July 22, 2018

Colorado Supreme Court: Risk-Benefit Test is Proper Test in Products Liability Action

The Colorado Supreme Court issued its opinion in Walker v. Ford Motor Co. on Monday, November 13, 2017.

In this case, the supreme court considered whether a trial court erred when it gave a jury instruction that allowed the jury to apply either the consumer expectation test or the risk-benefit test to determine whether a driver’s car seat was unreasonably dangerous due to a design defect. The court concluded that the risk-benefit test is the appropriate test to assess whether a product was unreasonably dangerous due to a design defect when, as here, the dangerousness of the design is “defined primarily by technical, scientific information.” Ortho Pharm. Corp. v. Heath, 722 P.2d 410, 414 (Colo. 1986), overruled on other grounds by Armentrout v. FMC Corp., 842 P.2d 175, 183 (Colo. 1992). The court further concluded that the jury’s separate finding of negligence did not render the instructional error harmless in this case.

Summary provided courtesy of Colorado Lawyer.

Colorado Supreme Court: Corporate Defendant Not “Essentially At Home” in Colorado, Therefore Jurisdiction Did Not Attach

The Colorado Supreme Court issued its opinion in Magill v. Ford Motor Co. on Monday, September 12, 2016.

Constitutional Law—Personal Jurisdiction—General Jurisdiction—Corporations and Business Organizations—Related or Affiliated Entities.

The Supreme Court issued a rule to show cause to review the trial court’s  conclusion that defendant Ford Motor Company (Ford) is subject to general personal  jurisdiction in Colorado and that venue was proper in Denver County. The Court  concluded that, under Daimler A.G. v. Bauman, 134 S. Ct. 746 (2014), the record does not support a finding that Ford is “essentially at home” in Colorado. Therefore, Ford is not subject to general personal jurisdiction in Colorado. Because the trial court did not  determine whether Ford was subject to specific jurisdiction, the Court did not reach that issue. The Court also held that maintaining a registered agent in the state does not convert a foreign corporation to a resident. Because none of the parties reside in Denver and the accident did not occur there, venue was not appropriate in Denver County.

Summary provided courtesy of The Colorado Lawyer.

Tenth Circuit: Utah Products Liability Law Requires Defect to be Present at Time of Sale

The Tenth Circuit Court of Appeals issued its opinion in Birch v. Polaris Industries, Inc. on Wednesday, December 23, 2015.

Virl Birch purchased a 2011 Polaris RZR 800 off-road vehicle at the Victory Polaris dealership in St. George, Utah. In May 2011, he and his son took the vehicle for a ride and crashed, damaging the vehicle’s rollover protection system (ROPS). Moto Zoo Powersports in St. George estimated that repairing the ROPS and other damage would cost around $6,000. Unhappy with the figure, Mr. Birch contacted Skyler Damron, the Moto Zoo technician who had provided the estimate, about repairing the vehicle “off books” in Mr. Damron’s own garage. Mr. Damron agreed. Mr. Damron purchased a new roll cage for a 2008 Polaris RZR off Craigslist. Between 2008 and 2011, Polaris had made several changes to the design of the ROPS, and the ROPS for a 2008 RZR would not fit a 2011 RZR. Mr. Damron modified the ROPS so that it would fit Mr. Birch’s vehicle. In June 2012, Mr. Birch again crashed his vehicle. The ROPS buckled on impact, pinning him under it, and he died shortly thereafter.

Mr. Birch’s son and personal representative, Justin Birch, together with Mr. Birch’s wife and other two sons, brought suit against Polaris in the District of Utah, seeking damages for strict products liability, negligence, and breach of express and implied warranties. Under Utah state law, all three claims required proof that a product’s injury-causing defect existed at the time the product was sold. The district court set a December 16, 2013 deadline for amending pleadings and a fact discovery deadline of June 6, 2014. The parties engaged in substantial discovery, and on June 26, 2014, they jointly disassembled Mr. Birch’s vehicle, definitively discovering the modified roll cage.

On October 3, 2014, Polaris filed a motion for summary judgment on all plaintiffs’ claims. Polaris argued that Mr. Damron’s modifications had introduced into Mr. Birch’s vehicle a defect that had not previously existed, therefore plaintiffs’ claims were deficient as a matter of law. On October 31, 2014, plaintiffs filed both a response to the summary judgment motion and a request to amend the complaint. Plaintiffs sought to redefine the products at issue as both the 2011 Polaris RZR and the 2008 ROPS, and sought to add a claim that inadequate training was provided to Polaris service technicians. The magistrate judge denied plaintiffs’ motion in March 2015. On November 18, 2014, plaintiffs filed a Motion for Rule 56(d) Extension, requesting that the court delay ruling on the summary judgment motion so they could conduct more discovery regarding the replacement ROPS. The magistrate judge also denied this motion in March 2015. Plaintiffs promptly filed objections to the magistrate’s rulings.

The district court announced at the March 31, 2015 hearing that plaintiffs could not survive summary judgment because they could not prove “there was a defect in the product at the time and point of sale.” The district court pointed out that the case turned on the outcome of plaintiffs’ motion to amend. Evaluating the magistrate’s ruling under the “clearly erroneous or contrary to law” standard, the district court overruled plaintiffs’ objections. The district court found the magistrate judge had not clearly erred in finding plaintiffs failed to establish excusable neglect or good cause for their untimely motion to amend and had failed to file a proper motion for extended discovery. The court granted Polaris’ motion for summary judgment. Plaintiffs appealed, contending the district court applied the wrong standard and should instead have conducted de novo review. Plaintiffs also contended the court erroneously concluded they lacked sufficient justification for their delay in filing the discovery and amendment motions.

The Tenth Circuit first evaluated the legal standard, and found that the district court correctly applied the “clearly erroneous or contrary to law” standard to its review of the magistrate’s order. Because the ruling was non-dispositive and did not have an identical effect to a dispositive ruling, the district court correctly applied the “clearly erroneous” standard of review. Further, plaintiffs waived their right to argue for de novo review by affirming in district court that the “clearly erroneous” standard was applicable. The Tenth Circuit found no error in the district court’s application of the “clearly erroneous” standard.

Next, the Tenth Circuit considered whether the district court erred in denying the motion to amend. The Tenth Circuit noted that untimely filed motions to amend require a showing of good cause and the judge’s consent. In this case, the magistrate found that plaintiffs failed to establish excusable neglect or good cause for filing the motion to amend 11 months after the deadline to do so expired. The magistrate noted that even if the plaintiffs did not discover that the ROPS was intended for a 2008 model until the June 26, 2014 disassembly, there was no justification for the four-month filing delay after that time. The district court agreed with the magistrate that the plaintiffs failed to show adequate justification for the lateness of their motion to amend. The Tenth Circuit similarly found that plaintiffs asserted no justification in their appeal briefs for the months-long delay. The Tenth Circuit ruled that the district court’s Rule 16 analysis was not an abuse of discretion.

Turning next to the motion for additional discovery, the Tenth Circuit again found no error in the district court’s denial. Again, the magistrate found that plaintiffs failed to establish good cause and excusable neglect due to its months’ long delay in filing its request for further discovery. The Tenth Circuit found no error, agreeing with the district court that the plaintiffs were not entitled to F.R.C.P. 56(d) relief because they failed to submit a sufficiently detailed affidavit.

Finally, the Tenth Circuit affirmed the district court’s grant of summary judgment to Polaris. The Tenth Circuit found that the district court correctly concluded there was no genuine dispute that the product as sold did not contain an injury-causing defect. Plaintiffs could not prevail under Utah products liability law because the defect was not present in the vehicle at the time of sale.

The Tenth Circuit affirmed the district court.

Colorado Court of Appeals: Court Within Jurisdiction to Assert Long-Arm Statute Against Foreign Business Selling Products in United States

The Colorado Court of Appeals issued its opinion in Boustred v. Align Corp. Ltd. on Thursday, April 21, 2016.

Interlocutory Appeal—CRCP 12(b)(2) Lack of Personal Jurisdiction—Minimum Contacts—Due Process Clause.

Align Corporation Limited is a Taiwanese company that manufactures and sells remote control helicopters and related parts. Align has no physical corporate presence in the United States, but it engages U.S. distributors to sell its products to retailers, which then sell them to consumers. One of Align’s distributors was defendant Horizon Hobby, Inc.

Boustred purchased a remote control helicopter and a main rotor holder, manufactured by Align, through Horizon. Boustred alleged the main rotor holder broke during testing and caused him to lose an eye. He filed strict liability and negligence claims against Align and Horizon in Larimer County. After service in Taiwan, Align asked the trial court to quash service and dismiss all claims against it for lack of personal jurisdiction. The trial court found that under Archangel Diamond Corp. v. Lukoil it could assert specific jurisdiction over Align, and denied the motion. This interlocutory appeal followed. Align petitioned the court of appeals to address the effect of the U.S. Supreme Court’s plurality opinion in J. McIntyre Machinery, Ltd. v. Nicastro on Colorado’s personal jurisdiction framework under Archangel.

Colorado’s long-arm statute is intended to confer the maximum jurisdiction allowable by the Due Process clauses of the United States and Colorado constitutions. Specific jurisdiction exists when the alleged injuries resulting in litigation arise out of and are related to a defendant’s activities that are significant and purposefully directed at residents of the forum state. If the requisite minimum contacts are established, a court must determine whether its exercise of personal jurisdiction over a defendant is reasonable and comports with notions of fair play and substantial justice. Align argued that merely placing a product into the stream of commerce, without more, is insufficient for a court to assert personal jurisdiction.

The court cited World-Wide Volkswagon v. Woodson, which held that a “forum State does not exceed its powers under the Due Process Clause if it asserts personal jurisdiction over a corporation that delivers its products into the stream of commerce with the expectation that they will be purchased by consumers in the forum State.” Subsequent Supreme Court plurality decisions have differed on the scope of this theory. The court concluded that the narrowest grounds articulated in the plurality opinions, those of Justice Breyer in J. McIntyre and Justice Brennan in Asahi Metal Industry Co. v. Superior Court are controlling and together hold that World-Wide Volkswagon remains the prevailing decision articulating the stream of commerce theory.

Applying that standard, the court found that Boustred made a sufficient prima facie showing of Colorado’s specific jurisdiction over Align and that asserting such jurisdiction is reasonable and does not offend traditional notions of fair play and substantial justice.

The order was affirmed.

Summary provided courtesy of The Colorado Lawyer.

Tenth Circuit: User Manual Adequately Described Risk of Injury so Manufacturer Not Negligent

The Tenth Circuit Court of Appeals issued its opinion in Kirkbride v. Terex USA, LLC on Tuesday, August 25, 2015.

Larry Kirkbride was injured when a jammed piece of metal flew out of a rock crushing plant. Kirkbride brought claims against the plant’s manufacturer, Terex, for negligent manufacturing and design, negligence in providing inadequate warnings and instructions, strict products liability for failure to warn and manufacturing and design defects, and breach of express and implied warranty. Terex removed the case to the U.S. District Court for the District of Utah based on diversity jurisdiction. Before trial, Kirkbride narrowed his claims to negligence, strict products liability, breach of express warranty, and breach of the implied warranty of merchantability. Terex unsuccessfully moved for judgment as a matter of law when Kirkbride rested his case at trial. At the close of evidence, Kirkbride withdrew his express warranty and negligence claims, and the verdict form asked whether (1) Terex failed to adequately warn users of the risk of injury from the jaw crushers, (2) Terex manufactured a part that was used on the machine that day, the part was defective, and the defect was a cause of Kirkbride’s injury, and (3) Terex breached an implied warranty of merchantability because the defective part caused Kirkbride’s injury. The jury found for Kirkbride on all three claims and awarded him over $3.5 million in damages. Terex appealed.

The Tenth Circuit addressed Terex’s claim that the evidence was insufficient to support the jury’s findings and the trial court erred in denying its motion for judgment as a matter of law. The Tenth Circuit agreed. It first reviewed Terex’s challenge to the jury’s finding that it failed to warn of the dangers of removing jams from the jaw crushers. The rock crushing plant’s user manual warned of the exact injury suffered by Kirkbride, namely that stored energy could cause a jammed piece of non-crushable material to shoot out and hit the head of the person trying to remove it. When asked if he had read the manual, Kirkbride said “Why would you read a manual?” Additionally, other workers present at the time of Kirkbride’s injury testified that they had not read the manual, they were not trained on how to properly remove jammed material, and no one told Kirkbride to be very cautious when removing the jammed material. The Tenth Circuit found this evidence insufficient to support the jury’s finding of failure to warn and reversed.

Next, the Tenth Circuit addressed Terex’s argument that Kirkbride had not proven that the defective part caused his injuries. The defective part was a toggle plate that was designed to break when the jaw crushers got jammed, releasing stored energy and preventing other, more expensive parts from breaking. Kirkbride alleged that because the toggle plate was thicker than recommended in Terex’s manuals, it required more force to break, and therefore was defective. Kirkbride’s expert testified that a thicker plate would require more force to break, but did not address whether the recommended plate would have broken in the situation in which Kirkbride was injured. Because there was no evidence that a thinner plate would have broken, there was no support for the theory that Terex’s plate was defective or caused Kirkbride’s injury.

Finally, the Tenth Circuit addressed Kirkbride’s implied warranty claim and found it was largely subsumed by the products liability claim. Because the Tenth Circuit found the evidence insufficient to support Kirkbride’s strict products liability claim, his implied warranty claim also failed.

The Tenth Circuit reversed and remanded.

Colorado Court of Appeals: Reversible Error to Give Duplicitous Jury Instructions

The Colorado Court of Appeals issued its opinion in Walker v. Ford Motor Co. on Thursday, September 10, 2015.

Injury—Design Defect—Automobile—Jury Instruction—Consumer Expectation Test—Evidence—Causation—Other Incidents.

In this products liability action based on strict liability and negligence, defendant Ford Motor Company (Ford) appealed the trial court’s judgment entered on a jury verdict in favor of plaintiff Walker. Walker claimed to have sustained a traumatic brain injury and soft tissue neck injuries as a result of a car accident, in part because the driver’s seat in his 1998 Ford Explorer was defectively designed.

On appeal, Ford argued that the trial court’s instruction number 19 to the jury, which discusses the “consumer expectation” test, was incorrect as a matter of law. Jury instruction number 19 complied with Colorado Jury Instruction (CJI)-Civ. 4th 14:3 (2015). However, the first sentence of CJI-Civ. 4th 14:3 misapplies Colorado law. Further, because the consumer expectation test is included in the risk-benefit test instruction that was given to the jury as instruction number 19, the trial court erred by giving a separate instruction that also included the consumer expectation test. The combined instructions allowed the jury to consider the consumer expectation test twice: once in the risk-benefit test in instruction number 18, and again in instruction number 19. The consumer expectation test is not an alternative test to the risk-benefit test, but is a sub-part of that test. Because the error was not harmless, the judgment was reversed and the case was remanded for a new trial.

Ford also contended that Walker’s defect and causation evidence was insufficient. Lewis, a biomechanical engineer and expert on injury causation, testified that, if Walker’s seat back had remained upright in the accident and the seat had had an adequate headrest, Walker would not have sustained any of his more significant injuries. Walker also presented testimony of Lewis and engineer Brown to show that an alternative design could have provided better protection than the seat in Walker’s Explorer. The jury could have concluded from Lewis’s and Brown’s testimony that an alternative design was available that could have prevented Walker’s injuries, and that the Explorer’s car seat was defectively designed. The evidence also allowed the jury to determine that the car seat was the cause of Walker’s injuries. Because there was competent evidence to support the verdict, Ford was not entitled to judgment notwithstanding the verdict.

Ford further contended that the trial court erred by permitting Walker to introduce evidence of other incidents involving Ford vehicles. Evidence of similar accidents, occurrences, or injuries may be offered to refute testimony that a given product was designed without safety hazards. Evidence of prior similar incidents is relevant to show that the manufacturer had notice of an actual or potential product defect. Here, the four vehicles in the other incidents were all Ford Explorers and all appeared to have involved the same or similar seat design as the seat in Walker’s Explorer. Though Ford points to differences in the types of accidents and injuries in those other incidents, those differences went only to the weight to be given to the evidence, and not to its admissibility. Therefore, it was not error to admit this evidence of other incidents.

Summary and full case available here, courtesy of The Colorado Lawyer.

Tenth Circuit: Tort Claims Against Medical Supplier Preempted by Medical Devices Amendments to FDCA

The Tenth Circuit Court of Appeals issued its opinion in Caplinger v. Medtronic, Inc. on Tuesday, April 21, 2015.

Patricia Caplinger had a bone stimulator device implanted in a non-approved fashion after the Medtronic company representative encouraged her surgeon to implant it using the “off-label” approach. She suffered adverse consequences from the implantation and discovered the company knew of the risks of using the device in the way the representative had encouraged her surgeon to try. Ms. Caplinger alleged Medtronic was liable under a number of state tort theories, but the district court held the claims were either insufficiently pleaded or preempted. Ms. Caplinger appealed.

The Tenth Circuit first noted that § 360k(a) of the Medical Devices Amendments (MDA) to the Federal Food, Drug, and Cosmetics Act (FDCA) preempts “any requirement” imposed by states on manufacturers of medical equipment that differs from or adds to those found in the FDCA. Although the expansive preemption language seems to foreclose any state tort suits, Supreme Court precedent allows some tort claims. Addressing Ms. Caplinger’s claims for strict products liability, breach of warranty, negligent misrepresentation, and negligence, the Tenth Circuit found the MDA preempted all her claims. In her complaint, Ms. Caplinger failed to identify any parallel federal statutes to the state regulations. The Tenth Circuit upheld the district court’s judgment as a matter of law in favor of Ms. Caplinger. The Tenth Circuit similarly disregarded Ms. Caplinger’s argument that the off-label use contemplated by her suit insulated her claims for preemption.

The Tenth Circuit affirmed the district court. Judge Lucero wrote a thoughtful and detailed concurrence.

Tenth Circuit: In Products Liability Case, Machine Tool That Crushed Worker’s Arm Held to be Not Unreasonably Dangerous

The Tenth Circuit Court of Appeals published its opinion in Braswell v. Cincinnati, Inc. on Monday, September 23, 2013.

Derek Braswell suffered a horrific workplace accident. While he was operating a press brake, a heavy machine tool, manufactured by Cincinnati, Inc., his right arm was crushed and eventually had to be amputated. Signs on the machine warned the operator not to reach into the die area, where a hydraulic powered ram descends to bend sheet metal. Despite these warnings, Braswell reached into the die area to remove a jammed piece of metal. While doing so, he accidentally stepped on a pedal triggering the ram’s descent. The machine’s safety equipment designed to prevent this type of accident had been removed or disabled sometime prior to the accident.

Braswell filed a suit against Cincinnati on theories of strict products liability and negligence.  Cincinnati filed a motion for summary judgment. The district court granted summary judgment for Cincinnati on the grounds that a subsequent owner had modified the press brake to create the danger and that the gated pedal on the original model made the press brake not unreasonably dangerous.

Braswell appealed the district court’s rulings on (1) the products liability claims, and (2) the negligence claim.

Products Liability Claims. Oklahoma, like most states, has adopted a strict liability regime for products that are defectively manufactured or designed. The Oklahoma Supreme Court has identified three elements to a products liability claim: the defect must have (1) caused the injury in question, (2) existed at the time it left the manufacturer’s control, and (3) made the product unreasonably dangerous. The Tenth Circuit agreed with the district court that the brake was not unreasonably dangerous: with its warnings and safety devices, the machine did not pose a danger beyond that which the ordinary operator of the machine would appreciate. The ordinary consumer (or user) of a press brake is a trained operator. That individual would be trained as to its proper operation and how to use any available safety features, and to safely remove pieces of metal that become jammed in the machine. Specifically, the ordinary user would be aware of the extreme danger and risk of reaching into the machine while having one’s foot remain anywhere near the footswitch without disengaging or blocking the ram. Braswell was not ignorant as to the particular danger he faced.

Negligence Claim. The court held that Braswell waived his negligence arguments below by failing to sufficiently plead them or raise them in response to Cincinnati’s motion for summary judgment.

AFFIRMED.

Williamson v. Mazda Motor of America: Reviving Seatbelt Tort Claims in State Court

Last week, in Williamson v. Mazda Motor of America, Inc., the Supreme Court of the United States reversed a California decision and made product liability actions involving the failure to install inner-seat lap/shoulder-combination seatbelts available once again in state courts. In a unanimous decision, the Court held that implied preemption did not apply, and distinguished the case from Geier v. American Honda Motor Co. (2000).

In Geier, state law stood as an obstacle to the accomplishment of a significant federal regulatory objective: giving manufacturers a choice among different kinds of passive restraint systems. The Department of Transportation (DOT) had long thought it important to leave manufacturers with a choice of systems, and federal regulations, designed to protect that industry choice, preempted conflicting state law.

However, the Court in Williamson found that while the California tort suit would similarly restrict industry choice by alleging a manufacturer should have installed a particular restraint system, the choice in this case was not a significant regulatory objective. DOT rejected a regulation requiring lap/shoulder-combination seatbelts in rear seats in 1984 due to consumer acceptance concerns. But by 1989, changed circumstances led DOT to require manufacturers to install such seatbelts for rear outer seats but to retain a manufacturer choice for rear inner seats. DOT thought that the same requirement for inner seats would not be cost effective, a much different regulatory analysis than seeking to spur development of alternative safety devices in Geier. Cost-effectiveness alone cannot show that DOT sought to forbid common-law tort suits and, therefore, preemption does not apply to such cases.

Tenth Circuit: Opinions, 10/14/10

The Tenth Circuit on Thursday issued one published opinion and six unpublished opinions.

Published

In Kokins v. Teleflex, Inc., the Court affirmed the district court’s decision in favor of Respondent. Petitioner, a park ranger for the city of Westminster, was thrown from a boat when the steering cable suddenly snapped. She and the city brought suit against Respondent, alleging that the cable was defectively designed and unreasonably dangerous. The Court disagreed, and found that the district court did not give inappropriate jury instructions; if the court “concluded that the case involved primarily technical and scientific information, then it was required to instruct the jury only in accordance with the risk-benefit test.”

Unpublished

Berg v. Foster

United States v. Nick

United States v. Gallaway

Stanton v. Wyoming Attorney General

McCary v. Zavaras

Marioneaux v. Colorado State Penitentiary

Tenth Circuit: Opinions, 6/2/10

The Tenth Circuit on Wednesday issued two published opinions and eight unpublished opinions.

Published

In Dobbs v. Wyeth Pharmaceuticals, the Court vacated the district court’s grant of partial summary judgment to Respondent Wyeth, who Petitioner Dobbs alleged failed to warn of a suicide risk on the label of antidepressant Effexor. “After the district court’s decision, the Supreme Court established a new standard for a federal preemption defense against a failure to warn claim,” necessitating the district court to 1) afford the parties an opportunity to submit additional evidence on remand, and 2) reconsider the preemption issue in light of the new standard. See Wyeth v. Levine, 129 S. Ct. 1187, 1198 (2009), for new the standard.

In Wilkerson v. Shinseki, the Court affirmed the district court’s grant of summary judgment as to Petitioner Wilkerson’s claim of discrimination under the Rehabilitation Act; Petitioner was “deemed not ‘otherwise qualified'” for the position due to his obesity and diabetes and the VA could have made no reasonable accommodation to allow him to continue in the position. Additionally, the Court affirmed the district court’s grant of summary judgment as to Petitioner’s age discrimination claim under the ADEA due to the VA’s non-discriminatory, non-pretextual reason for Petitioner’s reassignment. Lastly, the Court affirmed the district court’s denial of Petitioner’s motion for leave to amend his complaint to allege a Privacy Act violation; the disclosure of medical records by the VA, while having an adverse effect on Petitioner, was not intentional or willful.

Unpublished

United States v. Moran

Miller v. Smithkline Beacham Corporation

Gobert v. Province

McBride v. Market Street Mortgage

United States v. Larsen

DeWitt v. Astrue

Ahmed v. Holder, Jr.

Duron-Amador v. Holder, Jr.