On September 23, 1999, Jeffrey Smith, an experienced ATV rider, was attempting to back his Yamaha ATV, more specifically a 1987 Yamaha Big Bear 350, down a hill when his foot slipped and struck the right-rear fender of the ATV. The fender collapsed, and his right leg became trapped between the frame and the wheel. The ATV then rolled back over Mr. Smith, causing him to suffer severe injuries that left him disabled and disfigured. According to the website, this ATV was Yamaha’s first 4×4 ATV:

You know him well. He is the professional expert. No matter the issue, the case, or the product, there he is, opining that your client’s product is unreasonably dangerous, and unquestionably caused the plaintiff to suffer personal injuries, psychological damage, and lost income. In fact, as soon as you see this expert’s name at the top of the report, you can recite its contents, eyes closed and one hand tied behind your back.

Not so fast. In Beam v. McNeilus Truck and Manufacturing, Inc., 697 F. Supp. 2d 1267 (N.D. Ala. 2010), the Northern District of Alabama considered the defendant’s motion to exclude the testimony of Dr. L.D. Ryan, a mechanical engineer and professional expert, as to the defectiveness of the design of a garbage truck. The case involved an accident in which the plaintiff’s decedent, a garbage collector, fell or stepped off of the riding step of a garbage truck and died as a result of his injuries. The central issue of the case was whether the truck was defectively designed with regard to the riding steps.

The court carefully considered Dr. Ryan’s qualifications, noting that “Plaintiff’s expert . . . has little or no experience in the world of refuse collection, road-vehicle design generally, or garbage truck design specifically.” Furthermore, although Dr. Ryan had watched “three hours of videos on ‘YouTube,’ he has no training or experience in designing waste-hauling routes” and has no knowledge “about the history or evolution of rear-loading garbage-truck designs.” In fact, the court stated, the “mere fact that Dr. Ryan is a licensed engineer is, in and of itself, insufficeint to qualitgy him as an expert in this case.”

The court’s harshest criticism of Dr. Ryan’s so-called qualifications, however, was reserved for his status as the professional expert. The court made several references to the fact that Dr. Ryan had acted as an expert in hundreds of cases. In fact, the court devoted an entire footnote to Dr. Ryan’s career expertise, opining that “Dr. Ryan has been involved in hundreds of cases invovling a variety of products, and his testimony has been at issue in a number of those cases,” and providing a list of some of those cases.

With no actual expertise on the subject of garbage truck design, the court excluded Dr. Ryan and his reports. Without expert testimony as to the defective design, the plaintiff could not make her case, and therefore the defendant’s motion for summary judgment was also granted.

Bravo, Northern District of Alabama. Abnormal Use salutes you. Next time, plaintiffs, make sure your expert does more than watch YouTube.

MTD moved for summary judgment on the grounds that there was no evidence that the mower was defective, Mavity unforeseeably misused the product, the hazard was open and obvious, and there was no failure to warn that made the product unreasonably dangerous.

Rulings against MTD kept on coming. Judge Jones granted Mavity’s motion to prevent MTD from offering evidence of the alleged intervening negligence of the doctors that treated Mavity after the accident. The Court reasoned that “the initial medical treatment of Mavity was a reasonably foreseeable result of the initial accident [and any] third-party negligence is thus irrelevant to Mavity’s claim against MTD and must be excluded from the jury.” The Court also rejected MTD’s motion to exclude approximately 500 documents listed as “sources” by Mavity’s expert in evaluating whether the mower was defectively designed. While the Court found that these documents were of limited value, it provided that the parties could challenge trial exhibits at a later time.

With seemingly credible expert testimony on design defect and failure to warn, Mavity was able to get past MTD’s motion for summary judgment and have a jury of his peers decide his case. This case is instructive to defendants that seek summary judgment in the face of expert evidence to the contrary.

I’ve never driven a forklift, and I’ve also never been fortunate enough to have been injured at work. It would be nice to collect from the worker’s compensation carrier and then have the luxury of filing suit against some third-party. Tashee Parker was employed by Home Depot at one of its distribution centers. Mr. Parker was hurt when the forklift he was driving collided with a pallet jack, injuring his foot. The Supreme Court in Orange County, New York, in Parker v. Raymond Corp., No. 2005/7189, 2010 WL 1999529 (N.Y. Sup. Ct. May 17, 2010), recently terminated Mr. Parker’s case against the forklift manufacturer via summary judgment.

Parker alleged that the forklift had a design defect. What he didn’t know at the outset was that the forklift was “first developed by Raymond in the 1940s.” Also, the design and manufacture of the forklift are “subject to certain design and safety standards . . . which . . . have been incorporated into Federal regulations. . . . The subject forklift meets or exceeds all such requirements and standards.” If you are a plaintiff, it is not a good sign when the court points out that the equipment that you claim has a design defect has been around for more than 60 years and exceeds the necessary regulations. The forklift probably doesn’t have a design defect. Most likely. Someone probably would have found it before you, Mr. Johnny-come-lately plaintiff.

It comes as no surprise to most of us that plaintiffs regularly make fantastical arguments. Usually, these fantastical arguments succeed in defeating summary judgment, allowing the plaintiff to settle his lawsuit for more than it is worth. The New York Supreme Court did not buy what the plaintiff was selling. Plaintiff argued that the forklift should have been made with a “foot guard” to “facilitate the operator’s ability to safely remain within the confines of the compartment,” even though Plaintiff admitted at deposition that he was trained to remain in the operator’s compartment, and, had he done so, he would not have been injured. Moreover, the Plaintiff had his expert introduce a sham affidavit to defeat summary judgment, even though at the expert’s deposition “he was unable to recall any basis to conclude that the design of Defendant Raymond’s forklift violated any ANSI standard.” Summary judgment granted.

While no new groundbreaking law was announced in Parker, it’s always fun to read an opinion that rebuts ridiculosity at every point. More than likely, it would have been cheaper to pay Parker than to conduct discovery, get an expert, depose the other expert, and move for summary judgment. But Raymond decided to pay more and give Parker what he deserved. Raymond Corporation, we here at Abnormal Use salute you.

In the summer of 1997, Walter Adams, a maintenance man, climbed into a personnel lift (a device which a basket into which a person enters and presses a button, which causes the basket to rise or lower depending upon the operator’s preference). After he had taken the basket to a height of approximately twelve feet, the lift tipped to one side and Adams fell from the basket. Adams later brought suit against Genie Industries, Inc., the designer, manufacturer, and seller of the lift at issue. Following a trial, a jury found that the lift had been defectively designed. Yesterday, nearly thirteen years after the accident at issue, the New York Court of Appeals, that state’s highest court, affirmed that verdict in Adams v. Genie Industries, Inc., No. 67, 2010 WL 1849325 (N.Y. May 11, 2010) [PDF].

The Plaintiff’s principal theory was that the lift at issue did not have interlocking outriggers. The device actually came with outriggers, but sometime between the purchase of the lift in 1986 and the accident in 1997, Plaintiff’s employer lost them. That didn’t affect Plaintiff’s employer’s use of the equipment, though, and the lift remained in service despite a warning on the equipment advising that “[a]ll outriggers must be installed before using.” Plaintiff theorized that the lift was unsafe because the outriggers at issue did not feature an interlocking mechanism, i.e. a device that would prevent the lift from being operated without the outriggers installed and in use.

The evidence clearly showed that the use of outriggers would have made the product safer. Expert testimony explained that outriggers would have expanded the product’s “footprint,” making it more stable by distributing its weight over a wider area. Indeed, Genie’s own label warned against using the product without outriggers. It is thus reasonable to conclude that an interlock, making use without outriggers impossible, would have increased the safety of the product.

Plaintiff also offered evidence from which a jury could find that, in 1986 when the product was sold, it was technologically possible, at minimal cost, to design the product with interlocked outriggers. A qualified expert so testified, and illustrated his point with a model that he had created of Genie’s machine, to which he had added a half dozen switches, of a kind available in the late 1980s for $20 to $25 each.

The court acknowledged Genie’s point that liability could not attach “merely on a showing that a safer product was theoretically possible at the time the machine was made.” However, the Court cited to testimony that a former Genie employee had specifically envisioned and discussed the possibility of interlocked outriggers in 1985, a year before the sale of the device at issue, and that he recalled thatGenie had obtained a competitor’s lift featuring interlocked outriggers in 1985, as well. Further, a Genie official had apparently secured company permission in 1985 to present the idea of interlocked outriggers before a safety panel in 1985 to an industry safety committee.

The court sustained Genie’s point of error that the trial court had erred in submitting to the jury the issue of its alleged negligence from 1986 to 1997 in failing to retrofit or recall the lift at issue. However, the court essentially punted on this issue, finding that the error was harmless.

In so doing, the Court remarked:

Our decisions make clear that, in general, the duty of the seller of a product who discovers, after the sale, risks that were not known beforehand is (sic) a duty to warn. In this case, there can be no successful claim that Genie breached any duty to warn, either pre-sale or post-sale. Supreme Court held, on a pretrial motion, that the warning contained in Genie’s product label was adequate, and that holding is not challenged here. We have never imposed a post-sale duty to recall or retrofit a product, and the facts of this case provide no justification for creating one. Thus the jury should not have been permitted to find that Genie was negligent in failing to recall or retrofit its product after the 1986 sale.

The trial court’s error in submitting this theory to the jury, however, had no impact on the outcome of the case. Plaintiff’s post-sale negligence claim, as presented at trial, was no more than a duplicate of his design defect and negligent design claims. Plaintiff presented no evidence of any facts that came to Genie’s attention after the sale that might have triggered a new duty; plaintiff merely asserted that Genie should have recalled or retrofitted the personnel lift for the same reasons that it should not have sold it in the first place-principally, because the outriggers were not interlocked. Genie points to no evidence admitted on the post-sale negligence claim that would have been inadmissible on the other claims, and identifies no way in which the court’s error in submitting one claim might have tainted the jury’s verdict on the others.

Id. (citations omitted).

It appears that there were a number of liability issues which were either not subject to the appeal or not discussed in meaningful detail by the Court. However, aside from a few brief statements, the court did not spend much time addressing the Plaintiff’s employer’s use of the lift in contravention of the warning and its admitted loss of the outriggers at issue. Further, there was no discussion of whether the accident at issue would have occurred had the originally included outriggers been present and installed on the lift at issue at the time of the accident. Had the Plaintiff, or his employer, used the product as intended or as contemplated by the warning on the face of the equipment, the accident may well have not occurred.

Certainly, between a lift with no outriggers of any kind, and a lift with interlocked outriggers, the latter may be safer than the former. But Genie did not sell a lift sans outriggers in 1986; it sold one with them, albeit non-interlocked. But in losing the outriggers, Plaintiff’s employer made the device less safe, yet continued to use it, presumably for some time. What of that? Should Genie be responsible for a Plaintiff’s employer’s modification of the device? Should it be responsible for the device being made less safe by such an alteration? If the device is made less safe by a third party, is it that less-safe device the standard that shall be judged, or the device as it was sold?

A federal judge in Minnesota has rejected a proposed plea agreement between the federal government and Guidant Corporation, in which Guidant had agreed to plead guilty to two criminal misdemeanors and to pay a $296 million fine for continuing to sell heart defibrillators after discovering that some might short-circuit and fail, The New York Times reports. Federal Judge Donovan W. Frank said, in his 37-page opinion [PDF], that provisions of the agreement were not in the best interest of justice and do not serve the public’s interest because they do not adequately address Guidant’s history and the criminal conduct at issue.”

The problems associated with Guidant’s defibrillators, which have reportedly been associated with 6 deaths, came to light in 2005 when The New York Times published an article based on interviews of two Minneapolis cardiologists who treated Joshua Oukrup, a 21-year-old college student who reportedly died when his Guidant defibrillator short-circuited as it was charging to send out its life-saving jolt. Although Guidant had reportedly become aware of the defect associated with its product, its representatives merely fixed the flaw in new devices without warning doctors or regulators about the problem. As such, patients continued to get the potentially flawed older devices because the company did not pull them from hospital shelves.

Guidant’s chief medical officer explained that “the company had not seen a compelling reason to issue an alert to physicians about the defibrillators because the failure rate was very low and replacing the devices might pose greater patient risks.”

Mr. Oukrup’s treating cardiologist said that this was “a statistical argument that has little to do with real people.” In fact, prior to Judge Frank’s April 27 ruling, Mr. Oukrup’s two treating cardiologists wrote a letter [PDF] to the court urging the judge to reject the plea agreement. The doctors wrote that they were “extremely dismayed” with the decision to enter such an agreement with the company rather than to “prosecute the company and the individuals responsible for this egregious act.”

Judge Frank noted in his ruling that it is up to prosecutors, not the court, to decide who should be prosecuted. But his rebuke of the proffered plea deal certainly calls into question: “Who should be held accountable when a company sells a flawed product that can injure or kill patients? Is it the company or the people who run it?”