Product Liability

September 19, 2018

Food Poisoning Cases Can’t Survive Unless the Science Connects the Meal to the Particular Illness

by Christopher Simon

Last month, the Supreme Court of Georgia issued an interesting and important opinion in a Georgia product liability case that changed the way lower courts will analyze food-poisoning cases in the future. Although the appeals court allowed the case to proceed to trial, the evidence connecting the caterer to the poisoning is weak and will likely fail at trial.

WHAT MAKES A WORKABLE FOOD POISONING CASE?

You start with the eternal question of “so what?” If the harm was just vomiting and a trip to the ER, ask for the ER bill to be paid and move on. Yes they may be responsible, but life goes on and they certainly did not intend it.

If you have a hospital admission or anything more serious, then there is a point to moving to the analysis of what caused it.

In order to carry a strong case, the hospital needs to take a stool sample to determine the kind of food poisoning and the particular strain. That data can then be compared to the source food to conclusively show what caused it. Food poisoning usually take 2.5-4 hours to set in, so if it happens quickly, it’s likely not from that meal.

The Facts of the Case

The case dealt with the burden a Georgia food poisoning plaintiff has to meet in a defense motion for summary judgment. Ultimately, the court concluded that Georgia food poisoning plaintiffs should be held to no higher a standard than any other plaintiff who brings a case based on a theory of negligence.

The plaintiffs were a man and woman who became violently ill after consuming food that had been prepared by the defendant caterer at a wedding rehearsal dinner.

The defendant filed a motion for summary judgment, challenging the plaintiffs’ case on the basis of causation. Essentially, the caterer claimed that the plaintiffs were “unable to show that their alleged food poisoning was proximately caused by defendant.” In support of this argument, the caterer pointed to the fact that the plaintiffs ate food from numerous other places in between the time they consumed the defendant’s food and the time they became ill. Additionally, the defendant argued the fact that none of the defendant’s employees, the event staff employees, or the other rehearsal dinner guests became ill after eating the food.

April 17, 2018

Spoliation of Evidence by the Plaintiff in Georgia

by Christopher Simon

A recent trend in litigation in Georgia has been defense law firms sending spoliation to Plaintiff’s attorneys to retain vehicles and cell phones involved in accidents. Up until now very few appellate decisions have come down on that particular set of facts. Recent opinions have said that insurance companies and commercial motor carrier defendants that are used to getting sued know that in any decent crash, the driver logs, qualification files and vehicles are likely to be at issue because litigation and claims frequently arise. The appellate courts in Georgia have gone so far as to say that even when the plaintiff’s attorney fails to send a spoliation letter. The whole idea behind this is, you deal with claims all the time, you should know better.

What about a situation where the plaintiff fails to retain key evidence? The court opinion below addressed such a situation and held that an unrepresented plaintiff, although injured, was not sophisticated and even though he asked his wife to retain the tires, this did not make him subject to sanctions. I believe the court would have ruled against the plaintiff had he hired counsel before the car was destroyed.

The state appellate court issued a written opinion in a Georgia product liability case discussing when a plaintiff’s duty to preserve evidence that may be relevant to her case arises. Ultimately, the court concluded that a plaintiff’s duty is triggered at the same time as a defendant’s, which is when the party “actually or should have reasonably anticipated litigation.” Under these facts, the court concluded that the plaintiff had not reasonably anticipated litigation when she allowed for the evidence to be destroyed, and thus it dismissed the defendant’s request for sanctions.

The Facts of the Case

The plaintiff’s husband was involved in a car accident when one of the tires on his Ford Explorer blew out. The plaintiff’s husband was taken to the hospital, where he was unresponsive for several days. After the accident, the car was towed to a storage yard, where it accrued a daily storage fee.

The plaintiff told the storage yard owner that she could not afford the storage fee, and he offered to waive the fees if she signed the car over to him. At around this time, the plaintiff’s husband’s condition had improved, and she asked her husband what to do. He told her to “save the tires.” The plaintiff then signed the car over to the owner of the storage yard and asked that he save the blown tire. Not long after this, the plaintiff’s husband’s condition worsened, and he passed away.

November 29, 2015

Georgia Court of Appeals Affirms in Jeep Product Liability Suit

by Christopher Simon

Although we expect all products to function as anticipated, that is especially true for those products on which we rely to provide safety during dangerous situations. Indeed, when the risk of harm is high, an equipment failure can lead to truly tragic results. This type of product failure was at the heart of a recent decision from the Georgia Court of Appeals, Key Safety Sys., Inc. v. Bruner, which involved a product defect in the seatbelt restraint system of a Jeep Wrangler.

This suit centers around a rollover accident that occurred in September 2007. The suit was brought by the husband of the passenger of the jeep, acting as the personal representative of the estate of his wife, who died as a result of the accident. The decedent’s husband owned the vehicle, but it was being driven by his daughter at the time of the turnover. The reasons for the turnover remained unknown. Both the driver and the decedent were apparently wearing their seatbelts, but during the course of the accident the decedent was ejected from the vehicle and sustained various severe injuries, including a loss of body tissue around her upper legs and abdomen. The decedent eventually succumbed to her injuries. The vehicle seatbelt restraint system was designed, constructed, and integrated by Key Safety Systems, Inc. The husband brought suit against Key and various governmental entities, alleging failure to warn, strict product liability, negligence, and failure to recall and/or retrofit. The case proceeded to a trial, after which the jury returned a verdict awarding the plaintiff $4,600,000. The jury apportioned 20 percent of the fault to the decedent’s daughter and 80 percent of the fault to Key. In light of this unfavorable verdict, Key brought an appeal, arguing that the trial court erred by denying its motions for directed verdict and judgment notwithstanding the verdict with respect to the failure to warn claim, and by admitting expert testimony regarding certain seatbelt retractor mechanism testing performed by the expert witness and a video of such testing.