Snapchat Sued Over Distracted Driving Accident

According to a report from GeekWire, social media giant Snapchat has been sued in Georgia for allegedly causing a motor vehicle accident in which the at-fault motorist was distracted while using the application. Before we dive into the meat of it, we must disclose that our initial reaction to hearing of the suit was to cry foul and lament the future slippery slope of holding manufacturers liable for the poor decisions of users while operating a motor vehicle. After all, if Snapchat can be liable for allegedly distracting a driver who uses the app while driving, can cell phone manufacturers or service providers be sued for a driver’s decision to text and drive? What a perilous world we would live in right? Much to our chagrin, however, this suit is not what it may first appear.

Snapchat is primarily used for creating multimedia messages referred to as “snaps.” A snap consists of a photo or short video which can be edited to include filters and effects, text captions, and drawings. One of those effects is a filter which tracks the speed of users, including while the users are driving. Now, it doesn’t take a rocket scientist to see where this is going.

According to the complaint filed against Snapchat and Christal McGee by Wentworth and Karen Maynard, at approximately 11:15 p.m. on September 10, 2015, McGee was using the Snapchat while operating her Mercedes C230. Because she was allegedly motivated to drive fast due to the Snapchat speed filter, she accelerated her vehicle to speeds in excess of 100 mph. Unfortunately, because McGee was allegedly distracted by the app, she did not notice that a vehicle driver by Wentworth Maynard had pulled out into the road. McGee allegedly struck Maynard’s vehicle while traveling 107 mph. As a result of the car accidents, Maynard allegedly suffered permanent brain damage. McGee posted a snap of herself lying on a stretcher with the caption, “Lucky to be alive.”

While not specifically alleged in the complaint, the plaintiffs’ injury lawyer released a statement which exposes a number of other details about the moments leading up to the accident. Allegedly, McGee has three passengers in her vehicle, one of whom was pregnant. The pregnant passenger allegedly asked McGee to slow down, but McGee refused, arguing that she was “just trying to get the car to 100 miles per hour to post it on Snapchat.” The passenger allegedly saw the speed on the filter tap out at 113 mph when McGee said, “I’m about to post it.” At that moment, the impact allegedly occurred.

As an initial matter, we must caution that we do not know the merits of any of these allegations. While it is plausible that McGee was traveling in excess of 100 mph, we don’t know if the alleged Snapchat usage, if any, was to blame. Apparently, the accident occurred just before McGee could post the alleged snap, so proving as much will likely have to come from the passenger witnesses.

With that said, if the allegations are true, this is certainly a case distinguishable from our initially feared slippery slope hypotheticals. While a speed filter may be an interesting piece of technology, we assume in order for it to be useful there would need to be “speed” involved. The filter probably lacks the appeal of users taking a leisurely stroll through Central Park. We can appreciate the plaintiffs’ argument that the filter incentivizes users to go fast and, unfortunately, the most available means of doing so is by car.

Nonetheless, we still question whether Snapchat can be held liable for such an accident. This Personal Injury Attorneys in Fresno – Tomassian Pimentel & Shapazian says that even if the accident is foreseeable, isn’t a lawsuit filed by injury attorneys from Metairie such as this one akin to the much ballyhooed suits against gun manufacturers? The app and filter are legal and non-defective. We are not aware of any evidence that it is marketed as a “break the speed limit” filter. The choice to travel in excess of 100 mph ultimately falls on McGee, an able-bodied adult who knew or should have known of the dangers.

We can certainly understand both sides of the argument. This will be one that we will following closely.

Georgia Court Dismisses Defective Sperm Suit

Last week, a Georgia court dismissed a lawsuit filed against a sperm bank and a sperm donor who allegedly engaged in some foul play in selling their product. The suit, filed in March by Canada residents Angela Collins and Margaret Elizabeth Hanson, accused Xytex Corporation of misleading its customers as to the true nature of the sperm’s donor. Specifically, Collins and Hanson alleged that Xytex employees informed them that their donor was “smart, healthy and mature” when in fact he was schizophrenic, dropped out of college, and had been arrested for burglary. We assume Hanson and Collins started looking ahead to their baby’s teenage years and didn’t like what they saw. We also assume that they are unfamiliar with Steve Jobs.

The suit contained causes of action for fraud, negligence, and product liability. In his order, Fulton County Judge Robert McBurney determined that each claim was “rooted in the concept of wrongful birth,” which is not recognized under Georgia law. Nonetheless, Judge McBurney noted the complicated issues presented by the development of reproductive science, stating:

Science has once again – as it always does – outstripped the law.  Plaintiffs make a compelling argument that there should be a way for parties aggrieved as these Plaintiffs are to pursue negligence claims against a service provider in pre-conception services.  After all, the human life that makes the calculus so complicated has not yet begun when would-be parents are working with companies such as Xytex.

We here at Abnormal Use wholeheartedly agree with Judge McBurney’s decision. The viability of wrongful birth claims aside, the birth of a child is always a crapshoot whether conceived naturally or through artificial means.  The beauty of life is its randomness and unpredictability. While we have made strong progress in genetic research, there is no way to accurately predict everything about a new life. Nonetheless, parents love and  care for their children regardless of their child’s health history or their susceptibility to making good or bad life choices. It is a part of life. We can’t outwit it regardless of whether we conceive naturally or through the aid of a sperm bank.

Given the unpredictability of life, we question whether obtaining inaccurate (or even fraudulent) information from a sperm bank should warrant a valid claim. This can of worms none of us wants to open.

Food Exec Gets 28 Years Jailtime In Salmonella Case

Last year, we reported on the criminal case against a food industry executive who was convicted of crimes related to a 2009 salmonella outbreak that sickened hundreds and may have contributed to the death of nine people. Nearly a year later, he’s finally been sentenced, and it is a really stiff one. Very recently, Stewart Parnell, former head of the Peanut Corporation of America, was sentenced to 28 years in prison for his crimes.

By way of refresher, last September, Parnell was convicted of 71 criminal counts, including conspiracy, obstruction, and introduction of adulterated food. The charges stemmed from Parnell’s alleged decision to knowingly distribute salmonella tainted peanut butter for sale to customers. Federal investigators uncovered years worth of emails and other records showing food confirmed by the company’s lab tests to contain salmonella was shipped to customers. Other batches of food were never tested but nevertheless shipped with labels that falsely indicated that they had been tested for salmonella.

The 28 year sentence handed down by a federal judge in Georgia is a no doubt a tough one and may effectively amount to a life sentence for the 61 year old Parnell. It is the biggest sentence ever handed down in a food safety case, but it is much less than the maximum of 803 years that he was facing. However, as The Wall Street Journal has pointed out, the recent sentences in similar food safety case were much much lighter to say the least:

…last April sentenced the owner of a large egg producer and his son to three months in prison for their involvement in a 2010 salmonella outbreak that sickened thousands of people and led to a nationwide recall. A Colorado judge sentenced two brothers to five years’ probation after the pair pleaded guilty to misdemeanor charges following a 2011 listeria outbreak linked to their farm’s cantaloupes that resulted in 33 deaths.

Nevertheless, even if Parnell did have any malicious intent, his actions seem to have been egregious and still caused a lot of harm. As such, the sentence seems appropriate. If nothing else, this case will likely demand the attention of food industry executives across the country.

Willie Nelson Latest Target of Music Copyright Infringement Suit

Just days after a jury found Robin Thicke and Pharrell liable to the tune of $7.4 million for channeling the late Marvin Gaye in creating their mega hit “Blurred Lines,” Willie Nelson finds himself as the target in a similar lawsuit.  According to a report from the Atlanta Journal Constitution, Ashley Wilson and the estate of Mark Reynolds have filed suit in federal court in Atlanta against Nelson claiming that his song, “Roll Me Up and Smoke Me When I Die” is a rip-off of their song bearing the same name.  Specifically, they allege that:

[T]he infringing work contains the same title and dominant line in the chorus as the original work, with substantially similar melody, rhythm and cadence, as well as substantially similar lyrical themes.

Nelson released his song on the Heroes album back in 2012.  Wilson and Reynolds allegedly wrote theirs in 1990, performed it throughout the 1990’s, and released it on Georgia radio.  In March 2012, prior to Nelson spending five weeks atop the American radio charts, the Wilson/Reynolds version was uploaded to YouTube.

We here at Abnormal Use will refrain from jumping to quick conclusions in this matter. Certainly, if Nelson is profiting by singing the exact same song of another without proper attribution, then he should pay for it.  On the other hand, we seriously doubt Nelson, Wilson, and Reynolds are the only potheads persons to come up with some ingenious title like “Roll Me Up and Smoke Me When I Die.”  If they all just happen to have similar stoned ideas, then perhaps no real infringing harm is done.

We don’t know what effect, if any, the Thicke/Williams lawsuit has had on this one.  However, we are concerned that with the verdict, these music infringment suits shall become more and more popular.  As both lawyers and music lovers, we are not happy with this turn of events.  We have often expressed concern that music has been on a steady decline since the 1990’s because every good idea has been used.  Every musician is influenced by those who came before him or her and those influences are naturally recycled into new songs.  What do we think will happen to music if every time one of those influences peeks its head in a new song, the forefather brings an infringement suit? Musicians could never listen to other music out of fear it might surface in their own.  And, if they never listened to music, they wouldn’t know what music is so they would never become musicians in the first place!  Alas! Music is dead.

Or, maybe we are exaggerating slightly.  Thinking about Willie Nelson songs will do that to you.

No Small Peanuts: Food Exec Guilty In Deadly Salmonella Outbreak

Last month, a jury in Georgia convicted a former peanut company executive of conspiracy and fraud charges in a case stemming from a deadly salmonella outbreak between 2007 and 2009.  As a result of the outbreak, nine people died, and more than 700 others became ill.  The verdict marks the first federal felony conviction for a company executive in a food safety case. The jury’s verdict came after a several week long trial for Stewart Parnell, the president of Peanut Corp.  Mr. Parnell was charged with 76 federal counts linked to intentionally shipping salmonella-laced peanut products. Prosecutors presented thousands of documents and called nearly 50 witnesses to show that Parnell and others ignored safety in order to increase profits. Among other things, Mr. Parnell and Co. allegedly hid results that their peanut products tested positive for salmonella.

Perhaps the most damning evidence at the trial was a 2007 email from Mr. Parnell to a plant manager regarding the safety of the tainted products.  In response to concerns from the manager over the tainted products, Mr. Parnell replied: “Just ship it.” This verdict is not insignificant, as it comes in the midst of a new focus by the Department of Justice on food safety cases brought under the Federal Food, Drug and Cosmetic Act.  Last year, the owners of a cantaloupe farm pleaded guilty to misdemeanor charges related to a listeria outbreak. Earlier in this year, federal prosecutors filed charges against the executives at an egg company linked to a 2010 salmonella outbreak.

Mr. Parnell and the others convicted now await sentencing.

McDonald’s Cases: More Than Just Hot Coffee

Despite what you might think from reading our posts here at Abnormal Use, not all McDonald’s litigation concerns hot coffee.  As obsessed as we are with the subject, this revelation came as a bit of a surprise.  It is shocking to learn that in the post-Stella Liebeck era any non-coffee related information could be considering newsworthy – especially for a distinguished legal blog.  Thankfully, our eyes have been opened or else we would have missed out on these two incredible stories.

Back in July,  an intoxicated Florida woman was arrested after blocking a McDonald’s drive-thru in search of free Big Macs for breakfast. According to the Consumerist, the woman pulled up to the drive-thru around 6:00 a.m. and demanded two free Big Macs as retribution for past discrepancies.  After being told that Big Macs are not available for breakfast, the woman politely changed her demand to two free Egg McMuffins.  Sounds reasonable.  Unfortunately, McDonald’s balked at the idea of giving away free food and asked the woman to leave.  She valiantly responded by blocking the drive-thru until police arrived.  She was arrested for DUI and apparently taken to jail hungry.

Last week, a Georgia man called 9-1-1 after McDonald’s allegedly messed up his order.  According to reports, the man entered the restaurant and ordered 7 McDoubles, a McChicken, and an order of fries to-go.  When the man returned to his truck, he discovered that the employee placed not 7, but 6, McDoubles in the bag.    He then re-entered the restaurant and apparently got some “attitude” from the employee rather than his AWOL burger.  The man’s response?  Call 9-1-1 and report that his burger had been swapped with a serving of ‘tude.  The police were not fond of the man’s use of the emergency response system, arresting the man and having him spend a night in jail.

Even though these cases do not involve coffee, they share a common theme:  Mess with McDonald’s and expect to make the news.

Yamaha Continues Successful Defense of Rhino Claims

The Yamaha Motor Corporation has caught a lot of flack recently over the lack of doors on its two-seater Rhino all-terrain vehicle.  After it made some safety modifications to the Rhino in 2007, Yamaha was hit with a number of lawsuits – 175 in California alone.  The national media caught wind of the lawsuits and came down pretty harsh.  In response, Yamaha created its own website,, and a Rally Around Rhino widget to garner support for the ATV.  We don’t the know effectiveness of Yamaha’s use of the Interwebs, but something must have worked.  Yamaha prevailed in all but one of the lawsuits.  As to the one that got away?  Well, that one was recently reversed by an appellate court.

Earlier this month, in Yamaha Motor Corp. U.S.A. v. McTaggart, No. A11A1022 (Ga. Ct. App. Nov. 15, 2011), the Georgia Court of Appeals reversed and remanded the case to the trial court with direction to enter judgment granting Yamaha’s motion for a directed verdict.  In 2008, the plaintiff filed suit against Yamaha after he flipped his Rhino and suffered a severe laceration to his leg.  The complaint alleged that his injuries were caused by a latent stability defect and the absence of doors.  (The stability defect claims were abandoned four weeks before trial).  Following a trial, the jury found that the Rhino’s defective design proximately caused the plaintiff’s injuries and returned a verdict in his favor for $317,002.

On appeal, Yamaha argued that the undisputed evidence at trial demanded a finding that the plaintiff assumed the risk of his injuries.  At trial, the plaintiff testified that the Rhino was useful to him “because it had no door.”  When he purchased the ATV, he declined the dealership’s offer to install an after-market door because he preferred the open access.  Further, the plaintiff admitted that he had seen and understood the significance of keeping his legs inside the Rhino during a rollover.  When the salesman reviewed the warning stickers on the Rhino, the plaintiff admittedly laughed and said, “Well, man, common sense would tell you not to do that, right?”  Looking at the evidence as a whole, the Court found that the plaintiff had significant experience operating the Rhino and was clearly aware of the potential danger of injury to his limbs.

Yamaha may champion this decision on its Rhino website, but it should be noted that this decision tells us little, if anything, about the alleged defective design of the Rhino.  That issue was not on appeal.  We can see how some may view doors as a necessary component of a vehicle.  But let’s get real.  We aren’t talking about driving a DeLorean down the freeway.  We are talking about a Rhino – an all-terrain vehicle.  Ever heard of Jeep?  No doors necessary.

Regardless of the potential design defect, the Court of Appeals got this one right.  Buying a product specifically because it doesn’t have doors, then suing for the same reason seems illogical.  The plaintiff admittedly was fully aware of the risks – always a good sign when trying to formulate an assumption of risk defense.

Georgia federal court finds preemption of breach of warranty claim

Plaintiff’s counsel and defense counsel are equally guilty of the well-known and respected legal strategy called “throw everything against the wall and see if something sticks” strategy.  It starts with the complaint when Plaintiff’s counsel pleads every cause of action under the sun.  It is perpetuated when defense counsel pleads every affirmative defense in the known universe (including our favorite, laches).  Both are hoping, sometimes beyond hope, that when the issues are finally clarified, and both sides begin to determine what the case is actually about, they will have pled correctly.

Sometimes, though, it doesn’t work out that way.  In Haynes v. Cyberonics, Inc., No. 1:09-CV-2700-JEC, 2011 WL 3903238 (N.D. Ga. Sept. 6, 2011), Plaintiff Cloys Haynes sued the manufacturer of a device called a Vagal Nerve Stimulator, which had been implanted in his neck to control epileptic seizures.  He claimed that a few months after the device was implanted, he suffered various symptoms, including feelings of electric shock and tingling.  He also alleged that he suffered permanent left side neurological damage and chronic pain in parts of his body, including his throat and ear.  Ultimately, Plaintiff underwent surgery to remove the original device and replace it with a new, identical device. Problem for Plaintiff:  During the surgery to replace the device, a diagnostic test was performed on the original nerve stimulator. It was found to be normal.  No other testing was done.

Plaintiff’s original causes of action included strict liability, negligence, breach of warranty, punitive damages, and loss of consortium. Plaintiff later amended the Complaint to add a negligent manufacturing defect claim. He also sought attorneys fees for his troubles.

Just prior to the expiration of the discovery deadline, Plaintiff moved to have the case dismissed without prejudice.  Not surprisingly, the defendant opposed the motion and filed a motion for summary judgment, as well.  It also subsequently filed a motion to allow for supplemental briefing based on new preemption law in the 11th Circuit.  That motion was granted by the Court.

The Defendant based its summary judgment motion on the doctrine of preemption and asserted that all of Plaintiff’s causes of action failed in the face of this super-defense.  We’ve blogged about this defense before.  It’s awesome.  As the Court in this case noted, “[u]nder the doctrine of federal preemption, state laws that conflict with federal law are ‘without effect.'”  The Court also provided a very nice articulation of the test used in such cases:

In Riegel v. Medtronic, Inc., the Supreme Court determined that this express preemption clause will bar common law claims arising from injuries caused by FDA-approved medical devices in many circumstances. Tracking the language of the statute, Riegel set forth a two-pronged test for deciding whether state claims are preempted. First the district court must determine whether the federal Government has established requirements applicable to the device. If so, the court must then determine whether the plaintiff’s common-law claims are based upon state law requirements (1) that are “different from, or in addition to” the federal ones and (2) “that relate to safety and effectiveness.”
Plaintiff did not dispute that the nerve stimulator, as a Class III medical device, was subject to federal requirements for purposes of a preemption analysis.  It also conceded that, as a result, his design claim was preempted.  He didn’t concede, however, that preemption barred his other causes of action.
As to Plaintiff’s cause of action for manufacturing defect, a strict liability claim, the Court held that the claim was preempted:
Clearly, the FDA regulates the manufacturing practices of Class III medical devices.  Further, a manufacturer could comply with all FDA regulations, but nevertheless produce a product containing an unintended flaw or abnormal condition. That being so, by holding a manufacturer liable under such circumstances, Georgia law would be in the position of imposing requirements “in addition to” federal law.  Accordingly, [as] defendant argues, plaintiff’s strict liability manufacturing defect claim is therefore preempted.
Even if the claim were not preempted, the Court reasoned, Plaintiff had failed to provide any proof that the device was negligently manufactured.  He also failed to provide evidence that the symptoms and/or injuries he suffered were caused by the device.  (There’s that pesky lack of expert testimony thing again).
Plaintiff also argued that the device contained an inadequate warning, which is a design defect under Georgia law.  An inadequate warning may amount to a design defect and permit the imposition of strict liability.  However, because the FDA regulates content and appearance of prescription medical device labels, Georgia law would be imposing “requirements” that were “in addition to” federal regulations. As such, this claim was also preempted.
Plaintiff almost succeeded in surviving summary judgment on his negligent manufacturing defect claim.  As the Court noted, a “negligent manufacturing claim would not be preempted to the extent it relied on an allegation that the particular device had not been manufactured in accordance with the FDA’s pre-market approval process.”  However, although Plaintiff survived preemption on this claim, he failed to survive the summary judgment motion because he had failed to offer any evidence of any manufacturing defect claim. Oh, well.
The most interesting analysis in this case, however, centered on the issue of preemption in the context of a breach of warranty claim.  The Court stated, “Riegel did not address a breach of express warranty claim.  Nor has the Eleventh Circuit decided whether a breach of express warranty claim can be preempted by the MDA. Other federal courts remain divided over the issue.”
The Court held that preemption does apply in the context of a breach of warranty claim.  Its reasoning follows:
In any event, the express representation claims in this case would interfere with the FDA’s pre-market approval regime. Plaintiffs claim that defendant expressly warranted the stimulator to be “safe, and generally fit for use as an implanted stimulator,” when in fact the device was not safe.  In order to prove that defendant breached this warranty, plaintiff would need to show that the stimulator was not safe: a finding that would directly conflict with the FDA’s pr-emarket approval of the device as reasonably safe and effective.  Moreover, if these warranties were made in materials approved by the FDA in the pre-market approval process, then allowing a claim to proceed under Georgia law would subject defendant to state duties above and beyond the federal requirements.  Such a claim would fall within [the] preemption clause prohibiting state requirements that are in addition to, or different from, federal requirements.
Accordingly, the Court concluded that Plaintiff’s express warranty claim was also preempted.

Political Question Doctrine Bars Relief in Products Liability Action

As lawyers practicing in the neat little world of products liability, we sometimes become complacent with our narrow world, which is more often than not populated by familiar concepts like strict liability, state of the art, and warranty disclaimers.  We’re comfortable with these concepts.  We use them every day, and we can recite by name and sometimes even citation the cases that stand for those fabled and familiar principles. But every once in a while, a case comes along that requires us to leave our comfort zone and do what our law school professors challenged us to do: think outside the realm of the class in which we were sitting at that moment, and reach into concepts we (at least arguably) learned from other classes.

This was the situation facing the defense lawyers in the case Armedi v. BAE Sys., Inc., 1:10-CV-01557-JOF, 2011 WL 1707251 (N.D. Ga. Apr. 22, 2011).  The case involved the unfortunate death of Rebar Amedi, a civilian contractor working as a translator for the U.S. Army in Iraq.  Mr. Amedi was killed when the Mine Resistant Ambush Protected (“MRAP”) vehicle called a Caiman in which he was riding was struck by an improvised explosive device, commonly known as an IED.  According to the facts agreed to by the parties:

There were eight occupants in the passenger compartment of the Caiman which was designed to hold only six people. None of the occupants wore a seat belt and the doors to the compartment were not combat locked. The equipment stored in the MRAP was secured only by bungee cords and parachute cord, instead of ratcheting straps. Even though the passenger compartment was intact, the rear doors came off and it appears that Mr. Amedi was thrown from the vehicle and he sustained fatal injuries.

Mr. Armedi’s widow brought suit against BAE Systems, Inc., BAE Systems Land & Armaments L.P.; and BAE Systems Tactical Vehicle Systems LP, on April 16, 2010, in the Superior Court of Fulton County, alleging product defect, negligence, and breach of warranty claims arising out of the death of Mr. Amedi.  The case was removed by the defendants, and they immediately filed a motion to dismiss not based on defenses they learned in products class, but based on the political question doctrine and the combatant activities exception to the Federal Tort Claims Act.

We will spare your digging through your home library for that dusty Con Law book, and remind you about the factors relevant to determining if a dispute raises a “non-justiciable political question.”  If only one of the factors is present, the court dismisses the case.  Those factors are:

1. a textually demonstrable constitutional commitment of the issue to a coordinate political department;
2. a lack of judicially discoverable and manageable standards for resolving it;
3. the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion;
4. the impossibility of a court’s undertaking independent resolution without expressing lack of the respect due coordinate branches of government;
5. an unusual need for unquestioning adherence to a political decision already made; or
6. the potentiality of embarrassment from multifarious pronouncements by various departments on one question.
Likening the case to a prior 11th Cicuit Court of Appeals case on the same issue, the Court held that because the events which led up to Mr. Armedi’s death resulted directly from miltary decisions, including the use of MRAP vehicles, the timing of the convoy, and, as a prior-decided case articulated, “at the broadest level . . . the military’s decision to utilize civilian contractors in conducting the war in Iraq,” the case involved a non-justiciable political question, “because to evaluate Plaintiff’s complaint would require the court to re-examine military decisions.”  After reaching this conclusion and dismissing the case on those grounds, it did not reach the question regarding the Federal Tort Claims Act.
To us, the most interesting part of the case was the use of a defense found outside the realm of products liability.  The product itself never became the issue in the case, despite the allegations levied against them by the plaintiff on products theories.  We are used to making procedural arguments that operate the same way, but we wonder if there are other long-forgotten classes we are under-utilizing in our products cases.   Who knows?  Maybe that third-year “law in movies” class could provide some novel defenses for cases in the future.

Manufacturer of Rub Cream Wins Summary Judgment on Allegations of Diabetic Foot Injuries

Earlier this month, the U.S. District Court for the Northern District of Georgia considered the case of Kersey v. Dolgencorp LLC, No. 1:09-CV-898-RWS, 2011 WL 1670886 (N.D. Ga. May 3, 2011). The case involved a tube of Dollar General Maximum Strength Muscle Rub Cream, which was manufactured by defendant Faria and sold under the Dollar General brand. The Plaintiff brought suit against both Dollar General and Faria, alleging that the rub cream caused her to develop multiple diabetic ulcers secondary to chemical burns. Ms. Kersey had been diagnosed with diabetes in 1994, which caused her to have severe diabetic neuropathy in her feet. She had been using the rub cream since 2006 or 2007; these alleged injuries occurred in 2008.

The lawsuit alleged four causes of action against Faria and Dollar General, including (1) negligence, (2) strict liability, (3) breach of express warranty, and (4) breach of implied warranty. Both defendants moved for summary judgment. Plaintiff abandoned all of her claims against Dollar General, as well as the breach of warranty claims against Faria prior to the hearing on Defendants’ motion and, therefore, the court granted the Defendants’ summary judgment motions as to those claims.

The court discussed three claims alleged by Plaintiff in turn: design defect, manufacturing defect, and failure to warn. The court granted Faria’s summary judgment motion as to the design defect. First, it noted that Plaintiff had not even discussed the rub cream’s design, and because she had not presented any evidence of the product’s inherent risks, nor presented an alternative design. The court also noted that the rub cream had been tested by the Food and Drug Administration and determined its composition to be safe and effective.

The court also granted Faria’s motion for summary judgment based on the theory of the manufacturing defect. Plaintiff had not even had the product tested to back up any allegation she may have had that the particular tube of the rub cream was stronger or weaker than the standard formula. No genuine issue of material fact there.

Finally, the court considered the failure to warn claim. The warnings on the box containing the rub cream read as follows:

— For external use only.
— Use only as directed.
— Keep out of reach of children to avoid accidental poisoning.
— Discontinue use if excessive irritation o[f] the skin develops.
— Do not bandage tightly, apply to wounds or damaged skin or use with a
heating pad.
— If condition worsens, of if symptoms persist for more than 7 days or
clear-up and occur again within a few days, discontinue use of this product and
consult a doctor.
— If swallowed, get medical help or contact a Poison Control Center right

The court made a number of findings before granting Faria’s motion for summary judgment on this theory. First, Plaintiff’s doctors stated only that Faria should have known that the rub cream would have been absorbed by the skin, not that this phenomenon would be injurious to diabetics. Second, this was the very first complaint that Faria had ever received about the product  after it had manufactured more than 8 million tubes of the cream. Finally, the court noted that Plaintiff had developed these injuries after using the cream and then putting on socks and shoes, which the court found to violate the warning on the box that advises against bandaging skin after using the product.

The final cautionary note can be found in the case’s only footnote, where the Court indicated without even being asked that Plaintiff’s case had “a strong proximate causation problem.” Indeed, Plaintiff had suffered diabetic-related foot injuries before and after this alleged incident, and had been using the product without incident for years before suffering these particular injuries. Plaintiff’s doctor also testified that he could not testify that, to a reasonable degree of medical certainty, that the complained-of injuries were caused by the rub cream at all.