Day on Torts
In Bradley v. Ameristep, Inc., No. 1:12-cv-01196 (6th Cir. Aug. 24, 2015), plaintiff appealed a district court dismissal of his product liability claims regarding ratchet straps he had purchased and used to secure a hunting treestand. Plaintiff bought the straps in 2007 or 2008, used the straps to secure his treestand for less than two months in 2008, stored the straps inside for almost three years, then used the straps to secure his treestand again in May or June 2011. He did not use the treestand until September 2011, at which time he visually inspected the straps. After plaintiff claimed into the stand, the straps broke and caused plaintiff to fall.
Plaintiff retained two expert witnesses to support his claims, but the district court granted defendant’s motion to exclude both of these experts. Because the expert testimony was excluded, the district court “concluded that there was no evidence to support the plaintiffs’ claims for strict product liability or negligent design and manufacture and granted the defendants’ motion for summary judgment on those claims.” The district court also granted summary judgment as to the failure to warn claim, determining that plaintiff was aware of the dangers of leaving the straps exposed to the elements, that plaintiff would not have heeded a warning to use a safety harness, and that plaintiff failed to proffer an adequate alternative warning. Accordingly, all of plaintiffs’ claims were dismissed.
On appeal, the Court reversed the dismissal, and in doing so provided an informative summary of Tennessee product liability law. First, the Court addressed the exclusion of one of plaintiffs’ experts, noting that Fed. R. Evid. 702 “impose[s] a threshold requirement of qualification by ‘knowledge, skill, experience, training or education,’ coupled with a two-part test for relevance…and reliability.” While the expert’s “qualifications contain[ed] numerous general attestations of expertise in materials analysis[,]” the district court focused on specific references to the expert’s metallurgical expertise to determine that he did not possess the necessary qualifications for this case. The Court of Appeals held that this was an error, pointing out that the proposed expert had “over thirty-five years of experience analyzing the forces and conditions that lead to product failures, “ that he had “served as an instructor in materials analysis and microscopic analysis” for multiple groups and organizations, and that he had conducted analysis on all types of polymer materials. Based on these qualifications, the expert testimony should have been allowed.
Next, the Court considered the dismissal of plaintiffs’ product defect claims. The district court ruled that Tennessee law required expert testimony to “establish liability in cases alleging manufacturing and design defects,” and that since the experts proffered by plaintiffs were disqualified, plaintiffs could not support their claims. Because, as explained above, one of the experts should have been allowed to testify, the Court found that this dismissal should be reversed. In addition, however, the Court went on to clarify that the district court had operated under a misinterpretation of Tennessee product liability law. The district court cited another 6th Circuit case for the expert testimony requirement, but here the Court of Appeals pointed out that the language cited for that proposition was arguably dicta and not binding precedent. The Court noted that this did not appear to be an accurate statement of Tennessee law, as a Tennessee Supreme Court case indicates that expert testimony is not the only way to prove a product was defective, stating:
A product is defective if it is not fit for the ordinary purposes for which such articles are sold and used…Establishing the element requires only proof, in a general sense and as understood by a layman, that “something was wrong” with the product. As a rule the mere occurrence of an accident is not sufficient to establish that the product was not fit for ordinary purposes. However, additional circumstantial evidence, such as proof of proper use, handling or operation of the product and the nature of the malfunction, may be enough to satisfy the requirement that something was wrong with it…Further, a defective condition can also be proven by the testimony of an expert who has examined the product or who offers an opinion on the products design.
Browder v. Pettigrew, 541 S.W.2d 402 (Tenn. 1976).
Further, the theory that a defective product case must be proven through expert testimony is undermined by case law showing that Tennessee allows a products liability plaintiff to use the “consumer expectation test,” wherein a party seeks to establish that a product was “unreasonably dangerous because it failed to conform to the safety standards expected by an ordinary consumer under the circumstances[.]” The Court here found that this was a case where the consumer expectation test could have been used, as “it [was] quite reasonable to believe that the ordinary consumer has enough experience with polypropylene straps, tie-downs, or webbing to have some expectation as to the lifespan of those products when exposed to the elements.” The Court held that the district court should have allowed plaintiff to proceed under this theory.
Finally, the Court addressed plaintiff’s failure to warn claim. The Court noted that while plaintiff did know that the straps should not be exposed to the elements for long periods of time, he did not know “how to effectively avoid or minimize [the] risks” of leaving the straps outside. The warning included with the straps said: “DO NOT leave Ratchet Strap out in sunlight or other weather when in use,” and “DO NOT leave the ratchet outside all year round. It must be stored inside when not in use.” The Court found that this warning included an ambiguous term, as “use” could be interpreted to mean either when the straps were securing a stand to a tree or when the straps were used with the stand to actually engage in hunting activities. In addition to the ambiguity, the warning included no information regarding how quickly the straps could deteriorate or what to look for when checking for wear on the straps. These facts, when taken together, created a genuine issue of material fact as to whether the warning was adequate, so summary judgment was not appropriate.
The Court of Appeals engaged in a thoughtful analysis of Tennessee product liability law here and reached the correct result. The expert proffered by plaintiff was clearly competent to testify, and the district court seemed too anxious to find no issues of fact. Here, plaintiff presented sufficient evidence to overcome summary judgment and this case should have been allowed to move forward.