We recently posted a general overview of failure to warn cases, https://www.videntpartners.com/blog/2024/product-liability-%E2%80%93-failure-warn. That post concluded as follows: “These cases often involve complex medical and scientific concepts, so working with experienced experts is essential. Vident Partners has safety experts (which includes failure to warn) in a wide variety of fields.”
In today’s case, Davis et al. v. Simon Contractors, Inc. (8th Cir., No. 22-2028, 9/16/2024), the Eighth Circuit affirmed a verdict and judgment in favor of the defendant. The verdict was based on the defendant’s affirmative defenses – sophisticated user and assumption of the risk – which required the jury to resolve certain issues of fact. I think it’s clear that the key reason the jury resolved those issues in favor of the defendant is that the defense presented expert testimony and the plaintiffs did not.
As always on appeal, the court set forth the facts in the light most favorable to the jury’s verdict. (Note: The court briefly summarized the defense expert’s testimony in the statement of facts, reserving quotations from that testimony for its discussion of the two affirmative defenses.)
Davis called Simon Contractors and ordered wet ready-mix concrete to be delivered to his home for a 30-by-30-foot garage floor he was installing with the help of his friend Crane. Simon Contractors was to deliver the wet concrete and unload it from a concrete-truck chute. They were not hired to install it or help with Davis’s project . . . .
Davis was a tile salesman and distributor, and he had significant experience using a product called “thinset” to install tiles. Thinset contains the same type of cement {Portland cement – MA} as ready-mix concrete. Davis described it as “a dry powder, and you mix it up [with water] into kind of a [cement] paste” that is then “trowel[ed] onto the back of tiles” and then placed directly onto flooring or walls. Crane had experience with “hands-on manual labor” jobs, including using thinset. . . .
This was Davis and Crane’s first “do-it-yourself” project working with wet concrete on a slab floor. To prepare, Davis “watched a YouTube video on how to . . . tie up the rebar and how to space it” to reinforce the concrete once it was poured. . . . [He did not] watch a video about working with wet concrete.
[T]he wet concrete was delivered to Davis’s home in two separate truckloads. . . . Davis was working on his hands and knees in the concrete, wearing jeans with a tear in one leg, a shirt, and sneakers. Crane was wearing ankle-high hiking boots and black pants. Neither of them was wearing the recommended personal protective equipment (PPE) in the concrete industry, such as rubber gloves and boots, to prevent the wet concrete from contacting their skin. . . . [T]hey did not ask the driver for advice on how to do the job or what PPE to wear.
After delivering the second load, the delivery driver handed Davis’s fiancée – who was standing nearby while Davis and Crane were working – an invoice for each delivery. She . . . obtained “yellow carbon copies” of both invoices . . . . On each invoice and carbon copy, there was a warning at the very top in small print that read: “WARNING – IRRITATING TO THE SKIN AND EYES. Contains Portland Cement. Wear rubber boots and gloves. PROLONGED CONTACT MAY CAUSE BURNS. . . . In case of contact with skin or eyes, flush thoroughly with water.”
[After a few hours,] Crane’s feet started itching, and he left the garage to change his socks. When Crane took off his shoes and socks, he discovered chemical burns on his feet and ankles. He immediately told Davis, who then removed his jeans and noticed he, too, had severe chemical burns on his legs. Davis was admitted to the burn unit at a hospital and received debridement of his wounds and skin grafts on his legs. Crane went to the emergency room but cared for his wounds at home. The record reflects that extensive medical care was required for their injuries. . . .
A structural engineer testified on behalf of Simon Contactors that Davis failed to properly plan the construction of the 30-by-30-foot concrete slab in his garage, and that Simon Contractors had no obligation to warn him about wearing PPE or having the tools necessary to complete the project safely. The expert concluded, based on his view of the evidence, that Davis and Crane’s injuries were caused by their failure to properly plan for the job and by the prolonged exposure to wet concrete. Additional witness testimony about the incident [in addition to Davis and Crane themselves] was introduced from both parties, including Davis’s fiancée and the two Simon Contractors delivery drivers.
The plaintiffs sued Simon Contractors in the U.S. District Court for the District of Nebraska for failure to warn under strict liability and negligence theories. (The proof required is the same for both.) This being a diversity case, the substantive law of Nebraska applied. In the following excerpts, citations are omitted, as are internal quotation marks and brackets unless the court is quoting from the record below.
Davis and Crane argue the district court “misapprehended” Nebraska law on the availability of the sophisticated user defense. They assert that regardless of whether they knew or should have known about the danger of exposure to wet concrete, Simon Contractors still had a duty to warn them of its “inherently dangerous product” . . . .
Nebraska has long recognized the sophisticated user defense to a warning-defect claim. This defense provides that there is no duty to warn if the user knows or reasonably should know of the potential danger, especially when the user is a professional who should be aware of the characteristics of the product. . . .
It is true that there was no evidence indicating Davis or Crane had prior experience with wet concrete “at [the] caliber” of the garage project. But Davis specifically testified about his experience installing wall and floor tile with thinset, which contains the same type of cement as ready-mix concrete. Furthermore, according to Simon Contractors’ expert, it is “common industry practice” that when concrete is ordered, the supplier assumes “the purchaser has some basic knowledge of concrete and would have the proper equipment and PPE to protect themselves from the caustic burns.” (Emphasis added.) The jury was able to weigh all contrary evidence at trial and find that, given their experience tiling, working with smaller quantities of cement-based products, and observing others working with cement and concrete, Davis and Crane knew or should have known of the dangers of wet concrete such that no additional warning was required. . . .
Next, Davis and Crane challenge the assumption of the risk jury instruction, arguing that Simon Contractors failed to prove they subjectively knew of the danger posed by wet concrete, and thus, could not have assumed the risk. . . .
We see no error in the court’s decision to provide this instruction. As we addressed above, a jury could reasonably find that Davis and Crane knew of the specific danger posed by wet concrete. . . .
The jury . . . heard testimony that the first delivery driver mentioned to them earlier that morning that they “didn’t have the right equipment,” they were unprepared, and they “might want to wear rubber gloves or boots.” And the structural engineer testified that Davis and Crane had access to warnings that discussed these very dangers. The engineer testified the written warning here was “standard” for the type of concrete used and would be the same warning found on “a bag of tile grout or mortar” and “basically on every document that you see that has anything to do with concrete.” The engineer further testified that had Davis and Crane, at a minimum, “read and taken seriously” the warning on the carbon copies of the invoices provided to them after the second delivery driver left, they would have known to avoid any additional exposure to wet concrete and that they should immediately rinse any off with water. (Emphasis added.) This testimony, as well as the evidence of their experience in the industry, support a conclusion that Davis and Crane understood these warnings and thus knew of the dangers.
You can see why the defense expert’s unrebutted testimony was crucial to the outcome. His remark that the warning on the invoices was the industry standard and that the same warning would be found on “a bag of tile grout or mortar,” with which Davis and Crane had long experience, was particularly compelling. I think it’s very likely that plaintiff’s counsel contacted more than a few structural engineers and they all told him the same thing. Under the circumstances, I think it’s reasonable to conclude (though I know I’m engaging in a lot of supposition here) that the defendant’s settlement offer was low. So plaintiff’s counsel and his clients decided to roll the dice and proceed without an expert. My guess is that the decision was based on the severity of the plaintiffs’ injuries and the hope that the jury would find the plaintiffs’ personal testimony compelling. I will not fault that decision. But without an expert, this was a tough case to win.
