9/24/2018
The Blame Game: Product Liability

The Blame Game: Product Liability

How good are you at predicting product liability-related verdicts?

By Teresa M. Beck , Nadijah Campbell

Who’s ready for a fun exercise in verdict valuation that will test your prediction accuracy? Below you will find facts concerning liability and damages in three product liability cases from across the country, all of which were tried to verdict. While you read the facts, think about what you think the outcome should be, considering all of the factors such as the venue and other relevant details. After an assessment of the potential outcomes, the actual outcome will be revealed. How will you do? Find out now.

Product Liability Case #1: Propane Stove

The first case comes from Court of Common Pleas in Pennsylvania. The plaintiff was a 51-year-old fruit picker who was trying to reconnect a stove to a propane tank in his home after having disconnected it to refill the propane tank. After reconnecting the stove, he turned its control knob to the right in order to light it, but it failed. He turned it again with the same outcome. As he turned the knob a third time, the gas ignited and shot fireballs from the stove’s electronic ignition and from both sides of the stove.

The plaintiff was taken by ambulance to a hospital, where he was diagnosed with second- and third-degree burns to his face, neck, hands, arms, and legs. During a month-long hospitalization, he had multiple debridements and burn-related treatments. He later suffered pneumonia and respiratory failure and underwent a tracheotomy.

After the accident, he regularly followed up with multiple physicians, including burn specialists and pulmonologists. A few months later, testing revealed that he had suffered severe vocal cord damage in the form of airway dysfunction secondary to vocal paralysis, which required a vocal cord cordotomy, in which a tube is surgically implanted to assist with breathing. The tube was not removed until the following year. The plaintiff also suffered from chronic bronchitis, persistent upper- and lower-respiratory issues, scar- and sensory-related issues, and ongoing airway dysfunction secondary to vocal paralysis. He now requires lifelong follow-ups with doctors, physical therapy, and additional vocal cord cordotomies and tracheotomies.

The fruit picker sued the stove manufacturer, alleging design defect and failure-to-warn claims. He maintained the stove was defective because the igniter was positioned too closely to the main burner ring, which permitted a large volume of propane gas to collect. He also alleged that the stove lacked adequate warnings, which was supported by a report from an expert in human factors and warnings. Accompanying the stove was one sheet of paper with instructions. The instructions had been originally written in Vietnamese and then translated to English. As a result, the instructions had become compromised in translation. For instance, unintelligible phrases like “Do not spray fire fire tubes” were part of the instruction sheet.

The plaintiff incurred $1.44 million in past medical costs and claimed $384,465 in future medical expenses. He had extensive scarring on his face, neck, arms, and legs, and the scarring around his knees would potentially undergo scar-revision surgery. The plaintiff’s expert in vocational rehabilitation determined that, based on his injuries, fifth-grade education, and the fact that he did not speak English, he was permanently disabled. Thus, the plaintiff also sought to recover $77,940 in past lost wages and $411,701 in future lost wages.

In terms of general damages, the plaintiff testified that he is in constant pain and discomfort from his scarring, has labored breathing, and sensitivity to touch. He speaks at a low volume and is fatigued with over-exertion. His wife testified that she now performs all household duties because of her husband’s limitations, which includes labor-intensive tasks like mowing the lawn and shoveling snow, as well as caring for their five children. She sought damages for loss of consortium.

Evaluation and Verdict: Given about $2.2 million in special damages, a jury verdict could easily exceed $7 million, and with permanent scarring, limitations, and ongoing medical problems, a verdict of $10 million would not be surprising. We don’t know from these facts what the defenses to this claim were, but fireballs shooting out of the stove are definitely problematic from a liability exposure standpoint. Indeed, after a one-day trial (which must have been a bench trial given the brevity but the verdict report is not clear), the court awarded the plaintiff and his wife $1.44 million for past medical expenses, $384,465 for future medical expense, $77,940 for past lost earnings, $411,701 for future lost earnings capability, and $6 million for non-economic damages. Plaintiff’s wife was awarded $1 million in loss of consortium. The defense counsel appears to have wisely chosen a bench trial, which likely kept the verdict in check.

Product Liability Case #2: Rock-Crushing Machine

Our next case comes from the Los Angeles Superior Court in California. A 34-year-old maintenance worker and groundskeeper at a materials recycling plant was cleaning up debris near a rock-crushing machine when he became entangled in the conveyor belt. He was subsequently pulled into the machine and crushed to death. He was survived by his sons, ages 11 and 17, and his daughter, age 14.

The plaintiff sued the manufacturer of the machine, contending that the equipment was defectively designed because there were removable safety guards and no interlock or adequate emergency stop device. The plaintiff’s civil engineering expert said that if the safety guards were removed, then there should have been an interlock device or an emergency stop installed.

The defense asserted that the employer removed the safety guards and should have never allowed the machine to operate without the provided safety guards. The defendants further argued that the plaintiff was negligent for working near the machine without a safety guard. Also, according to the defendant, the machine was safe if it was used with the safety guards provided, and when the machine was delivered, there was an emergency stop in the control room, which was the primary physical guard. The defendant’s expert said that a secondary stop was unnecessary because the emergency stop was already provided.

Evaluation and Verdict: Here, the death of a young father occurred. Liability is not a foregone conclusion, but given that there is evidence that the product was altered, special damages can be expected to pale in comparison to general damages, assuming liability. Measuring the value of the life of a human being is always difficult. Similar cases, however, have resulted in outcomes of roughly $1-$2 million per child, which, in this instance, would result in a verdict of around $6 million.

The trial took seven days, and the jury’s deliberation lasted a day and a half. In a unanimous liability decision and an 11-1 damages decision (California requires nine jurors to agree), the jury found the machine failed the risk-benefit test and that the design of the machine was a substantial factor in causing harm to the plaintiff. The jury also found that the plaintiff was not negligent but his employer was, and that negligence was a substantial factor in causing harm to the plaintiff. The jury apportioned 70 percent liability to the manufacturer and 30 percent liability to the employer. The jury also determined that the damages sustained by the decedent’s children totaled $30 million, or $10 million for each child.

Product Liability Case #3: Malfunctioning Automobile

Our final case is from Texas. A 19-year-old restaurant server was driving on a road that was wet from recent rains. Although the speed limit was 55 mph, the 19-year-old was driving at more than 70 mph when he approached a line of vehicles from behind and passed them on the right shoulder. As he moved back into a lane of travel, his car fishtailed and began a counterclockwise yaw. The car crossed the center line and struck an eastbound pickup truck driven by a third party. The impact was primarily to the 19-year-old’s front right fender and the front of the pickup. The car’s air bags did not deploy, and the 19-year-old sustained a head injury. The truck driver was killed in the accident and the 19-year-old was charged with manslaughter. The 19-year-old suffers from a permanent traumatic brain injury. In addition, he has mental anguish and expenses arising from the manslaughter charges that were brought against him for the death of the truck driver.

Three years after the accident, the manufacturer of the car that caused the accident began a recall that eventually included the 19-year-old’s car. The recall was for a manufacturing defect in the ignition switch, which could move too easily from the “run” position to the “accessory” and “off” positions, causing stalls and disabling critical safety systems, such as air bags. After the recalls, the manslaughter charge against the 19-year-old was dismissed.

The 19-year-old and his parents sought damages for his future medical bills, the attorney’s fees incurred in defending him on the manslaughter charge, and his past and future physical pain, mental anguish, and physical impairment. They also sought the diminution in value of the car. Overall, they sought about $15 million in special damages.

The 19-year-old sued the car manufacturer on theories of strict product liability, negligence, gross negligence, and recklessness, alleging that the manufacturing defect existed in the 19-year-old’s vehicle. The plaintiff claimed that the ignition switch moved out of the “run” position, causing him to lose control of the vehicle and disabling the air bags. The plaintiff also argued that, although the impact was at an angle and not head-on, the angle of the impact was close enough to head-on that the air bag would have deployed but for the ignition-switch defect. If the air bags had deployed, then the 19-year-old would not have sustained a head injury. Additionally, the plaintiff argued that, for several years, the manufacturer failed to identify safety concerns about the ignition switch and failed to initiate a timely recall.

The manufacturer argued that even if the ignition switch was defective, there was no evidence that the switch rotated in the accident. Moreover, the car’s data recorder reflected the ignition switch was in the “run” position at the time of the accident. The plaintiff contended that the data recorder was incorrect. The manufacturer also argued that the 19-year-old’s speeding and passing on the right shoulder caused the loss of control, and it was undisputed that the ignition-switch defect, if any, did not cause the speeding or passing on the shoulder.

Evaluation and Verdict: The plaintiff and his parents sought $15 million in actual damages, but no breakdown was provided in the verdict report. If in fact special damages were $15 million, then exposure could exceed $25 million. In a 75-minute jury deliberation after a 12-day trial, however, the jury unanimously decided that the ignition switch did not have a manufacturing defect that was a producing cause of the occurrence of the accident or injury to the 19-year-old, and the manufacturer received a defense verdict. The defense team chose a good case to take to verdict.

How Did You Do?

Evaluating verdict exposure is one of the toughest tasks of risk managers, claims professionals, and defense attorneys. The opinions among even the most experienced of us can diverge widely, even by millions of dollars. What does it all mean? Well, most assuredly, playing The Blame Game hones our skills, and staying up to date on verdict outcomes can certainly inform our evaluations. Moreover, verdict three reminds us that defense verdicts can still be an option, though they are few and far between.



Teresa M. Beck is a partner with CLM Member Firm Lincoln Gustafson & Cercos. She can be reached at (619) 233-1150, tbeck@lgclawoffice.com, lgclawoffice.com.

Nadijah Campbell is a second-year law student at Temple University’s Beasley School of Law and a recent summer intern graduate at Buchanan Ingersoll & Rooney.

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