|
RECENT DEVELOPMENTS IN PRODUCTS LIABILITY
December 10, 1999 Toby D. Brown Cunningham, Bounds, Yance, Crowder & Brown, L.L.C.
INDEX
RECENT DEVELOPMENTS IN PRODUCTS LIABILITY Numerous opinions have refined Alabama law in the area of products liability over the past year. The more important opinions are summarized below. Southern Energy Homes, Inc. v. Lee, 732 So. 2d 994 (Ala. 1999) (J. Almon; JJ. Shores, Kennedy, and Cook concur; J. Houston concurs specially; C.J. Hooper and JJ. Maddox, See, and Lyons dissent.) The Court held that the Magnuson-Moss Act, 15 U.S.C. §1501 et seq., bars the inclusion of a binding arbitration agreement in a written warranty on a consumer product. The Court followed the FTC and several cases from the Middle District of Alabama in this holding. The opinion distinguishes U.S. Supreme Court cases holding that claims under the Securities Acts, the Sherman Act, RICO, and the Age Discrimination in Employment Act are not excepted from the Federal Arbitration Act. In four consolidated appeals, the Court affirmed the circuit courts' denials of arbitration motions filed by Southern Energy Homes, a mobile home manufacturer, based on the arbitration clause in its warranty. RULE: Because the Magnuson-Moss Act precludes arbitration clauses in consumer warranties, such an arbitration clause is void. A manufacturer therefore cannot rely on an arbitration clause in a consumer warranty to seek arbitration of an AEMLD claim, or any other claim. Cassidy v. Wyeth-Ayerst Labs Div. of Am. Home Prod. Corp., 42 F.Supp.2d 1260 (M.D.Ala. 1999) (J. Thompson) A valuable opinion from Judge Myron Thompson which reviews a district court's discretionary abstention in an action arising under or related to a bankruptcy proceeding. Cassidy was a user of the prescription anti-obesity drugs Fenfluramine, Dexfenfluramine and Phentermin who brought a state court product liability action against the manufacturer and distributor of the drugs. When the manufacturer subsequently initiated bankruptcy proceedings in federal court, the distributor removed the products liability action to federal court on the basis that it was "related to" the manufacturer's bankruptcy. Noting the distinction between "mandatory abstention" (under § 1334(c)(2)) and "discretionary abstention" (under § 1334(c)(1)), Judge Thompson concluded that state-law issues predominated over bankruptcy, especially since the case involved a significant number of non-debtor parties and there "is no evidence that abstention would have an adverse effect on the efficient administration of the bankruptcy estate." Id. at 1264. Significantly, in dictum, Judge Thompson also observed that the distributor's removal of the action to federal court on the alleged basis of its relatedness to the bankruptcy proceedings was pretextual in that it was a "fraud" intended to allow the case to be transferred to multi-district litigation pending in Pennsylvania. Id. Judge Thompson simply refused to condone this improper manipulation of federal jurisdiction. Dillard v. Pittway Corp., 719 So.2d 188 (Ala. 1998) (J. Kennedy; C.J. Hooper and JJ. Almon, Shores, Cook and Lyons concur. JJ. Maddox and See dissent.) A boarding home purchased and properly installed Pittway smoke detectors to protect boarding home residents in case of fire. A fire started in the boarding home in the early morning hours, but the smoke alarms did not sound until after the boarding home owner realized the home was on fire and began trying to wake up the residents. The Plaintiff, Phillip Dillard, who lived approximately one block from the home, ran to help. He rescued one of the boarders then attempted to save his father, who was a boarder in the home. A portion of the roof fell in, injuring Dillard and killing his father. Among the litigation that ensued, Phillip Dillard sued Gadsden Fire (the company that selected and installed the Pittway Smoke Alarms) and Pittway, the manufacturer, based on the AEMLD. Pittway and Gadsden Fire conceded the existence of a question of fact as to whether there had been a defect in the smoke detector; however, they moved for and were granted summary judgment as to Dillard's personal injury claim. Pittway argued that Phillip Dillard was not the ultimate user or consumer of the smoke detector and that it therefore owed no duty to him. The Court held that it is reasonably foreseeable that a smoke detector's failure to timely sound would result in injuries and that a rescuer may sue under the AEMLD. The Court reasoned that, under the "Danger Invites Rescue" doctrine, one who attempts to rescue another who has been placed in peril by the defendant, stands, for the purposes of determining causation, in the position of the person being rescued. The rescue doctrine provides that it is always foreseeable that someone may attempt to rescue a person who has been placed in a dangerous position and that the rescuer may incur injuries in doing so. Thus, if the defendant has acted negligently toward the person being rescued, he has acted negligently toward the rescuer. RULE: The Court noted that Alabama has adopted the rescue doctrine as a bar to the affirmative defenses of contributory negligence and assumption of the risk. Neither contributory negligence nor assumption of the risk is charged to him who comes to the rescue of others in peril without their fault unless the act of the rescuer is manifestly rash and reckless to a man of ordinary prudence acting in emergency. In other words, unless the rescuer's own conduct in attempting to rescue is wanton, then the rescuer may recover from the negligent defendant. NEW RULE: The Court then adopted the law of other jurisdictions which allows the rescuer to sue the defendant under a product liability theory if the defendant's product had put the person being rescued in danger. Thus, the Court reversed the summary judgment. Culpepper v. Weihrauch K.G., 991 F.Supp. 1397 (N.D. Ala. 1997) (J. Thompson) Plaintiff accidentally dropped her safetied gun while carrying groceries into her home and the gun fired, injuring her. Plaintiff sued the manufacturer of the handgun under AEMLD. The crux of plaintiff's claim was that the hammerblock safety, a device on the gun which prevents "drop fire" accidents such as the one plaintiff suffered, was improperly designed and manufactured. The defendants argued that plaintiff's failure to use due care in handling the gun was evidence of contributory negligence. Plaintiff moved for summary judgment on the manufacturer's contributory negligence defense, arguing that, in an AEMLD action involving a safety feature of a product, the only basis for a finding of contributory negligence is the plaintiff's mishandling of the safety feature, rather than the product as a whole. The district court held that: (1) the contributory negligence defense could be asserted only as to misuse of the hammerblock safety on the gun, and (2) as so circumscribed, manufacturer failed to establish contributory negligence. The Court held that while the defendant provided evidence of the plaintiff's negligence of handling the hand gun, the defendant did not provide any evidence to support a finding of contributory negligence in plaintiff's use of the hammerblock safety in particular. The product at issue was the hammerblock safety, not the gun as a whole, so the Court granted plaintiff's motion for summary judgment on the contributory negligence defense. RULE: Contributory negligence can be used as a defense to an AEMLD action only under certain circumstances, such as "plaintiff's misuse of the product." Dennis v. American Honda Motor Co., 585 So.2d 1336, 1339 (Ala. 1991). White Consolidated Industries, Inc. v. Wilkerson, 737 So. 2d 447 (Ala. 1999) (J. Maddox, with C.J. Hooper and JJ. Houston, See, and Brown concurring; J. Lyons concurs specially; and J. Johnstone dissents) Plaintiffs' home and all their possessions were destroyed by a fire caused by a faulty wire in a window air conditioner manufactured by defendants. The Court holds that they are not entitled to recover mental anguish damages because they were not at home when the fire occurred. RULE: One who does not suffer physical injury and is outside the zone of danger created by an unsafe product cannot recover mental anguish damages. Ex Parte Chevron Chemical Co., 720 So.2d 922 (Ala. 1998) (J. See; C.J. Hooper and JJ. Maddox, Shores, Houston, Cook and Lyons concur. J. Almon concurs in the result. J. Kennedy dissents.) Gas company employees brought products liability action against manufacturer of plastic pipes for injuries sustained when pipes they were installing exploded due to a build up of static electricity. The trial court granted summary judgment for the manufacturer. The employees appealed. The Court of Civil Appeals reversed, but the Supreme Court reversed the Court of Civil Appeals and rendered a judgment for Chevron. It is undisputed that the explosion was caused by a build-up of static electricity in the new plastic pipes that the plaintiffs were installing; that utilizing certain safety precautions would have prevented the explosion; and that plaintiffs did not utilize these precautions. Plaintiffs alleged that Chevron was liable under the AEMLD for failing to adequately warn of the dangers involved in purging the pipes. Although Chevron argues that the dangers of explosions caused by static electricity is well known in the industry, the plaintiffs contend they were unaware of the danger. There was no warning on the pipe itself. The Court held that the undisputed evidence showed an industry-wide knowledge of the risk of explosion due to static electricity build up and the need to ground the plastic pipe with wet rags during the purging process. Therefore, the Court reversed the Court of Civil Appeals and rendered a judgment for Chevron. RULE: A manufacturer does not have the duty to provide a warning of the danger of which the user already was or had reason to be aware. Entrekin v. Atlantic Richfield Co., 519 So.2d at 450 (Ala. 1987). Toole v. Brown & Williamson Tobacco Corp., 980 F.Supp. 419 (N.D. Ala. 1997) (J. Nelson) Smoker who used loose tobacco (i.e., used by persons who roll their own cigarettes) sued manufacturer of tobacco and manufacturer moved to dismiss. The district court held that: (1) loose tobacco product was not a "cigarette" for purposes of federal cigarette Labeling and Advertising Act; and (2) Act did not preempt state law failure to warn claims; but (3) product was not "unreasonably dangerous" under the AEMLD, so that recovery for failure to warn was barred. Toole claimed that Brown & Williamson failed to warn him of the dangers associated with the use of its tobacco product. The defendant argued that such a claim should be dismissed because the AEMLD does not impose a duty to warn of risks associated with tobacco use since any such risks are commonly known. RULE: The article sold must be dangerous to an extent beyond that which would be contemplated by the ordinary consumer who purchased it with the ordinary knowledge common to the community as to its characteristics. Casrell v. Altec Indus., Inc., 335 So.2d 128, 133 (Ala. 1976). The Court held that the dangers associated with the use of tobacco products were obvious to consumers and thereby dismissed the plaintiff's product liability claims. Ex parte Diversey Corp., [Ms. 1971523, June 25] ___ So. 2d ___ (Ala. 1999) (J. Lyons; C.J. Hooper and JJ. Maddox, Houston, Cook, See, Brown, and Johnstone concur) Plaintiff suffered respiratory and other injuries while working at a commercial laundry. she alleged that her injuries were caused by exposure to chemicals manufactured by Diversey Corporation. Her expert testified that "any or all" of the chemicals to which she was exposed could have caused her injuries. Diversey manufactured all of the chemicals except one. Because, under the expert's testimony, that one chemical could have caused her injuries, the expert's testimony did not have "selective application" to the allegations against Diversey and left it to "conjecture" whether Diversey's products caused her injuries. The Court of Civil Appeals had reversed a summary judgment for Diversey, but the Supreme Court reversed the judgment of the Court of Civil Appeals for the summary judgment to be reinstated. The defendant and supporting amici also argued for the adoption of the Daubert/Kumho Tire standards for admission of expert testimony, but the Court held that the defendant had not moved to strike plaintiff's expert testimony and so the issue was not presented. RULE: If evidence is "without selective application" to the plaintiff's theory of liability, but leaves defendant's liability to "conjecture," the evidence does not support a finding of fact. Browder v. General Motors Corp., 5 F.Supp. 2d 1267 (N.D. Ala. 1998) (J. DeMent) Passenger brought products liability action against motor vehicle manufacturer arising out of rollover accident in which passenger was ejected from vehicle. Manufacturer moved to strike and for summary judgment, and passenger moved for leave to amend allegations that the component parts of the vehicle were defective. The Court held that: (1) passenger was not entitled to proceed on previously undisclosed theories of defect on ground that manufacturer allegedly concealed pre-repair photographs of the vehicle; and (2) evidence did not support theories of defect. The Court found that the design, manufacture, implementation and use of seat belt anchorage points, door latches, window glazing and reclining seat backs are complex and technical matters and that a lay juror is unlikely to be able to determine whether they were defective without the aid of expert testimony. RULE 1: Under the AEMLD, a defect in the product must be affirmatively shown. Townsend v. General Motors Corp., 642 So.2d 411, 415 (Ala. 1994). When the product in question is of a complex and technical nature such that a lay juror could not, in the absence of expert testimony, infer that a defective condition of the product caused the product's failure and caused the resulting injury to the plaintiff, expert testimony is a necessary component of the plaintiff's case. Townsend, 642 So.2d at 415. RULE 2: Basing an "expert" opinion on facts not in evidence is not helpful to the trier of fact in understanding the evidence for determining a fact in issue. See Fed. R. Evid. 702. An expert's testimony must be based on "facts which enable him to express a reasonably accurate conclusion as opposed to conjecture or speculation." Jones, 861 F.2d at 662. Without an underlying basis of support, the "expert's" opinion is only one of many possible theories and interpretations of the facts at issue, and is no more or less helpful than the trier of facts own reading of the evidence. Plaintiff's expert's testimony was based on the possibility that the plaintiff's seat back was reclined at the time of the wreck. However, plaintiff presented no evidence whatsoever that the seat back was, in fact, reclined. Therefore, the Court granted summary judgment for defendants. Allstate Ins. Co. v. Mitsubishi Electronics America, Inc., 709 So.2d 1306 (Ala.Civ.App. 1998) (J. Holmes; JJ. Robertson, Yates, Crawley and Thompson concur. J. Monroe concurs in the result.) After home was destroyed by fire, homeowners and their insurer sued television manufacturer, alleging that fire was caused by electrical malfunction in power cord of television they purchased six months before the fire. Insurer sought subrogation of amount it paid homeowners, and homeowners asserted claim under the AEMLD. Trial court granted summary judgment for the manufacturer. The Court of Civil Appeals held that the testimony of the plaintiff's expert was insufficient to show that the television was in a defective condition when it left the manufacturer's control. Plaintiff's expert testified that there was some kind of electrical malfunction in the television's electrical cord, and that he suspected that the malfunction was caused by an injury to the cord. The expert could not state how or when the injury to the cord occurred. RULE: Without evidence to support the conclusion that the product was defective and/or unreasonably dangerous when it left the hands of the seller, the plaintiff's burden is not sustained. Jordan v. General Motors Corp., 581 So.2d 835, 837 (Ala. 1991). The Court held that the plaintiff offered no such evidence beyond mere speculation and, therefore, affirmed the trial court's grant of summary judgment. Howell v. Honda Motor Co., Ltd., 716 So.2d 713 (Ala.Civ.App. 1998) (J. Monroe; JJ. Yates and Crawley concur. JJ. Robertson and Thompson concur in the result.) Daughter (14 years old), by and through her mother, and mother, individually, sued Honda under the AEMLD claiming that Honda had produced a defective or unreasonably dangerous motor scooter (because of insufficient side lights or reflectors), that it had failed to warn of the defect or danger, and that these failures were the proximate cause of daughter's motor scooter accident. The trial court entered summary judgment in favor of Honda and the plaintiffs appealed. Plaintiffs presented testimony of an expert in "human performance, vision and visual perception" who held the opinion that the accident occurred because there were no markings, lights or other details on the side of the motor scooter that would provide enough illumination to allow the motor scooter to be seen at night. Further, plaintiffs' expert stated that the headlight was small and did not project enough illumination to be seen by a vehicle coming at a right angle. The Court of Civil Appeals held that the plaintiffs had provided substantial evidence of the defect and reversed the summary judgment. Moore v. Kawasaki Motors Corp., USA, 703 So.2d 990 (Ala.Civ.App. 1997) (J. Holmes; all other Judges concur.) (cert. den., 703 So.2d 994 (Ala. 1997)) Nine-year-old all terrain vehicle (ATV) operator and his father brought products liability action against ATV's manufacturer and retailer for injuries sustained when ATV hit a telephone pole. The trial court granted summary judgment for defendants. Plaintiffs appealed. Plaintiffs sought to prove, through the expert testimony of an accident reconstructionist, that the ATV began "plowing" as plaintiff drove it off road and that plaintiff, because of his age and small stature, was unable to turn the ATV to avoid hitting the pole. The defendants moved for summary judgment and the trial court held that the plaintiffs' expert testimony was unverifiable speculation that was not of assistance to the trier of fact and, thus, was inadmissible as a matter of law. Summary judgment was granted because plaintiffs failed to produce substantial evidence on the element of proximate causation. The Court of Civil Appeals noted, however, that plaintiffs' expert's opinion, viewed as a whole, suggests that "plowing" may have been the most likely cause of plaintiff's accident. The court concluded that, while there is an element of speculation in plaintiff's theory of how the accident occurred, one could conclude that the "plowing" theory was a more probable theory than the explanations offered by defendants. Plaintiffs also offered expert testimony that the ATV was unreasonably dangerous, and that defendants represented the ATV as being safe for children. Thus, the Court of Civil Appeals reversed the summary judgment, holding that plaintiffs had provided substantial evidence, creating a genuine issue of material fact from which a jury could infer that the ATV's "plowing" propensity was the cause, in fact, of plaintiff's accident. The court noted that "while any assessment or reconstruction of what caused plaintiff's accident is necessarily speculative, that alone does not entitle defendants to a summary judgment." RULE: If a manufacturer or seller places goods on the market which are imminently dangerous when put to their intended purpose and the defendant knows, or should know, that the goods are dangerous when used in their customary manner, defendants must exercise reasonable diligence to make such dangers known to the public likely to be injured by the product. Cazalas v. Jons-Manville Sales Corp., 435 So.2d 55, 58 (Ala. 1983). Furthermore, if a product is unreasonably dangerous, it is necessarily defective, and the consumer should not be required to prove defectiveness as a separate matter. Casrell v. Altec Indus., Inc., 335 So.2d 128, 131 (Ala. 1976). The question of whether a product is unreasonably dangerous is for the trier of fact just as the question of negligence is. Yamaha Motor Co. v. Thornton, 579 So.2d 619, 621 (Ala. 1991). Britt v. Chrysler Corp., 699 So.2d 179 (Ala.Civ.App. 1997) (J. Wright; all other Judges concur.) Motorist injured in an automobile accident brought products liability action against the manufacturer and seller of the automobile alleging that the automobile's air bag system was defective. The trial court granted summary judgment, and plaintiff appealed. The court held that: (1) air bag system was a type of complex and technical commodity requiring expert testimony to prove alleged defect under the AEMLD, and (2) motorist's proffered witness was not qualified to testify as an expert. Plaintiff only offered an expert who owned and operated an automotive body shop. This expert admitted that he was not an air bag expert and could not say what went wrong with the air bag or why it didn't go off. The court thus concluded that the plaintiff failed to produce expert testimony to prove the alleged defect in the air bag system and, accordingly, concluded that defendants were entitled to a judgment as a matter of law. RULE: A complex and technical commodity requires expert testimony to prove an alleged defect. Brooks v. Colonial Chevrolet Buick, Inc., 579 So.2d 1328, 1333 (Ala. 1991). Goodlin v. Medtronic, Inc., 167 F.3d 1367 (11th Cir. 1999) (Kravitch, Sr. Cir. J.; JJ. Tjoflat and Edmonson concur.) Cardiac pacemaker recipient sued manufacturer, alleging Florida common law claims of negligent design and strict product liability regarding a defective pacemaker lead. Manufacturer moved for summary judgment based on preemptive effect of the Medical Device Amendments (MDA), esp. 21 U.S.C. § 360k(a). Defendant contended that premarket approval (PMA) of the product met the preemption test of § 360k(a). The district court agreed and entered a summary judgment. The Eleventh Circuit reversed, holding that premarket approval under the MDA does not preempt a state tort action. This opinion is significant especially as to medical devices, but also as to preemption analysis generally. The Eleventh Circuit distinguished Medtronic, Inc. v. Lohr, 518 U.S. 470 (1996), as involving a different portion of the MDA that, unlike the PMA process, did not concern the safety and effectiveness of medical devices. Nevertheless, Lohr established a test for § 360k(a) preemption, requiring: (1) the imposition of a specific federal requirement that (2) applied to a particular device and (3) focused on the safety and effectiveness of the device. 167 F.3d at 1372. Goodlin cites the FDA's preemption regulation at 21 C.F.R. § 808.1(d) as consistent with the Lohr test. Lohr was decided on the third element, but since the PMA process meets that test, the Goodlin court addressed the first two elements. Goodlin holds that premarket approval does not impose a specific federal requirement. The Court places the burden on the defendant to "identify a specific federal requirement imposed on its particular device that would preempt any conflicting or additional state requirement inherent in a jury verdict" in a plaintiff's favor. 167 F.3d at 1372. The court holds that a § 360k(a) preempting requirement must be "some identifiable precondition that applies to the device in question," id., at 1374, and that "neither the FDA's actual review of a device nor the agency's eventual approval of the device imposes any ascertainable requirement upon the device." Id., at 1375. In short, the FDA's PMA of a product does not impose a federal requirement with which a verdict would conflict. In its footnote 16, the Goodlin court says that Lohr called into question the holdings of Slater v. Optical Radiation Corp., 961 F.2d 1330 (7th Cir. 1992) and Duncan v. Iolab Corp., 12 F.3d 194 (11th Cir. 1994), both of which involved the Investigational Device Exemption of the MDA. Goodlin says that the "implied requirement" analysis of Slater and Duncan is "at odds with our analysis today." 167 F.3d at 1376. Goodlin also analyzes Congressional intent, but holds that the legislative history does not support a conclusion that Congress intended to preempt state tort liability. It cites the failed Universal Tobacco Settlement Act as an example of express, hard-bargained preemption, which it contrasts with the silence of the MDA on the subject. RULE: Premarket approval of a medical device by the FDA does not bar a state product liability action based on a defect in the device. More generally, "deference to state sovereignty ... requires an assumption that Congress will not supersede 'the historic police powers' of the states by federal statutes without making that purpose 'clear and manifest.'" 167 F.3d at 1371, quoting Lohr, 116 S.Ct. at 2250. Without a clear expression in the legislation or its history that Congress deliberately preempted state police powers as reflected in the law of torts, a federal statute should not preempt state tort liability. Watkins v. Ford Motor Co., 190 F.3d 1213 (11th Cir. 1999) (Fay, Sr. Cir. J.; J. Cox and Sr. Dist. J. Nangle (E.D. Mo.) concur.) This is a rollover case involving a 1986 Ford Bronco II. The principal issue is whether the Georgia statute of repose bars the design defect claim, or whether an exception for willful, reckless, or wanton disregard for life or property prevents the statute of repose from acting as a bar. The Eleventh Circuit reverses a summary judgment for Ford, holding that Ford's knowledge of stability problems provides evidence of wanton disregard. The court says "making profit a priority over the safety of consumers ... has supported findings of reckless disregard for property or life." 190 F.3d at 1217, citing Georgia cases on punitive damages, which the Eleventh Circuit finds "instructive" because of "the similarity between the two standards." Id., fn. 2. Alabama's standards are also similar, so Watkins and the cited Georgia cases might be persuasive authority here. The Eleventh Circuit rejects an argument that a finding of willful or wanton disregard is barred by the failure of the National Highway Traffic Safety Administration, after a safety investigation, to recommend a minimum stability standard. The NHTSA "decision was based on a variety of factors" and so does not preclude a reasonable juror from finding that Ford acted with willful or wanton disregard. 190 F.3d at 1218. The court also reverses a summary judgment on the merits of Watkins's failure to warn claim, which was not subject to the statute of repose. Plaintiff's expert had testified that, once a person chooses to drive a Bronco II, no warning could guard against the dangers of rollover. However, the court held that the law does not require a warning to prevent an accident. Rather, the warning must "inform the consumer of the nature and existence of the hazard, allowing him to make an informed decision whether to take on the risks warned of." 190 F.2d at 1220. Also, a warning that was equivalent to those on other SUV's was not adequate for the Bronco II because of its greater propensity to roll over. RULE: 1. Putting profit over safety supports a finding of willfulness or wantonness. 2. A failure by an agency such as NHTSA to adopt a minimum standard for the safety feature in question does not bar a finding that the manufacturer was willful or wanton in failing to increase the safety of its product regarding that feature. 3. "What may be an adequate warning for one product is not necessarily adequate for the next." 190 F.3d at 1220. Lindsey v. Navistar Internat'l Trans. Co., 150 F.3d 13o7 (11th Cir. 1998) (J. Marcus; J. Dubina and Sr. Dist. J. Propst (N.D. Ala.) concur.) The representative of a decedent whose car was struck by a jackknifing tractor-trailer truck sued the tractor manufacturer, alleging design defects in the tractor brakes. When a trailer is empty or lightly loaded, the rear brakes of the tractor will lock and cause jacknifing unless the force of the rear brakes can be limited to compensate for the light load. The district court submitted the case to the jury on a theory that the absence of a manual limiting device for the rear brakes constituted a design defect, although that theory was not specifically pleaded. The Eleventh Circuit affirmed a judgment for the plaintiff, holding that pretrial contentions that the tractor was defective in failing to provide for proper brake balance put the defendant on notice that the plaintiff was proceeding on a theory that would include the claim based on the absence of a manual limiting device. The court rejected an argument that NHTSA regulations prohibited tractor-trailer makers from installing manual limiting devices. For example, the applicable regulations provided that all brakes "must at all times be capable of operating." The court held that this did not require that the brakes be capable of operating at full strength, and that "a tractor- trailer's braking system is 'capable of operating' more effectively when the manual limiting device is properly employed." 150 F.3d at 1316. The court further analyzed the regulations and rejected other arguments for preemption. Navistar also rejects proximate cause arguments based on a supposed absence of proof that the driver would have used the manual limiting device if it had been installed. This part of the opinion includes a discussion of forklift cases, some holding that the absence of seat belts was not a proximate cause because of evidence that the operators would not have used them, but other cases holding to the contrary. After citing an example of the latter class of cases, the court said: "Thus, contrary to Navistar's implication, courts have found that the absence of optional use devices, like the manual limiting valve at issue here, can constitute proximate cause of injuries, even in the absence of testimony that the device would have been employed." 150 F.3d at 1318. RULE: 1. A general theory of liability can support a recovery under a more particularized specific version of that theory. 2. Safety regulations that do not specifically prohibit the type of device at issue do not preempt a claim alleging failure to provide such a device. 3. A failure to include an optional use device may be the proximate cause of an injury even without proof that the operator would have used the optional use device. Campbell v. General Motors Corp., 19 F.Supp.2d 1260 (N.D.Ala. 1998) (J. Nelson) Class plaintiffs contended that fuel injector pumps in certain diesel-powered General Motors vehicles were defective. The case was removed to federal court upon allegations of diversity jurisdiction and federal question jurisdiction through preemption by the National Traffic and Motor Vehicle Safety Act, 49 U.S.C. § 30101 et seq. Judge Nelson remanded the case to state court upon concluding that there was no diversity or federal question jurisdiction. The basis for his decision of no diversity jurisdiction was that the class plaintiffs' claims could not be aggregated to meet or exceed the minimal jurisdictional amount ($75,000). The court also rejected General Motors' argument that since plaintiffs sought injunctive relief, the $75,000 jurisdictional amount could be met by measuring the cost to General Motors to comply with the injunction. The court also held that the class plaintiffs' claims for unjust enrichment could not be aggregated, just as the claims for attorneys fees could not be aggregated. Finally, Judge Nelson also rejected General Motors' assertion of federal question jurisdiction under the Motor Vehicle Safety Act upon concluding that there was no evidence of any Congressional intent to completely preempt state law remedies in this field, especially since the Act made no provision for a corresponding federal remedy. Lucia v. Teledyne Continental Industries, Inc., S.D. Ala. 99-468-RV-S This is a case to watch. A plaintiffs' class action was filed on behalf of owners of defective airplane engine crankshafts. Defendants removed the case to federal court, alleging that the state law-based tort claims are converted to federal claims under the doctrine of complete or "super" preemption and that, thus, federal question jurisdiction exists. The question is whether the state tort theories are preempted by FAA regulations. A motion to remand is pending. FRAUDULENT JOINDER OF DISTRIBUTORS AS DEFENDANTS Judson v. Nissan Motor Co., 52 F.Supp.2d 1352 (M.D.Ala. 1999) (J. DeMent) This opinion provides a thorough summary of the law concerning removal based on allegations of fraudulent joinder. Plaintiff was injured and her infant child was killed when their 1999 Nissan Pathfinder was involved in a rollover accident and the child was ejected from an Evenflo car seat. Plaintiff individually, and as the custodial parent of the deceased minor child, filed an eight-count complaint against Nissan Motor Co., Ltd. ("Nissan Japan"), Nissan Motor Corporation USA ("Nissan NA"), the Alabama dealer, Mitchell Nissan, Inc. ("Mitchell Nissan"), and Evenflo in the Circuit Court of Dale County, Alabama, alleging claims under the AEMLD and for negligence and wantonness. Evenflo timely removed the action to the Middle District of Alabama (Nissan NA and Mitchell Nissan joined in and consented to the removal), contending that diversity jurisdiction existed under 28 U.S.C. § 1332 on the ground that the Alabama dealership was fraudulently joined because there was no causal relationship between the sale of the Nissan Pathfinder and any alleged defect which caused the accident or contributed to the injuries. Judge DeMent granted plaintiff's motion to remand upon concluding that the removing defendants had "failed to demonstrate that there is no possibility that plaintiff can establish a cause of action under the AEMLD against the resident defendant, Mitchell Nissan." Id. at 1362. RULE: This decision is valuable for two reasons. First, it provides a thorough overview of 11th Circuit removal law. Second, it demonstrates the minimum factual showing a plaintiff must make to refute a defense argument that the plaintiff will not be able to sustain an AEMLD claim because of the affirmative defense of no causal relation. JURISDICTION - FOREIGN DEFENDANT Huey v. American Truetzschler Corp., 47 F.Supp.2d 1342 (M.D.Ala. 1999) (J. Thompson) An injured textile worker brought a product liability action against a German manufacturing company. The German manufacturer moved to dismiss for lack of personal jurisdiction. The district court denied the motion to dismiss upon concluding that the German manufacturer had sufficient minimum contacts with the State of Alabama, and that subjecting the manufacturer to personal jurisdiction in Alabama complied with traditional notions of fair play and substantial justice. RULE: This decision is important because Judge Thompson provides the Bar with a thorough overview of the minimum requirements for obtaining personal jurisdiction over foreign manufacturers. Flemister v. General Motors Corp., 723 So.2d 25 (Ala. 1998) (J. Cook; C.J. Hooper and JJ. Maddox, Shores, Houston, Kennedy and Lyons concur. JJ. Almon and See concur in the result.) Sharon Ann Flemister was the front seat passenger in a 1988 Chevrolet Beretta when it was struck in the passenger door by an oncoming car, and Ms. Flemister was fatally injured. The case centered around the strength of the passenger door. Before the accident occurred, GM had recalled certain 1988 Beretta automobiles to replace "single-hung" "straight-pin" door hinges with "double-hung" hinges. The Flemister vehicle was not part of the recall. The jury heard evidence from plaintiff's expert that double-hung hinges would have withstood the force of the collision and would have converted the impact into a "side swipe." However, evidence as to the angle of the impact range from 25â to 60â, and all of the experts testified that the angle of the impact was a significant factor in determining the force of the impact. The trial court charged the jury on "crashworthiness" (based on Alabama Pattern Jury Instructions: Civil, Instruction No. 32.22) (2d Ed. 1993). The plaintiff objected to the crashworthiness charge, specifically objecting to the language in Instruction 32.22 that refers to "consumer expectation." The jury returned a verdict in favor of GM, and the trial court denied the plaintiff's motion for a new trial. The plaintiff appealed. The plaintiff argued on appeal that her suggested charge should have been given in place of APJI 32.22. The plaintiff's suggested charge mirrored 32.22, but omitted the language regarding the "reasonable expectations of an ordinary consumer," claiming that the test for judging design defect under the AMELD should be based exclusively on a risk/utility analysis, with no reference to consumer expectations. The plaintiff argued that a consumer cannot have expectations with regard to a crashworthiness design defect because only the manufacturer knows how safe a product can be made. The Court acknowledged the plaintiff's excellent discussion of the authorities criticizing the use of consumer expectation as an element of design defectiveness in products liability cases, as well as a trend in other jurisdictions to adopt a pure risk/utility analysis as the standard by which to judge an alleged design defect. However, the Court held that whether Alabama law for crashworthiness cases will be better served by maintaining the present "mixed" analysis or by adopting a risk/utility analysis was not an appropriate consideration under the facts of this case. Because of the disputed angle of impact, the Court held that the jury could have found that, due to the nature of the collision, a different hinge would have made no difference, given the angle of impact of the two cars. Thus, the Court hints that, given the proper case, the "consumer expectation" language of APJI 32.22 should properly be deleted and the jury charged only as to the appropriate risk/utility analysis applicable to whether an automobile is crashworthy. Taylor v. General Motors Corp., 707 So.2d 198 (Ala. 1997) (J. Almon; C.J. Hooper and JJ. Houston, Cook and See concur.) Motorist who was injured in a single vehicle accident when he lost control of his automobile, sued manufacturer and automobile dealership where automobile was purchased. The trial court entered judgment on a jury verdict for the defendants and the plaintiff appealed. The Court held that: (1) jury instruction that "defective," for purposes of the AEMLD, means unreasonably dangerous, was proper; (2) evidence that two-year-old automobile which had been driven approximately 36,000 miles, veered from roadway was not, by itself, sufficient evidence to establish defect. The trial court declined to give instructions requested by plaintiff and, instead, instructed the jury that "defective" means "unreasonably dangerous." This definition comes directly from instruction 32.12, Alabama Patter Jury Instructions (Civil) (2d Ed. 1993). The Court held that, for most AEMLD actions, APJI 32.12 will satisfy the requirement. Plaintiff also argued that the trial court erred by failing to give the requested jury charge instruction to jury that Alabama law does not require proof of a specific defect in order to sustain an AEMLD claim. The Court held, however, that under the AEMLD, plaintiffs are relieved only of the burden of proving specific negligent conduct that ultimately caused a defective condition in the manufacturer's product. In this case, where plaintiff alleged that the automobile's torque rod bracket was defective, the plaintiff would not have to prove that the torque rod bracket was negligently designed by a GM engineer or that a GM worker negligently installed these components in the automobile. Nonetheless, plaintiff still must prove the existence of a defective condition and prove that the defect proximately caused his injuries. The Court thus held that the plaintiff's requested jury instruction, which would have told the jury that he need not prove a specific defect, could have allowed the jury to infer the existence of a defect simply by virtue of the car's inexplicably running off the road, and the trial court properly refused to give such an instruction. Hicks v. Vulcan Engineering Co., [Ms. 1971855, Oct. 29] ___ So.2d ___ (Ala.1999) (J. Cook; all the Justices concur) Vulcan Engineering installed in a Square D foundry a machine manufactured by BMM Weston. Plaintiff's decedent was killed when the BMM Weston machine unexpectedly activated while he was servicing it. The Court affirmed a judgment as a matter of law on the AEMLD claim against Vulcan Engineering, holding that Vulcan Engineering was not the manufacturer of the BMM Weston machine, notwithstanding the fact that Vulcan installed the machine and integrated it into the foundry system. BMM Weston programmed the machine for operation after it was installed, and the programming was apparently the cause of the injury. The Court distinguished Foremost Ins. Co. v. Indies House, Inc., 602 So.2d 380 (Ala. 1992), which held that a mobile home manufacturer was the manufacturer of the mobile home "in toto," and not a mere distributor of the defective refrigerator that was included as a component of the mobile home. RULE: A contractor that installs a complex machine over which the manufacturer retains responsibility for its operation is not a manufacturer of the machine as a component of the installed system. Halsey v. A. B. Chance Co., 695 So.2d 607 (Ala.1997) (J. Cook; JJ. Almon, Kennedy and Butts concur; J. Houston concurs specially; C.J. Hooper concurs in part, dissents in part; JJ. Maddox and See dissent.) Wrongful death action brought under products liability theories against manufacturer of a platform from which power company lineman fell. The trial court entered summary judgment for the manufacturer on all counts, and the plaintiff appealed. The plaintiff, attempting to follow the instructions of his foreman, spliced a chain onto a platform to extend the chain around a utility pole. The chain was used to secure the platform to the pole at a point over fifty feet above the ground. Plaintiff spliced the chain by inserting a padlock through a keeper pin, which was located at the end of the chain. The keeper pin later gave way or opened up while plaintiff was working on the outer end of the platform, causing the platform and the plaintiff to fall. The plaintiff offered expert testimony that the use of the keeper pin as a splice to extend the chain was foreseeable. The Court held that this was substantial evidence supporting a negligent failure to warn claim and a negligent design/manufacturer claim and thus overturned the trial court's summary judgment as to these claims. RULE: The mere fact that a product has been altered or modified does not necessarily relieve the manufacturer or seller or liability. Johnson v. Niagra Machine and Tool Works, 555 So.2d 88 (Ala. 1989). A manufacturer or seller remains liable if the alteration or modification was reasonably foreseeable to the manufacturer or seller. Clark Indus., Inc. v. Home Indemn. Co., 591 So.2d 458 (Ala. 1991); Beloit Corp. v. Harrell, 339 So.2d 992 (Ala. 1976). Rodgers v. Shaver Manufacturing Co., Inc., 993 F.Supp. 1428 (N.D. Ala. 1998) (J. DeMent) Estate of a victim killed in an accident involving a posthole digger sued the manufacturer. Richard Sims was killed while helping dig a hole for a fence post. Sims was using a posthole digger attached to a tractor for power. The digger had a screw-like auger connected to the underside of the gear box. The auger turns and bores holes into the ground. Because the ground into which Sims was drilling was hard, Sims had to physically push down on a part of the machinery near the auger. As the auger was turning, either the wire fence became entangled with Sims, pulling him into the auger, or Sims became entangled in the auger and then the wire became entangled after that, killing Sims. Defendants moved for summary judgment. The Court held that the plaintiff's expert testimony that the digger was defective because it did not include a feasible guard and that the digger as it was sold provided inadequate warnings to users was sufficient evidence that the digger was defective and unreasonably dangerous to establish a genuine issue of material fact for a trial. Defendants also contended that the auger attached to the subject digger was manufactured by someone other than defendant and that, therefore, the digger had been substantially modified from the condition in which it was sold. RULE: A manufacturer or seller remains liable if the alteration or modification did not, in fact, cause the injury, or if the alteration or modification was reasonably foreseeable to the manufacturer or seller. The plaintiff offered expert testimony that the "alteration" of using a different auger was indeed foreseeable. The Court held that, where the plaintiff offers expert testimony in opposition to the summary judgment motion constituting substantial evidence that the alteration in question was foreseeable, then the plaintiff's AEMLD claim should be submitted to a jury. Defendants also argued that plaintiff was contributory negligent. The Court noted that, according to recent Supreme Court of Alabama cases, in order to find that a plaintiff has been contributorily negligent, "there must be a finding that the plaintiff put himself in danger's way ... and a finding that the plaintiff appreciated the danger confronted.... Moreover, it must demonstrated that the plaintiff's appreciation of the danger was a conscious appreciation at the moment the incident occurred ... mere <heedlessness' is insufficient to warrant a finding of contributory negligence as a matter of law. Hicks v. Commercial Union Ins. Co., 652 So.2d 211, 219 (Ala. 1994)." Because plaintiff's expert testified that persons who typically operate posthole diggers would not be expected to appreciate the risks associated with the speed that clothing, fence wire and limbs could be entangled in the rotating components of the machine and that users would not have an appreciation of how irreversible the accident would be, how often accidents had occurred or have knowledge of how to protect themselves, the Court found that genuine issues of material fact exist on this issue and denied summary judgment. RULE: Under Alabama law, a negligent failure to warn adequately case should not be submitted to the jury unless there is evidence that an adequate warning would have been read and heeded and would have prevented the accident. Deere & Co., 586 So.2d 196, 198. Where plaintiff presents evidence that, had there been a warning concerning the possibility of death, the deceased would have read it and heeded the warning, defendant is not entitled to summary judgment. Clark Indus., Inc. v. Home Indemn. Co., 591 So.2d 458, 461 (Ala. 1991). Plaintiff presented expert testimony as to all of the aforementioned elements and the Court held that this presented a jury question. WORKER'S COMPENSATION EXCLUSIVITY Thermal Components, Inc., a division of Insilco Corp. v. Golden, 716 So.2d 1166 (Ala. 1998) (J. See, with C.J. Hooper, and JJ. Maddox, Almon, Shores, Houston, Cook, and Lyons concurring; J. Kennedy dissenting) Plaintiff Golden claimed to have been injured as a result of overexposure to lead particles while working within the line and scope of his employment for Thermal Components. Golden filed claims against co-employees, but the Court held that those claims failed to come within any of the definitions of willful conduct in Section 25-5-11(c). Golden also sued Insilco claiming that it was a corporation distinct from his corporate employer Thermal Components. The Court held that it is unclear from the complaint whether Insilco is a corporate entity separate from Thermal Components and that it is therefore possible that the Worker's Compensation Act does not prohibit Golden's AEMLD claim against Insilco. On a Rule 5 appeal the Court affirmed the denial of the motion to dismiss the AMELD count against Insilco, but reversed the denial of the motion to dismiss as to the remaining counts. RULE: A corporate parent of the plaintiff's employer may be subject to AEMLD liability despite the exclusive remedy provision of the Worker's Compensation Act. |
