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.

Fellow blog The Hot Dish had an interesting post recently about a diner suing a restaurant owned by the Hillstone Restaurant Group because he was not properly instructed on how to eat an artichoke. Mr. Carvajal, the diner in question, ate the actual leaves of the artichoke, leading him to experience severe abdominal pain due to the leaves being lodged in his small bowel.

The Hot Dish asks the right question: “To what extent should restaurants be liable for the foods they serve?” For instance, should diners be warned not to eat the bones of barbecue ribs?

Other blogs have also provided commentary on this case; a post in the Miami New Times points out that Mr. Carvajal is a doctor originally from Cuba, and suggests that perhaps, he should have known better. Word of Mouth also posted on the suit, commenting that it raises questions about the balance between “helpfulness and over-familiarity” by servers. But perhaps the best commentary on the case from a legal standpoint comes from a post by On Point, which analyzes the negligence case Mr. Carvajal will be attempting to make against the restaurant as follows:

Florida, like other states, uses a “reasonable expectation” test in unfit food cases. A preparer of food “has the duty of ordinary care to eliminate or remove in the preparation of the food he serves such harmful substances as the consumer of the food, as served, would not ordinarily anticipate and guard against,” the Florida Court of Appeals said in Zabner v. Howard Johnson’s, 201 So.2d 824 (1967).

Carvajal, though, can’t recover damages for unfit food since there was nothing harmful per se in the artichoke he was served. It is not what he ate that allegedly caused his injury, but how he ate it.

***

Carvajal would have a better case if his server had given him incorrect instructions on how to eat an artichoke. As the case stands now, it would expose a restaurant to liability any time a server does not explain to a customer how to eat a lobster, relieving the customer of responsibility for asking the simple question, “How do I eat this?”

While I agree with this analysis as a whole from a public policy standpoint, I’m not sure it isn’t what Mr. Carvajal ate that wasn’t the problem–he ate the entire leaf of the vegetable, instead of just the meat inside it. For my part, that’s a what and not a how as On Point describes it. But to burden restaurants and servers with explaining to each diner how to eat his food–from shrimp to ribs to bone-in steak–would be to expand the concept of duty in a negligence action far beyond the scope that the law–and common sense–ever intended.

The Wall Street Journal here provides a history of the issues that have resulted from the installation of Chinese-drywall in American homes and the resulting litigation associated with those problems. This article also provides a brief summary of the Bennett decision and poses the question whether it “could set a template for other judges to use to adjudicate drywall cases across the country.” Homebuilders hope so.

According to this recent piece in the Montreal Gazzette, of all publications, a Florida jury last week found that two of the nation’s tobacco giants, Philip Morris and R.J. Reynolds, were not responsible for causing a man’s laryngeal cancer after he smoked an average of 1.5 packs of cigarettes per day for 37 years. The case was Willis v. RJ Reynolds & Philip Morris USA.

The dangerous instrumentality doctrine is nothing new in products law. What is different about Florida’s doctrine, however, is that “it is the only state to have adopted this rule by judicial decree,” as noted by the recent case Salsbury v. Kapka, 41 So. 3d 1103 (Fla. Ct. App. 2010). Other states have held that the issue is one for the jury to decide.

A Florida jury recently ordered two cigarette companies to pay a total of $26.6 million to the widow of a longtime smoker who died of lung cancer after smoking for more than 50 years.

The verdict, handed down on March 24, was the latest in a string of “Engle progeny” cases to be submitted to Florida juries in recent years. Engle v. R.J. Reynolds was a landmark class-action lawsuit filed in 1994 against makers of cigarettes, in which a Florida jury awarded the plaintiffs $145 billion. This award was subsequently overturned by the Florida Supreme Court in 2006.

However, in doing so, the court reportedly did allow the approximately 700,000 Florida smokers in that class to pursue their claims individually. In addition, the state supreme court actually allowed the findings of the original jury pertaining to causation, addiction of cigarettes, negligence, and breach of implied warranty to stand, thereby reducing the burden of proof required in these subsequent actions. This likely has served as a significant advantage for plaintiffs’ counsel, who go to trial without having to jump the causation hurdle. As a result, the defendants’ strategy is also limited.

Of the 13 Engle progeny cases to reach juries in the last 13 months, plaintiffs have won 11. Counsel for the tobacco companies have alleged that each of these cases raises constitutional issues, though, because allowing one jury to rely on the findings of a prior jury that are totally unrelated to the individual smoker at each trial is in violation of both Florida law and due process.

Representatives for Philip Morris have said it will appeal the jury’s latest verdict on the grounds that the trial court improperly eliminated the majority of the plaintiff’s burden of proof. However, as of now, at least, it appears as though the latest will be one of a continuing string of verdicts to strike blows to the tobacco industry.

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.

The California appellate court holding, which has sparked considerable controversy and disdain within the legal and pharmaceutical industries and in courts throughout the country, was issued in November of 2008. Conte v. Wyeth, Inc., 168 Cal. App. 4th 89, 85 Cal. Rptr. 3d 299 (Cal. Ct. App. 2008). Conte involved the use of metoclopramide, a drug which had been sold by Wyeth as Reglan before going off patent and becoming subject to manufacture in generic forms. A user of one of these generic medications alleged that as a result of prolonged use of the drug, she developed tardive dyskinesia, a debilitating and incurable neurological disorder. She filed suit, not against the manufacturer of the generic drug or the doctor who prescribed it, but against the deep-pocketed manufacturer of the name-brand form of the drug.

The Conte court broke new ground with its holding:

As such, even though it was undisputed that the plaintiff had not consumed a product manufactured by Wyeth — indeed, it was a product of its competitor — and undisputed that Wyeth did not provide labels for or sell the product at issue, Wyeth essentially was held liable for the alleged negligence of another. This California court opinion has, however, been universally rejected by courts throughout the country, all of which apparently recognize the dangers of extending liability to one company for the actions of another.

Most recently, nearly identical issues were addressed in a federal district court in Florida. Levine v. Wyeth, Inc., — F. Supp. 2d —, No. 8:09-CV-854-T-33AEP, 2010 WL 456773 (M.D. Fla. Feb. 10, 2010). The Levine plaintiff, just as the Conte plaintiff had before him, conceded that he never ingested Reglan or any other product made by the defendant, but claimed instead that he developed tardive dyskinesia as a result of use of the generic form of the drug. Relying on the Conte opinion, he alleged theories of negligent misrepresentation, fraud, negligence, strict liability, and breach of warranty.

The plaintiff claimed that doctors, pharmacists, and patients, in prescribing or being prescribed prescription drugs, rely on information provided by companies like Wyeth. The defendant, in turn, simply argued that it could not be held liable under any of the plaintiff’s causes of action as a matter of law because the plaintiff never used its product.

The Florida court sided with Wyeth, granting its motion for summary judgment as to all causes of action:

Product warnings can be clear, they can be ambiguous, they can be sufficient, but if they are not placed where they can be seen, then they may be all for naught. This remains true when the product at issue is a watercraft. In Thomas v. Bombardier Recreational Prods., Inc., the court denied in part the defendant manufacturer’s motion for partial summary judgment because although the warning would have been visible to a watercraft’s driver, it may not have been so easily seen by a passenger. See — F. Supp. 2d —-, No. 2:07-CV-730-FtM-29SPC, 2010 WL 326113 (M.D. Fla. Jan. 21, 2010). Thus, in that case, the jury will decide the issue.

The case arose out of a May 2007 accident during which an 18 year old female Plaintiff was injured after falling off a personal watercraft (i.e., a jet ski) manufactured by the defendant, Bombardier. She apparently had not planned to ride a watercraft that day until she encountered some friends at the beach who had their own watercraft. In fact, she had never ridden a watercraft before the day of the accident, which she communicated to her friend, the owner of the craft. Wearing a bikini and a life jacket (but no other protective clothing or gear), she, as the passenger, held onto the driver’s waist by way of his life jacket straps. At some point during the ride, she lost her grip and fell backwards into the water. As a result of the fall, she suffered internal injuries which resulted in several surgeries. Plaintiff testified that she herself saw no warning labels.

The personal watercraft did feature warnings under its handlebars (which the court noted were “in front of the driver”), the relevant portions of which read:

WARNING

To reduce the risk of SEVERE INJURY DEATH:

WEAR PROTECTIVE CLOTHING. Severe internal injuries can occur if water is forced into body cavities as a result of falling into water or being near jet thrust nozzle. Normal swimwear does not adequately protect against forceful water entry into lower body opening(s) of males or females. All riders must wear a wet suit bottom or clothing that provides equivalent protection (ss Operator’s Guide). Footwear, gloves, and goggles/glasses are recommended.

…

To Wear

…

The operator and passenger(s) must wear protective clothing, including:

-A wet suit bottom or thick, tightly woven, snug fitting clothing that provides equivalent protection. Thin bike shorts for example would not be appropriate. Severe internal injuries can occur if water is forced into body cavities as a result of falling into water or being near jet thrust nozzle. Normal swimwear does not adequately protect against forceful water entry into the lower body opening(s) of males or females.

Id. at *2 (emphasis added). The warning was also accompanied by graphics indicating the appropriate attire to be worn by drivers and passengers of the watercraft.

In light of the language advising passengers what to wear when riding on the watercraft, Bombardier moved for partial summary judgment on Plaintiff’s warning claims. The court first found that the warning itself was “clear, specific, and unambiguous” and that it “it accurately, clearly, and unambiguously warned riders, including a passenger, of the foreseeable dangers of catastrophic injury.” Id. at *3. Nevertheless, the Court denied Bombardier’s motion for summary judgment on those grounds due to the placement of the warning. In so doing, the court concluded that because “the Warning was arguably placed where only the driver could readily observe it . . . a jury question exists as to the adequacy of the Warning based upon its placement.” Id. However, in reciting the facts to the case, the court recounted the Plaintiff’s testimony that she did not recall anything that would have prevented her from seeing a warning label.

Further, it seems that the court may have only considered Plaintiff’s vantage point at the time she was riding the watercraft, not at any time beforehand. The opinion does not recount in detail the facts leading up to the Plaintiff’s riding the watercraft. Presumably, though the warning may not have been fully visible to a passenger at the time that the driver was also upon it, it may have been completely visible at the moments immediately prior to either person actually climbing aboard it. The court did not analyze or elaborate upon those issues.

The Court did grant one portion of Bombardier’s motion. The Plaintiff claimed that Bombardier “violated federal regulations, standards, and statutes pertaining to the obligations of consumer product Manufacturers to recall and make modifications to a product after the manufacturer knows or should have known of a defective feature in such product.” The basis of Plaintiff’s claim was that Bombardier assumed the duty to replace the Warning label by virtue of a provision in the Operator’s Guide. In rejecting this claim, the court found that Florida law imposed no such requirement and that Plaintiff “simply place[d] far more weight on this replacement provision than it will bear.” Id.