Case Notes

Plaintiff Must Prove Safer, Alternate Design

In a strict liability case under Utah law as interpreted by the 10th Circuit, a plaintiff bears the burden of demonstrating an alternate, safer, more feasible design. Wankier v. Crown Equipment Corporation, No. 02-4147, 10th U.S. Circuit Court of Appeals, Dec. 23, 2003.

Paula Wankier was injured while operating an electric pallet jack (known as a “walkie-rider”) manufactured by the defendant Crown. Wankier claimed that while operating the walkie-rider, she shifted the control arm from the “power on” position to a neutral zone position located between the “power on” position and the brake position. While in the neutral position, the power cut out, the machine coasted, and Wankier lost control of it. The machine drove into a conveyor belt, and Wankier sustained severe and permanent injuries to her leg.

Wankier sued Crown under diversity jurisdiction in federal court. She asserted strict liability claims for design defect and inadequate warnings, and negligence claims based on product design and inadequate warnings. She argued that the location of the neutral position should have been eliminated or changed and that the walkie-rider should have been equipped with a guardrail attached to the back of the operation platform. She did not present evidence of an alternate, safer, more feasible design. The district court granted partial summary judgment to Crown on the inadequate warnings claims. After a trial, the jury found in favor of Crown on the negligent design claim but in favor of Wankier on the strict liability design defect claim. Crown appealed the decision in favor of Wankier on the strict liability design defect claim.

On appeal, Crown argued that Wankier had the burden of proof to show the existence of a safer, feasible, alternative design. Wankier argued that under Utah law, there was no such requirement. The 10th Circuit Court of Appeals reversed and remanded for further proceedings. It held that the Utah Supreme Court had adopted a doctrine of strict products liability, but had never addressed the issue of whether the plaintiff bears the burden of showing a safer, feasible, alternative design. The 10th Circuit considered that it had examined Utah products liability law in a previous decision and had concluded that the plaintiff did bear the burden of proof. It noted that no subsequent Utah law had changed this analysis. Because no Utah law had ever changed the 10th Circuit's analysis, the court held it was bound to follow stare decisis and found that the plaintiff bore the burden of showing a safer alternate design.

Tobacco Claims Stand When Defendant May Have Purposefully Concealed Danger

In an action for personal injuries in tobacco litigation, the plaintiff's claims for pre-1969 failure to warn, post-1969 fraudulent concealment and concerted action may pass summary judgment where the plaintiff establishes issues of fact that the defendants may have purposefully concealed information about the dangers of tobacco. Miele v. American Tobacco Company et al., Index Nos. 019125/97, 2001-07484, 2001-07486, 2001-07487, 2001-07488, 2001-07489, 2002-01777, New York Appellate Division, Second Department, Dec. 29, 2003.

The decedent contracted lung cancer and died after smoking cigarettes that were manufactured and sold by five cigarette manufacturers for more than 20 years. The decedent's husband, Miele, sued the manufacturers and claimed pre-1969 failure to warn, post-1969 fraudulent concealment, and negligent concerted action. The trial court dismissed Miele's claims on the defendants' summary judgment motions, and the appellate court reversed.

First, the appellate court reversed the trial court's conclusion that Miele did not have a pre-1969 claim. It held that the trial court had erroneously found that the risks of smoking were common knowledge at the time the decedent began smoking. The appellate court held that Miele presented issues of fact regarding whether consumers were fully aware of the health hazards of smoking when the decedent began smoking, especially considering the defendants' distribution of information disputing the hazards of smoking. The appellate court concluded that the conflicting evidence raised issues of fact that could not pass summary judgment. The appellate court further held that an affidavit of Miele's expert should not have been disregarded at the summary judgment stage based upon the defendants' objections to the expert's qualifications. The appellate court concluded the objections presented by the defendants only affected the weight to be placed on the expert testimony by a fact finder, not whether the testimony should have been included at all.

Second, the appellate court reversed the dismissal of Miele's post-1969 fraudulent concealment claims. It held that Miele's fraudulent concealment claims, which were based on state law, were not preempted by the Federal Cigarette Labeling and Advertising Act (the Act) because the duty underlying the state claims was one not to deceive. Furthermore, Miele's cause of action to recover damages for post-1969 strict product design should not have been dismissed because a sufficient issue of fact was raised by one of Miele's experts (a scientist formerly employed by defendant Philip Morris) regarding whether the risk of cigarettes could have been reduced by adopting a reasonable alternative design.

Third, Miele's concerted action claim should not have been dismissed. The appellate court held that, insofar as it was based on allegations of negligence, that theory will pass summary judgment when it is established that one party knows that another party's conduct constitutes a breach of duty and also provides assistance to the other party.

Sanctions for Spoliation of Evidence Are Not Appropriate When Neither Party is at Fault

Sanctions are not appropriate where the spoliation of the evidence was not the fault of either side; to deny one party the ability to present expert evidence regarding the reason the product failed has the same result as imposing sanctions on that party. Fleury v. Biomet, Case No. 2D02-2103, Court of Appeal of Florida, Second District, Dec. 17, 2003.

The Fleurys sued Biomet after Norman Fleury's artificial knee failed prematurely. During the litigation, it was established that the artificial knee in question was discarded by the hospital where Norman Fleury had his second knee operation performed to replace the failed artificial knee, pursuant to the hospital's standard procedure for disposal of biohazardous waste. During pretrial litigation, Biomet moved for sanctions for the spoliation of the first knee as evidence. The trial court determined that neither party was at fault for the loss of the evidence and that dismissal of the Fleurys' lawsuit would be too harsh of a penalty. Nevertheless, it ordered that the Fleurys could not present expert testimony regarding the cause of the premature failure of the artificial knee. The case was dismissed.

The Fleurys appealed and the appellate court reversed. It held that because neither party was at fault for the loss of the evidence and because there was no willfulness or bad faith associated with the spoliation of the evidence, the trial court's order depriving the Fleurys of the opportunity to present expert evidence related to their theories about the failure of the knee was essentially an imposition of sanctions on the Fleurys. The appellate court noted that there was no real prejudice to either side because neither side had an opportunity to examine the knee after Norman Fleury's second surgery.

Plaintiff Must Prove Safer, Alternate Design

In a strict liability case under Utah law as interpreted by the 10th Circuit, a plaintiff bears the burden of demonstrating an alternate, safer, more feasible design. Wankier v. Crown Equipment Corporation, No. 02-4147, 10th U.S. Circuit Court of Appeals, Dec. 23, 2003.

Paula Wankier was injured while operating an electric pallet jack (known as a “walkie-rider”) manufactured by the defendant Crown. Wankier claimed that while operating the walkie-rider, she shifted the control arm from the “power on” position to a neutral zone position located between the “power on” position and the brake position. While in the neutral position, the power cut out, the machine coasted, and Wankier lost control of it. The machine drove into a conveyor belt, and Wankier sustained severe and permanent injuries to her leg.

Wankier sued Crown under diversity jurisdiction in federal court. She asserted strict liability claims for design defect and inadequate warnings, and negligence claims based on product design and inadequate warnings. She argued that the location of the neutral position should have been eliminated or changed and that the walkie-rider should have been equipped with a guardrail attached to the back of the operation platform. She did not present evidence of an alternate, safer, more feasible design. The district court granted partial summary judgment to Crown on the inadequate warnings claims. After a trial, the jury found in favor of Crown on the negligent design claim but in favor of Wankier on the strict liability design defect claim. Crown appealed the decision in favor of Wankier on the strict liability design defect claim.

On appeal, Crown argued that Wankier had the burden of proof to show the existence of a safer, feasible, alternative design. Wankier argued that under Utah law, there was no such requirement. The 10th Circuit Court of Appeals reversed and remanded for further proceedings. It held that the Utah Supreme Court had adopted a doctrine of strict products liability, but had never addressed the issue of whether the plaintiff bears the burden of showing a safer, feasible, alternative design. The 10th Circuit considered that it had examined Utah products liability law in a previous decision and had concluded that the plaintiff did bear the burden of proof. It noted that no subsequent Utah law had changed this analysis. Because no Utah law had ever changed the 10th Circuit's analysis, the court held it was bound to follow stare decisis and found that the plaintiff bore the burden of showing a safer alternate design.

Tobacco Claims Stand When Defendant May Have Purposefully Concealed Danger

In an action for personal injuries in tobacco litigation, the plaintiff's claims for pre-1969 failure to warn, post-1969 fraudulent concealment and concerted action may pass summary judgment where the plaintiff establishes issues of fact that the defendants may have purposefully concealed information about the dangers of tobacco. Miele v. American Tobacco Company et al., Index Nos. 019125/97, 2001-07484, 2001-07486, 2001-07487, 2001-07488, 2001-07489, 2002-01777, New York Appellate Division, Second Department, Dec. 29, 2003.

The decedent contracted lung cancer and died after smoking cigarettes that were manufactured and sold by five cigarette manufacturers for more than 20 years. The decedent's husband, Miele, sued the manufacturers and claimed pre-1969 failure to warn, post-1969 fraudulent concealment, and negligent concerted action. The trial court dismissed Miele's claims on the defendants' summary judgment motions, and the appellate court reversed.

First, the appellate court reversed the trial court's conclusion that Miele did not have a pre-1969 claim. It held that the trial court had erroneously found that the risks of smoking were common knowledge at the time the decedent began smoking. The appellate court held that Miele presented issues of fact regarding whether consumers were fully aware of the health hazards of smoking when the decedent began smoking, especially considering the defendants' distribution of information disputing the hazards of smoking. The appellate court concluded that the conflicting evidence raised issues of fact that could not pass summary judgment. The appellate court further held that an affidavit of Miele's expert should not have been disregarded at the summary judgment stage based upon the defendants' objections to the expert's qualifications. The appellate court concluded the objections presented by the defendants only affected the weight to be placed on the expert testimony by a fact finder, not whether the testimony should have been included at all.

Second, the appellate court reversed the dismissal of Miele's post-1969 fraudulent concealment claims. It held that Miele's fraudulent concealment claims, which were based on state law, were not preempted by the Federal Cigarette Labeling and Advertising Act (the Act) because the duty underlying the state claims was one not to deceive. Furthermore, Miele's cause of action to recover damages for post-1969 strict product design should not have been dismissed because a sufficient issue of fact was raised by one of Miele's experts (a scientist formerly employed by defendant Philip Morris) regarding whether the risk of cigarettes could have been reduced by adopting a reasonable alternative design.

Third, Miele's concerted action claim should not have been dismissed. The appellate court held that, insofar as it was based on allegations of negligence, that theory will pass summary judgment when it is established that one party knows that another party's conduct constitutes a breach of duty and also provides assistance to the other party.

Sanctions for Spoliation of Evidence Are Not Appropriate When Neither Party is at Fault

Sanctions are not appropriate where the spoliation of the evidence was not the fault of either side; to deny one party the ability to present expert evidence regarding the reason the product failed has the same result as imposing sanctions on that party. Fleury v. Biomet, Case No. 2D02-2103, Court of Appeal of Florida, Second District, Dec. 17, 2003.

The Fleurys sued Biomet after Norman Fleury's artificial knee failed prematurely. During the litigation, it was established that the artificial knee in question was discarded by the hospital where Norman Fleury had his second knee operation performed to replace the failed artificial knee, pursuant to the hospital's standard procedure for disposal of biohazardous waste. During pretrial litigation, Biomet moved for sanctions for the spoliation of the first knee as evidence. The trial court determined that neither party was at fault for the loss of the evidence and that dismissal of the Fleurys' lawsuit would be too harsh of a penalty. Nevertheless, it ordered that the Fleurys could not present expert testimony regarding the cause of the premature failure of the artificial knee. The case was dismissed.

The Fleurys appealed and the appellate court reversed. It held that because neither party was at fault for the loss of the evidence and because there was no willfulness or bad faith associated with the spoliation of the evidence, the trial court's order depriving the Fleurys of the opportunity to present expert evidence related to their theories about the failure of the knee was essentially an imposition of sanctions on the Fleurys. The appellate court noted that there was no real prejudice to either side because neither side had an opportunity to examine the knee after Norman Fleury's second surgery.