Missouri Lawyers wrestle with manufacturers' duty to warn

By Kelly Wiese The Daily Record Newswire ST. LOUIS -- A three-week product liability trial against Ford Motor Co. over two men's serious injuries in a car wreck wrapped up earlier this month in St. Louis, with the jury returning a defense verdict. But a major legal issue affecting the case is far from resolved. A key component of the plaintiffs' claims was the argument that Ford knew about problems with the 2000 Ford Focus's control arm after the car at issue was sold and before it crashed in 2003 -- but didn't warn consumers. Both sides briefed the issue, and Circuit Judge Edward Sweeney ruled during trial that plaintiffs weren't allowed to present evidence of similar accidents that occurred after this car was sold to argue that Ford had a post-sale duty to warn consumers and failed. Plaintiffs Orlando Welch and Charles Joiner, who were passengers in the car, sought a writ from the Missouri Court of Appeals Eastern District to prohibit Sweeney's ruling from taking effect. But the court denied them without issuing a written opinion. The plaintiffs have filed a motion seeking a new trial, which Sweeney plans to hear May 4. The case may sound familiar. A jury heard the case in September 2011 but couldn't reach agreement, and another city judge declared a mistrial. That time around, in contrast, Circuit Judge Lisa Van Amburg allowed plaintiffs to offer some evidence of similar accidents after the point of sale to support their negligent failure to warn and punitive damages claims. In arguing about what evidence was appropriate in the retrial, both sides pointed to federal court decisions to bolster their positions -- at times, the same decisions, but with differing interpretations of their meaning. Plaintiffs' attorneys, led by Willie Gary, of Florida, said no state appellate court has directly ruled on whether Missouri recognizes a post-sale duty to warn. Sweeney ruled for Ford and kept out the evidence. The automaker cited a federal Eastern District of Missouri judge's 2005 order in Stanger v. Smith & Nephew to argue that the state doesn't recognize a post-sale duty to warn cause of action against an automaker. "Missouri courts have consistently held that a manufacturer's liability is predicated upon the dangerous nature of the product at the time it leaves the hands of the manufacturer," argued Ford's attorneys, led by Rodney Loomer, of Turner, Reid, Duncan, Loomer & Patton in Springfield, in their trial brief. In Stanger, U.S. District Judge Henry Autrey said there's no indication that the state Supreme Court would adopt the Restatement (Third) of Torts, which imposes a continuous duty to warn. However, he said Smith & Nephew nonetheless had a post-sale duty in that case. "The Court agrees with plaintiffs that S&N owed a duty to warn post-sale of the insert because of its particular nature as a medical devi[c]e." "The duty, rather is imposed on manufactures by reason of the fact that they are considered 'experts' and are required to remain abreast of developments as they become available to them," the judge also wrote. The plaintiffs' lawyers said the judge's own words give weight to their argument that automakers have a duty as well because cars are complex and potentially dangerous products that consumers use, just as medical devices are. They also cited another case, an Eighth U.S. Circuit Court of Appeals decision in 1995, Sherlock v. Quality Control Equipment. In that case, the federal appeals court held that a corporation had an independent duty to warn customers of its predecessor company if it knew of a dangerous condition and was in contact with purchasers of that product. It's undoubtedly a topic that the appeals courts haven't heard the last of. "The absence of any Missouri state court decision on the subject has essentially resulted in federal courts predicting/speculating what the Missouri Supreme Court would do," the plaintiffs wrote in their appellate memo seeking a writ of prohibition. "This had led to Missouri trial courts ruling based on federal courts' predictions, a confusing spectacle that needs correction." Published: Mon, Mar 26, 2012