Seventh Circuit Court of Appeals Commentary : In Their Opinion : Lawyer & Attorney Michael E. Rigney : Kelley Drye & Warren Law Firm

SHOW v. FORD MOTOR CO. (September 19, 2011)

David Show and his passenger were both injured when Show's Ford Explorer rolled over after being struck by another car. They brought suit against Ford, alleging that the vehicle had an unstable design and was therefore defective. Plaintiffs never designated a design expert witness. Magistrate Judge Denlow (N.D. Ill.) concluded that plaintiffs could not prevail without expert testimony and therefore granted summary judgment to Ford. Plaintiffs appeal.

In their opinion, Seventh Circuit Chief Judge Easterbrook and Judges Manion and Williams affirmed. The Court noted that Illinois law applied and that Illinois law recognized two approaches to a design defect case. The consumer-expectation test requires proof that the vehicle did not perform up to the safety standards that an ordinary consumer would expect. The risk-benefit test, on the other hand, looks instead to the balance between the benefits of the challenged design and the dangers inherent in the challenged design. The plaintiffs concede that expert testimony is required in a risk-benefit case but claim that is not required in a consumer-expectation case, since jurors know what an ordinary consumer would expect. As an aside, the Court questioned whether the need for expert testimony was a question of Illinois or federal law. If the two tests are merely methods of proof rather than theories of liability, federal law may apply as the law of the forum. Since the parties and the magistrate judge assumed that Illinois law controlled, the Court did not resolve the question. Even under Illinois law, the Court concluded that expert testimony is necessary. Under the consumer-expectation test, consumer expectations alone cannot resolve liability. There are questions of causation and physics and engineering that jurors are simply unable to resolve without expert testimony. The magistrate judge properly granted summary judgment in the absence of such testimony.

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ROBINSON v. MCNEIL CONSUMER HEALTHCARE (August 11, 2010)

In early 2005, Karen Robinson purchased Children's Motrin for her child. Motrin is manufactured by McNeil Consumer Healthcare. The label, which she read before purchase, warned of a possible severe allergic reaction. Several months later, she took a dose of the Motrin for a headache. She neither reread nor recalled the warnings. The next day, Robinson developed a rash and a fever – so she took more Motrin. A doctor’s visit resulted in treatment for an allergic reaction. The doctor did not comment on her disclosure that she had taken Motrin. Her rash and fever worsened and she took a third dose of the Motrin. She was hospitalized the next day and diagnosed with toxic epidermal necrolysis (TEN). She recovered but lost much of her skin, is blind in one eye and expected to lose sight in the other, and has had multiple operations to treat organ damage. She brought a products liability suit against McNeil. The jury awarded damages of $3.5 million but also found Robinson contributorily negligent. Applying Virginia law, where contributory negligence is a complete defense to a negligence claim, Judge Holderman (N.D. Ill.) entered judgment for McNeil. Robinson appeals.

In their opinion, Chief Judge Easterbrook and Judges Posner and Kanne affirmed. The Court first addressed the district court's application of Virginia law. Illinois' conflict rule is the "most significant relationship" test. In the case of a tort, that test points to the location of the injury. Here, the place of the initial injury was Virginia, although the Robinsons have since moved to Illinois where her condition worsens and her injury continues. The Court rejected a "continuation of the injury" location test. That approach would allow potential plaintiffs to relocate to favorable jurisdictions after an initial injury. Since the law was correctly applied and there was evidence of contributory negligence, the court ruled correctly. The Court then embarked on a lengthy and interesting, albeit unnecessary, analysis applying Illinois law to show that the result would be the same. In Illinois, a plaintiff's contributory negligence is only a complete defense if it exceeds the negligence of the defendant. The Court adopted a test under which the party who could have avoided the accident at a "lower cost" was the least negligent. After a discussion of the benefits of Motrin, the evidence of any causal connection between Motrin and TEN, the effect of requiring a prescription for Motrin, the role of the FDA, the warnings, and the effect of additional warnings, the Court concluded that Robinson had the lower cost of avoidance. The outcome would have therefore been the same. Finally, the Court concluded that a) the defendant's statement in closing argument that it was "not blaming" Robinson for her injuries was not so deliberate and unambiguous so as to amount to a judicial admission that she was not contributorily negligent, and b) the district court did not abuse its discretion in denying Robinson's request to reinstate her breach of warranty claim right before trial.

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