A failure to warn case is a type of product liability lawsuit in which the plaintiff claims that a manufacturer, distributor, or seller failed to provide adequate warnings or instructions about the safe use of the product. Failure to warn is a marketing defect, not a product defect.
Today’s case, Johnson v. C.R. Bard, Inc. (7th Cir., No.
Today’s case is Bayes v. Biomet, https://ecf.ca8.uscourts.gov/opndir/22/12/212964P.pdf (8th Cir., No. 21-2964, 9/21/2022), a lawsuit against the manufacturer of a failed metal-on-metal hip replacement. The trial court instructed the jury on two theories of recovery: strict liability and negligent design. The outcome was unusual – at least, it seems unusual to me. As the Eighth Circuit Court of Appeals explained,
Reading today’s case took me back to Boston University Law School and my first-year civil procedure course, which was taught by one of those professors who yell angrily at students who are unprepared to answer Socratic questions but are really nice guys outside the classroom. (I say “guys” because there were maybe half a dozen female professors, yet women comprised at least a third of my class. And when I argued cases in the Rhode Island and Massachusetts supreme courts and the First Circuit, there were no female judges on any of them.
This case is must reading for any trial lawyer (plaintiff or defense) who litigates product liability cases that rely on sophisticated expert testimony. In a workmanlike 35-page opinion (I did say the case was complex), the Eighth Circuit reversed the trial court’s exclusion of the plaintiffs’ medical and engineering experts and its resulting grant of summary judgment to the defendant. In re: Bair Hugger Forced Air Warming Devices Products Liability Litigation – Amador v.
A couple of months ago, I wrote about the division of opinion among state courts as to whether Amazon can be held strictly liable for injuries caused by third-party sellers’ defective products. https://www.videntpartners.com/blog/2020/amazon-liable-third-party-sellers%E2%80%99-defective-products.
This is a tricky one. In Hirchak v. W.W. Grainger, Inc., https://ecf.ca8.uscourts.gov/opndir/20/11/192642P.pdf (8th Cir. 11/17/2020), the plaintiff was injured at work when a web sling broke and dropped a load of steel tubing on him. The plaintiff couldn’t sue the manufacturer, Juli Sling Co. Ltd., because it’s a Chinese company, not subject to the jurisdiction of American courts. So he sued W.W. Grainger, Inc. (“Grainger”), which had allegedly sold the Juli sling to the plaintiff’s employer, Weiler, Inc.
This question was recently answered in the affirmative by California’s intermediate court of appeals in Bolger v. Amazon.com (4th App. Dist., Div. One, 8/13/2020), https://static.reuters.com/resources/media/editorial/20200813/bolgervamazon--opinion.pdf, and in the negative by the Ohio Supreme Court in Stiner v.
If that headline made you blink, don’t worry – you read it correctly, and it accurately states what happened. The case is Markel v. Douglas Technologies Group, https://ecf.ca8.uscourts.gov/opndir/20/08/192637P.pdf (8th Cir.
Rule 702 of the Minnesota Rules Evidence provides that “[an expert’s] opinion must have foundational reliability.” This is the functional equivalent of Fed. R. Evid.
