Recent $2.375 Million Award in South Carolina Crashworthiness Case

A Florence, South Carolina jury recently awarded $2.375 million in actual damages to a girl, now 11, who suffered burns to 15% to 20% of her body when the fuel tank of her family’s Nissan Xterra caught fire following a collision. The highest pre-trial settlement offer reportedly was $450,000. Courtney v. Nissan Motor Co., Ltd., Civil Action No. 2007-CP-21-1449, in the Florence County, South Carolina Court of Common Pleas.

According to South Carolina Lawyers Weekly (see coverage here), the girl, 9 years old at the time of injury, was riding with her family as a passenger in the vehicle outside of their church near Lake City, South Carolina, when they were involved in a collision with a pickup truck. Church members and emergency personnel were able to help remove the family from the vehicle reportedly within seconds of impact, but the child suffered the burns, including facial burns, from her position in the seat just above the fuel tank.

The plaintiff set forth causes of action for strict liability and breach of warranty, arguing that Nissan failed to ensure the crashworthiness of the vehicle because a small metal bracket was likely to puncture the fuel tank in the event of a side collision. The plaintiff reportedly utilized experts from Texas, Utah, California and Japan, among others, to testify to such issues as the alleged foreseeability of the bracket’s puncturing of the fuel tank. Nissan, in turn, argued that the tank rupture was due to the severe and unique circumstances of the collision, which had placed extreme, concentrated energy at the location of the bracket.

The jury apparently was able to overlook two important challenges to the plaintiff’s case: (1) the SUV had complied with all federal standards; and (2) it was the driver of the Nissan Xterra who admittedly was at fault in causing the accident. The plaintiff’s position, according to her attorney, was that if the vehicle had been built according to European standards rather than U.S. standards, whereby the bracket would have been placed no closer than 100 millimeters from the fuel tank, then the fire would not have occurred.

In any event, the jury ultimately sided with the plaintiff, finding the case warranted actual damages without the imposition of a punitive award.

When to Make a Rash Decision

Because of his concern for “access to justice,” our illustrious governor vetoed House bill 3161, which would have increased certain court fees to help fund the judiciary. This commitment is admirable, because we must ensure that parents have the right to seek redress for their children’s diaper rash. As reported earlier by Law360, parents seeking justice for their children have filed a class action suit in the Southern District of Ohio because Procter & Gamble has manufactured diapers that allegedly cause “rashes, blisters, welts, bleeding, oozing, chemical burns, infections, sores, scarring and/or other ailments on babies’ and children’s extremely sensitive and delicate bottoms and other body parts . . . .” The Complaint is captioned as Clark v. The Procter & Gamble Co., 1:10-CV-00301, and may be accessed via PACER. The dangerous instrumentality is a newly designed Pampers Dry Max diaper.

Although the complained of diaper rash is probably more serious than other famous rashes, there are a couple of things (at least) that are concerning to me about this litigation. First, it centers on diaper rash. Is this really what the founding fathers had in mind when they signed the Declaration of Independence, preserving the right to sue over diaper rash? As noted by the National Library of Medicine, “[m]ost babies who wear diapers will have some type of diaper rash.” (To its credit, the NLM also notes that diaper rash is “rash in the diaper area,” lest one think that the diaper itself can experience rash.)

As noted by the NLM, diaper rash is caused by prolonged contact of the baby’s excretions with the skin. Lawyers will have to engage in discovery about diaper changing habits.

Q: How often did you change Junior’s diaper?
A: As often as he needed it.
Q: Did you ever leave a wet diaper on your child?
A: Never. I stand at the ready when my child urinates.

Moreover, the plaintiffs will develop some pediatric toxicologist who will say that it is more probable than not that Pampers causes diaper rash. I’m not sure what the failure to mitigate argument looks like, since carpet cleaning can be fairly expensive.

A more legitimate concern is P&G’s management of this issue in social media. Facebook has several pages devoted to this issue (see, e.g., here and here), and there is a lengthy discussion thread on Pampers’ Facebook page about the rash. In fact, the Complaint references a Facebook page requesting that P&G do away with the diapers. Through Facebook, a purported class has developed on its own, without any legwork by plaintiffs’ attorneys. Also, P&G will have to figure out how to be responsive via social media without damaging its litigation strategy. Perhaps P&G can offer some free samples as a show of confidence in its product. Whatever is decided, P&G has some problems ahead, because few things are worse than an angry parent.

Defective Vacuum Sucks Hair Out of Scalp, Suit Says

An Illinois woman has recently filed suit against Ohio-based vacuum manufacturer The Kirby Company for $200,000, reports the Chicago Sun-Times, alleging her defective vacuum cleaner broke during use and sucked the hair out of her scalp.

The complaint, filed in U.S. District Court in Illinois on April 23, reportedly sets forth that the vacuum was “defective and unreasonably dangerous” and that Kirby sold the vacuum without adequate testing and without proper warnings of the hazards of personal injuries. The plaintiff’s Chicago-area lawyer, Thomas A. Reed, to whom the plaintiff referred all questions, has told the media that his client was using the vacuum hose to clean underneath her bed when the attachment broke, “causing a tremendous sucking that took her hair right into the machine.” He declined to discuss the extent of his client’s injuries, but did indicate that she was rushed to the emergency room after the incident.

The suit has generated considerable discussion. See local Chicago NBC coverage here, where a poll shows that 79 percent of Chicago locals think the story is laughable, or commentary here, where one writer notes the marketing potential (“Hairs on the floor don’t stand a chance!”).

In spite of the skepticism surrounding the suit, there appears to be evidence to suggest her claim may have legs. Video coverage at Fox News includes pictures of the woman’s scalp allegedly showing the injury to her head. The pictures were thought to be so disturbing that the affected area of the woman’s scalp were blurred for the television clip.

It’s certainly an interesting set of facts. We’ll have to see where this one goes.

Defective Sperm Not Actionable in the Third Circuit

In a case we briefly addressed Friday, and in what has been called the first decision of its kind, the U.S. Court of Appeals for the Third Circuit this month upheld a lower court’s 2009 ruling that genetic defects in sperm from a sperm bank cannot form the basis of a products liability suit. To allow such a claim to go forward, the court held, would be tantamount to recognizing a claim for “wrongful life.” D.D. v. Idant Laboratories, Slip Copy, No. 09-3460 (3d Cir. April 1, 2010).

The Plaintiff brought suit both in her individual capacity and as parent and guardian of her minor daughter against the New York-based sperm bank, setting forth causes of action for strict products liability and breach of express and implied warranties of merchantability. The Plaintiff began her research to find a sperm bank in 1994, when she was promised by Defendant Idant Laboratories that its donors went though a rigorous screening process to ensure they had good genetic backgrounds and that the company employed a screening program that far exceeded mandated standards. She thereafter purchased sperm from the Defendant and gave birth to her daughter in 1996. The Plaintiff then began to notice abnormalities in her daughter’s development. Subsequent genetic testing revealed that the child had Fragile X syndrome, a genetic mutation that causes mental retardation and behavioral disorders, as a result of the genetic defect of the sperm donor.

Initially, the district court judge ruled that, pursuant to New York law, the sperm bank could be sued under products liability laws because “the sale of sperm is considered a product and is subject to strict liability.” However, two months later, the judge reversed himself and dismissed the case in its entirety, predicting that New York’s appellate court would reject Plaintiff’s claims.

The Third Circuit affirmed the judge’s second decision. In a thought-provoking opinion penned by Circuit Judge Maryanne Trump Barry, (interestingly, she’s Donald Trump’s older sister), she held that the child’s impaired genetic makeup was not a cognizable injury. She explained:

Wrongful life cases pose particularly thorny problems in the damages context. Simply put, a cause of action brought on behalf of an infant seeking recovery for wrongful life demands a calculation of damages dependant upon a comparison between the Hobson’s choice of life in an impaired state and nonexistence. This comparison the law is not equipped to make. . . . The difficulties that [the child] now faces and will face are surely tragic, but . . . she like any other child, does not have a protected right to be born free of genetic defects. To find to the contrary would invite litigation for any number of claimed injuries and, even more problematic, require courts to identify certain traits below some arbitrarily established marker of perfection as “injuries.”

D.D. at *10, 11 (internal citations omitted).

“Whether it is better never to have been born at all than to have been born with even gross deficiencies,” Judge Barry quoted from a separate court’s opinion, “is a mystery more properly to be left to the philosophers and the theologians.” This is certainly an interesting lawsuit that has generated an intriguing opinion and sparked considerable discussion. To see some other bloggers’ and commentators’ views on the issue, see here, where the author notes the fallacy of considering one’s personal imperfection an injury for which another is to be held responsible, and here, where a reader disagreed with the lower court’s initial ruling allowing the case to go forward, arguing that creating a life is a “gamble” irrespective of how the parent goes about it.

A Modest Proposal: Abolish Strict Liability

As I prepare to leave for Las Vegas to attend the annual DRI Products Liability Conference, I have been thinking about the current state of products liability law in the United States. As everyone knows, our current products liability law consists of separate laws – including a myriad of statutes, codes and case law – in every state, some of which conflict and some of which overlap, supplemented by various federal laws, rules and regulations. As a result of this conflicting system, U.S. products manufacturers face increasingly complex and expensive litigation which has expanded exponentially over the years. With a couple of possible exceptions, one would be hard-pressed to find an area of litigation that has become more expensive than products liability.

There is also no question that manufacturers who produce products for use in the United States are the most regulated, legislated and litigated industry in the world. The question is whether there is too much regulation and litigation and, if so, what can and/or should be done to ease this burden so as to ensure that U.S. products manufacturers can compete in the global economy. It is obvious that relief is needed. We have all read the news and it is not good. Jobs are being lost daily, the United States industrial and manufacturing community is shrinking rapidly, if not dying, and products manufacturers face substantial litigation exposure and expense, all of which makes it extremely difficult for them to compete.

This burden needs to be substantially reduced. So what to do? Some would say the answer is to take products liability law out of the hands of the states and place it under the control of the federal government in the name of uniformity and consistency. God forbid that this occur. While allowing states to generally control products law does lead to some problems and inconsistencies, the federal government has done nothing worthwhile in the legislative arena in the last several decades and what it has done generally creates more problems than it solves. The current health care fiasco will, I believe, prove this point conclusively. That legislation will most assuredly lead us down the path of substantially higher health care costs, increased taxes and decreased quality of care. Turning control of the health care system in America over to the likes of Congress, including congressmen who are afraid Guam might tip over, and whoever might be in the White House at any given moment is a terrible idea and allowing it to take over products liability law would be just as bad, if not worse.

Another, and I would submit, much more appropriate remedy is to abolish the doctrine of strict liability. Strict liability laws were introduced at a time when products manufacturers needed regulating. These laws have clearly served their purpose of requiring U.S. manufacturers to make the safest products in the world. That they do so is really without question. To coin a phrase – planes, trains and automobiles – as well as toys, food, electronics, pharmaceutical products, medical devices, you name it – if it is designed and manufactured to be sold here, it is the safest product in the world. However, the doctrine of strict liability is no longer used to ensure reasonable safety; rather, it has gone beyond reasonableness to the point where a degree of “defensive design and manufacturing” akin to the concept of defensive medicine, is required. This has driven up costs, both on the design and manufacturing side as well as the back-end cost of defending litigation involving strict liability claims.

Assuming this to be the case, one answer is to do away with strict liability laws. Would doing so result in manufacturers suddenly abandoning the concept of making safe products? I think not. Would it result in a multitude of defective products being dumped into the marketplace? I think not. Would it result in manufacturers being able to make sensible decisions in designing and manufacturing products without having to worry about the concept of “defensive design and manufacturing,” thus lowering costs? I think so. Would it result in fewer frivolous claims being filed and litigation costs being driven down substantially? I think so. Is this a bad thing? Absolutely not!

Let me hasten to say that I do not believe that manufacturers should be insulated from liability where they are negligent and/or grossly negligent in connection with the design or manufacture of products. If they are negligent and they cause harm, they should pay reasonable actual damages. If they are reckless and consciously indifferent in their conduct, they should be liable for reasonable punitive damages. However, should they be liable after having used all due and reasonable care in the design and manufacturing process simply because some paid expert somewhere says that he or she thinks the product is defective or unreasonably dangerous? It seems to me that the time for that cause of action has come and gone.

As society changes, laws which, when enacted, fulfilled a valid and societal purpose become unnecessary. It is no longer necessary for us to legislate the manufacture and use of buggy whips. Times change, and the need for laws change, as well. Has the time to do away with the concept of strict liability arrived? I think so.

Peppermint Pattie: with or without insect larvae? Which would you choose?

Hopefully your answer to that question was without; however, for one consumer in Tennessee, she was a little too late to make that choice. Recently, the United States District Court of Tennessee was asked to decide whether the manufacturer, distributor, and retailer of a peppermint pattie was liable to a consumer who bit into candy which was infested with insect larvae. Gentry v. The Hershey Co., No. 2:08-0123, 2010 WL 457538 (M.D. Tenn. Feb. 3, 2010).

While Kim Gentry was shopping at Petco Animal Supplies, Inc., she picked up a York Peppermint Pattie that was for sale and bit into it. I know what you are all thinking: Yes, it is another issue that candy is sold at Petco and that people eat it in the store. After Ms. Gentry discovered that there was larvae inside the candy, she was treated for food poisoning. Since the event, she had undergone psychological counseling. Gentry filed a lawsuit against the manufacturer, The Hershey Company; the distributor, Liberty Distribution, L.L.C.; and the retailer, Petco, for strict liability, breach of implied and express warranties, negligence, and negligence se.

All three defendants filed motions for summary judgment. The Court considered Hershey’s and Liberty’s motions together, finding in favor of Hershey and Liberty on all causes of action. The Court found no evidence that the candy was in a defective condition or unreasonably dangerous when in the possession of Hershey or Liberty, relying on the opinions of all the experts in the case, which found that the pattie was contaminated while in the possession and control of Petco. Petco did not submit an expert to the contrary. Further, the Court stated that Liberty could rely upon the closed container doctrine because it received the pattie in a sealed corrugated cardboard box, stored it in a temperature-controlled environment, and had no ability to inspect the patties.

On Petco’s motion for summary judgment, the Court agreed with Petco on Gentry’s negligence per se claim as Gentry did not point to any statutory provision other than those under the Federal Food, Drug, and Cosmetic Act and Tennessee Food, Drug, and Cosmetic Act, which have been held to have no private action attached. The Court also found that Petco was not liable for strict liability because the applicable statute in Tennessee only permits a strict liability action against a seller when the seller is also the manufacturer or when the manufacturer cannot be located or is insolvent.

On the other hand, the Court found that it would allow Gentry’s breach of implied warranty claim to go to the jury reasoning that even though Gentry bit into the candy before she purchased it and even though Petco was primarily a merchant of animal food, nevertheless there was a “sale” and Petco was a “merchant.” Accordingly, Gentry’s claim fell within the applicable warranty statute. Finally, the Court found that there was an issue of fact with respect to Petco’s use of the sealed container doctrine as a defense to Gentry’s negligence claim. The Court found that there was a question whether Petco had a reasonable opportunity to inspect the candy before it was consumed by Gentry as the doctrine is not intended to protect a “seller from all liability to the consumer when the seller causes or allows the product to become adulterated.”

This case again shows the importance of expert testimony, as the use of expert testimony was instrumental in absolving Hershey and Liberty from strict product liability. As a result of this decision, Ms. Gentry will be able to present her case on implied warranty and negligence to a jury.

Hoteliers ≠ "Suppliers"

Always be prepared for business travel, and expect the unexpected. Like many, I am a traveler that generally forgets to pack a needed item when I take a business trip. It’s usually something harmless like a toothbrush, toothpaste or portable thermal pots. When this happens, though, I’m always grateful for the complimentary toiletries the hotel keeps in its closet behind the front desk. During such wayward journeys, I often think of the hotel as a supplier of necessities. After reading the recent case of Hammond v. John Q. Hammons Hotels Mgmt., No. CIV-09-652-M, 2010 WL 302233 (W.D. Okla. Jan. 20, 2010), I will never think of a hotel as a “supplier” again.

In that case, the Plaintiff, an Oklahoma City dental hygienist, was traveling with her husband to Hot Springs, Arkansas. Id. at *1. As Mrs. Hammond was preparing to iron a wrinkled garment, she reached for the clothes iron. The court recounted what followed:

As Plaintiff slid the clothes iron’s plug into the socket in her hotel room, the plug exploded in her right hand and a ball of fire shot out from the wall. As a result of the explosion, plaintiff’s hand was charred and her hand and arm were electrocuted, causing neurological damage.


The plaintiff then brought a products liability action against the hotel company under a strict liability theory. Id. The parties agreed that Arkansas law should apply to determine whether the hotel could be held strictly liable. Id. On that point, the Arkansas code states that:

[a] supplier of a product is subject to liability in damages for harm to a person or to property if: (1) The supplier is engaged in the business of manufacturing, assembling, selling, leasing, or otherwise distributing the product; (2) The product was supplied by him or her in a defective condition that rendered it unreasonably dangerous; and (3) The defective condition was a proximate cause of the harm to a person or to property.

Ark.Code. Ann. § 4-86-102(a) (2009).

The hotel company contended that the plaintiff’s complaint failed to satisfy the second statutory element. That is, the hotel argued that it was not engaged in the business of manufacturing, assembling, selling, leasing, or otherwise distributing the clothes iron that was at issue in the case. The Arkansas Code defines the term “supplier” as follows:

(6)(A) “Supplier” means any individual or entity engaged in the business of selling a product, whether the sale is for resale or for use or

(B) “Supplier” includes a retailer, wholesaler, or distributor and also includes a lessor or bailor engaged in the business of
leasing or bailment of a product.

(C) “Supplier” shall not include any licensee, as the term is defined in § 17-42-103(10), who is providing only brokerage and sales services under a license;….

Ark.Code Ann. § 16-116-102(6) (2009).

In analyzing whether the hotel was a supplier under the statute, the court looked to the plain and ordinary meaning of the statutory term. Id. at *2. The court ultimately found that the hotel was not a supplier; its conclusion turned upon its finding that the hotel was not a wholesaler or supplier that sold chiefly to retailers and commercial users. Id. The court found that the hotel “…simply provide[s] amenities, including clothes irons, to their guests incident to the primary use of the hotel room.” Id.


The Hammond court’s analysis is sound. Hotels simply do not place incidental products such as clothes irons or toothpaste into the stream of commerce. It’s logical to conclude that they are not sellers or suppliers. As such, I really need to stop thinking of hotels as a supplier of my necessities or better yet, I need to start double-checking my luggage when I travel!


Are the Owners and Operators of a Parking Lot in the Business of Selling a Product Under Section 402A?

The Eastern District of Pennsylvania in Anastasio v. Kahn, No. 09-5213, 2010 WL 114879 (E.D. Pa. Jan. 13, 2010) [PDF] was recently asked to decide this question and held that owners and operators of property used as a parking lot were not sellers under Section 402A of the Second Restatement of Torts.

Plaintiff Theresa Anastasio exited an Acme supermarket on the sidewalk while operating a battery-powered scooter. The sidewalk and parking area were on the same level and there were “no marked crossings, crosswalks, skywalks, tunnels or any other sort of pathway, markings or stripings on the premises to mark off where a pedestrian . . . could go to be sure they were safe from motor traffic.” Id. at *1. As Anastasio was proceeding into the parking area, Defendant Harvey Kahn, Jr. struck her with his vehicle. As a result of this accident, Anastasio filed suit against Kahn, the supermarket, and the owners and operators of the parking lot asserting claims under both the Americans with Disabilities Act and state law strict liability.

The supermarket and the owners and operators of the parking lot moved to dismiss the strict liability claims, asserting that (1) the parking lot is not a “product” and (2) they are not “sellers” under Section 402A. The Court agreed and dismissed those claims. In so doing, the Court stated that this specific question had not been addressed by any Pennsylvania state court or the U.S. Court of Appeals for the Third Circuit. Therefore, the Court looked to interpretations of the word “seller” by Pennsylvania courts and found that, while interpreted broadly, it always involved the “transfer of possession of the subject product.” For instance, the Court cited to two decisions, one finding that United Airlines was not a seller because it was not in the business of transferring possession of an aircraft, and another finding that an amusement park was not a seller because it did not transfer control or possession of the park ride at issue.

Relying on this precedent and decisions from other jurisdictions, the Court found that since there was no transfer of a parking space, the supermarket and the owners and operators of the parking lot were not “sellers” and were not subject to strict liability under Section 402A. The Court also noted that this decision was in line with Pennsylvania law that strict liability principles are generally inapplicable to real property. Since the Court found that defendants were not “sellers” under Section 402A, it did not have to address defendants’ second argument that the parking lot was not a “product.”

This question had not previously been addressed in the Pennsylvania courts; it’s likely that it has not been addressed in many jurisdictions. Owners and operators of parking lots, or similar real property, that are faced with a strict liability claim should be aware of this argument and the precedent holding these persons and entities are not “sellers.”