Ostendorf v. Clark Equipment Company, Ky., 122 S.W.3d 530 (2003) – Product Liability/Voluntary Retrofit Campaign
Plaintiff was severely injured when a forklift he was operating tipped over. Plaintiff and his spouse filed a lawsuit claiming (1) strict product liability; (2) negligent design; (3) breach of duty to retro-fit the forklift with operator restraints; (4) negligent conducting of the retro-fit campaign; and (5) breach of warranty. The Circuit Court granted summary judgment in favor of the defendant manufacturer. The Court of Appeals reversed and held Kentucky does not recognize a common law duty to retro-fit an existing product that was not defective at the time it was manufactured. The Court of Appeals held plaintiff failed to present sufficient evidence to impose liability on the defendant for negligent performance of a voluntary retro-fit campaign. At the time the forklift was manufactured, operator restraints were not required. Three years after the forklift was manufactured the company developed a new safety seat and voluntarily implemented a retro-fit program that provided owners of forklifts an opportunity to install new restraint systems in their forklifts.
The Kentucky Supreme Court was called upon to consider whether a manufacturer is subject to liability law for “negligently” performing a voluntary retro-fit campaign. The Supreme Court declined to impose common law liability against the manufacturer for negligence in performing its voluntary retro-fit campaign. It held the manufacturer did not assume a duty owed to the plaintiff sufficient to impose liability for his injuries. The Supreme Court also noted a duty to retro-fit is properly the province of an administrative or legislative body. The Court advised there is no reason to create a duty to retro-fit a product that was not defective when it was sold, and that the traditional principles of negligence and strict product liability are sufficient. The Court noted there are other remedies for the party injured by a product, such as breach of warranty under the Uniform Commercial Code, negligence, or strict liability in tort.
Toyota v. Gregory, Ky., 136 S.W.3d 35 (2004) – Products Liability/Admissibility of Expert Testimony
Gregory was involved in a minor automobile accident but was seriously injured when her left arm was struck by the airbag module when it deployed. She sustained fractures, burns and lacerations to her face and chest. She filed suit against Toyota, alleging strict liability based upon design and manufacturing defects, misrepresentation, failure to warn, and breach of warranty. She argued the airbag in her Toyota vehicle deployed too aggressively. At trial, plaintiff’s expert, a mechanical and safety restraint engineer testified he compared Toyota’s airbag system with that of Honda’s system, finding Honda’s rise rate (pressure released by the airbag inflator over time) was significantly lower than Toyota’s. He also concluded the technology was available to Toyota to produce an airbag system that would not have caused such injuries. Toyota’s expert compared its airbag inflator with 35 other vehicles by various manufacturers finding Toyota’s system was “usual and customary” and in fact state of the art rather than unreasonably dangerous. Over plaintiff’s objection, the trial judge admitted this expert’s report. The jury returned a verdict in favor of Toyota and Gregory appealed. The Court of Appeals reversed, finding the trial court erred by admitting the defense expert’s test results and improperly instructed the jury on strict liability in a design defect case.
The Supreme Court considered whether the trial court properly admitted the defense expert’s test results and whether the jury was properly instructed on the law regarding strict liability at trial. The Supreme Court held the defense expert’s report was admissible under Daubert. The Supreme Court also found the jury instruction, although it contained an extraneous instruction which indicated in order to return a verdict in favor the plaintiff the jury had to find plaintiff had “proposed a feasible, safer alternative design” was extraneous, but not erroneous nor prejudicial. The Supreme Court reversed the Court of Appeals’ decision and reinstated the Circuit Court’s judgment in favor of Toyota.
Larkin v. G.D. Searle & Co., Ky., 153 S.W.3d 758 (2004) – Products Liability/Failure to Warn/Learned-Intermediary Doctrine
The Supreme Court heard this matter as a request for certification of a question of law from the United States Court of Appeals for the Sixth Circuit. The Court considered whether the “learned intermediary doctrine” should apply to a case involving an allegation that a manufacturer of a prescription drug failed to warn the ultimate consumer of risks associated with that drug even though the manufacturer informed the prescribing physician of those risks. The case involved a paraplegic who was proscribed Zithromax (an antibiotic) and Daypro (an anti-inflammatory) for complaints of sinusitis and musculoskeletal pain. Subsequently, he had a serious adverse reaction that although rare, at incidence of less than one percent, he was not directly warned by the manufacturers of those products. The plaintiff’s family doctor was aware of the potential for adverse reactions by information from the manufacturers included in warnings on package inserts and in the physician’s desk reference entries.
The Supreme Court of Kentucky held the learned intermediary doctrine did apply under these circumstances and adopted the Restatement (Third) of Torts, Product Liability, Section 6(d), which indicates the duty to warn of possible side effects is satisfied if adequate warning is given by the manufacturer to the patient’s health care provider, subject to exceptions which were not discussed in the opinion. The Court held strict liability is not imposed on certain unavoidably unsafe products so long as a proper warning is given to a “learned intermediary” which is usually the prescribing physician. This is an exception to the general rule where a manufacturer must warn the ultimate consumer.
