Products Liability and Torts Litigation Ledger
Publisher: Day Pitney Newsletter
11/20/2009

Paul Williams and Anna Dumais Win Jury Trial for Client Mercury Marine in a Products Liability Case

Paul D. Williams
Anna Dumais

Day Pitney Partner Paul Williams, Second-Year Associate Anna Dumais and their Hartford office trial team won a two week trial in Bowers v. Malibu Boats, Inc. et al, a products liability wrongful death and personal injury case filed against our client Brunswick Corporation d/b/a MerCruiser ("Mercury Marine"), the manufacturer of a 1992 engine wiring harness installed on a MerCruiser engine in a Malibu boat owned by the decedent.

The Malibu boat was involved in a fatal collision when another boat hit it from the rear, resulting in the death of two individuals and serious injury to two other individuals. The lowest settlement demand was an offer of judgment for $5 million filed in 1999. During trial, plaintiff's counsel asked the jury to award $11 million in damages.

This product defect case involved hundreds of exhibits and both sides made extensive use of courtroom technology, capably handled for Mercury Marine by Day Pitney trial team members Kathi Cohun (Senior Paralegal) and Patty Batsie (Litigation Technology Specialist).

10 Tips on Litigation Document Preservation

Cynthia K. Courtney
E-Discovery Counsel

In this electronic age, discovery is often a key factor in driving litigation costs over the life of a personal injury or wrongful death case. Cost-saving measures can start, however, even before a plaintiff serves the first discovery request. The litigation "hold" letter offers the first opportunity for in-house counsel to get ahead of litigation costs by standardizing and managing internal communications and taking affirmative steps early to ensure good faith compliance. The litigation "hold" also affords early efforts to identify potentially relevant documents and develop an orderly discovery plan.

The following are tips for litigation "hold" notices sent to company employees notifying them of a claim or lawsuit and guiding them through retention and storage of documents for later review and potential production by counsel:

Develop a standard, streamlined process for promptly notifying key company personnel about actual or threatened litigation. Having a set policy in place for quickly communicating to key personnel news regarding incoming claims and potential claims is the first step towards demonstrating consistency and good faith.
Work with counsel to prepare a template preservation notice that can be used and re-used in the context of other, subsequent lawsuits or threatened claims. Taking the time to do this early eliminates guesswork and redundant costs and allows for fine-tuning, rather than re-inventing the wheel.

Identify in the preservation notice a single point of contact who can answer questions and can also serve as a "go to" person for later inquiries that may arise in litigation. Combine this with a clear, efficient chain of communication from the designated internal point of contact to outside counsel.

Employ a standardized process to identify key players in the case who have left the company so that their electronic information can be promptly secured for later review and easier harvesting.
Provide specific instructions for recipients to notify the contact person if they know of additional individuals who should receive the notice and should be made aware of the claim.

Specify a reasonable date range for materials that should be preserved.

Identify the categories of information that should be preserved; supplement by attaching the complaint, subpoena or other documents, if appropriate.

Define broadly the types of information that must be preserved, listing all types of electronic information and media, as well as paper documentation.

If an existing internal document management program will operate to automatically destroy or delete potentially relevant information, work with your IT department and records managers to suspend the program for the duration of the litigation hold.

Issue frequent, well-timed reminder notices over the life of the claim, and be sure to update the notice as necessary to take into account changes, rulings and new information in the case.

Finally, it is prudent to conduct custodian interviews early for purposes of identifying where the potentially relevant information resides and to take this information into account at the time you send out the litigation hold notice. Be sure that counsel records your efforts and your interview results contemporaneously for internal use (keeping in mind privilege and discoverability issues). Undertaking these actions while the case and the importance of document preservation are fresh and foremost in people's minds promotes efficiency, cost-savings and compliance.

Plaintiff claimed the engine wiring harness was defective and unreasonably dangerous. Specifically, plaintiff claimed that a certain receptacle within the wiring harness, one of eight, was defective because it caused an intermittency in the target boat on the night of the accident, allegedly causing both the lights and engine to stop working. The defect was attributed to excessive Polyvinyl Chloride ("PVC") insulating material that created a flap at the top of the receptacle at issue. Plaintiff alleged some of the PVC melted into the receptacle, creating an open circuit in the connection. The receptacle at issue was responsible for carrying the current for the lights and engine. Our client's witnesses agreed that the PVC was an "anomaly" and should not have been there. Moreover, the subject receptacle was discolored, unlike the surrounding components and we could provide no explanation for the condition.

Plaintiff made a strong argument for intermittency. Notably, the boat was secured after the accident and the light switches were in the "off" position. The plaintiff's expert examined the boat six months after the accident and testified that when he lightly touched the wiring harness, the lights would go on and off and the engine would work.

The plaintiff's case was adequately financed by settlements with the boat driver that hit the target boat, with Malibu Boats, the manufacturer of the boat on which the wiring harness was installed, and with Uniforce, the manufacturer of the other side of the harness that was plugged into the engine wiring harness. This case had already been tried once in 2004, at which time all other defendants settled out. The jury found Mercury 70 percent liable at the first trial. The verdict was appealed, and the Supreme Court remanded the case for a new trial.

Our evidence was limited as a result of the Court's ruling on various motions in limine. For example, the air horn, flares and flashlight found on plaintiff's boat were of great importance because each of these safety devices, which plaintiff was required to keep on his boat, was found to be inoperable when checked by investigators a few days after the accident. The trial judge ruled that this evidence was relevant and admissible for the purpose of establishing the decedent did not use this safety equipment on the boat. He did not, however, allow admission of the expiration date of the flares or the inoperability of the flashlight or air horn to come in, ruling that there was no evidence that Mr. Bowers knew they were inoperable and therefore there was no connection to proximate cause.

Despite these adverse rulings, Paul and Anna were able to convince the jury that the individuals on the boat were partying and had turned the lights off intentionally on a dark night, to prevent themselves from being seen by an on-coming boat.

Paul (a member of the American College of Trial Lawyers and Chair of the Products Liability and Torts Litigation practice group) gave the closing argument on February 10, after plaintiff's counsel, David Rosen, repeatedly reminded the jury that February 10 was Rob Bowers' (decedent's) birthday and he would have turned 43 that day had he lived.

The jury deliberated for three and a half hours before returning its verdict in favor of Mercury.

Day Pitney Partner to Serve as Third Circuit Trustee on The Board of American Inns of Court Foundation

John C. (Jay) Maloney, Jr.

Day Pitney partner John C. Maloney, Jr. has been elected to serve as the Third Circuit Trustee on the Board of the American Inns of Court Foundation effective July 1, 2009.

The Foundation is responsible for oversight, policy-making and strategic planning for almost 500 local American Inns of Court. Founded in 1980 at the request of Chief Justice Warren E. Burger and others and modeled after the Inns of Court in England, the American Inns of Court is the nation's oldest, largest and fastest-growing legal mentoring organization. More than 25,000 state, federal and administrative law judges, attorneys, legal scholars and law students are currently involved in developing a deeper sense of professionalism, achieving higher levels of excellence and furthering the practice of law with dignity and integrity in local Inns.

Mr. Maloney will be serving with 35 other Trustees, including State Supreme Court justices, federal circuit court judges and law school deans. Mr. Maloney has been the President of the Worrall F. Mountain Inn of Court in Morristown, New Jersey for more than 10 years.

Massachusetts Appeals Court Upholds $18.3M Jury Verdict for Day Pitney Client

James H. (Jim) Rotondo
Allan B. Taylor

The Massachusetts Appeals Court recently affirmed an $18 million jury verdict obtained for our client, Bodycote IMT, Inc., by Jim Rotondo, a Hartford-based partner and co-chair of Day Pitney's Commercial Litigation department.

In doing so, the Appeals Court brought to conclusion a nine-year odyssey in the Massachusetts courts involving a five week trial in Massachusetts Superior Court in one of the most complex products liability matters our lawyers had ever seen.

The case arose out of the July 25, 1998 explosion of a hot isostatic press (HIP) at Bodycote's Andover, Mass. facility. A HIP is a large steel containment vessel used to make metal components less porous through the application of both extremely high temperatures and pressure.

The force of the explosion propelled huge metal pieces of the HIP -- the largest in the world when it was built in 1986 -- more than a quarter of a mile from the plant with enough force to bury them in the ground. Luckily, the explosion took place in the middle of the night when only a small number of employees were present and none suffered any lasting physical injury. Without the 19-foot, 140 ton HIP, however, the plant was unable to run at full capacity for nearly two years, during which time the plant was repaired and a new HIP was custom designed, built, and installed.

We initially filed a complaint on Bodycote's behalf in Massachusetts Superior Court in May 2000 against a number of defendants, including the designer and seller of the vessel, the manufacturer of the steel used in its fabrication, and the water treatment company that had prescribed and sold the corrosion inhibitor used in the water that cooled the outside of the vessel. After several years of protracted discovery, including dozens of depositions, Bodycote resolved its claims against all but the water treatment company.

The superior court split the liability and damages portions of the trial. During the liability phase, the parties called multiple scientific experts in a variety of disciplines, including metallurgy and materials science. Bodycote's experts testified persuasively that the defendant's product had caused the vessel to pit, leading to microscopic cracks in the vessel wall that in turn grew and caused a catastrophic rupture. The liability portion of the trial lasted several weeks, after which the jury found for Bodycote on multiple theories, including breach of implied warranty and breach of contract. In the damages phase of the trial, the jury awarded Bodycote more than $18 million.

The defendant appealed, challenging several of the trial judge's instructions to the jury as well as certain of her evidentiary rulings. The appeals court affirmed the lower court's decision with respect to each of defendant's claims on appeal.

Lawyers and support staff from Day Pitney's Boston and Hartford offices handled the case from beginning to end. Jim Rotondo and David Broughel tried the case. Jonathan Handler was heavily involved in discovery until the claims against the other defendants were resolved. Allan Taylor briefed and argued the appeal.

Florham Park Team Wins Summary Judgment on "Special Employment Doctrine" in a Personal Injury Case
Robert L. Hollingshead

The Florham Park team consisting of partner Bob Hollingshead, associates John Coyle and David I. Schiefelbein, and legal administrative assistants Janet Clayter and Pam Clark obtained a relatively rare result in a personal injury action filed against our client, McWane/Atlantic States Cast Iron Pipe Company: entry of summary judgment in favor of Atlantic States following an arbitrator's non-binding award of $500,000 to plaintiff. The motion for summary judgment was based on the "special employment" doctrine, which in this setting applies to those individuals who are employees of both a personnel staffing company (the general employer) and the company with which they are placed and that controls their daily activities (the special employer). Due to the employee's relationship with both companies, each employer is entitled to protection under the New Jersey Workers' Compensation Act, which precludes a civil action for on-the-job injuries, except in very limited circumstances of intentional harm that did not apply here.

Plaintiff was a licensed electrician placed with Atlantic States by the staffing company. At the time of the accident, he was attempting to fix a faulty electrical box when he came into contact with a "live wire" due to his failure to follow Atlantic States' comprehensive safety procedures, including the requirement that he de-activate and lock out the electrical box before working on it. As a result of an arc of electricity, plaintiff received extensive burn injuries, for which he received workers' compensation from his general employer in the amount of $137,922 for temporary disability payments and for medical treatment and hospitalization.

The team filed the motion after the court-appointed arbitrator declined to recognize the special employment doctrine when issuing a favorable award to plaintiff. Their arguments received a better reception in superior court, which granted the motion. When no appeal was filed, the summary judgment became final.

Medical Device Manufacturers May Encounter Artful Pleading From Plaintiffs Seeking to Avoid Connecticut Appellate Court Decision Following Riegel

Charlsa D. (Sandy) Broadus

In Mullin v. Guidant Corporation, 114 Conn. App. 279 (2009), the Connecticut Appellate Court issued its first decision on federal preemption under the Medical Device Amendments of 1976, 21 U.S.C. § 360c, et seq. ("MDA"), since the U.S. Supreme Court decided Riegel v. Medtronic, Inc., __U.S.__, 128 S. Ct. 999 (2008).

The result was hardly a shock - the appellate court followed Riegel and held that the MDA expressly preempts plaintiffs' state tort law claims.

In 1999, Leslie Mullin suffered from cardiac arrest, respiratory distress and, ultimately, ventricular fibrillation arrest. At the recommendation of her physician, Mullin was implanted with a Ventak Mini IV Model 1973 cardioverter defibrillator, manufactured by Guidant Corporation. At the time, Mullin was in her early 30s. After the implant malfunctioned and reverted to a "failsafe" mode, it was replaced with a different model. Guidant bore the costs of the new implant and the replacement procedure. Nevertheless, Mullin and her husband asserted a two-count complaint against Guidant, alleging violations of the Connecticut Product Liability Act ("CPLA") in count one, and certain emotional distress, loss of consortium, and fiscal expense claims on behalf of Mullin's husband in count two.

Guidant filed for summary judgment on December 14, 2007, arguing in part that plaintiffs' claims were preempted by federal law as set forth in the MDA. The trial court agreed that the MDA preempted plaintiffs' claims. Rather than enter judgment in favor of Guidant, however, the court dismissed plaintiffs' complaint for lack of subject matter jurisdiction.

Plaintiffs appealed and on May 12, 2009, the appellate court determined that the MDA did indeed preempt the plaintiffs' state law claims, but rejected the trial court's conclusion that such preemption deprived the court of subject matter jurisdiction. Specifically, the appellate court concluded that
"[b]ecause a preemption defense may be waived but jurisdiction defect may never be waived...the MDA's preemptive effect does not implicate our courts' subject matter jurisdiction."[1]

Turning to the primary issue of federal preemption, the appellate court in Mullin held that "the tort claims raised in the plaintiffs' complaint are preempted by federal law," in light of the precedent set by the U.S. Supreme Court in Riegel v. Medtronic, Inc.[2] In Riegel, the Court determined that express preemption clause contained in the MDA "bars common law claims challenging the safety and effectiveness of a medical device given premarket approval by the Food and Drug Administration (FDA)."[3] In relevant part, the MDA's preemption clause provides that:

[N]o State or political subdivision of a State may establish or continue in effect with respect to a device intended for human use any requirement -- (1) which is different from, or in addition to, any requirement applicable under this chapter to a device, and (2) which relates to the safety or effectiveness of the device or any other matter included in a requirement applicable to the device under this chapter.[4]

Relying on § 360k and the fact that the MDA provided "a regime of detailed federal oversight" of medical devices, the Court in Riegel found that state tort laws that impose higher or different safety standards on medical devices disrupt the federal scheme and are, therefore, preempted.[5] The Connecticut Appellate Court in Mullin followed suit and held that plaintiffs' CPLA claims relating to the allegedly defective nature of Mullin's cardioverter defibrillator were preempted in their entirety by federal law.[6]

At first blush, the court's decision in Mullin appears to be an unremarkable endorsement of Riegel, but Mullin is notable in two respects: First, the court held that Riegel and its federal preemption analysis is applicable to state statutory claims, as well as common law claims. The appellate court noted: "Although the present case involves, at least in part, statutory claims rather than common law claims...this is a distinction without a difference," and Riegel "is binding on our decision."[7] Second, the Mullin court recognized that even under Riegel, a plaintiff would be entitled to maintain state law claims for alleged violations of FDA regulations, which "parallel," rather than differ from or add to, the regulations under federal law.[8] The Mullin court failed to allege such "parallel" claims, and, as a result, the appellate court found that their claims were preempted. Nevertheless, Riegel, and now Mullin, leave open the possibility that state law claims challenging the safety or effectiveness of a medical device could withstand a preemption challenge if they are carefully crafted as violations of FDA regulations. An allegation, for instance, that a manufacturer failed to adhere to the FDA approved manufacturing process is the type of claim that would likely fall outside the preemptive scope of the MDA.

Manufacturers should expect a rise in such claims and should be prepared to vigorously challenge attempts by plaintiffs to plead around Riegel and Mullin to avoid federal preemption.


--------------------------------------------------------------------------------

[1] Mullin, 114 Conn. App. 279, 2009 WL 1272327, at *2.

[2] Id. at *5.

[3] Riegel, U.S., 128 S. Ct. 999, 1002, 1008. The defibrillator implant at issue in Mullin is a Class III medical device that was granted premarket approval by the Food and Drug Administration ("FDA"). Mullin, 114 Conn. App. 279, 2009 WL 1272327 at *4. A Class III device is one that is "purported or represented to be for a use in supporting or sustaining human life or for a use which is of substantial importance in preventing or impairment of human health" or one that "presents a potential unreasonable risk of illness or injury." 21 U.S.C. § 360c(a)(1)(C)(ii).

[4] 21 U.S.C. § 360k(a).

[5] Riegel, __ U.S. __, 128 S. Ct. 999, 1002-05, 1008.

[6] Mullin, 114 Conn. App. 279, 2009 WL 1272327 at *5. The appellate court held that Mullin's husband's derivative loss of consortium claims were also preempted by the MDA. Id. at *5, n.7.

[7] Id. at *5.

[8] Id. at *5-6.

For questions or feedback regarding this newsletter, please contact:

Charlsa D. (Sandy) Broadus CT, DC
cdbroadus@daypitney.com
(860) 275 0237
Hartford

View Newsletter


Related Practices: Products Liability and Torts Litigation

Email your friend email to your friend