2005 Spring Issue

In Frilot, Partridge's Spring 2005 Products Liability Newsletter,  the following topics are discussed:
• Jury verdict in favor of auto manufacturer reversed based on RES IPSA
• U.S. Fifth Circuit requires expert witness testimony for award of enhanced damages under LPLA's express warranty defect provisions
• Label requirements for agricultural products and preemption under FIFRA - Bates vs. Dow Agrosciences
• Requirement to file complaint with Arkansas Plant Board of an alleged defect in crop seed as condition to filing lawsuit - Slusser vs. Farm Services Inc. and Monsanto Company
• Frilot LLC successfully defends Nintendo
• Louisiana First Circuit Court of Appeals Affirms FPKC Trial Victories on Behalf of Emerson Electric 

Jury Verdict in Favor of Auto Manufacturer Reversed Based on RES IPSA
       
      A trial loss is bad enough for a manufacturer.  It is even worse when the jury rules in favor of the manufacturer, but the trial judge subsequently grants a JNOV in favor of plaintiffs.  This is precisely what happened to Mitsubishi in Lawson v. Mitsubishi Motor Sales of America, Inc., 2004 La. App. LEXIS 3178 (La. App. 3 Cir. 12/29/04). 

      Plaintiffs filed suit against Mitsubishi, alleging that the deployment of the airbag in the wife’s car was the result of a manufacturing defect.  Mrs. Lawson suffered serious injuries when the airbag unexpectedly deployed after she honked the horn on her vehicle.

      Plaintiffs’ experts testified that the unexpected deployment of the airbag was likely caused by the misalignment of a clockspring which occurred at the time of the manufacture of the vehicle.  Mitsubishi’s experts contended that there was no way to exclude prior work on the vehicle as causing the misalignment of the clockspring since the vehicle had been owned by three parties and a rental company.  Moreover, Mitsubishi contended that the clockspring could have become disoriented when it was removed during the investigation of the accident.

      After hearing testimony for approximately one week, the jury found in favor of Mitsubishi.  The trial judge, applying the doctrine of res ipsa loquitur, granted plaintiffs’ motion for JNOV after finding that the only conclusion reasonable jurors could have reached was that the wife’s injuries were caused by a manufacturing defect in the car.  The Third Circuit Court of Appeal affirmed the trial court’s JNOV ruling.  The Third Circuit also affirmed the trial judge's damage award in excess of $1 million.
 
Fifth Circuit Requires Expert Witness Testimony for Award of Enhanced Damages Under LPLA's Express Warranty Defect

      In Caboni v. General Motors Corp., 398 F.3d 357 (La. 2005), the United States Fifth Circuit Court of Appeals recently reversed a jury verdict in favor of the plaintiff in his products liability action brought pursuant to the Louisiana Products Liability Act (“LPLA”).

      The suit arose from a single vehicle accident in which the driver’s side air bag in Mr. Caboni’s vehicle did not deploy upon impact. The air bag system and the subject vehicle were manufactured by GM. Caboni sued GM under the LPLA alleging that the air bag was unreasonably dangerous because it did not conform to an express warranty contained in the truck’s owner’s manual which stated that “[t]he air bag is designed to inflate in moderate to severe front or near-frontal crashes.” The jury found that GM was 30% at fault for the plaintiff’s injuries and awarded damages.

      GM appealed the judgment arguing that the plaintiff failed to prove that the vehicle did not conform to an express warranty. Under Louisiana law, the proper inquiry is “whether the air bag’s performance matched that described by the language of the warranty, rather than whether the air bag performed as it was designed to perform.” The Fifth Circuit held that GM’s argument that the air bag performed as described in the owner’s manual failed based on the evidence put forth by the plaintiff’s own expert and because a reasonably jury could, and did, arrive at a verdict to the contrary.

      GM’s second argument was that the plaintiff failed to show that he sustained an enhanced injury that was proximately caused because the express warranty was untrue. The “proximate causation” element requires a plaintiff to establish that he sustained more severe injuries than he would have received if the air bag had deployed. The Fifth Circuit accepted GM’s argument by noting that “whether or not the failure of the driver’s side air bag to deploy ‘enhanced’ plaintiff’s injuries, is not a part of the everyday experience on the consuming public” and therefore, “jurors would need expert testimony to evaluate the issue.” The Court noted that while Caboni offered various medical expert testimony that he suffered injuries in the accident, “none of the experts presented by Caboni testified that he suffered enhanced injuries as a result of the air bag failing to deploy.” As a result, the Fifth Circuit vacated the district court judgment and rendered a take nothing judgment against the plaintiff.
 

Bates v. Dow Agrosciences, L.L.C., 332 F.3d 323 (C.A. 5 (Tex.) 2003), cert. granted June 28, 2004 (03-388)

      During the 2000 growing season, Dow Agrosciences, L.L.C. (Dow) marketed Strongarm® herbicide for weed control in peanuts.  After experiencing crop losses resulting from the use of Strongarm®, twenty-nine (29) Texas farmers sent demand letters to Dow, which claimed that Dow retailers had misrepresented Strongarm®.  Specifically, the farmers alleged that retailers had not disclosed that Strongarm® could damage peanut crops planted in soil with a pH level above 7.0, in violation of the Texas Deceptive Trade Practices Act. 

      Dow did not wait for a lawsuit to be filed; instead, Dow sued for a Declaratory Judgment against the farmers.  A Summary Judgment Motion quickly followed, where Dow claimed that the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) preempted the farmers’ state law claims.  The farmers contended that state labeling requirements relating to product defectiveness were not within the scope of FIFRA’s preemption clause.  Further, the farmers also contended that their claims were not related to the Strongarm® label. 

      The Fifth Circuit Court of Appeals upheld the District Court’s holding that the farmers’ claims were preempted by FIFRA.  In its decision, the Court of Appeals found that a state which creates a labeling requirement, by authorizing a claim linked to the specifications of a label, to impose a requirement “in addition to or different from those” required under FIFRA.  Therefore, a judgment against Dow would induce it to alter Strongarm®’s label.  Accordingly, the farmers’ contention that their claims were unrelated to the label was rejected by the Fifth Circuit. 

      The Supreme Court granted certiorari on June 28, 2004 and heard oral arguments on January 10, 2005.  The outcome of this case may create an avenue for various state law claims that pertain to label requirements and statements to escape preemption by FIFRA.  One of the core questions the Court will address is whether a failure to warn claim is inherently related to a product’s label.  If the Court holds that a failure to warn claim does not relate to a product’s label, then such state law claims will not be preempted by FIFRA.  The Court is expected to make a ruling during the spring of 2005. 

 
Slusser v. Farm Service, Inc., and Monsanto Company, Case Number C.V.-99-41 (Arkansas 11/12/2004)

      The Arkansas Supreme Court affirmed the trial court’s dismissal of Mr. Slusser’s product liability claims against Monsanto Co. and Farm Service, Inc., finding that Slusser failed to comply with a state statute requiring buyers of crop seed to file a sworn Complaint with the Arkansas Plant Board within ten days of discovery of an alleged defect as a condition precedent to filing suit.

      Slusser purchased soybean seed manufactured by Monsanto and sold by Farm Service during the 1998 growing season.  The seed failed to germinate as represented on the label. Slusser purchased more seed and replanted in July of 1998.  The seed again failed to grow.  Slusser tested the seed for germination.  The test produced a germination rate of 29%.  The seed had a labeled germination rate of 80%.

      Slusser filed a request for seed arbitration on January 15, 1999 alleging that the seed was defective.  Slusser also filed suit the same day asserting breach of express warranty and negligent production of seed.  Slusser later amended his Complaint to include a count of res ipsa loquiter.  The Plant Board dismissed Slusser’s arbitration complaint in June 1999, finding that it was not timely filed.

      Monsanto moved for summary judgment.  Monsanto argued that Slusser failed to comply with Ark. Code Ann. §2-23-102 (a).  Section 102(a) required defective crop seed complaints to be filed within ten (10) days of discovery.  The statute also provided that compliance with §2-23-102(a) was a condition precedent to legal action.  The trial court found that Slusser knew that he had been damaged by the seed’s failure to perform in July, 1998 and that despite his knowledge he waited until January 1999 to file his complaint with the Plant Board.  Accordingly, the trial court dismissed Slusser’s action because it lacked jurisdiction.

      On appeal, the Arkansas Supreme Court affirmed holding that the statute was unambiguous and mandatory.  The Supreme Court rejected Slusser’s argument that compliance was permissive or directory.  The Arkansas Supreme Court observed that one of the purposes of the statute was to “give the Plant Board time to permit inspection of the plants during the growing season.  The growing season was over by the time the complaint was filed by Slusser.”
 
Frilot, Partridge Successfully Defends Nintendo

      Frilot LLC partner Mike North recently defended Nintendo of America in a three-week trial in federal court in Lafayette, Louisiana that resulted in a defense verdict.  In Martin v. Nintendo of America, the plaintiff claimed that Nintendo had violated federal law by failing to report that its games contained defects that created a "substantial product hazard," namely that some of its games could trigger seizures in a small portion of the population.  The plaintiff, who was the mayor of St. Martinsville, Louisiana, asked District Judge Richard Haik to impose upon Nintendo an array of injunctive orders for its alleged violation of the Consumer Product Safety Act.  He also sought attorneys' fees and costs. 

      After a lengthy trial, Judge Haik ruled in favor of Nintendo in all respects, dismissing all of the Plaintiff's claims against Nintendo.  The plaintiff filed a notice of appeal but ultimately abandoned that effort.

      On the heels of the trial victory in Martin v. Nintendo, Mr. North , Scott Partridge and Amanda Bradley won dismissal of a nationwide class action lawsuit against Nintendo, which had also been pending in federal court in Lafayette.  In that suit, Plaintiff, Jill Hull, sought certification of a nationwide class comprised of individuals who owned any of a number of Nintendo products but who had not been injured by them.  Like the Martin case, the Hull suit sought various forms of injunctive relief and attorney's fees.

      Nintendo moved for dismissal on the grounds that Plaintiff lacked standing to bring an action in federal court, because she failed to allege any injury or damages.  That motion was granted by Judge Haik. This brought to an end a lengthy litigation in Lafayette federal court that included two personal injury claims (voluntarily dismissed), a claim for violation of the CPSA (trial victory) and a nationwide class action (dismissed by the court).
 
Appellate Court Affirms Emerson Electric Trial Victory

      The Louisiana First Circuit Court of Appeal recently affirmed the defense victory James R. Silverstein and Francis H. “Rasch” Brown, III of FPKC obtained for Emerson Electric Co.  Schram v. Chaisson, 888 So.2d 247 (La. App. 1 Cir. 9/17/04), arose out of a fire which resulted in the death of twenty-six racing horses.  The owners of the racing horses filed a product liability action seeking more than $5 million in damages.  Plaintiffs claimed that the fire was caused by an allegedly defective electric motor manufactured by Emerson.  After a three-week trial, the jury returned a verdict in favor of Emerson.

      Although plaintiffs conceded on appeal that the trial court properly instructed the jury on all of the pertinent law, plaintiffs alleged that the jury verdict was invalid because the jury interrogatories were misleading and inadequate.  The First Circuit rejected the plaintiffs’ appeal arguments, finding that plaintiffs had not established that the jury interrogatories failed to conform with the law, or were otherwise confusing or prejudicial.

      Plaintiffs did not file an application with the Louisiana Supreme Court seeking a writ of certiorari.   

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All rights reserved. Frilot, Partridge, Kohnke & Clements, L.C., 3600 Energy Centre, 1100 Poydras Street, New Orleans, Louisiana 70163-3600, Telephone (504) 599-8000.

This newsletter is not intended to provide legal advice on products liability or litigation matters, but is simply a guide to current developments in the area. If you have any questions, or for additional information, please contact our Editors, Rasch Brown, 504-599-8012, email fhb@fpkc.com, Kerry J. Miller, 504-599-8194, email kjm@fpkc.com, or Eugene Terk, 504-599-8285, email et@fpkc.com.

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