Defense Verdict: Jury Finds Vehicle Defective But Driver At Fault

In a case the judge reportedly called the biggest civil trial in the history of the county, an Ohio jury on March 21 rendered a verdict in favor of the defendant, Yamaha Motor Corp., in a $20 million case involving the death of a 10 year-old girl, in spite of its conclusion that the ATV at issue was defective in its design or warnings. The machine at issue was Yamaha’s Rhino. reports that this was the sixth case won at trial by Yamaha over claims that its ATV is prone to rollovers; however, it reports that Yamaha settled more than 100 others.

The facts of the case were quite sad. It was reported by the local news that the 10 year-old plaintiff riding in the Rhino at a 2007 church picnic. The 21 year old driver, according to the defense, was inexperienced with the machine. He attempted to perform a high-speed “fishtail” stunt maneuver in a dark, muddy cornfield with multiple unhelmeted child passengers. The driver was not sued in the civil action but pleaded no contest to criminal charges.

It is refreshing to see that jury members, in spite of the tragic underlying facts of the case involving death of a child, seriously and thoughtfully deliberated as to what they believed was the true cause of the injury. This case is reminiscent of another case in Texas, which we covered here, involving very similar facts with a very different outcome. There, an 18 year-old Texas man was boating and swimming with friends when the driver of the boat, another 18 year-old, put the boat in reverse, striking his leg with the propeller. It eventually resulted in the loss of his leg.

The Texas plaintiff sued the makers of the boat, alleging the propeller was defectively in its design. The Texas jury did not believe that the actions of the driver, who was not named as a defendant, was a superseding cause of the injury. It attributed only 17 percent of the negligence to the driver, and ultimately awarded the plaintiff $3.8 million in damages for the loss of his leg. These cases are further proof that with a jury, it’s always a gamble.

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.

Suit Alleges "Harmful and Dangerous" Bra Caused Plaintiff’s Permanent Skin Discoloration

Our beautiful home state of South Carolina is no stranger to unusual lawsuits. See here, for example, for coverage of one of our inmate’s “$63,000,000,000 billion dollar” lawsuit against Michael Vick. But there are other unique suits. A South Carolina product liability lawsuit filed in late January, though far from the level of absurdity of the Vick suit, arguably qualifies as odd.

Charleston’s The Post and Courier reports that a Berkeley County woman has filed suit, just shy of the three-year statute of limitations, against Hanes Corporation and Wal-Mart Stores, in which she alleges that a black bra she purchased at her local Wal-Mart permanently discolored her skin. The story has generated some considerable discussion among South Carolinians, who have posted many, many comments to the article. The “odd product performance” complaint sets forth negligence, breach of warranty, strict liability, and failure to warn causes of action, and alleges that the plaintiff “could not appreciate the danger the Hanes bra posed to her.”

According to the complaint, the plaintiff bought the black Hanes bra at Wal-Mart, wore it, and noticed a dark discoloration of the skin on her shoulders tracing exactly where the straps had been. Her local attorney, Jarrell Wigger, apparently granted an interview to The Post and Courier after filing the claim. He told the newspaper that the dyes used in the Hanes bra were defective, allowing them to “bleed out,” leaving his client with “skin discoloration [that] is permanent and persists to date.” He described the skin discoloration as “burnt” or dark in color.

We will continue to monitor the case for any interesting developments. For us, it’s the “permanent” part that doesn’t seem to make sense. Sure, it’s foreseeable that a new pair of unwashed dark jeans or unwashed bathing suit might “bleed out” onto a wearer’s skin, but to be absorbed by the skin permanently just seems unlikely. Then again, if this plaintiff still has the markings more than three years after her first wear, maybe her situation is, indeed, unique.

Timing May Play a Part in Record Numbers of Big Verdicts Against Makers of Products

An interesting article published by Businessweek last month discusses what has become a growing trend in United States product liability law: a surge in big awards against companies accused of putting defective products in the marketplace. According to the article, ten of the 50 biggest jury verdicts last year came in product-defect cases, compared to five in 2009 and only one in 2008. In 2010, there were 15 jury verdicts of $25 million or more, versus seven in 2009.

We previously reported on two of these exceptionally large verdicts. The most recent of those was the $66 million verdict against exercise equipment manufacturer Cybex International, wherein a New York jury awarded the sum to a physical therapist who became paralyzed when an exercise machine fell on her at work. As we reported, the verdict, if allowed to stand, threatens to bankrupt the company. The company’s chief operating officer reportedly said of the suit that he has no idea what the company did wrong.

The second of those cases was that of the $500 million punitive damages award against Teva Pharmaceutical Industries, upon which we reported back in May as appearing to be a case of misplaced anger. There, a Nevada jury found that the company’s packaging of its anesthetic drug created a risk of contamination, thus leading to the plaintiff’s contracting of hepatitis.

So what’s the cause of these enormous, seemingly unwarranted verdicts? Legal experts consulted by Businessweek identify several factors: a stalled economy and recent flood of negative corporate news such as the BP oil spill, Toyota sudden-acceleration suits, and bank foreclosure practices. Some believe these issues have fueled public anger, and thus affected lawsuits across the country against other companies in unrelated cases. Defense attorneys consulted for the article note that it is now almost impossible to detect jurors’ prejudice and bias against corporate America, which today is “more subtle and not always conscious.”

Also quoted in the article is a comment by one of the team of attorneys who won the $500 million award against Teva. He reportedly attributes the rise in large product-defect awards to “cheap defendants and cheap insurance companies. . . . The defendants and the insurance companies are holding onto their money and they’re not settling the cases.” One can hope that his comment was taken out of context. Certainly, he doesn’t propose that company defendants and their insurers fork out huge sums of money to settle claims they believe have no merit? I don’t think this makes them “cheap.” A wise man once said that a jury trial, in spite of its shortcomings and pitfalls as discussed in the article, is one of the most distinguishing and greatest parts of the American judicial system. It sounds like there may be plenty of them this year.

Headline: Meat Grinders Can Sever Fingers

Failure to warn claims are commonplace in products liability litigation. In an era of increasing frivolity, plaintiffs often attempt to expand the extent to which a manufacturer must warn of potential injury. Recently, with a new law suit, a North Dakota woman is testing the outer limits of a manufacturer’s duty to warn after severing her fingers in a commercial-grade meat grinder.

The Grand Forks Herald reports that in November 2007 the plaintiff was pushing venison into a Pragotrade (the company has since changed its name to “Weston”) meat grinder as she aided her husband in his meat-processing business. Allegedly, a screw caught the tip of at least one of her gloved fingers and pulled her hand into the grinder – severing four fingers. Subsequently, the plaintiff filed suit against Pragotrade, the alleged manufacturer (Pragotrade has apparently denied that it was the manufacturer, but admitted to participating in the design of the product), and Cabela’s, the retail store in which it was purchased. The report did not specify the jurisdiction in which this suit was filed.

According to our research into the matter, the plaintiff alleges that the grinder’s 2 3/4 inch chute was too large and that it lacked sufficient safety warnings. The plaintiff admits that she declined to use the manufacturer-supplied plastic plunger to push the meat into the grinder. Unfortunately, because meat stuck to the plunger, she opted to use her hands.

In addition, the plaintiff admits that the grinder contained a warning, along with a diagram, to keep fingers out of the chute. However, she alleges that the warning was inadequate because it was not visible during the normal use of the grinder. While her allegations may be correct, the plaintiff omits one obvious piece of evidence – she was using a meat grinder. Admittedly, we here at Abnormal Use have not been privy to the meat grinding process. We assume, however, that the process of grinding meat involves sharp objects and the potential for serious injury. No diagrams are necessary.

In this most litigious of eras, it should come as no surprise that the she has attempted to shift the blame for her loss. There are not enough facts in the record to gauge the merits of any design defect claim, but it is interesting that the Plaintiff has elected to allege that the warning was inadequate. Apparently, there are no allegations that the warning was unclear – only that it wasn’t visible during the grinder’s operation. Given that the grinder’s chute was only 2 3/4 inches large and covered in meat during its operation, we are curious as to where the plaintiff would propose the warning be placed. Moreover, there must come some point at which the dangers of using a product become open and obvious. If a machine is sufficient to grind meat, it should surprise no one that it is also sufficient to damage inserted body parts.

Cost-Effective Remedies Not Sufficient to Prevent Ban on Drop-Side Cribs

After recalling more than 11 million dangerous cribs over the last three years, the U.S. Consumer Product Safety Commission (“CPSC“) recently approved, effective June 2011, new mandatory safety standards for baby cribs and issued a ban on the manufacture and sale of cribs with drop-down sides. Childcare facilities and hotels have 24 months from the publication of the rule to institute compliant cribs into their facilities. Reports of at least 32 infant strangulation and suffocation deaths since 2000 associated with drop-side cribs prompted the CPSC’s decision.

USA Today reports that prior to the CPSC announcement over 900 incident reports were filed with 14 crib companies indicating that drop-side cribs were falling apart, injuring and killing infants. The combination of malfunctioning hardware, cheap plastics, and problems in assembly would cause the crib’s drop-side rail to detach creating a “V”-like gap and potential “suffocation zone” between the mattress and the side rail.
In response to past recalls, crib manufacturers such as LaJobi and Delta offered free “retrofit” kits to customers to immobilize the drop-side railings. While an immobilized railing deprives the user of the potential benefit of a drop-side crib, there is no evidence that the retrofit conversion kits are ineffective in remedying the safety concerns. Unfortunately, as CPSC Chairman Inez Tenenbaum indicated in her statement [PDF] on crib safety before the Subcommittee on Oversight and Investigations, there are still “far too many parents who have not responded to recall announcements.” Even with the lack of recall response, we must question the necessity of an absolute ban which places childcare facilities in a financial quandary during an era of economic uncertainty when cost-effective measures could be taken to alleviate the potential hazards of drop-side cribs. Certainly, childcare facilities would opt for a free retrofit kit when faced with the choice of bearing the expense of replacement costs.
We here at Abnormal Use would never advocate for the continued presence of a product in the marketplace that poses potential serious injury to children. If I discovered that my daughter’s “Handy Manny Talking Tool Box” was defective and posed a serious safety hazard (besides the threat to her father’s sanity after hearing its catchy jingle repetitively), I too would become a persistent voice in the ear of the CPSC. However, a total ban on drop-side cribs only serves to alleviate an alleged design defect at the expense of the consumer.
On one hand, the CPSC is justified in its pursuit of improving crib safety standards. After all, these standards had not been revised since 1982. On the other hand, child care facilities are left to shoulder the burden of these changes when a cost-effective measure could have cured the problem. Presenting childcare facilities with the choice of either complying with the recall or bearing the replacement costs of new cribs would have protected these facilities and still achieved the desired outcome of child safety.
Through this decision, the CPSC is placing manufacturers on notice that it will not tolerate repeated massive recalls of products that pose serious threats to the safety of their users even when a cost-effective measure may be taken to remedy the design defect. Unfortunately, at this time, the CPSC decision still leaves me having to take my own draconian measures to protect myself from the serenade of Handy Manny and his toolbox.

Major Verdict Threatens to Bankrupt Maker of Exercise Equipment

A New York jury on December 8 awarded a 30-year old plaintiff $66 million in her suit against the maker of an exercise machine that fell on her, rendering her a quadriplegic. Barnhard v. Cybex International, Inc., No. 2368/2005 (Supreme Court, Erie County, New York). The plaintiff filed suit against Cybex International, which is a leading manufacturer of exercise equipment, and against her employer at the time, Amherst Orthopedic Physical Therapy. As reported by CNBC, the jury apportioned 75 percent of liability to Cybex, 20 percent to Amherst Orthopedic, and 5 percent to the plaintiff. Cybrex had only $4 million in insurance coverage.

At the time of her injury in 2004, the plaintiff was working as a physical therapist in Buffalo, New York. She reportedly was performing shoulder stretches and had one hand placed on top of a leg extension machine. As she stretched back with her shoulder and arm, the 500-pound machine fell on her, breaking two vertebrae and compressing her spinal cord.

The plaintiff alleged in her suit that Cybex sold a defectively designed, unstable product, and that it failed to provide adequate warnings and instructions in that it issued conflicting instructions regarding the machine’s installation and anchoring requirements. The jury also reportedly concluded that Cybex failed to provide notice or warning of the tip-over hazard after having received notice of other injuries on similar Cybex machines.

Cybex plans to appeal the recent verdict, which the Boston Herald reports will, if it stands, likely bankrupt the small company. It cites to a recent report of an analyst who concluded that Cybex’s earnings would not cover its operating expenses and the estimated $45 million it would need to borrow to cover the judgment. Cybex Chairman and CEO reportedly said of the outcome: “We strongly believe that Cybex was not negligent and was in no way responsible for this tragic accident. We will vigorously pursue all avenues to attain a reversal of this verdict.” Shares of the company’s stock plummeted 37 percent after its announcement of the verdict.

Ohio: Duty to Warn that Football Helmet and Pads Could Cause Heat Stroke

In July 2009, the Southern District of Ohio decided, on the defendant-manufacturers’ motion for summary judgment, that a manufacturer of football equipment has a duty to warn that wearing full pads and a helmet could cause heat stroke. That case followed the well-publicized death of Korey Stringer of the Minnesota Vikings in 2001. Stringer v. National Football League, et al., No. 2:03-cv-665, 2009 WL 6885869 (S.D. Ohio Jul. 10, 2009).

Following Stringer’s death, his widow brought suit. After the summary judgment ruling, the defendant-manufacturers asked the Court to reconsider its decision denying the motion for summary judgment on plaintiff’s failure to warn claim. The defendants asserted that “this court committed clear error in holding that [defendant], as a matter of law, had a duty to warn of the risk of heat exhaustion and heat stroke, and in extending the duty to non-injured, non-users of the products, i.e. the Vikings’ trainers and coaches.” The court found no clear error in its July 2009 decision and denied the defendants’ motion for partial reconsideration.

The Court’s underlying July 2009 decision was brought to our attention as a result of this recent denial of the defendants’ motion for partial reconsideration. While this decision is more than a year old, it provides an interesting set of facts. In 2001, Minnesota Vikings player Korey Stringer died from complications of a heat stroke while practicing at training camp. Stringer was over 300 pounds, and he suffered heat stroke on a hot and humid day while wearing full pads and helmet. Stringer’s widow filed a lawsuit against the equipment manufacturers for failure to warn, design defect, breach of implied warranty and breach of express warranty.

The Court had granted the defendants’ summary judgment on all of the Plaintiffs’ claims except for her failure to warn claim. First, the court found that since the plaintiff could not show an alternative design for the equipment, it was not unreasonably dangerous and the plaintiff’s defective design claim failed. Second, the court found that “strict products liability has effectively preempted implied warranty claims where personal injury is involved.” Third, the court found no evidence that the defendants expressly warranted that the helmet and pads were safe for their intended use.

On plaintiff’s failure to warn claim, the court denied summary judgment because it found that “[d]efendants had a duty to warn of the specific risk of developing heat stroke because it was not an obvious risk, and because the connection between Stringer’s heat stroke and Defendants’ failure to warn was not remote enough to preclude liability as a matter of law.” Further, the court found issues of material fact about whether a warning would have changed the conduct of Viking trainers and prevented Stringer’s injuries.

The aspect of the court’s decision most intriguing to us is the court’s finding that the danger presented by the helmet and shoulder pads was not obvious. Stringer was a 300+ pound football player that was not new to the game and had likely practiced in full gear in the heat for many years prior. How could the danger not be obvious? In determining that the danger was not obvious, the court distinguished the general risk of becoming hotter when wearing a helmet and shoulder pads and the specific risk of developing heat stroke. The court stated that the first was obvious but the specific risk was not. We are still not convinced there is much a difference.

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.

Ferrari Issues Recall, Forbids Pinto References in Interoffice E-Mail

In the 1960s and 1970s, the Ford Pinto was dubbed “the barbecue that seats four.” The gas tank, located in an unfortunate location in the back of the car, had an even more unfortunate habit of rupturing, and exploding, if the car was rear ended.

Recent news reports suggest that the new Ferrari 458 Italia may have a similar flame-broiled propensity. According to Ferrari, the heat shield located in the wheel assembly of the car could become deformed, “bringing it too close to the exhaust system and igniting.”
The company has recalled the cars so that the glue adhering the heat shield can be replaced with metal fasteners, because if the adhesive ignites, it could “render the vehicle inoperable and possibly result in a crash,” according to the National Highway Traffic Safety Administration. Yes, we imagine so.
Which begs at least two questions–first, what possessed the designers of this 4.5 liter, 570-horsepower, $230,000 automobile to forgo the metal fasteners in the first place and use glue to adhere the heat shield to the car? And, second, can we choose a Pinto rental while the Ferrari is being fixed? At least the Pinto will be going far slower than 120 mph when it explodes.