Bernabe as a part of our Abnormal Interviews series. You can read that interview here.).

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Wednesday, January 26, 2011

One Not So Great Burger Meat Recalled

Recently, the U.S. Department of Agriculture issued a news release regarding the recall of 226,400 pounds of ground beef from a company called One Great Burger out of Elizabeth, New Jersey. Customers had complained that the meat was discolored and emitted a bad odor.

According to the release, the company had repackaged and redistributed meat that had been returned to them. This immediately reminded us here at Abnormal Use of the 1992 ABC “PrimeTime Live” television show, in which undercover reporters went inside Food Lion and discovered the grocery chain had been going to rather drastic lengths to extend the life of some bad meat. Apparently, Food Lion employees had been grinding out-of-date meat with fresh meat, redating meat that had passed its expiration date, and even using bleach to mask rank odors from expired meat. (Side note: Food Lion sued ABC over the story on theories of fraud, breach of the duty of loyalty, trespass, and unfair trade practices and a decision was reported in the case Food Lion, Inc. v. Capital Cities/ABC, Inc., 194 F.3d 505 (4th Cir. 1999)).
So, you’d think that One Great Burger may have had some clue that re-dating meat is not a good idea, or great for your company’s image.
This recall is a good reminder that when it comes to food recalls, the USDA has three recall classifications, which focus on the likelihood and seriousness of negative health effects from the item being recalled, and are defined as follows:
Class I: “This is a health hazard situation where there is a reasonable probability that the use of the product will cause serious, adverse health consequences or death;”
Class II: “This is a health hazard situation where there is a remote probability of adverse health consequences from the use of the product;” and
Class III: This is a situation where the use of the product will not cause adverse health consequences.”
The One Great Burger recall is classified by the USDA as a Class II recall.
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Thursday, January 13, 2011

Florida Federal Court Rules Manufacturers Have No Duty to Provide Bilingual Warnings

The United States has always been known as a “melting pot,” a place where people from all over the world come and settle and bring their food, culture, and language with them. What does this “melting pot” designation, however, mean for manufacturers, especially in a country where there is no official language? What duties do they have to people who do not speak or read English.

This was precisely the issue before the Southern District of Florida in the case of Farias v. Mr. Heater, Inc., et al., No. 09-CIV-23789, 2010 WL 4814660 (S.D. Fla. Nov. 19, 2010). On February 5, 2009, Plaintiff Lilybet Farias (“Plaintiff”), a naturalized American citizen who was Cuban-born, purchased two heaters from a Home Depot in Miami, Florida to heat her home during a cold snap. One heater was manufactured by Defendant Mr. Heater, Inc., and the other by Defendant Enerco Group, Inc. Plaintiff spoke little English and could read almost no English. Other than understanding the word “caution,” which was printed throughout the user’s manual, she could not understand any of the words on the heater’s packaging or read the users’ manuals.

Plaintiff took the two heaters home and hooked them up to propane tanks. She put one in her living room, two or three feet away from her sofa, and one in her bedroom. After watching television in her living room, she turned that heater off, turned on the heater in her bedroom and went to sleep. Later, she woke up when smoke from a fire in her living room woke her up. Her home suffered significant fire and smoke damage as a result.

Plaintiff filed suit against the two manufacturers of the heaters, as well as Home Depot. She sued the defendants on theories of negligent failure to warn and strict liability. The defendants filed for summary judgment. As the Southern District of Florida outlined:

A manufacturer must take reasonable precautions to avoid reasonably foreseeable injuries to the users of its products and thereby assumes a duty to convey to the users of that product a fair and adequate warning of the dangerous potentialities of the products so that the user, by the exercise of reasonable care, will have a fair and adequate notice of the possible consequences of the product’s use or misuse.

Nevertheless, Florida cases make clear that a manufacturer will not be held liable for damages in products liability cases, even if its warning is inaccurate, if the person did not read the warning or label, since in that case proximate cause cannot be established. As a result, the Court framed two issues before it: First, whether a manufacturer has a duty to provide warnings in Spanish, and second, whether a Spanish-speaking plaintiff can establish proximate cause when she cannot read English warnings provided by a manufacturer.

The Court held that, as a matter of law, the manufacturers of the heaters had no duty to provide bilingual warnings in this case. The Court distinguished the facts of Farias from a previous case, Stanley Industries, Inc. v. W.M. Barr & Co., Inc., 784 F. Supp. 1570 (S.D. Fla. 1992) in which the court imposed such a duty, because in Farias, the heaters at issue in the case were not marketed specifically to a Spanish-speaking population. The Court also noted that there was no statute imposing such a duty on manufacturers.

The Court also held that “any purchaser of the Heaters manufactured by Mr. Heater and Enerco who read the instructions would have understood the clear an unambiguous warnings not to sue the Heaters indoors in an enclosed space.” Relevant to the Court’s decision was the fact that Plaintiff had failed to further investigate the proper use of the heaters, despite her understanding of the word “caution.” She also understood the words “danger,” “warning,” and “stop.” In the words of the Court, “it would be improper to find such clear warnings inadequate because Plaintiff here was not well-versed in English and did not investigate the danger to which she had been alerted in the use of the Heaters.” In fact, the Court found that Plaintiff’s failure to seek out additional explanation was “willful ignorance . . . certainly akin — if not precisely the same — as refusing to read the warnings at all.” The Court granted summary judgment to the defendants on the cause of action for failure to warn.

Finally, the Court also held that the defendants were entitled to summary judgment on the strict liability cause of action because Plaintiff could not establish that either heater had been defectively designed.

The issue of bilingual warnings on consumer products will be an issue to watch in the future. This decision is an important one, because if manufacturers are required in the future to provide bilingual instructions and warnings, what languages are included? Spanish might be the obvious first step, but where would the line be drawn? If warnings are posted in Spanish and French, for instance, but the injured party is Korean, will the manufacturer be found negligent in a failure to warn case? Courts and legislatures need to be wary of imposing overly burdensome requirements on manufacturers in this area.

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