Merit Decision: No Post-Market Duty to Warn in Products Case. Linert v. Foutz

On December 29, 2016, the Supreme Court of Ohio handed down a merit decision in Linert v. Foutz, Slip Opinion No. 2016-Ohio-8445. In a 5-2 opinion written by Chief Justice O’Connor, the court held the trial judge in this case properly refused to give a post-market failure to warn jury instruction, as the evidence did not warrant it. Justices Pfeifer and O’Neill dissented.  The case was argued January 5, 2016.

Case Background

In November of 2007, Ross Linert, (“Linert”) an officer with the Austintown Township Police, was severely burned on an investigatory run when his 2005 Ford Crown Victoria Police Interceptor (“CVPI”) was struck from behind by a Cadillac DeVille driven by Adrian Foutz, traveling between 90 and 110 miles per hour. Foutz had a blood alcohol level more than three times the legal limit at the time of the crash.

Linert and his wife originally sued only Foutz, with whom they later settled, and then filed an amended products liability complaint against Ford.

The Linerts alleged that upon the collision, the fuel-sender unit of the CVPI separated from the fuel tank, which made a hole in the tank that released fuel and caught on fire. The fire spread from the back of the cruiser to the passenger compartment, burning Ross Linert over a third of his body. He is now disabled.

At issue in this appeal is the post-market failure to warn claim against Ford.

Fuel Tank Configuration in CVPI’s

In 1979 Ford introduced a design known as the Panther-platform design into several large models, include the CVPI’s. In these models, the fuel tank is located behind the axle, between the two rear wheels, about 40 inches from the rear bumper, and in front of the trunk. Starting in 1981 and since, Ford began designing new passenger-car models with the fuel tank in front of the axle.

There has been much litigation associated with Panther-platform vehicles over the years. According to the Linerts, Ford’s design of the CVPI was defective because of the placement of the fuel tank. At trial, their expert testified that there had been 34 other rear-end collisions in which Panther-platform vehicles sustained damage to their fuel-containment systems.  Six involved dislodgement of the fuel-sender unit.

Ford Implements “Crimp Improvement Project”

Two years after the department had acquired Linert’s CVPI, between January and October of 2007, Ford completed a crimp improvement program which resulted in lengthening the crimp, which is the method of folding metal over other metal, used to attach the sending unit to the fuel tank. At trial, experts for Ford made it clear that Ford had met all manufacturing specifications for the fuel tank both before and after the crimp tooling project, and that the crimp tooling improvements had made the fuel tank safer.

The Linerts argued that if Ford had warned consumers of risks associated with the placement of the fuel tank and the lack of a fire-suppression system, Ross Linert would have survived his accident with minor injuries.

Jury Verdict

The trial judge instructed the jury on defective design, defective manufacture, and time-of-sale failure to warn. But the trial court found insufficient evidence to instruct the jury on failure to give a post-market warning. The jury found for Ford on all the Linerts’ claims, and the court entered judgment on the jury’s verdict.

On appeal, the Seventh District, in a unanimous decision, affirmed the judgment entered on the jury’s verdict in favor of Ford on design defect, manufacturing defect, and time-of-sale failure to warn. But the appeals court agreed with the Linerts that the trial court had erred in not instructing the jury on their claim that Ford had a duty to give consumers, including police, a post-market warning, given Ford’s post-sale knowledge of the risk of fire in the CVPI.  The appeals court held the trial court had abused its discretion in excluding evidence of the fire-suppression system, which the Linerts had offered to prove that Ford had notice of a potential fire risk in the CVPI after its sale.

Read the oral argument preview here and the analysis of the preview here.

Key Statutes and Precedent

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.)

Annelli v. Ford Motor Co., 2007 WL 3087959 (Oct.4, 2007) (certifying class of consumers alleging design defects in the placement of fuel tanks in CVPI and other Panther-platform vehicles)

Miller v. ALZA Corp., 759 F.Supp.2d 929, 934 (S.D.Ohio 2010) (To prove a “failure to warn” claim, a plaintiff must establish that a duty to warn against reasonably foreseeable risks exists, a breach of that duty occurred, and the plaintiff’s injuries were proximately caused by the breach.)

Welch Sand & Gravel, Inc. v. O & K Trojan, Inc., 107 Ohio App.3d 218, 226, 668 N.E.2d 529 (1st Dist.1995). (A manufacturer provides “inadequate warnings if it knew or reasonably should have known of the risk in the exercise of ordinary care and failed to take precautions that a reasonable person would take in presenting the product to the public.”)

Flax v. DaimlerChrysler Corp., 272 S.W.3d 521, 542 (Tenn.2008)(“Accordingly, courts apply the traditional failure to warn claim when a manufacturer or seller had knowledge of a defect at the time of sale and apply the post-sale failure to warn claim when a manufacturer or seller learns of the defect after the time of sale.”)

Brown v. McDonald’s Corp., 101 Ohio App.3d 294, 300, 655 N.E.2d 440 (9th Dist.1995). (A determination whether a manufacturer acted reasonably in failing to give a warning to consumers after a product has been sold must include consideration of the likelihood of the risk of harm to consumers and the seriousness of the harm that the risk presents.)

Crislip et al., v. TCH Liquidating Company, 52 Ohio St. 3d 251 (1990). (“In a products liability case, where there are allegations of failure to warn, or failure to adequately warn, there will be no liability unless it be shown that the manufacturer failed to take the precautions that a reasonable person would take in presenting the product to the public.” Syllabus paragraph two.)

Patton v. Hutchinson Wil-Rich Mfg. Co., 253 Kan. 741 (1993) (post sale warning could not be given at the point of sale because a manufacturer would not have knowledge to give it.”)

Gawloski et al., v. Miller Brewing Company, 96 Ohio App.3d 160 (9th Dist. 1994). (No warning necessary for dangers known to the ordinary consumer.)

Mitchell v. City of Warren, 803 F.3d 223 (6th Cir. 2015)(“speculative risk does not equal known risk.”)

Merit Decision

Duty to Warn

If the danger posed by a product is generally known and recognized by the consumer, the manufacturer has no duty to warn of the danger. Otherwise, under Ohio law, a manufacturer has two duties to warn—one of dangers known to the manufacture at the point of sale, and another to warn of dangers not obvious at the point of sale, but later known to the manufacturer. This case involves the latter. The high court clarifies that a claim for failure to warn after the product is sold is separate and distinct from a claim that a warning should have been given at the point of sale.  They are “two conceptually distinct warnings.” Simply put, a traditional failure to warn claim applies when a manufacturer or seller knows of a defect at the time of sale, and a post-market duty applies when the manufacturer or seller learns of the defect after the time of sale.

Linerts’ Post-Market Duty to Warn Claim Fails for Two Reasons

First, the risk of fire from the fuel-sender system in the CVPI was well known to Ford before the sale. While the Linerts’ evidence was certainly relevant to the failure to warn for the time-of-sale claim, the appeals court improperly considered it in the post-market warning context.

Second, to prove a post-market failure to warn, the consumer must prove both the likelihood of the risk of harm and the seriousness of the harm the risk presents. Here, the Linerts proved the latter, but not the former.

The Linerts had to prove that Ford had acquired knowledge of the likelihood of a risk of harm after the sale of the CVPI to the Austintown Police Department that warranted a warning. In reviewing the record, the briefs, and the oral argument, the court found that the “Linerts failed to clearly articulate the facts and evidence that would give rise to such duty.” The evidence about the six incidents in which Panther-platform vehicles caught fire as a result of fuel-sender-unit failure lacked context, and the Linerts failed to develop the circumstances that gave rise to the sender-unit failure in those cases. Or, as the court put it:

“In other words, the Linerts arguably established that there was a risk of fire erupting from sender-unit dislodgements when a CVPI was struck from behind in a high-speed accident, but they did not provide sufficient evidence from which the jury could consider the likelihood of the risk. Thus, the trial court properly refused to instruct on a postmarketing duty to warn in this case because the jury would not have had an adequate basis to find that that duty had been breached.”

In other words, we are back to the simple old saw that speculation isn’t good enough proof, and according to the majority, that’s all the Linerts produced.

Postscript

By the way, practitioners who have a post-market duty to warn case, and want to know what evidence to develop on the reasonableness of giving or failing to give such a warning, should study footnote six of the majority opinion.

What Happens to this Case?

Ford wins. The court of appeals was reversed and the case was remanded back to the trial court to reinstate its judgment in favor of Ford.

Justice Pfeifer dissented, without an opinion. He would affirm the judgment of the court of appeals.

Justice O’Neill’s Dissent

Justice O’Neill would dismiss this case as improvidently accepted. He reaches that conclusion after a spirited dissent, because he thinks the majority simply disagrees with the court of appeals about the facts in the record.

O’Neill criticizes the majority for only accepting pro-Ford facts, and for pre-empting the jury’s fact-finding function in this case.  He thinks the evidence of the 34 similar collisions, and particularly the six involving detached fuel-sending units, and the implementation of the crimp-improvement program was all enough from which a jury could infer, one way or another, the likelihood of a risk inherent in the design of the CVPI fuel tank. To him, that evidence presents a jury question on whether Ford made a reasonable decision not to issue post-market warnings.

O’Neill further disagrees with the majority that Ford’s time-of-sale knowledge and conduct is not relevant to post-sale failure-to-warn claims. He would find that the jury should have been instructed on the post-market duty to warn. “In the absence of such an instruction, the jury verdict in this case reflected blind obeisance to the trial court’s limited instruction and was rendered predictably in favor of Ford,” he wrote. While he expressed no opinion about whether the Linerts could prevail on a post-market failure to warn claim, he certainly thought they had produced sufficient evidence to let the jury decide.

Case Syllabus

None

Concluding Observations

I correctly predicted a win for Ford in this case. Interestingly, in the end-of year high profile decisions involving juvenile offenders, (Moore, Aalim) Justices O’Donnell, French and Kennedy have banded together in support of the state. But when it comes to tort cases, they are with the Chief, while Justices O’Neill and Pfeifer are usually out there alone, as they were here. This is definitely a pro-manufacturer decision.  No two ways about it.

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