Product Liability Update

On appeal, the plaintiff argued that the defendant was improperly attempting to disclaim its implied warranties. The court held that the defendant had made no such attempt, but rather the issue was whether an implied warranty of merchantability even arises where the manufacturer of a defective product simply followed the specifications of another. Finding no clear Massachusetts precedent, the court looked to the principles expressed in the Restatement (Second) of Torts, ' 402A and ' 404. Under ' 402A, which Massachusetts substantially follows in an implied warranty personal injury case, a seller is strictly liable when it sells any product in a defective condition unreasonably dangerous to the consumer. Under ' 404, “an independent contractor [who] negligently makes, rebuilds, or repairs a chattel for another is subject to the same liability as that imposed upon negligent manufacturers of chattels.” A Comment to the section, however, notes that “[t]he contractor is not subject to liability if the specified design or material turns out to be insufficient to make the chattel safe for use, unless it is so obviously bad that a competent contractor would realize that there was a grave chance that his product would be dangerously unsafe.”

The court first rejected the plaintiff's argument that ' 404 was inapplicable by its terms because the defendant was a manufacturer, not an independent contractor. Terming the purported distinction unhelpful, the court noted that the real issue was the respective roles played by the defendant and the plaintiff's employer in designing the defective product. Here, where the product was built to the employer's exact specifications, the court adopted the rationale of another court in a similar case that “to hold [defendant] liable for defective design would amount to holding a non-designer liable for design defect. Logic forbids any such result.” Moreover, the rationale for strict liability did not apply because the manufacturer did not launch its product into the general stream of commerce; indeed, where a product is built to the consumer's specifications, the manufacturer is in no better position than the consumer to assume the costs of design safety.

Finally, the court noted that although both sides had made lengthy policy arguments, in the absence of controlling Massachusetts case law, the court had no authority to extend Massachusetts product liability law beyond the provisions of the Restatement (Second), which Massachusetts generally follows.

Admissible Expert Testimony on Technical Feasibility Of Lowering Nicotine to Below Addiction Thresholds

In Haglund v. Philip Morris, Inc., No. 2001-02367, 2011 WL 2737240 (Mass. Super. Ct. Apr. 20, 2011), the plaintiff sued the defendant tobacco company in Massachusetts Superior Court for breach of the implied warranty of merchantability (the Massachusetts near-equivalent of strict liability) and wrongful death on behalf of her deceased relative, a smoker who died of lung cancer. The plaintiff alleged that the defendant, with knowledge of the dangers posed by cigarettes, consciously designed its products with addictive nicotine levels even though a safer, reasonable alternative design existed at the time ' namely, a non-addictive cigarette, achievable through “nicotine extraction.” The plaintiff alleged that had the defendant manufactured its cigarettes using the alternative design, the decedent would not have become addicted and died. The defendant responded that it was not possible to reduce the amount of nicotine in delivered smoke to the level required to make a cigarette non-addictive, and in any event such a reduced-nicotine cigarette would be inferior in taste and other qualities so that it would not be attractive to consumers.

In support of her claim, the plaintiff offered an expert to testify that it was technically feasible for the defendant to manufacture a cigarette that was both non-addictive and comparable in taste and other properties to a regular cigarette. As the trial approached, the defendant moved in limine to preclude the plaintiff's expert's testimony because: 1) it was based on speculation, rather than data of the type that scientists ordinarily rely upon; and 2) the scientific principles he relied upon were not reliable. The court granted the motion in part, ruling that the plaintiff's expert could testify that it was technically feasible to extract nicotine to below the level of addictiveness and add flavors to such a de-nicotinized cigarette, but not as to how the resulting product would be perceived by smoking consumers.

In so ruling, the court noted that under Massachusetts law, the proponent of expert testimony must establish five foundational requirements: 1) the testimony will assist the trier of fact; 2) the witness is qualified as an expert in the relevant area; 3) the witness's opinion is based on facts and data in the record, not speculation; 4) the opinion is based on reliable principles or methods; and 5) the expert has applied the principles and methods in a reliable manner to the facts of the case. Here, the proffered expert had extensive education in the field of chemistry, and equally extensive training and experience in the process of chemical extraction. Regarding de-nicotinization, the expert's specific opinion that the defendant could have produced a cigarette with a nicotine level of 0.0001%, far below the threshold for addictiveness, was based on supporting research documents and data. Similarly, with respect to the issue of flavor, the court found data and research supporting the expert's testimony that it was feasible to add flavors back to a product after it had been de-nicotinized, and that the resulting product would still resemble an ordinary cigarette in physical appearance.

With respect to the rest of the expert's testimony, however, the court found there were insufficient data “to make the leap to offer expert witness opinion testimony about how smoking consumers would view the de-nicotinized product.” The only research cited by the expert in support of his opinion that a de-nicotinized cigarette would be accepted by consumers was a 1975 study showing that 75% of smokers of a specific brand of low tar and nicotine cigarettes produced at that time viewed the cigarettes as comparable in taste and flavor to the brand's regular cigarettes. The nicotine levels of the cigarettes involved in that study, however, were far in excess of the 0.0001% level regarding which the expert proposed to testify.

David R. Geiger, a member of this newsletter's Board of Editors, is a Partner in Foley Hoag's Boston office. He served for seven years as Deputy Chair and Chair of the firm's Litigation Department, and since 1989 has headed the firm's Product Liability and Complex Tort Practice Group. Mr. Geiger has been recognized by The Best Lawyers in America, New England SuperLawyers and Who's Who Legal for his accomplishments.

Trailer Manufacturer Not Liable for Negligence or Breach of Implied Warranty Of Merchantability

In Hatch v. Trail King Industries, Inc., 2011 U.S. App. LEXIS 18000 (1st Cir. Aug. 29, 2011), the plaintiff was paralyzed after a hydraulically operated drop gate on the trailer he operated fell on him, trapping him underneath. The trailer and its gate were manufactured by the defendant, in accordance with the exact specifications of the plaintiff's employer. The plaintiff sued the manufacturer in the United States District Court for the District of Massachusetts for negligence and breach of the implied warranty of merchantability (the Massachusetts near-equivalent of strict liability), alleging the trailer gate was defective and that the addition of a safety pin or chain would have prevented the accident.

After the district court instructed the jury that a defendant who manufactures a product according to the buyer's specifications could not be liable under either a negligence or implied warranty theory, unless the design defect was so obvious it would have been unreasonable for the defendant to manufacture according to the design, the jury returned a defense verdict. The plaintiff appealed, and the United States Court of Appeals for the First Circuit affirmed.

On appeal, the plaintiff argued that the defendant was improperly attempting to disclaim its implied warranties. The court held that the defendant had made no such attempt, but rather the issue was whether an implied warranty of merchantability even arises where the manufacturer of a defective product simply followed the specifications of another. Finding no clear Massachusetts precedent, the court looked to the principles expressed in the Restatement (Second) of Torts, ' 402A and ' 404. Under ' 402A, which Massachusetts substantially follows in an implied warranty personal injury case, a seller is strictly liable when it sells any product in a defective condition unreasonably dangerous to the consumer. Under ' 404, “an independent contractor [who] negligently makes, rebuilds, or repairs a chattel for another is subject to the same liability as that imposed upon negligent manufacturers of chattels.” A Comment to the section, however, notes that “[t]he contractor is not subject to liability if the specified design or material turns out to be insufficient to make the chattel safe for use, unless it is so obviously bad that a competent contractor would realize that there was a grave chance that his product would be dangerously unsafe.”

The court first rejected the plaintiff's argument that ' 404 was inapplicable by its terms because the defendant was a manufacturer, not an independent contractor. Terming the purported distinction unhelpful, the court noted that the real issue was the respective roles played by the defendant and the plaintiff's employer in designing the defective product. Here, where the product was built to the employer's exact specifications, the court adopted the rationale of another court in a similar case that “to hold [defendant] liable for defective design would amount to holding a non-designer liable for design defect. Logic forbids any such result.” Moreover, the rationale for strict liability did not apply because the manufacturer did not launch its product into the general stream of commerce; indeed, where a product is built to the consumer's specifications, the manufacturer is in no better position than the consumer to assume the costs of design safety.

Finally, the court noted that although both sides had made lengthy policy arguments, in the absence of controlling Massachusetts case law, the court had no authority to extend Massachusetts product liability law beyond the provisions of the Restatement (Second), which Massachusetts generally follows.

Admissible Expert Testimony on Technical Feasibility Of Lowering Nicotine to Below Addiction Thresholds

In Haglund v. Philip Morris, Inc., No. 2001-02367, 2011 WL 2737240 (Mass. Super. Ct. Apr. 20, 2011), the plaintiff sued the defendant tobacco company in Massachusetts Superior Court for breach of the implied warranty of merchantability (the Massachusetts near-equivalent of strict liability) and wrongful death on behalf of her deceased relative, a smoker who died of lung cancer. The plaintiff alleged that the defendant, with knowledge of the dangers posed by cigarettes, consciously designed its products with addictive nicotine levels even though a safer, reasonable alternative design existed at the time ' namely, a non-addictive cigarette, achievable through “nicotine extraction.” The plaintiff alleged that had the defendant manufactured its cigarettes using the alternative design, the decedent would not have become addicted and died. The defendant responded that it was not possible to reduce the amount of nicotine in delivered smoke to the level required to make a cigarette non-addictive, and in any event such a reduced-nicotine cigarette would be inferior in taste and other qualities so that it would not be attractive to consumers.

In support of her claim, the plaintiff offered an expert to testify that it was technically feasible for the defendant to manufacture a cigarette that was both non-addictive and comparable in taste and other properties to a regular cigarette. As the trial approached, the defendant moved in limine to preclude the plaintiff's expert's testimony because: 1) it was based on speculation, rather than data of the type that scientists ordinarily rely upon; and 2) the scientific principles he relied upon were not reliable. The court granted the motion in part, ruling that the plaintiff's expert could testify that it was technically feasible to extract nicotine to below the level of addictiveness and add flavors to such a de-nicotinized cigarette, but not as to how the resulting product would be perceived by smoking consumers.

In so ruling, the court noted that under Massachusetts law, the proponent of expert testimony must establish five foundational requirements: 1) the testimony will assist the trier of fact; 2) the witness is qualified as an expert in the relevant area; 3) the witness's opinion is based on facts and data in the record, not speculation; 4) the opinion is based on reliable principles or methods; and 5) the expert has applied the principles and methods in a reliable manner to the facts of the case. Here, the proffered expert had extensive education in the field of chemistry, and equally extensive training and experience in the process of chemical extraction. Regarding de-nicotinization, the expert's specific opinion that the defendant could have produced a cigarette with a nicotine level of 0.0001%, far below the threshold for addictiveness, was based on supporting research documents and data. Similarly, with respect to the issue of flavor, the court found data and research supporting the expert's testimony that it was feasible to add flavors back to a product after it had been de-nicotinized, and that the resulting product would still resemble an ordinary cigarette in physical appearance.

With respect to the rest of the expert's testimony, however, the court found there were insufficient data “to make the leap to offer expert witness opinion testimony about how smoking consumers would view the de-nicotinized product.” The only research cited by the expert in support of his opinion that a de-nicotinized cigarette would be accepted by consumers was a 1975 study showing that 75% of smokers of a specific brand of low tar and nicotine cigarettes produced at that time viewed the cigarettes as comparable in taste and flavor to the brand's regular cigarettes. The nicotine levels of the cigarettes involved in that study, however, were far in excess of the 0.0001% level regarding which the expert proposed to testify.

David R. Geiger, a member of this newsletter's Board of Editors, is a Partner in Foley Hoag's Boston office. He served for seven years as Deputy Chair and Chair of the firm's Litigation Department, and since 1989 has headed the firm's Product Liability and Complex Tort Practice Group. Mr. Geiger has been recognized by The Best Lawyers in America, New England SuperLawyers and Who's Who Legal for his accomplishments.