Oral Argument Preview: Post-Marketing Duty to Warn? Ross J. Linert et al. v Adrien Foutz, et al.

Update: On December 29, 2016, the Supreme Court of Ohio handed down a merit decision in this case. Read the analysis here.

Read the analysis of this argument here.

On January 5, 2016, the Supreme Court of Ohio will hear oral argument in the case of Ross J. Linert et al. v Adrien Foutz, et al., 14-1940. At issue is whether a manufacturer has a duty to warn purchasers of known risks associated with the product after a sale is made, and whether the manufacturer’s implementation of an improvement program triggers a post-marketing duty to warn.

Case Background

In November of 2007, Appellee Ross Linert, an officer with the Austintown Police Department, was dispatched to investigate a report of an intoxicated driver. While on his way to the reported location, Officer Linert, who was driving a 2005 Ford Crown Victoria Police Interceptor, (CVPI) was struck from behind by a Cadillac DeVille owned by Adrian Foutz. At the time, Foutz was travelling around 100mph. The rear end of Linert’s CVPI was crushed by the accident, and caught fire. The force of the collision caused the CVPI’s fuel sending unit (the component that sends fuel from the fuel tank to the engine) to separate from the fuel tank. The fuel in the gas tank quickly ignited and exploded, engulfing the vehicle and Officer Linert in flames. Linert suffered severe burns, requiring multiple skin grafts.

Linert and his wife filed lawsuits against Ford and Foutz. They settled their claim against Foutz. The claims against Appellant Ford alleged that Linert’s vehicle was defective in design and manufacture, and that Ford failed to give pre-marketing and post-marketing warnings.

The Linerts claimed that the fuel system was defectively designed because the fuel tank was located behind the rear axle (roughly behind the rear wheels), instead of in front of the rear axle, and because of the way the sending unit was attached to the fuel tank (crimped instead of welded). They claimed the CVPI was defectively manufactured because the length of the crimp (the method of folding metal over other metal, used to attach the sending unit to the fuel tank) was too short.

The trial court instructed the jury on Linert’s design defect theory based on tank location, on the manufacture theory based on the length of the crimp, and the pre-marketing failure to warn claim. The court found insufficient evidence to instruct the jury on the design defect claim based on crimping instead of welding, and declined to instruct on the post-marketing failure to warn claim. The jury found for defendant Ford on all the claims submitted to it.

On appeal, the Seventh District, in a unanimous decision written by Judge Donofrio, joined by Judges Vukovich and DeGenaro, affirmed the judgment entered on the jury’s verdict on all the issues presented to it. But the appeals court held that the trial court erred in failing to instruct the jury on the post-marketing failure to warn claim, and reversed and remanded on that claim only, finding that a failure to warn of a known risk could constitute a defect. In regard to this claim, the appeals court also held that the trial court erred in excluding evidence that after the sale of the CVPI, Ford offered a fire suppression system on these cars.

Key Statutes and Precedent

R.C. 2307.76(A) (A product is defective due to inadequate post-marketing warning or instruction if the manufacturer knew, or, with reasonable care, should have known about a risk; and if the manufacturer failed to provide post-marketing warning or instruction that a manufacturer exercising reasonable care would have provided concerning that risk, both in light of the likelihood that the product would cause harm of the type for which the claimant seeks to recover damages and in light of the likely seriousness of that harm.

A product is defective due to inadequate pre-marketing warning if, when it left control of its manufacturer, the manufacturer knew or, in the exercise of reasonable care, should have known about a risk, and if the manufacturer failed to provide the warning or instruction that a manufacturer exercising reasonable care would have produced, in light of the likelihood that the product would cause harm and in light of the seriousness of that harm.)

Ohio Gas Co. v Limbach, 61 Ohio St.3d 363 (1991) (In interpreting a statute a court must give effect to the words utilized, and cannot ignore words in the same statute.)

Sapp v. Stoney Ridge Truck Tire, 86 Ohio App.3d 85 (10th Dist. 1993) (In a failure-to-warn case, the failure to warn of unreasonable dangers associated with the product constitutes the defect.)

Murphy v. Carrollton Mfg. Co., 61 Ohio St.3d 585 (1991) (Ordinarily, requested instructions should be given if they are correct statements of the law applicable to the facts in the case and reasonable minds might reach the conclusion sought by the instruction.)

Lykins v. Fun Spot Trampolines, 2007-Ohio-1800 (12th Dist.) (In order to find a defect under R.C. 2307.76, three elements must be satisfied: (1) a duty to warn against reasonably foreseeable future risks, (2) breach of this duty, and (3) injury that is proximately caused by the breach.)

Brown v. McDonald’s Corp., 101 Ohio App. 3d 294 (9th Dist. 1995) (R.C. 2307.76 codifies the common-law understanding that the duty imposed upon a manufacturer in a strict liability action for failure to warn is the same as that imposed upon the manufacturer in a negligence action for failure to warn.)

Ford’s Argument

Ford argues that the appeals court committed three errors with respect to the failure to warn claim. First, Ford argues, the court erroneously held that a manufacturer must give post-sale warnings of all “known risks,” ignoring language in R.C. 2307.76 which requires a warning only where “a reasonable manufacturer would have provided a warning in light of the likelihood and seriousness of harm.” Ford argues that there is no duty to give warning for risks that are remote in nature, as a reasonable manufacturer would only warn of unreasonably high risks. The evidence in this case established that the risk of a post-collision fire was exceptionally remote in the CVPI.

Second, Ford argues that the court erroneously held that liability for failing to give a post-sale warning can be predicated on a risk a jury finds does not require a pre-sale warning. According to Ford, reading the pre and post-marketing provisions together, the Seventh District should have recognized that Ford cannot be held liable for failing to give a post-marketing warning, where it was not required to give a pre-marketing warning unless there was a new risk, and there was none here. “A pre-marketing warning claim is not a dress rehearsal for a post-marketing warning claim.”

Third, Ford argues that the court erroneously held that a duty to warn can exist even if a warning will not avert the harm in question. A warning need only be given if it can actually avert the harm. Ford points out that its product is the result of the most aggressive testing program in the country, and claims its police vehicles are the safest in the country in rear crash testing. Where a product free of design and manufacturing defects has already been purchased, the statute does not compel a vain act of publishing a warning that will not render the product safer.

Next, Ford argues that implementing a post marketing improvement does not trigger a post marketing duty to warn. The appeals court erred in allowing the post-sale duty to warn to be triggered by Ford’s crimp tooling project, which Ford describes as an attempt to improve an already safe, non-defective product. The statute neither requires a product to be as safe as possible nor does it intend to penalize manufacturers who consider product improvements. Further, Ford asserts that notifying consumers about every incremental product safety innovation would not improve safety, and would impose an unacceptable burden on product manufacturers and sellers simply to reduce uncertainty and minimize liability exposure. This is not what the General Assembly intended. Finally, Ford argues that requiring manufacturers to flood consumers with warnings every time an existing product is improved will cause consumers to pay less attention to warnings they receive, drive up the cost of products, and chill the incentive to make product improvements.

Linerts’ Argument

According to the Linerts, R.C. 2307.76(A)(2) expressly provides that a product may be defective based on a manufacturer’s inadequate post-marketing warning or instruction where the manufacturer knew or should have known about a risk that is associated with the product that caused the alleged harm, or where the manufacturer failed to provide the warning or instruction that a manufacturer of reasonable care would have provided concerning the risk. The Linerts argue that the instruction given to the jury only addressed the pre market failure to warn, and failed to advise the jury about the post-marketing duty to warn under Ohio law.

The Linerts argue that Ford issues broad generalizations disassociated from the facts of the case. They argue that there was extraordinary evidence of post-sale knowledge and risk for injury. Ford engineers took many steps in improving its crimping process, a process which they knew, due to aging equipment, to be degrading over time. The engineers were also aware of several real-world incidents involving Ford’s Crown Victoria Police Interceptors in accidents similar to the one that caused Linert’s injury.

The Linerts argue that Ford’s position that a jury finding that there is no pre-sale duty to warn precludes a finding of a post-sale duty to warn is incorrect. Ford’s knowledge was totally different for these two time periods. The appeals court was correct in finding that trial court committed reversible error by improperly excluding evidence that Ford developed a fire support suppression system, which the Linerts contend is relevant because it went directly to establishing Ford’s actual knowledge of an increased risk for fire after a high-speed, rear-end collision. The Linerts further assert that evidence that Ford adopted a product improvement program to improve the crimps that join the sending unit to the fuel tank, coupled with real-world crimp failures causing burning injuries or death, is further evidence that a jury should consider in determining whether Ford should have provided some post-manufacturing warning to its consumers.

Finally, the Linerts argue that R.C. 2307.76 does not require a manufacturing defect or a design defect as a predicate to support a failure to warn claim. The statute merely requires a risk that the manufacturer knew or should have known about. Failure to warn of such risk constitutes its own defect, regardless of whether the risk is an independently actionable defect under the law.

Ford’s Proposed Proposition of Law I

A “risk” that triggers a post-marketing duty to warn under R.C. 2307.76 is not merely any “known danger,” but must be a risk about which a reasonable manufacturer would warn in light of the likelihood and likely seriousness of harm.

Ford’s Proposed Proposition of Law II

A product manufacturer’s implementation of a post-marketing product improvement does not trigger a post-marketing duty to warn.

Linerts’ Proposed Counter-Proposition of Law I

The trial court failed to instruct the jury that the product could be defective due to lack of a post-marketing warning or instruction.

Linerts’ Proposed Counter-Proposition of Law II

A product manufacturer’s implementation of a post-marketing product improvement may, along with other evidence, trigger a post-sale duty to warn.

Amici In Support of Ford

Amici, Chamber of Commerce of the United States of America, the National Association of Manufacturers, the National Federation of Independent Business Small Business Legal Center, Ohio Chamber of Commerce, and Ohio Manufacturer’s Association filed a brief in support of Ford.

Amici set out six factors that they believe must be present in order to establish a claim for inadequate post-marketing warnings: (a) the manufacturer knew, or in the exercise of reasonable care should have known, of a risk of harm manifesting post-sale that caused the plaintiff’s injuries, (b) the likelihood and seriousness of the harm justified the burden of providing a warning, (c) those who would be warned are identifiable and are reasonably assumed to be unaware of the risk, (d) the warning could be effectively communicated to and acted on by those warned, (e) the manufacturer failed to provide the post-sale warning a reasonable manufacturer would have under the circumstances, and (f) the allegedly inadequate warning was a proximate cause of plaintiff’s claimed injuries. Amici argue that the plaintiffs’ failed to meet these requirements and so cannot establish a post-marketing failure to warn claim.

Further, Amici assert that a product manufacturer’s implementation of a post-marketing product improvement does not trigger a post-marketing duty to warn, and that to hold otherwise would impose a burden on manufacturers that is unacceptably great, discourages the development of improved safety measures, and requires pointless undertakings.

Amicus Products Liability Advisory Council, Inc., In Support of Ford

Amicus Product Liability Advisory Council, Inc. filed a separate brief in support of Ford.

The Council argues that the Court of Appeals’ decision is contrary to the weight of authority in American Courts. It contends that all courts (save for the Seventh District) require consideration of the likelihood and seriousness of the risk in assessing whether to impose a post-sale duty to warn. It also argues that manufacturers generally have no duty to warn consumers based on post-sale safety improvements.

The Council further argues that Federal regulations are already in place to protect consumers from unreasonable product risks. Expanding post-sale duties to consumers makes little sense in light of existing regulations from the National Highway Traffic Safety Administration (NHTSA), which already prescribes safety standards and has the authority to order consumer notifications and conduct investigations for noncompliance and defects.

Amicus In Support of Linert

Ohio Association for Justice (OAJ) filed a brief in support of the Linerts. OAJ argues that Ford’s proposition of law seeks a rule that would improperly intrude on the fact-finding function of the jury. Further, it argues that the rejection of a pre-sale inadequate warning claim by the trier of fact does not necessarily preclude a finding of liability regarding the manufacturer’s post-sale failure to warn. It also argues that sufficient evidence was produced to warrant a jury instruction as to the Linert’s claim for post-sale failure to warn. Finally, OAJ argues that the implementation of a post-marketing improvement may constitute evidence of knowledge of a risk such that a manufacturer exercising reasonable care would exercise a warning.

Student Contributor: Michael Elliott

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