What’s On Their Minds: 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.

On January 5, 2016, the Supreme Court of Ohio heard 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 severely burned on an investigatory run when his 2005 Ford Crown Victoria Police Interceptor 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 cruiser was crushed by the accident, and caught fire. The force of the collision caused the Crown Victoria’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 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 Crown Victoria 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 design defect based on tank location, on manufacturing defect based on the length of the crimp, and on pre-marketing failure to warn. 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, 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 Crown Victoria, Ford offered a fire suppression system on these cars.

Read the oral argument preview of the case here.

Key Statutes

R.C. 2307.76 (Product defective due to inadequate warning or instruction.)

(A)(1)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 that allegedly caused the harm for which damages were sought and 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.)

(A)(2) A product is defective due to inadequate post-marketing warning or instruction if the manufacturer knew, or, in the exercise of reasonable care, should have known about a risk that allegedly caused the harm for which damages are sought and 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.)

At Oral Argument

Arguing Counsel

Elizabeth B. Wright, Thompson Hine LLP, Cleveland, for Appellant Ford Motor Company

Robert W. Schmieder II, SL Chapman LLC, St. Louis, for Appellees Ross J. and Brenda Linert

Ford’s Argument

After affirming the jury’s verdict of no defect in manufacture and no premarket failure to warn, the appeals court rewrote Ohio’s product liability statute on post market duty to warn and rewrote the legislature’s definition of risk. The statute provides specifically for post market duty to warn, if the manufacturer learns of a risk after the product leaves its control, that it’s a risk about which a manufacturer exercising reasonable care would warn, and a risk that takes into account the likelihood that the risk will actually cause a harm. But here, the appeals court wrote out every one of those elements.

To define risk, instead of looking to Ohio case law or to the statute, the court of appeals used the pocket edition of a 20 year old Black’s law dictionary. The court quoted a risk as “a known danger to which a person assents, thus foreclosing recovery for injuries suffered.” From that Black’s law dictionary definition, without regard to the statute, the court then concluded that Ford could be liable for a post marketing duty to warn of any known risk. That is not the law in Ohio.  A risk has to be one that is an unreasonable danger. The statute defines risk as that which a manufacturer exercising reasonable care would warn about in light of the likelihood that the risk will actually cause a harm, not any known risk.

In this case the known risk, pre-market, was the rare, remote risk of fire. This wasn’t contested; Ford has always known this.  The jury found in favor of Ford on the pre-market failure to warn claim. The jury found no defect in design, no defect in manufacture, and that the risk of fire known pre-marketing did not give rise to a pre-marketing duty to warn claim. In deciding there was a post marketing duty to warn, the appeals court compounded its error by not requiring that the risk be unreasonable, or linked to a defect. It ignored the question of whether the risk would actually cause a harm.

All vehicles, especially police cars, which are subject to very high speed impacts, have the risk of fire. The evidence at trial was that the Ford vehicle, unlike its competitors, actually passed a 75mph crash test, where competitors’ cars did not. In order to have a post market duty to warn claim, the plaintiff must show there was some new or different risk learned by the manufacturer after the product leaves its control. That was not the case here. Ford has always had knowledge of the risk of fire; all manufacturers do. For a post-marketing warning to be given, the risk must be new or different.

As far as arguments about crimp length and center unit dislodgements, the plaintiffs’ own expert did not tie these to the fire, and even admitted that there was no increase in fires as the crimp length shortened. And the crimp improvement project was not new evidence. It was an improvement of a non-defective product. Evidence about the crimp is irrelevant unless it can be demonstrated that it was either a manufacturing defect or that it created some kind of unreasonable risk that was new. The trial court concluded quite properly that it did not show any increased risk or new or different risk. This was just a project to improve a manufacturing process.

There is no warning here that could have averted the harm. If the warning is, this vehicle can catch on fire, everyone knows that. Plaintiffs never presented at trial what a manufacturer exercising reasonable care could possibly have warned about.

The court of appeals decision be reversed and the verdict reinstated.

Linerts’ Argument

The court of appeals correctly found that the trial court committed reversible error by excluding the fire suppression evidence on the duty to warn claims and failed to instruct the jury on post sale duty to warn. And there was evidence of a new risk here. After the tank was manufactured, there were six center unit failures. One such failure would be enough to trigger knowledge by Ford, and then it would be for the jury to decide whether Ford acted reasonably under the circumstances.

This model Crown Victoria was manufactured in May of 2005 and the car sold about a month later. Before the crash occurred, there were six center unit failures that resulted in fires. Investigation by Ford engineers determined the crimp had degraded over time. The crimp became shorter and shorter over time. This resulted in a crimp improvement project by Ford-evidence the jury should have considered in a post-market duty to warn claim.

There is an obligation to warn even if there is no manufacturing defect. The post market warning here would be something like “beware that high energy collisions may cause a fire because the collision may cause the center unit to dislodge and create a fire.” The public must be warned about this.

What Was On Their Minds

Risk

How is risk defined under the statute, asked Justice Lanzinger?

What was wrong with the definition used by the court of appeals, asked Justice O’Neill?

Will a center unit dislodgement always result in a fire, asked Chief Justice O’Connor?

What Was Known When: Pre-market v. Post-market

At the time the jury instruction was given, wasn’t there a known risk to Ford of fires in the Crown Vics, asked Justice O’Neill? Would a single incident be enough to trigger the post-market duty to warn? On what authority must there be an increased risk to trigger this duty? Must there be new evidence, post 2005, to trigger this duty?

Was there a rash of post marketing incidents of fires in the Crown Vics as a result of high speed collisions that would have tipped the manufacturer off for this post market duty to warn, asked Chief Justice O’Connor? Was there ever an analysis of the relationship between the six units with the center unit dislodgement, as opposed to the number of units on the road? Of this type of vehicle?

Was the center unit dislodgement a pre-marketing risk, asked Justice O’Donnell? Did Ford know about this pre-market? Was there evidence of this crimp dislodgement at that time? Is it Ford’s position that the post market crimp project is not new evidence (answer: it was not new evidence)

Ford’s Improvement Project

Wasn’t there evidence of an in-house effort by Ford to improve the product, asked Justice French? Why is that not sufficient to create a question of fact on the post-market duty to warn? Don’t we want manufacturers to improve their products?

Jury Instructions

Was there evidence at trial that warranted a post-market duty to warn instruction, asked Justice O’Donnell? Was the crimp project evidence presented to the trial court? Was there an objection to the court’s failure to instruct on post marketing failure to warn at trial? (answer: yes, from plaintiffs’ counsel.) What is the evidence of the post marketing failure to warn that was before the court on which the trial court should have given that instruction?

In a key question of the day, Justice O’Neill asked, when the jury finds that the design is not defective, must the court still charge on failure to warn of the non-defective design?

Procedure

The jury returned a verdict on the manufacturing defect in favor of Ford, and the appeals court affirmed on that, so why isn’t that res judicata now, asked Justice O’Donnell?

The Warning

What should the warning actually have been, asked Justice French? Would a warning about fire add any knowledge to the average consumer?

Would the warning have been based on the six center unit failure incidents? Even though we don’t know how many cars were actually on the road, asked Justice Lanzinger? Were all six related to police vehicles?

Remedy

What’s the fix here, asked Chief Justice O’Connor? What goes along with the warning? Bring it back in for warranty fix? Or it’s a recall?

 How it Looks from the Bleachers

To Professor Bettman

Like a win for Ford.  Counsel for the plaintiffs struggled with questions about why there should be a post-marketing duty to warn instruction when the jury found the product was not defective, and couldn’t really seem to articulate, at least to the court’s satisfaction, what additional new risks had materialized post-market.  After much dancing around, Justice French asked flat out what the warning would be, and when the answer was an increased risk of fire, a collective incredulity could be felt.  Wasn’t that obvious already, she asked, which looked to me to sink the Linerts’ hopes, since as Ford’s lawyer pointed out, a warning is supposed to avert harm. It seemed self-evident to everyone in the room that cars can catch fire after a high speed collision, and plaintiffs’ counsel struggled with the point he was trying to make about the six center-unit failures.  The fact that he couldn’t even answer Justice Lanzinger’s question about how many of those were related to police vehicles was poor.

Ford’s lawyer pretty much delivered a perfect argument. She totally stayed on message—something very difficult to do during an argument with a hot bench.  And in addition to staying on message, she did something else that was dazzling—especially to Justice O’Neill, who most often asks specific questions from the court of appeals’ decision. She cited specific paragraph numbers from that opinion when making her key points.

The points I think are going to win this case for Ford are the fact that the jury found no design or manufacturing defect, the fact that there really was no new or increased risk here to trigger a post-marketing duty to warn, that fire from a high speed collision is obvious, so that a warning on that would not avert the harm, and that Ford acted as a manufacturer exercising reasonable care would have under these circumstances. Plus, there is the policy argument, namely, that we want to encourage manufacturers to improve their products, as Justice French pointed out—an important point to a business-friendly court.

One final observation, although this may have been my imagination. There sometimes seems to be a very subtle bias against out-of-state arguing counsel, which I sensed in this case, although it could just be that plaintiffs’ counsel simply didn’t do as good a job as his opponent. (or, friend on the other side, as Justice French continues to put it.)

To Student Contributor Michael Elliot

Looks like a victory for Ford. Counsel for the Linerts struggled to answer some pretty key questions, and it seems that overall the court was more sympathetic to Ford’s argument. The Linerts’ case is built on the poor quality of the crimp, and I believe the court will defer to the jury, which considered the crimp issue at trial and returned a verdict against the Linerts, finding that there was no alternative feasible design.

Counsel for Ford stated plainly that all vehicles carried some risk of fire when involved in high-speed collisions, a point that the Linerts’ counsel struggled with when questioned. Ford’s lawyer also noted that the Linerts’ own expert admitted that there was no increase in fires post-market, and argued that a post-market duty to warn claim requires that there be a new risk learned of by the manufacturer.

On the other side, Justice O’Neill summarized the difficulty of the Linerts’ position when he asked about the trial jury’s finding that there was no alternative feasible design,  “When a jury finds that the design is not defective, [must the court require a manufacturer to] warn of the non-defective design?” The court will clearly give deference to the jury’s finding that the product itself was not inherently defective. The court also questioned Linerts’ counsel about the sample size of vehicle fires that the Linerts claim should have triggered a post-market duty to warn. Several of the justices seemed skeptical as to whether six fires was enough to trigger this warning. The Chief Justice noted that Ford couldn’t possibly guard against all vehicle fires. Finally, when the Linerts’ counsel pointed out that Ford later improved the quality of the crimp, Justice French pointed out that improving products is something that is desirable.

Perhaps the clearest indication of the court’s disposition was when the Chief Justice asked, “What’s the fix?” Counsel for the Linerts struggled to respond, saying that Ford should at least have warned consumers about the risk of fire in the event of a high-speed collision. Justice French indicated that this fact was obvious, and that consumers would be no more informed if Ford had disclosed this fact to them.

 

 

This entry was posted in Ohio Supreme Court Watch, Products Liability, Torts, What's On Their Minds? and tagged , , . Bookmark the permalink.