Articles Posted in Products Liability

The Tennessee Court of Appeals recently affirmed a refusal to dismiss a products liability case under the doctrine of forum non conveniens in Pantuso v. Wright Medical Tech. Inc., No. W2014-02135-COA-R9-CV (Tenn. Ct. App. Aug. 31, 2015). Plaintiff in this case was a resident of Utah and had double hip replacement surgery in Utah. The replacement devices used in plaintiff were designed, manufactured and marketed by Wright Medical Technology, a Delaware corporation with its principal place of business in Memphis, Tennessee, who was registered to do business in both Tennessee and Utah. Wright Medical Technology was a wholly owned subsidiary of Wright Medical Group, a Delaware corporation with its principal place of business in Memphis, Tennessee, registered to do business in Tennessee. Both corporations were named as defendants.

According to the complaint, the device implanted into plaintiff was marketed as being suitable for patients with active lifestyles. Six years after the surgery, though, one of the replacement devices failed “suddenly and catastrophically” and had to be replaced. The other device made by Defendant remained in plaintiff, but he alleged that he had to modify his lifestyle based on the knowledge that it would not stand up to the active lifestyle it was marketed towards.

Plaintiff filed a product liability suit in Shelby County Circuit Court, and defendants filed a motion to dismiss pursuant to the doctrine of forum non conveniens. According to defendants, Utah was the proper forum because plaintiff had received all of his medical treatment there. Defendants argued that they would “be prejudiced by proceeding in Tennessee because it would have ‘no access to any third-party witness or any third-party documents because they were all in Utah[.]’” In addition, defendants asserted that Utah was more appropriate because Utah law applied in this case and because the Shelby County courts were already overburdened. In response, plaintiff asserted that Shelby County was a proper forum, as the “crux of his complaint concerned not the medical treatment he received [in Utah], but the decisions made by Wright Medical concerning the manufacture, design, and marketing of the Profemur hip device, all of which occurred at Wright Medical’s Memphis office.” Plaintiff urged that the witnesses relevant to the core issues of the case were located in Tennessee, that the medical providers located in Utah could submit testimony by deposition, and that one of the two defendants was not subject to personal jurisdiction in Utah.

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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.

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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

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. 

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. Petition.pdf

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.   

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.

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.

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

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