Test for a New Trial Based on Alleged Erroneous Jury Instructions Analyzed by the District Court of Massachusetts

The District Court of Massachusetts was recently asked to grant a new trial under Federal Rule of Civil Procedure 59(a)(1)(A) on the ground that the jury instructions delivered to the jury were erroneous. O’Neil v. Electrolux Home Prods., Inc., No. 06-10433-DPW, 2010 WL 3504191 (D. Mass. Sept. 7, 2010). What makes this case of interest is the fact that Plaintiffs, who base their motion for a new trial on the alleged erroneous jury instructions given, submitted the identical instructions to the court and did not object to the oral recitation of these instructions to the jury prior to deliberation. It was only after the jury requested a typed copy of the instructions that Plaintiffs objected.

This is a products liability action involving an accident in which Plaintiff backed over his young son with a lawn mower. Plaintiffs filed suit against the manufacturer, asserting among other claims, breach of warranty by design defect. At the trial of this action, the following jury instructions were given:

To determine whether there was a design defect you should consider whether the product has a potential, sometimes referred to as a propensity, resulting from the manufacturer’s conscious design choice that rendered the product unreasonably dangerous to foreseeable users and, therefore, unfit for its ordinary foreseeable uses . . .

The phrase at issue is italicized above — “unreasonably dangerous to foreseeable users.” As stated above, the instructions requested by Plaintiffs included this very language and Plaintiffs made no objections when orally given by the Court. Hours into deliberation, the jury asked for criteria to determine when a product is “unreasonably dangerous.” The Court proposed sending a typed copy of the prior instructions to the jury. Plaintiffs objected to the phrase above and suggested the following phrase as a replacement — “unreasonably dangerous to foreseeable users or foreseeable bystanders.” The Court declined Plaintiffs’ suggestion and submitted the original instructions to the jury. Shortly thereafter, the jury found in favor of Defendants.

Then, Plaintiffs sought a new trial on the ground of erroneous jury instructions. The District Court of Massachusetts first stated that the test was a two-part test: 1) whether the objection was waived and 2) whether the instruction was erroneous.

The Court’s analysis of the first part of the test is most interesting. Defendants claimed that since Plaintiffs did not object to these instructions orally given, they cannot now object to the same exact language being given to the jury in hard copy. The Court disagreed with Defendants on this point, stating that Plaintiffs only “waived any challenge to that instruction at that time,” but not the supplemental instructions, even if they had the same content. Under the second prong of the test, Plaintiffs argued that failure to include “foreseeable bystander” in the instruction was “misleading and gave an inadequate understanding of the law.” The Court now disagreed with Plaintiffs, finding that the instructions as written were in line with Massachusetts law and the jury was fully aware that Defendants could be liable for injury to Plaintiffs’ son as a bystander from both parties’ opening and closing arguments and through the testimony at trial. Therefore, the Court found no error and denied Plaintiffs’ motion for a new trial.

We thought that the Court’s finding no waiver was interesting: it is a “second bite at the apple” for Plaintiffs. Therefore, practitioners should be aware of how this Court analyzed this issue if faced with a similar argument on a motion for a new trial.

Toxic Tort Liability versus Conventional Products Liability in Massachusetts

In a recent opinion, Judge Mark Wolf of the District Court of Massachusetts made a distinction between cigarette-related toxic tort liability and conventional products liability to deny Plaintiff’s motion for reconsideration of an order dismissing six of her claims against Philip Morris. Sarro v. Philip Morris USA, Inc., No. 08-10224, 2010 WL 1930442 (D. Mass. May 12, 2010).

Sarro involved a fire caused by a cigarette. The administratrix of Linda Rivers’ (“Rivers”) estate, Rosalie Sarro (“Sarro”), filed a lawsuit against Philip Morris alleging that it defectively designed and manufactured Marlboro cigarettes. She claimed a lit Marlboro caused a fire that resulted in Rivers’ death and damage to property. On the motion of Philip Morris, the District of Massachusetts dismissed Sarro’s causes of action that “alleged that Philip Morris is liable because its product design was unreasonably dangerous because there was an alternative design for the cigarettes which would have reduced their propensity to continue to burn when left unattended.” Id. at *1. This ruling was based on the principle that “Massachusetts courts refuse to impose liability on manufacturers for injuries resulting from common everyday products whose obvious dangers are known to be associated with the product.” Id. at *4.

In response to the District Court’s order, Sarro filed a motion for reconsideration asserting an intervening change in the law of Massachusetts from a case that was decided after the court dismissed her claims, Donovan v. Philip Morris USA, Inc., 914 N.E.2d 891 (Mass. 2009). In Donovan, the alleged cause of injury was the quantity of carcinogens in the cigarettes — “physiological changes.” The Court in Donovan found it appropriate to extend general negligence principles to claims regarding “exposure to toxic substances . . . even if the full effects [of those substances] [we]re not immediately apparent.” Donovan, 914 N.E.2d 901.

In Sarro, on the other hand, the alleged cause of injury was the cigarette’s capacity to create fire — “mechanical forces.” As a result, the Sarro court distinguished Donovan and found that “because Donovan’s holding affects the analysis applicable to toxic tort liability, not conventional products liability, it does not impact this case.” Sarro, 2010 WL 1930442, at * 4. The Sarro court denied Sarro’s motion for reconsideration.

From this case, it is interesting to note how the Court differentiated “physiological changes” that put persons at risk of harm from “mechanical forces” that put person at risk of harm and associated that harm with toxic tort liability and conventional products liability, respectively. Practitioners should be aware of this distinction and analyze whether it could affect arguments against liability.

Falling Down

In my daylight-saving-time-induced narcoleptic delirium, I’m glad to invoke my favorite Michael Douglas movie as an introduction to today’s topic: Potentially defective artificial hips. (As an aside, I’m sure that losing one hour of sleep was one of the things that set that film’s protagonist, Foster, over the edge. Few things oppress me more than time.) I’m not sure that Otis Watkins and McKinlee Pruett felt the rage that Foster felt, but the named Plaintiffs in Watkins v. Omni Life Science, Inc., 2010 WL 809820, No. 09-10857 (D. Mass. Mar. 9, 2010) were angry enough to file suit against the manufacturer (successor-in-interest, really) of their artificial hips.

One key point in this case is that the respective hips of Watkins and Pruett had not yet failed, or had experienced any other problems for that matter. Nevertheless, perhaps at the urging of former surgeon general and Life Alert spokesman C. Everett Koop, the plaintiffs filed suit against Omni for multiple causes, including breach of implied warranty, breach of contract, unjust enrichment, et cetera, in conjunction with allegations of fraud. (As another aside, I could have sworn that C. Everett Koop was no longer with us, but I have been informed otherwise.) The Plaintiffs filed as a proposed class, containing people that had experienced no artificial hip failure. The crux of the claim was that the hip’s failure rate was significantly higher than that of other brands of artificial hips. Therefore, the Plaintiffs claimed that they were 1) at increased risk of future harm and 2) that the failure rate “diminished the market value of their hip implants.” I’m no economist, but I’m sure some academic will soon release a white paper discussing the Great Recession’s impact on the slightly-used hip market. Moreover, the Plaintiffs asserted that they “would not have selected the Defective Hip over other alternative devices but for the uniform representations made by Defendant.”

In an amazing legal gambit, Omni’s counsel dared file a motion to dismiss the complaint. Omni argued that the Plaintiffs did not allege (much less suffer) a cognizable injury. The Plaintiffs argued, as noted above, that they did not get the benefit of their bargain. The court looked at the nature of the claims. The Plaintiffs had two problems: First, there had been no physical injury, and, therefore, purely economic damages were not recoverable in tort. Second, the Plaintiffs failed to allege the existence of any contract. Oops. It’s hard to prove breach of contract without a contract. The court also noted that fear of a future injury is not sufficient to support a cause of action.

Thankfully, common sense prevailed in this matter. Causes of action are reserved for plaintiffs who have actually been injured. However, I do feel for the Plaintiffs, as I too feel wronged by those who force me to adhere to Daylight Saving Time, which apparently contributes to “heart attacks, traffic accidents and workplace injuries.” Perhaps I will be lucky enough to suffer an injury giving rise to a viable cause of action.