Articles Posted in Products Liability

A recent Court of Appeals case illustrates that trying to make a Tennessee product liability claim against a product that did not technically cause the injury can be quite difficult. In Long v. Quad Power Products, LLC, No. E2013-02708-COA-R3-CV (Tenn. Ct. App. March 20, 2015), plaintiff was injured while pressure testing a product at work. Plaintiff tried to turn a ball valve in the test, and when the valve would not turn he “used an extension or cheater bar to continue his attempt to relieve pressure.” A mechanism attached to the valve then broke, which caused extremely high-pressured water to hit plaintiff, injuring his left arm and shoulder. Plaintiff eventually had to have his left arm amputated. At the time of appeal, there was only one defendant remaining in the case: the distributor from whom plaintiff’s employer purchased the ball valve used in the testing system. According to this defendant, however, this ball valve would have only been in its possession for around 24 hours and was not “assembled, designed, manufactured, or altered” by defendant. After some procedural history, the case eventually boiled down to a strict liability failure to warn claim on which the trial court granted summary judgment to defendant, and the Court of Appeals affirmed.

When granting summary judgment for defendant, the trial court made certain relevant findings of fact: that the “failed component was not a part of the valve sold by defendant;” that the ball valve had actually been removed from service several days before the accident because it was difficult to use, but that in violation of the employer’s own safety rules it was later put into the test panel used by plaintiff; that a “simple inspection” by the employee who put the valve in the test panel would have showed that it was corroded; and that if the employer “had properly supported the valve in its test panel, the stress in the connected components would not have been sufficient to cause the connecting components to fracture.” In affirming summary judgment, the Court of Appeals relied on these facts and addressed four issues raised by plaintiff.

First, plaintiff argued that there should have been a warning regarding using the ball valve at a higher level of pressure than it was designed to withstand. To succeed on this claim, plaintiff would have to show that the “alleged failure to warn was both the cause in fact and proximate cause of…injury.” In other words, plaintiff “would first have to raise a genuine issue of material fact regarding whether ‘but for’ the lack of a warning from [defendant], [plaintiff’s] injury would not have happened.” As to this point, the Court pointed out that it was undisputed that the coupling attached to the ball valve, not the valve itself, broke and caused the injury. Accordingly, the Court affirmed the trial court’s finding that there was no genuine issue of material fact regarding whether the lack of warning about using higher pressure with the ball valve actually caused the injury.

Plaintiff’s second issue was that defendant should have warned about the danger of using the ball valve in a water system. Here, the alleged danger was that the valve would corrode and become hard to use. But the Court pointed out that, at the time of the injury, both the employer and plaintiff knew it was difficult to use—it had already been taken out of operation once and plaintiff was having difficulty getting the valve to operate. The Court of Appeals quoted the trial court’s finding that “a manufacturer or seller is not required to warn of a danger of which the user is or should be aware,” then held that plaintiff failed to present any genuine issue of material fact to counter proof that the employees “knew or should have known that the ball valve was difficult to open and close due to corrosion.”

The third issue raised by plaintiff was that the trial court improperly discounted plaintiff’s expert witness testimony. But the Court pointed out that while the expert opined about the types of warnings that should have been used, “he could not offer an expert opinion regarding what caused the reducing mechanism attached to the ball valve to break during [plaintiff’s] accident,” and thus failed to raise a genuine issue of material fact regarding the cause of the injury.

Finally, plaintiff alleged that the trial court improperly found the employer’s actions to be an intervening cause of injury. The Court held, though, that despite the fact that workers’ compensation law prohibits an employer from being the “legal cause” of an employee’s injury in a case like this, “such immunity does not, however, prevent the trial court from finding [employer’s] actions to be the cause in fact of [plaintiff’s] injury.” Here, the employer had been in possession of the ball valve for three years, employees of employer knew it was difficult to use, and it was attached to the testing system that broke by employees of employer. The Court thus held that the trial court rightly found plaintiff’s employer to be an intervening cause of injury in this case.

At its core, this case came down to the facts that 1) the ball valve being litigated about was not the component piece that actually broke, and 2) the ball valve had already been removed from use because it was difficult to use but then somehow made its way back into a testing panel.

Tough case.  Predictable result.

The Tennessee Court of Appeals recently upheld the constitutionality of both the ten-year statute of repose under the Tennessee Products Liability Act (“TPLA”) and the exceptions thereunder for asbestos and silicone gel breast implant claims. In Adams v. Air Liquide America, L.P., No. M2013-02607-COA-R3-CV (Tenn. Ct. App. Nov. 25, 2014), plaintiff filed a products liability claim related to injuries from silica exposure in his employment. Plaintiff was diagnosed with cancer in 2010, filed the claim in 2011, and it was undisputed that 1991 was the very latest time at which plaintiff could have first used or come into contact with defendants’ products. Defendants filed a motion for summary judgment on the grounds that the action was time-barred by the ten-year statute of repose found in Tenn. Code Ann. § 29-28-103(a), and the trial court granted the motion.

On appeal, plaintiff asserted that the statute of repose violated the Equal Protection Clause of the US Constitution and Section 8 of the Tennessee Constitution because it carved out exceptions for asbestos and silicone gel breast implant related injuries, but not silica-related claims. Plaintiff asserted that the classes of claims for which there are exceptions were similarly situated to silica-related claims because both have long latency periods. According to plaintiff, there was no rational basis for distinguishing between these claims.

This constitutional challenge was examined under the rational basis standard, meaning that “if any state of facts can reasonably be conceived to justify the classification or if the reasonableness of the class is fairly debatable, the statute must be upheld.” Adams (citing Harrison v. Schrader, 569 S.W.2d 822 (Tenn. 1978)). In affirming the trial court’s summary judgment decision, the Court noted that “the statute of repose and its exceptions have been upheld under similar equal protection challenges[,]” including other challenges related to injuries with long latency periods. The Court essentially just adopted the reasoning of the trial court, quoting its conclusions that

silica and asbestos claims are not similarly situated by injury or class, asbestos has been classified as a toxic substance, whereas silica has not, silica has no similarity to silicone gel breast implants, and if silica-related claims and asbestos-related claims were similarly situated, the Tennessee General Assembly had a rational basis to distinguish between the two…silicosis is by its nature an occupational disease, whereas asbestosis is not so limited given the fact that it historically has been found in homes, schools and the like, in addition to the workplace (internal quotations omitted).

This case is a reminder that the ten-year statute of repose for TPLA claims is strictly enforced in this state. Even for injuries that were not known about during that ten-year period, this statute can be fatal to claims against product manufacturers.

Recently, the Tennessee Court of Appeals reviewed the case of Lake v. The Memphis Landsmen in its third trip to the court. A number of issues were raised in the appeal, but by far the most interesting one concerned the plaintiffs’ contention that the trial court erred in including a non-party who plaintiffs previously settled with on the jury verdict form. The plaintiffs also contended that to the extent the non-party was properly included on the form, the trial court should have instructed the jury on the effect of allocating negligence to the non-party. Why is this issue important to the plaintiffs? Because the jury handed down an $8,543,530 verdict but attributed 100% fault to the non-party. 

This case concerned a wreck between a passenger bus and a concrete truck. The concrete truck took a left turn and struck the bus causing it to collide with a light pole and eject the plaintiff and resulting in a traumatic brain injury to the plaintiff. The plaintiffs settled with the concrete truck defendant before trial and then proceeded to trial against several other defendants on various theories of liability concerning the passenger bus.

In this appeal, the Court of Appeals first explained that Tennessee has a system of modified comparative fault, adopted by the Tennessee Supreme Court in 1992 in the landmark case of McIntyre v. Balentine, 833 S.W.2d 52,56 (Tenn. 1992). Under this system, fault is apportioned among all parties in proportion to their degree of culpability, and a defendant is only liable for the percentage of damages that his or her own negligence caused. In McIntyre, the court also adopted the non-party defense, allowing juries to apportion fault to non-parties with culpability. McIntyre, 833 S.W.2d at 58. 

The plaintiffs attempted to argue that the settling defendant should not have been included on the verdict form because the case involved two separate impacts – one between the concrete truck and the passenger bus, and one between the bus and the light pole. The plaintiffs contended that it was the second impact that proximately caused the plaintiff’s traumatic brain injury, not the impact between the concrete truck and the bus.   

The Court of Appeals explained the two kinds of causation that a plaintiff must prove in order to prevail on a negligence claim – cause in fact, or “but-for” causation, and proximate cause. As the court explained, “[c]ause in fact means that the injury would not have occurred ‘but-for’ the negligent conduct.” Proximate cause, on the other hand, concentrates on three factors:

(1) whether the tortious conduct was a substantial factor in bringing about the harm complained of; (2) whether there is some rule or policy that should relieve the wrongdoer of liability because of the manner in which the tortious act resulted in the harm; and (3) whether the harm could have been reasonably foreseen or anticipated by a person of ordinary intelligence and prudence. (citing Hale v. Ostrow, 166 S.W.3d 713, 719 (Tenn. 2005).

The Court of Appeals found that all three factors were met with regard to the concrete truck – it was a substantial factor in bringing about the plaintiff’s injuries, the plaintiffs did not cite any rule or policy to relieve the concrete truck of liability, and the plaintiff’s injuries were a reasonably foreseeable result of the concrete truck’s negligence. Thus, the court held that the concrete truck should have been included on the verdict form.

The court then turned to the plaintiffs’ argument that the trial court should have charged the jury about the effect of a finding of fault on the part of the concrete truck. Because the jury apportioned all of the fault to the concrete truck and since the plaintiffs had already settled with the concrete truck, the plaintiffs were unable to recover any of the awarded damages of more than $8.5 million.

The plaintiffs argued that McIntyre supports their position because in McIntyre the court states that “the trial court shall instruct the jury on the effect of the jury’s finding as to the percentage of negligence as between the plaintiff or plaintiffs and the defendant or defendants.” McIntyre, 833 S.W.2d at 57. However, the court disagrees finding that this language only provides that the jury should learn the effect of allocating fault between plaintiffs and defendants, not defendants and defendants. The court explains that if the jury were to know that a plaintiff could not recover the full award from one defendant, the jury might allocated more fault to another negligent actor. The Court of Appeals therefore found no error in the trial court’s decision not to instruct the jury on the effect of allocating fault to the concrete truck. 

My memory is that this is the first Tennessee Court of Appeals opinion on the issue of whether the jury should be instructed of the effect of finding of "0%" of fault.   The Tennessee Supreme Court will be asked to hear this case.

As predicted, New England Compounding Pharamcy, Inc., the owner of the New England Compounding Center (NECC), filed for bankruptcy last week.  NECC is the company that provided contaminated steriods that killed and hurt hundreds of people, including many in Tennessee and Kentucky.

Click the link to view NECC’s bankruptcy filing.

www.dayontorts.com/uploads/file/Bankruptcy Petition.pdf

The bankruptcy filing means that no further lawsuits can be filed against NECC at this time.  The filing lists claims that were filed as of the date of the bankruptcy.  However, the list is only a partial list of claims.  Many firms, including our firm, chose not to file lawsuits against NECC at this time, knowing that a bankruptcy filing would shut down litigation against the company pending further court order. 

The fungal meningitis outbreak will result in four different classes of those with claims for damages against those who are responsible for the harm:  (1)those who die; (2) those who contract the disease and are treated with no long-range effects; (3) those who contract the disease, are treated, but are left with long-range effects; and, (4) those who learn they were exposed to the contaminated product but never contracted the disease.  (Note:  I understand this is a simple breakdown and that in fact there will be several sub-groups within one or more of these groups.)

Do the people in the last grouping have a claim for damages under Tennessee law?  That is, if a person can prove that he or she was exposed to the contaminated product, knew of the exposure, experienced understandable emotional distress after he or she learned of the exposure, is there a claim for damages under Tennessee law?

I believe the answer to that question is "yes."  The case I turn to for support of this opinion is Carroll v. Sisters of St. Francis Health Services, Inc., 868 S.W.2d 585 (Tenn. 1993).  The issue in Carroll was whether a plaintiff may recover damages for negligent infliction of emotional distress, based on the fear of contracting the Acquired Immunodeficiency Syndrome (AIDS), without presenting evidence that he or she was actually exposed to the human immunodeficiency virus (HIV or the AIDS virus)  The Court answered this question "no" and dismissed the case.   

However, in reaching this result, the Court said as follows:

we hereby formally adopt the "actual exposure" approach [to imposing liability]. In order to recover emotional damages based on the fear of contracting AIDS, the plaintiff must prove, at a minimum, that he or she was actually exposed to HIV. And even assuming that the plaintiff was actually exposed to HIV, liability will attach only to the extent that the resulting emotional distress was within the range of that experienced by an ordinary, reasonable person under the circumstances. Moreover, any damages recoverable for emotional distress will be "confined to the time between discovery of the [exposure] and the negative medical diagnosis or other information that puts to rest the fear of injury."  [Citations omitted.]

I believe Carroll is still good law.  Thus,l I believe those people who can demonstrate they received contaminated epidural steroid injections (and perhaps other types of steroid injections as well, depending on how the facts develop) and who suffer emotional distress as a result will be able to recover damages for emotional distress from the time between the discovery of the exposure until the time he or she receives a negative medical diagnosis or other information that puts to rest the fear of contracting fungal meningitis.  There will be a big fight over whether expert proof of emotional distress will be required.

We still don’t know exactly how long people are at risk for contracting fungal meningitis after they are exposed to it.  The Centers for Disease Control says the exposure period is four weeks or longer.  In fact, the CDC recommends that anyone with symptoms linked to fungal meningitis in the "several months" following exposure should seek prompt medical attention even if they have been previously evaluated.  Here are the symptoms to be concerned about:

  • New or worsening headache
  • Fever
  • Sensitivity to light
  • Stiff neck
  • New weakness or numbness in any part of your body
  • Slurred speech
  • Increased pain, redness or swelling at your injection site

As I have said in other posts, most recently in this post called "Fungal Meningitis Outbreak: Lots Of Questions Remain," there is still a lot we do not know about all of the legal consequences of the fungal meningitis outbreak.  However, I believe Tennessee law will permit those exposed to contaminated steroids but avoided contracting fungal meningitis to be able to seek damages for emotional distress.  Of course, such people will still have to prove the liability of the product manufacturer or others involved.

 Other posts on the fungal meningitis outbreak:

Fungal Meningitis, Tort Reform, and Damages in Tennessee Personal Injury and Wrongful Death Cases

Who Has Legal Liability Arising From the Fungal Meningitis Outbreak?

 

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John Day and the other lawyers in his firm represent people who have been injured or lost a loved one due to the negligence of another person or company. John has been listed in Best Lawyers for 20 years, and has the highest legal rating a lawyer can earn by the legal rating services Martindale and AVVO.

An author of three books on personal injury and wrongful death law and over 50 articles for legal publications, John has given approximately 300 speeches to lawyers in over 15 states on personal injury, wrongful death, and related subjects. He represents people across Tennessee in personal injury, wrongful death, medical malpractice, products liability and other civil cases. To read what John’s clients have said about him and his law firm, click here.

If you believe that you or a loved one have contracted fungal meningitis from an epidural steroid injection, John will consult with you at no cost or obligation.  Call him at 615.742.4880 or tollf-ree at 866.812.8787. You may also fill out our Contact Form and we will call you.   Finally, we are always honored when a fellow lawyer asks us to work with him or her on a case, so please call if you would like to work with us.

The fungal meningitis outbreak continues to grow.  Five patients have died and over 40 other patients have contracted fungal meningitis, reportedly after each of them received the steroid  methylprednisolone acetate compounded by the New England Compounding Center ("NECC").  Each of the patients received the steroid as treatment for chronic back pain.

Allegedly, the steroid injections were contaminated with a fungus that led to meningitis, an infection of the lining of the brain and spinal cord. Fungal meningitis is very rare and presents a real risk of death to the patients who contract it.

Who has legal responsibility for this outbreak?  There is a substantial amount of investigation that must be done to fully answer that question.  The Centers for Disease Control is coordinating the multi-state investigation into the fungal meningitis outbreak and will help get to the bottom of the matter from a scientific standpoint.  At this point, the CDC has not definitively demonstrated that the steroid is the source of the infection and, while that level of certainty is not necessary from a legal standpoint (in Tennessee, a victim or a victim’s family would only have to prove that more likely than not the steroid was the source of the infection) the CDC’s work will undoubtedly be of assistance in this matter.

That being said, it is not too early to analyze what entities and persons may have legal responsibilities, depending on how the facts shake out.   So, with the understanding that there are many missing facts that will affect the ultimate answer of who bears legal responsibility here, lets get to work.

At the outset, legal responsibility may depend on which state’s law applies in any given case.  In a case filed in Tennessee, our choice of law rules would probably hold that Tennessee law applies to anyone who was injured or died from an epidural steroid injection that was administered in Tennessee.  This is not necessarily true in other states.

If Tennessee law applies and if the steroid is found to have been contaminated and the contamination occurred during the compounding process, the compounding pharmacy will face liability under Tennessee’s law of product liability.  Those who "compounds" products are manufacturers under Tennessee law.  T.C.A. Sec. 29-28-102(4), Tennessee law prohibits product manufacturers from selling products  that are defective or unreasonably dangerous.  A manufacturer that sells a product that is contaminated with a substance that can cause serious injury or death has sold a product that is both defective and unreasonably dangerous (although under Tennessee law only one of those need be proved).  

Thus, if the evidence demonstrates that NECC was the compounding pharmacy that put steroid products into the stream of commerce and that the steroid products were  contaminated a the time of compounding with a substance that could cause fungal meningitis NECC has potential liability under Tennessee product liability law.  Why does NECC have only potential liability?  Because the patient bringing a claim under Tennessee law also will have to prove that, more likely than not,  the steroid was  the source of his or her fungal meningitis. 

 

Does the health care facility where the injection of the steroid took place have any responsibility? Perhaps. If we assume that (a) it was legal for a Tennessee health care facility to purchase this product from this manufacturer; (b) the facility correctly stored the product; (c) there was nothing about the appearance of the steroid or its other qualities that would have put the health care provider on notice that it was contaminated or otherwise posed a risk to patients; (d) the facility administered the steroid with an appropriate technique, including achieving a sterile injection site; (e) the facility gave instructions to patients about the risks of steroid injections that were consistent with the applicable standard of care; (f) the facility appropriately followed up on post-injection complaints that turned out to be complaints of fungal meningitis; (g) the facility appropriately referred patients making these complaints to complaints to other health care providers; and (h) the facility did not continue to administer the steroids after it knew or reasonably should have known that they may have been contaminated, the health care facilities (and the individual providers) will not face liability under Tennessee’s health care liability law.

Of course, there are a lot of assumptions in that paragraph, and significant factual investigation will be required to flush out the responsibility, if any, of health care providers.

Health care facilities do face another liability risk in this matter. Under Tennessee law, these health care facilities are "sellers" of a product under Tennessee law.  T.C.A. Sec. 29-28-102(7). Under the new tort reform law that came into effect on October 1, 2011, a seller of a product is not liable for injuries caused because the product itself  was sold in a defective or unreasonably dangerous condition unless (a) the manufacturer of the product is not subject to service of process in Tennessee or (b) the manufacturer is or becomes insolvent.  To be precise on the latter point, the manufacturer has be "judicially declared insolvent."  T.C.A. Sec. 29-28-106.  Note:  there are a couple other ways that sellers can be liable under our product liability statute but none of them appear to be applicable to this situation – see 29-28-106. 

Obviously, a Massachusetts company that sells a product in Tennessee is subject to service of process in Tennessee, so Tennessee health care providers who sold this product have no risk under that provision of our product liability law. But health care providers face a real risk of seller liability under the "insolvency" section of the law, because it is very possible that NECC will have insufficient liability insurance or other assets to pay claims in this matter if it is determined to have created an unreasonably dangerous or defective product that has injured or killed over 40 people. I don’t have much information about NECC and quite frankly it doesn’t appear much is known about it, but (a) it has taken its website down; (b) it is not answering its phone; and (c) it has surrendered its license to the state authorities in Massachusetts. If I was advising the health care providers in Tennessee who purchased this subject, I would be advising them that a product liability claim was a real risk under the "manufacturer insolvency" exception.

Once again, I stress that this is a very preliminary assessment of the legal liability issues.  I can think of several other potential defendants here, but so little is known about the facts that I simply don’t feel comfortable writing about that at this time. 

The 7th Circuit Court of Appeals has upheld a plaintiff’s verdict in a products liability case notwithstanding the defendant’s assertion that the plaintiff’s expert should have been excluded under Daubert.

In Lapsley v. Xtech, Inc., No. 11-3313 (7th Cir. July 27, 2012) Industrial grease was propelled in a jet with enough energy to penetrate and pass through  the  human  body  like  a  bullet. That  jet hit and disabled plaintiff Leonard Lapsley.  The jury found that the accident occurred because defendant defectively designed the piece of equipment that propelled the grease.

Defendant challenged the admissibility of plaintiff’s expert witness, arguing that he lacked a scientific basis for his testimony.  The trial judge permitted the witness to testify, and the defendant challenged that ruling on appeal after a jury found it liable for Lapsley’s injuries.

The 7th Circuit Court of Appeals said this in affirming the trial court’s ruling:

 

We do not require experts to drop a proverbial apple each time they wish to use Newton’s gravitational constant in an equation. Similarly here, the  burden of proof at trial, and certainly the guideposts of reliability attached to the Daubert inquiry, did not require Dr. Hutter to try to recreate the binding up of a ten thousand pound spring to produce a potentially deadly jet of industrial grease. Xtek was free to raise the lack of physical tests of the accident with the jury, and to attack any aspect of  the mathematical model that was used in place of physical re-creations. The district court, however, did not abuse its discretion by allowing Dr. Hutter to testify to the results of his mathematical simulations.

 

There is more.  Here is what the court said on the issue of whether the expert was properly permitted to testify on the foreseeability of the event:

 

Unlike the opinions discussed above, no  one needs to understand physics to counter design evidence effectively or to criticize it  as dependent on hindsight bias. “Vigorous cross-examination, presentation of contrary evidence, and careful  instruction on the  burden of proof are the traditional and appropriate  means of attacking shaky  but admissible evidence.”  Daubert, 509 U.S. at 596. “These conventional devices, rather than wholesale exclusion  under an uncompromising "general acceptance’ test, are the appropriate safeguards where the  basis of scientific testimony  meets the standards of Rule 702.” Id.
And, in concluding the opinion, the court said this:
 
The accident that disabled Leonard Lapsley appears to  have  been unprecedented, and fortunately it has not been repeated with other millwrights. The uniqueness of an accident can weigh against jury  findings of foreseeability and lack of reasonable care  in design, but that is a matter for the jury to decide. The jury here accepted Dr. Hutter’s uncontradicted expert opinion that  a reasonable designer would have considered the danger of the powerful spring being bound up unexpectedly and releasing its energy so as to act like a ram on the grease in the spindle assembly. Rule 702 provides a test of reliability, not of ultimate merit. District courts  acting as gatekeepers of scientific, technical, or specialized knowledge evidence retain significant discretion  under the flexible  Daubert inquiry. The district court here did not misapply Daubert, and Xtek has identified no compelling reason to disturb the court’s exercise of its discretion.
This opinion is a great resource for plaintiff’s lawyers looking to admit expert testimony in cases involving one-of-a-kind incidents.  

 

I have a column that bears the same name as this blog that appears three times per year in the Tennessee Bar Journal. The January 2012 edition of the publication includes the column, this time titled “Retailers Escape Responsibility for Dangerous Foreign-Made Products.” 

The column addresses one provision of the poorly-named Tennessee Civil Justice Act of 2011 that limits the responsibility of those who sell unreasonably dangerous or defective products. The column is available at no charge by clicking on the link.

The Kentucky Court of Appeals has ordered in a trial in a products liability case against Nissan for failure to equip at 2002 vehicle to have a rear camera or back-up sensors.  

Sandra and Curtis Messerly  alleged that the failure of their 2002 Xterra to have either device caused the death of their 19-month old son, who was killed when his mother backed-up the vehicle.

Plaintiffs sued Nissan alleging that the 2002 Xterra was defective and negligently designed because it was not equipped with a rearview camera or back-up sensors.  Nissan moved for summary judgment on the ground that the 2002 Xterra was not defective or unreasonably dangerous as a matter of law.  Nissan argued that the risk of striking children while backing a vehicle is an obvious, well-understood risk of operating any passenger vehicle and
is inseparable from the product’s inherent characteristics. 
 
The Appellants presented the trial court with evidence that back-up technology, such as sensors and rearview video systems, exists and that Nissan had been developing the technology for years, as demonstrated by Nissan’s press releases related to concept cars.  Nissan had equipped some of their Japanese models prior to 2002 with back-up aids.
 
 
Nissan also argued that
 
the Appellants’ evidence was concentrated in two areas: showing that advanced back-up aids were used in some Nissan vehicles marketed outside the United States and statistics showing the number of injuries in backing collisions.  Nissan contended that the evidence offered by the Appellants did not raise an issue of material fact because Nissan’s motion for summary judgment did not question the feasibility of back-up aids and that the evidence of backing injuries only served to confirm that the risk was obvious and well understood by consumers.  Moreover, the Appellants did not have an expert that would opine that a reasonable manufacturer would have employed the back-up aids in 2002, or that Nissan had violated an industry or governmental standard by not putting back-up aids on the 2002 Xterra. 
 
The trial judge granted Nissan summary judgment.  The Plaintiffs raised the following arguments on appeal:
 
 (1) a genuine issue of material fact exists as to whether the design of the Nissan Xterra was unreasonably dangerous and that the trial court erred when it ruled that Nissan was entitled to judgment as a matter of law; (2) Texas federal courts have allowed two similar wrongful death backover cases to be tried by a jury, despite a Texas statute that creates a presumption of non-defectiveness where a vehicle meets government safety standards; and (3) the reasoning of the trial judge in deciding to grant summary judgment in favor of the defendants was inappropriate because the video recordings of court hearings show that the judge made factual findings that were not based on any evidence in the record, that the judge conducted an independent investigation of the blind zone on his own vehicle, and ignored Kentucky law on summary judgment.
The Court of Appeals ruled that a question of fact was present and remanded the case for a trial by jury.  
 
The case is Messerly v. Nissan North America, No. 2010-CA-000717-M  (KY Ct. App.  Dec. 2, 2011).
 
My guess is that the Kentucky Supreme Court will take a look at this case.
 

Two plaintiffs lost products liability cases against Louisville Ladder.  

In Bielskis v. Louisville Ladder, Inc.,  No 10-1194 (7th Cir. Nov. 18, 2011) the appellate court upheld the disqualification of plaintiff’s liability expert, Neil J. Mizen.   Bielskis was injured while using Louisville Ladder mini-scaffold (model number SM 1404) and alleged a defect to a rolling castor on the device.

The trial judge refused to permit Mizen to testify after a Daubert challenge from the defense and granted summary judgment for the defendant.  The Seventh Circuit affirmed, and said that without expert testimony, Plaintiff, who

owned the scaffold for seven years at the time of the accident, and [ ] advanced no particular evidence about  its  condition when  it  was  received  from  the manufacturer. Thus , Bielskis    has   not   marshaled  sufficient evidence  that   the   mini-scaffold was defective at   the time it left Louisville Ladder’s control. Without evidence that  the mini-scaffold was defective at  the outset or  that it   was  free  in  the 7-year  interim period  from any abnormal use, Bielskis needs more than the  failure  of the caster stem to prove his case.   And with no  expert testimony, he lacks evidence to support  his product liability  allegations  of  strict liability  and negligence.
[Citation omitted.]   
 
The second victory for Louisville Ladder came from the Eleventh Circuit Court of Appeals in Cannioto v. Louisville Ladder, Inc., No. 11-12885 (Nov. 18, 2011).  Once again, the plaintiffs’ expert, Charles E. Benedict, Ph.D, was excluded as a witness.
 
November 18, 2011 was a very good day for Louisville Ladder.