Product Liability - Frank P. Brannen Jr. and Jacob E. Daly

JurisdictionGeorgia,United States,Federal
Publication year2009
CitationVol. 61 No. 1

Product Liabilityby Franklin P. Brannen, Jr.* and Jacob E. Daly**

This Article surveys developments in Georgia product liability law during the period of June 1, 2008 through May 31, 2009.1 It covers noteworthy cases decided during the survey period by the Georgia appellate courts, the United States Supreme Court, the United States Court of Appeals for the Eleventh Circuit, and United States district courts located in Georgia. In addition, this Article discusses bills considered by the Georgia General Assembly during its 2009 session that are particularly relevant to product liability cases.

I. Negligence

Under Georgia law, the elements for a negligence cause of action are:

(1) a legal duty to conform to a standard of conduct that arises as a matter of law to protect others against unreasonable risk of harm;

(2) a breach of this standard of conduct;

(3) a causal connection between the conduct and the injury; and

(4) damages that flow from the breach of the duty.2

"'The most common test of negligence is whether the consequences of the alleged wrongful act are reasonably to be foreseen as injurious to others coming within the range of such acts.'"3

The Georgia Court of Appeals examined the duty of a seller and installer of tires in Underwood v. Select Tire, Inc.,4 a matter that arose from the blowout of a right front truck tire. The plaintiff brought suit against the driver of the truck, the company that sold the allegedly defective tire, the company that installed the tire, and the tire manufacturer. The purchaser of the tires testified that he relied on the expertise of the seller and installer to follow applicable regulations and to pick the appropriate tires for the situation. At issue was whether the tire was "regrooved," a condition in which a new tread is cut into the tread of a worn tire.5

The trial court held that because the company that sold the tire was not a tire dealer, it owed no duty to inspect the tire. In addition, the trial court concluded that the installer of the tire did not owe any duty to inspect the tire to determine whether it was appropriate for any particular purpose.6 In contrast, the court of appeals determined the record showed that the tire seller was, in fact, in the business of selling tires as part of its business of selling trailers that contained tires and explained that "nothing in our law requires a company to sell only or mostly one product before it incurs a duty toward its customers."7 Because part of the business of the tire seller was such that it acquired an appreciation for the proper uses of certain tires in certain situations, the seller here owed a duty to the purchaser to select the correct tires.8

II. EVIDENTIARY ISSUES

A. Expert Testimony

On February 16, 2005, Governor Sonny Perdue signed into law new rules for the admission of expert testimony in civil lawsuits,9 essentially adopting the Daubert v. Merrell-Dow Pharmaceuticals, Inc.10 standard found in Federal Rule of Evidence 702.11 This new Daubert standard was such a revolutionary development in the admissibility of expert witness testimony that one trial judge has characterized it as a "sea change of Georgia practice."12 Without many opinions from the Georgia appellate courts interpreting the Daubert statute, practitioners and judges assessing the admissibility of testimony from expert witnesses must rely on decisions from the federal courts as persuasive authori-ty.13 The following cases from federal courts within the Eleventh Circuit offer recent guidance on Daubert issues.

In Wilson v. TASER International, Inc.,14 the United States Court of Appeals for the Eleventh Circuit affirmed the trial court's exclusion of the plaintiff's expert witness, Dr. Edward Meier, who treated the plaintiff for pain arising from a spinal fracture that the plaintiff allegedly sustained after being shot with a TASER electrical stun gun as part of law enforcement training.15 Dr. Meier opined that the shock from the TASER was the cause of the plaintiff's spinal fracture. He based this opinion on the conclusions of another doctor and a case report article. TASER moved to exclude this opinion because it was the product of an unreliable methodology. The trial court agreed with TASER and excluded Dr. Meier's opinion. Although the trial court found Dr. Meier qualified to offer this opinion, the court concluded that the methodology used by Dr. Meier was unreliable because he based his opinion on only one case study.16

On appeal, the plaintiff countered that because Dr. Meier was the treating physician, his opinion should not be subject to the requirements Kumho Tire Co. v. Carmichael17 and Daubert.18 The Eleventh Circuit clarified that a treating physician may opine about the observations and decisions made during the treatment of a patient, but when the physician offers an opinion that is unrelated to the treatment of the patient, the reliability requirements of Daubert apply.19 Here, because Dr. Meier did not need to determine the cause of the spinal fracture to treat the plaintiff, his opinion regarding the cause of the injury was subject to Daubert and Rule 702.20

Next, the Eleventh Circuit assessed the reliability of Dr. Meier's methodology in developing his causation opinion according to the factors set forth in Daubert and its progeny and determined that he failed to meet any of the criteria.21 Dr. Meier had not tested his opinion, had not shown his opinion was generally accepted or peer-reviewed, or shown that he used a peer-reviewed source to reach his opinion.22 To the extent that Dr. Meier relied on the opinions of others, there was nothing in the record to indicate that the other doctors followed a reliable methodology.23 Finally, Dr. Meier failed to rule out other possible alternative mechanisms of injury, like osteoporosis.24 Because Dr. Meier did not follow a proper methodology, the Eleventh Circuit affirmed the trial court's exclusion of his testimony.25

The reliability of the testimony of a warnings expert was assessed in Thomas v. Hubtex Maschinebau GmbH & Co. KG,26 in which the plaintiff brought suit against Hubtex for injuries he sustained while operating an allegedly defective sideloader that was used to transport loads around a warehouse. While operating the sideloader, the plaintiff adjusted one of the carrying arms, which caused it to shear off the head of a stop bolt that retained the arm. The failure of the bolt allowed the arm to fall downward, crushing the plaintiff's right foot.27

The plaintiff retained Dr. David Brani, a mechanical engineer, to testify regarding the failure of the stop bolt. The manufacturer moved to exclude Dr. Brani's testimony pursuant to Rule 702, arguing that the testimony was not relevant to any of the issues at hand because Dr. Brani's testimony related to a design defect claim, while the plaintiffwas pursuing a failure to warn claim.28 The United States District Court for the Middle District of Georgia held that the existence of a design defect is an element of a failure to warn claim.29 Thus, Dr. Brani's testimony about a defect in the sideloader was relevant to the failure to warn claim.30 Accordingly, the district court denied the motion to exclude Dr. Brani's opinion.31

Next, the manufacturer moved to exclude the testimony of Dr. Ruston Hunt, who was offered as an expert witness regarding the warnings that accompanied the sideloader, contending that his opinions were not reliable. The manufacturer first challenged Dr. Hunt's opinion that the sideloader contained a dangerous condition. This attack was based on the fact that Dr. Hunt had not independently verified that a dangerous condition existed but, instead, relied on Dr. Brani's opinions.32 The court agreed and excluded this opinion, finding that Dr. Hunt had merely "parroted" Dr. Brani's opinions.33

The manufacturer also moved to exclude Dr. Hunt's opinion that a warning should have been attached to the sideloader to make users aware of the potential hazard. The manufacturer contended that this opinion was unreliable because, once again, the opinion was based on Dr. Brani's conclusion that the sideloader contained a foreseeable danger.34 This time, the court disagreed with the manufacturer and held that Dr. Hunt's opinion was reliable because his opinion was similar to an expert witness basing an opinion on a hypothetical.35 If the jury found that Dr. Brani's conclusion of the presence of a significant hazard was wrong, then there would be no need for the jury to consider Dr. Hunt's opinion that a warning was needed.36

Next, the manufacturer attacked Dr. Hunt's proposed warnings because he had not tested the warnings.37 But the court found that Dr. Hunt's reliance on the American National Standards Institute Z535 Safety Standards and his credentials as a human-factors expert provided sufficient reliability for the proposed warnings.38

Finally, the manufacturer objected to Dr. Hunt's opinion that the manufacturer's failure to warn the plaintiff was the cause of the injuries he sustained.39 The manufacturer argued that Dr. Hunt "has no basis for concluding that Plaintiff would have read and heeded the warnings, and therefore, his opinion is nothing more than unabashed speculation."40 Although the plaintiff countered that Dr. Hunt inspected the facility and noted that safety was a priority and literature shows that this type of proposed warning is generally effective, the court concluded that Dr. Hunt did not provide a sufficient basis for this opinion.41 The court emphasized that Dr. Hunt failed to come forward with any data that would support the reliability of his methodology.42

In Graff v. Baja Marine Corp.,43 boat manufacturers moved to exclude the testimony of the plaintiff's metallurgical expert witness, Brian Rampolla, pursuant to Rule 702. The manufacturers contended that Rampolla was not qualified to opine about failure of the gimbal housing in a boat and that his opinions lacked sufficient...

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