UNITED STATES COURT OF APPEALS
For the Fifth Circuit
PATRICIA KRUMMEL, wife of/and; ROBERT KRUMMEL,
BOMBARDIER CORPORATION; BOMBARDIER, INC.,
Appeal from the United States District Court
for the Eastern District of Louisiana
March 27, 2000
Before DUHÉ, BARKSDALE and DENNIS,
DUHÉ, Circuit Judge:
Robert Krummel and his wife, Patricia Krummel,
brought an admiralty and maritime claim under Fed. R. Civ. P. 9(h) against
Bombardier Corp. and Bombardier, Inc. ("Bombardier") for damages resulting
from Robert Krummel's injuries while using a Bombardier personal watercraft.(2)
They alleged that the watercraft was unreasonably dangerous and Bombardier
failed to warn them of these dangers. After a bench trial, the district
court held that Bombardier did not defectively design the watercraft; however,
Bombardier failed to provide warnings regarding use of the watercraft.
The court awarded damages. Bombardier appeals arguing that the district
court erred in finding it had a duty to warn. We agree and reverse.
The Krummels in 1994 purchased two 1994 Bombardier
Sea-Doo GTX watercraft ("watercraft"). Bombardier, Inc. manufactured the
watercraft and Bombardier Corp. distributed it. The watercraft is designed
to carry one operator and two passengers. The watercraft's footwells are
approximately five and one-half inches wide and 11 inches high at the area
where an operator places his or her feet. These footwells slope and therefore
are not as high at the spot where the rear passenger places his or her
feet. Prior to the accident, Robert Krummel read all of Bombardier's instruction
manuals and watched a video. None of these materials warned him of the
potential for his leg to become trapped when the vehicle tipped over. Bombardier's
promotional material called falling overboard an expected part of the fun.
On August 27, 1994, Robert Krummel operated
his watercraft on the Tchefuncte River, a navigable body of water located
in St. Tammany Parish, Louisiana. Riding with him were Patricia Krummel,
seated behind him, and their daughter, seated in front of him. While Robert
Krummel was waiting on the watercraft at an idle speed for his son, using
the other watercraft, to catch up, a wake struck the starboard side of
the watercraft, causing the Krummels to tip to the port side. As he began
to fall, Robert Krummel intentionally buried his left foot into the footwell
in an attempt to brace himself and keep from falling off. His wife, who
had her arms wrapped around her husband, pulled on him as she fell off.
Robert Krummel's foot remained in the footwell as his body continued to
move to the left. His tibia and fibula snapped, and the break occurred
at between eight and 11 inches up the leg.
At trial, the court heard from several witnesses
regarding foot entrapment(3) accidents while
riding similar watercraft. Tanya Lester testified regarding two situations
where she suffered foot entrapment in a 1994 GTX watercraft. Unlike Robert
Krummel, she testified that she did not intentionally bury her foot in
the footwell to prevent her fall and her feet were positioned a bit farther
back in the footwell than Robert Krummel's while riding the watercraft.
The court found the mechanics of her accidents to be substantially similar
to Krummel's. Roger Ellis also provided information regarding a leg injury
suffered in a 1994 GTX watercraft; however, the court did not rely on this
testimony in rendering its decision.
The court also heard testimony from plaintiff's
expert witness Dr. Dean Jacobson regarding forces required to cause bone
fractures. The court did not permit Jacobson to provide expert testimony
as to the watercraft's design or appropriate warnings. The court limited
Jacobson's testimony only to the forces required to break bones. In his
testimony, Jacobson said that if the height of the footwell wall were reduced
a person's foot could be released without trapping. A defense expert, Dr.
Peter Fuller, testified that a lower footwell height would not necessarily
lessen the chance of entrapment. The court determined that this testimony
was not credible. The court concluded that based on these two witnesses
the height of the footwell was a factor in the propensity for the watercraft
to trap a foot.
Both parties called David Price, Bombardier's
company representative, to testify. Bombardier introduced evidence that
it sold about 70,000 watercraft with the identical hull design between
1990 and 1995, and it had only received a few complaints. The court determined
that Bombardier's accident record-keeping policies were insufficient, thereby
casting doubt on Price's credibility. Price also testified regarding Bombardier's
operational testing of the watercraft. Price stated that entrapment of
a person's foot was a consideration during testing.
The court held that the entrapment caused
by the high footwell was the sole and proximate cause of Mr. Krummel's
injury. The court then made two important legal conclusions. First it determined
that the 11-inch footwells did not render the product defective in design
under the Restatement (Third) of Product Liability § 2(b) and the
Louisiana Products Liability Act ("LPLA") La. Rev. Stat. Ann. § 9:2800.56.
Second, the court held Bombardier liable for failing to warn Krummel regarding
the risks posed by the height of the footwell. The court determined liability
under both the Restatement (Third) of Products Liability § 2(c) and
the LPLA La. Rev. Stat. Ann. § 9:2800.57(A).
STANDARD OF REVIEW
In admiralty cases tried by the district court
without a jury, we review the district court's legal conclusions de novo
and its factual findings for clear error. Sabah Shipyard SDN. BHD. v.
M/V Harbel Tapper, 178 F.3d 400, 404 (5th Cir. 1999).
Under the LPLA, a product is unreasonably
dangerous because of an inadequate warning, "if, at the time the product
left its manufacturer's control, the product possessed a characteristic
that may cause damage and the manufacturer failed to use reasonable care
to provide an adequate warning of such characteristic and its danger to
users and handlers of the product." La. Rev. Stat. Ann. § 9:2800.57(A).
Courts applying the LPLA have noted that even when a product is not defective,
a manufacturer may have a duty to instruct reasonably foreseeable users
of the product's safe use. "A manufacturer must anticipate foreseeable
misuse and also consider the particular hazard. When a product presents
a serious risk of harm, the manufacturer must warn in a manner likely to
catch the user's attention." Delery v. Prudential Ins. Co. of Am.,
643 So.2d 807, 813-814 (La. App. 4th Cir. 1994) quoting Easton v. Chevron
Industries, Inc., 602 So.2d 1032 (La. App. 4th Cir. 1992).
Based on the evidence presented at trial,
the district court concluded that under the LPLA the watercraft was unreasonably
dangerous because Bombardier provided no warnings regarding the risk of
foot entrapment. The court said this failure to warn amounted to a lack
of reasonable care by Bombardier. Therefore, the watercraft was dangerous
to an extent beyond that which an ordinary user would have or should have
We find that the district court erred in articulating
the proper legal standard under the LPLA. State and federal courts applying
the LPLA have established a detailed analysis for determining liability
in both design defect and failure to warn cases. See, e.g.,
McCarthy v. Danek Medical, Inc., 1999 WL 262987 at *2 (E.D. La.)
("Louisiana law does not allow a fact finder to presume an unreasonably
dangerous design solely from the fact that injury occurred.") In both defective
design and failure to warn cases courts have applied a risk-utility analysis
to determine liability. A court must first determine what risk, if any,
the product created. A court must then determine whether a reasonable person
would conclude that the danger-in-fact, whether foreseeable or not, outweighs
the utility of the product. Bernard v. Ferrellgas, 689 So.2d 554,
560-61 (La. App. 3rd Cir. 1997) (applying risk-utility analysis to La.
Rev. Stat. Ann. § 9:2800.56 (design defect) and § 9:2800.57).
In applying the risk-utility analysis, we have said that a plaintiff must
show evidence "concerning the frequency of accidents like his own, the
economic costs entailed by those accidents, or the extent of the reduction
in frequency of those accidents that would have followed on the use of
his proposed alternative design." Lavespere v. Liberty Mutual Ins. Co.,
910 F.2d 167, 183 (5th Cir. 1990) (applying the risk-utility analysis to
a design defect claim under La. Rev. Stat. Ann. § 9:2800.56).(4)
In this case, the district court found liability
based solely on the fact that an injury occurred but did not properly apply
the risk-utility analysis. The court heard no expert testimony regarding
the risk the product created. Dr. Jacobson testified regarding forces necessary
for bone fractures, not the quantum of risk inherent in the watercraft
design. Moreover, other than Ms. Lester's two accidents, Krummel provided
no evidence as to the frequency of such accidents. Price testified that
Bombardier considered foot entrapment when designing the footwells; however,
such consideration does not amount to a showing that Bombardier used unreasonable
care. Even if Bombardier kept poor accident records, Krummel must provide
evidence regarding the frequency of the accidents. Without evidence showing
the severity of the risk created by the footwells or the frequency of foot
entrapment, it cannot be shown Bombardier failed to use reasonable care.
Therefore, Bombardier cannot be held liable for failure to warn under the
The Restatement (Third) of Products Liability
§ 2(c) requires a similar risk-utility analysis. This provision says:
"A product is defective because of inadequate instructions or warnings
when the foreseeable risks of harm posed by the product could have been
reduced or avoided by the provision of reasonable instructions or warnings
by the seller . . . ." Applying the Restatement, the district court determined
that Robert Krummel could have reduced his chance of injury if Bombardier
had warned him regarding the risk of foot entrapment.
The district court again erred in applying
the proper legal standard. Like the LPLA, the Restatement requires more
extensive evidence in order to find liability. The comments to the Restatement
(Third) of Product Liability § 2 note that in design defect cases
and inadequate warning cases "some sort of independent assessment of advantages
and disadvantages, to which some attach the label 'risk-utility balancing,'
is necessary." See id. at cmt. a. See also Whitted
v. General Motors Corp., 58 F.3d 1200, 1206-7 (7th Cir. 1995) (finding
that for liability for failure to warn under Indiana product liability
law and citing to then-proposed Restatement (Third) of Products Liability
§ 2(c) a plaintiff must present evidence, via statistics or other
means, to illustrate that there is a possibility the product may cause
injury). The district court again failed to apply the risk-utility analysis.
In this case, the evidence showed an injury occurred because of foot entrapment,
but no evidence shed light on whether Bombardier should have foreseen -
either by a pattern of similar accidents or a design defect - the probability
and risk of such an injury. Because the district court failed to make this
inquiry, we find Bombardier did not have a duty to warn under the Third
Restatement of Products Liability § 2(c).
For these reasons, we reverse and render judgment
REVERSED and RENDERED.
DENNIS, Circuit Judge, dissenting:
The majority, by either confusion or judicial
legerdemain, purports to amend the Louisiana Products Liability Act, La.R.S.
9:2800.51 et. seq. (LPLA), so that a claimant, to recover for harm caused
by a manufacturer's failure to warn, must prove essentially the same elements
necessary to recover for harm caused by a manufacturer's defective design
of its product. The majority's decision should not be considered a valid
precedent, however, because it radically departs from the LPLA, the Louisiana
jurisprudence, the Restatement (Third) Of Torts, and the virtually unanimous
view of all other courts and legal scholars.
I. The Majority Misreads The Legislated Law,
Jurisprudence, The Record, And The Trial Court's
The LPLA design defect and inadequate warning
actions are quite different. The LPLA provides that to succeed a design
defect claimant must prove, inter alia, that:
(1) There existed an alternative design for
the product that was capable of preventing the claimant's damage; and (2)
The likelihood that the product's design would cause the claimant's damage
and the gravity of that damage outweighed the burden on the manufacturer
of adopting such alternative design and the adverse effect, if any, of
such alternative design on the utility of the product.
LPLA § 2800.56 (in pertinent part). On
the other hand, the LPLA provides that the inadequate warning claimant,
to recover, must prove, inter alia, that:
[The manufacturer's] product is unreasonably
dangerous because [of] an [in]adequate warning . . . if, at the time the
product left its manufacturer's control, the product possessed a characteristic
that may cause damage and the manufacturer failed to use reasonable care
to provide an adequate warning of such characteristic and its danger to
users and handlers of the product.
LPLA § 2800.57A. The essential difference
between the two causes of action is that the inadequate warning claimant
must prove only something akin to ordinary negligence while the design
defect claimant must prove "not only that there was an alternative, safer
design, but also that the risk avoided by using the alternative design
(magnitude of damage discounted by the likelihood of its occurrence) would
have exceeded the burden of switching to the alternative design (added
construction costs and loss of product utility)." Lavespere v. Niagara
Mach. & Tool Works, Inc., 910 F.2d 167, 181 (5th Cir.
The majority seeks to read into the simple
LPLA inadequate warning provision an analogue of the heavier, more complex
burden required of a claimant by the LPLA defective design provision, by
the following reasoning: (1) Both the LPLA design defect and inadequate
warning actions require the courts to apply a "risk-utility" analysis to
determine liability; (2) Therefore, the LPLA inadequate warning claimant
must satisfy essentially the same rigorous and complex "risk-utility" test
that the LPLA applies to design defect claims; (3) Therefore, the Louisiana
and federal appellate decisions applying the design defect provision's
complex "risk-utility" test are applicable to inadequate warning cases
too; (4) This court in Lavespere, 910 F.2d at 183, in affirming
a summary judgment against an LPLA design defect claimant who was injured
by a metal working machine that lacked operational "point of operation"
safeguards, said that "Lavespere offered no evidence [of] the extent of
the risk that the alternative design would have avoided . . . [i]n particular,
. . . no evidence concerning the frequency of accidents like his own, the
economic costs entailed by those accidents, or the extent of the reduction
in frequency of those accidents that would have followed on the use of
his proposed alternative design."; (5) Therefore, LPLA inadequate warning
claimants, as well as design defect claimants, must show evidence concerning
these same factors; (6) Because Krummel presented "no expert testimony
regarding the risk the product created" and "no evidence as to the frequency
of such accidents" the trial court "found liability based solely on the
fact that an injury occurred but did not properly apply the risk-utility
analysis."; (7) Thus, the district court's judgment in favor of Krummel
must be reversed.
The majority's rationale is inherently flawed
in almost every link. First, although hypothetically it may be said that
some form of risk-utility test might be used to analyze an LPLA inadequate
warning claim, which is akin to but not the same as negligence,(5)
the LPLA does not command its use but instead requires deciding whether
the manufacturer "failed to use reasonable care to provide an adequate
warning." LPLA § 2800.57. Thus, the form of risk-utility test most
likely to be feasible here should closely resemble Judge Learned Hand's
simple but elegant formula for negligence, "if the probability be called
P; the injury, L; and the burden, B; liability depends upon whether B is
less than L multiplied by P: i.e., whether B < PL." United States
v. Carroll Towing Co., Inc., 159 F.2d 169, 173 (2d Cir. 1947)(a maritime
negligence case determining liability without expert quantification of
the variables).(6) On the other hand, the
LPLA § 2800.56 does command the use of a much more complex risk-utility
test for determining under the alternative design theory whether the manufacturer's
product is unreasonably dangerous in design. Thus, there is no basis in
the LPLA for the majority's assumption that the design defect risk-utility
test must be used to determine whether the manufacturer failed to use "reasonable
care" to provide an adequate warning of a "characteristic [of the product]
that may cause damage." And before the majority's opinion in the present
case, none of the Louisiana or federal appellate courts have ever reached
such a conclusion.
Second, contrary to the majority opinion,
this court did not hold in Lavespere v. Niagara Machine & Tool Works,
Inc. that a design defect claimant under LPLA § 2800.56 "must
show evidence 'concerning the frequency of accidents like his own, the
economic costs entailed by those accidents, or the extent of the reduction
in frequency of those accidents that would have followed on the use of
his proposed design.'" Ante at ____ (quoting Lavespere, 910
F.2d at 183). Contrary to the majority's out of context rendition, the
Lavespere court did not change the substantive products liability
law of Louisiana by adding the passage quoted above to the risk-utility
test of LPLA § 2800.56. Instead, the Lavespere court affirmed
the summary judgment against the design defect claimant because he failed
to present in opposition to Niagara's motion for summary judgment "evidence
sufficient to enable a reasonable trier of fact to conclude that he had
established the essential elements of his claim, including that the risk
avoided by the alternative design outweighed the burden of adopting that
design." Lavespere, 910 F.2d at 183. As the court noted earlier
in the opinion, Niagara, the manufacturer, had filed in support of its
motion for summary judgment, inter alia, an affidavit by its engineer and
officer that it was not possible to design a "universal" point-of-operation
safeguard, that is, one single safeguard capable of protecting all operators
of the machine in all of its possible applications; that which safeguard
is appropriate and effective varies with the bending or cutting operation
to be performed; and that for these reasons it was the custom in the industry
not to install point-of-operation safeguards on the machines, but to leave
that responsibility to the purchaser, which in the case at bar was Lavespere's
employer. Id. at 171. The court explained why Lavespere's opposition
evidence did not create an issue for trial:
Although Lavespere introduced evidence that
had some bearing on the risk-utility issue, it was not sufficient to carry
the day. Lavespere offered no evidence concerning the extent of the risk
that the alternative design would have avoided. In particular, Lavespere
offered no evidence concerning the frequency of accidents, or the extent
of the reduction in frequency of those accidents that would have followed
on the use of his proposed alternative design.
Id. at 183 (emphasis added). When read
in context, the words italicized above form a part of the court's explanation
of the type of evidence Lavespere should have presented in opposition in
that particular fairly complex design defect case, given the evidence presented
by the manufacturer in favor of its motion for summary judgment, to demonstrate
that there was a genuine dispute as to a material issue of fact that reasonably
could be resolved in Lavespere's favor at trial. The Lavespere court
did not and could not properly engraft the italicized words onto the LPLA's
design defect risk-utility test. Under our admiralty jurisdiction we are
authorized, in developing the general maritime law, to draw from state
sources of substantive law. See Saratoga Fishing Co. v. J.M.
Martinac & Co., 520 U.S. 875, 878 (1997); East River Steamship
Corp. v. Transamerica Delaval, Inc., 476 U.S. 858, 864-65 (1986)(citing
authorities). As federal judges exercising admiralty jurisdiction, however,
we are not empowered to change or distort the state substantive law before
it is drawn upon.
In fact, the Lavespere court clearly
indicated that it had no intention of adding a blanket requirement of certain
types of expert evidence in alternative design defect actions under the
LPLA, by stating:
[W]e do not mean to suggest that the plaintiff
must, in every case, introduce evidence that details and quantifies the
risk avoided and the burden incurred in order to prevail under the defective
design theory set out in the LPLA. As courts in other jurisdictions that
have placed on plaintiffs the burden of proof on the risk-utility issue
have suggested, there may be cases in which the judge or the jury, by relying
on background knowledge and "common sense," can "fill in the gaps" in the
plaintiffs case, estimating the extent of the risk avoided, the costs of
implementing the proposed design change, or the adverse effects of the
design modification on the utility of the machine. [141 S. Main, Inc.
v. Magic Fingers, Inc., 49 Ill.App.3d 724, 728-29, 364 N.E.2d 605,
608 (1977); Duke v. Gulf & W. Mfg. Co., 660 S.W.2d 404, 412-13
(Mo.App. 1983); Wilson v. Piper Aircraft Corp., 282 Or. 61, 67-70,
577 P.2d 1322, 1326-27.] For this to be possible, however, the product
itself, or at least the design feature in question, must be relatively
uncomplicated, and the implications of the change in design must be such
that a layman could readily grasp them. [Wilson, 282 Or. at 68-70,
577 P.2d at 1326-27; Duke, 660 S.W.2d at 412-13.] Lavespere,
910 F.2d at 184 (internal citations in original were footnoted). The only
Louisiana court which has spoken on the subject agreed. See, e.g.,
McKey v. General Motors Corp., 691 So.2d 164, 170 n.2 (La. App.
1st Cir. 1997)(citing and quoting
Lavespere, 910 F.2d
As a practical matter, if expert and prior
accident evidence are not required in every LPLA alternative design theory
case, it makes no sense impose such a substantive requirement in the much
less complex failure to adequately warn cases. Inadequate warning actions
do not involve the complex comparisons of the costs/benefits and risks/utilities
of two different product designs that are required in design defect actions.
Indeed, the majority vaguely acknowledges in its fourth footnote that even
a design defect claimant need not detail and quantify the risk and utility
of the product or the design feature at issue where they are relatively
uncomplicated and can be readily grasped by laymen. However, the majority
errs in pointing to the various design aspects of the footwell and gunnel
to conclude that "a layperson obviously could not have grasped the adequacy
of the footwell design and the need, if any, for warnings." A district
court judge is perfectly capable of relying upon his common sense and the
background knowledge gleaned from evidence presented at trial to "fill
in the gaps" of the plaintiff's case, if any, in estimating the extent
of the risk involved in the design of a footwell on a personal watercraft.
The footwell at issue is approximately five and one-half inches wide at
the bottom, 11 inches high, and sloping slightly outward so as to be wider
at the top. Certainly this design feature is relatively uncomplicated and
lends itself to a non-scientific determination of the extent of the risk
of "foot entrapment" and the extent of risk reduction to be gained by an
appropriate warning of the danger. Furthermore, if the present failure
to warn case is too complex for a district court judge to understand, without
adding the testimony of even more experts to those whose testimony is in
the record, it is doubtful that any case will be simple enough to be tried
without voluminous expert testimony or evidence of the frequency of similar
accidents. (How many and what kinds of experts does the majority want?)
Only very wealthy plaintiffs will be able to afford to bring an action
under the majority's revised version of the LPLA.
It is self evident that the majority has perverted
the meaning of the LPLA and Judge Rubin's Lavespere opinion in reading
LPLA § 2800.57 (inadequate warning) as virtually a duplicate of §
2800.56 (defective design). After all this appeal concerns a very simple
inadequate warning case, essentially an ordinary negligence case, in which
Krummel's leg was broken for lack of any warning of the danger of his foot
becoming trapped in the jet-ski's eleven inch deep foot well as the watercraft
rolled in the wake of a passing boat. Bombardier, the manufacturer, admitted
that it was aware of this danger and consciously chose not to eliminate
it with an alternative design or to provide consumers with any warning
of this characteristic that could cause injury. Contrary to the majority
opinion, the trial judge heard the testimony of several expert witnesses
(some of whom used a model of the footwell in their testimony) which, in
my opinion, fully explained the dynamics of the accident and fully supports
the trial judge's finding that Bombardier had foreknowledge of the risk,
that the gravity of potential harm was significant, and that an adequate
warning would have alerted Krummel and enabled him to avoid the dangerous
trapping characteristic. The majority concedes that Krummel introduced
evidence of two similar accidents involving the same model jet-ski, and
the evidence strongly indicates that Krummel was unable to introduce more
because Bombardier was guilty of spoliation of evidence of previous accidents.
The trial judge was justified in having serious doubts as to the credibility
of the manufacturer's representative who testified that the company had
sold 70,000 of the same model watercraft between 1990 and 1995, that the
manufacturer had no policy requiring the retention of records of accidents
or complaints, and that he had never heard of an alleged leg entrapment
with any Bombardier product until Krummel's accident; and who became evasive
and would not directly answer the question of whether any discoverable
list of prior complaints existed.
II. Louisiana Jurisprudence
The majority incorrectly states the provisions
of the LPLA and Louisiana jurisprudence. Under the LPLA, a failure to warn
claimant bears the burden of establishing that "the product possessed a
characteristic that may cause damage and the manufacturer failed to use
reasonable care to provide an adequate warning of such characteristic and
its danger to users and handlers of the product[;]" and that the failure
to do so proximately caused the claimant's injuries. LPLA §§
2800.54 and 2800.57. The trial court articulated and applied a similar
standard provided by the Restatement Third, Torts: Products Liability §
2 (c), which states that a product "is defective because of inadequate
instructions or warnings when the foreseeable risks of harm posed by the
product could have been reduced or avoided by the provision of reasonable
instruction or warnings . . . and the omission of the instructions or warnings
renders the product not reasonably safe." See Krummel v. Bombardier
Corp., 1998 WL 433803, p.9 (E.D.La.). The trial court also articulated
and applied factors of guidance "such as the foreseeability and gravity
of the risk, the likelihood that an intermediary will convey the information
to the user, and the feasibility and effectiveness of a direct warning
to the user." Id. (citing Restatement Third, Torts: Products Liability
§ 2 at cmt. i). The majority is simply mistaken in concluding that
the LPLA requires that a failure to warn claim absolutely must be judged
by an articulated "risk-utility" test rather than LPLA § 2800.57's
"reasonable care" standard. Also, the majority completely ignores the fact
that the trial court articulated and applied the guidance factors of Restatement
Third, Torts: Products Liability § 2, cmt i, which constitute a form
of risk-utility test adapted specifically to a failure to warn claim.
Contrary to the majority's representations,
there is no Louisiana or federal appellate court decision holding that,
under the LPLA, (1) the adjudication of a failure to warn claim categorically
requires articulation and application the "risk-utility" test; or (2) the
adjudication of a design defect or a failure to warn claim categorically
requires the plaintiff to introduce expert evidence concerning the frequency
of similar accidents, economic costs entailed by those accidents, or the
extent of the reduction in frequency of those accidents that would have
followed on the use of an alternative design or a proposed warning or instruction.
The majority cites Bernard v. Ferrellgas, 689 So.2d 554 (La. App.
3rd Cir. 1997) and Lavespere v. Niagra Mach. & Tool Works,
Inc., 910 F.2d 167 (5th Cir. 1990) as supporting its conclusions.
But both of these cases involved only LPLA design defect claims and did
not address or mention failure to warn claims. Moreover, the Bernard
case actually used a duty-risk formula based
on pre-LPLA cases to decide
that the trial court erred in granting a directed verdict for the manufacturer.
Under the LPLA, unlike the failure to warn action provided by § 2800.57,
which requires only proof that the "manufacturer failed to use reasonable
care to provide an adequate warning," the design defect action under §
2800.56 imposes a more onerous and complex burden on the plaintiff, including
proof of an alternative design and an expressly prescribed risk-utility
balancing test. Thus, the Lavespere and Bernard courts' discussion
of the risk-utility balancing test in design defect cases carries with
it no suggestion that the test should be read into failure to warn actions
under § 2800.57. Furthermore, in neither case did the court hold that
the introduction of expert testimony, or evidence of frequency of similar
accidents is absolutely and categorically required even in judging LPLA
design defect claims.
McCarthy v. Danek Medical, Inc., 65
F.Supp.2d 410 (E.D.La. 1999), cited by the majority, does not support the
majority's decision. In that case, the court stated: "The LPLA in part
defines adequate warning to be one that 'would lead an ordinary reasonable
user to contemplate danger in using or handling the product.'"
65 F.Supp.2d at 413. "This generally is not a technical area that would
require expert proof." Id. at n.2 (citing Wright v. Kemper National
Ins., 1995 WL 527615 (E.D.La)).
The LPLA § 2800.57(A) "does not change
Louisiana law, and as required by prior law, a manufacturer must use reasonable
care in deciding whether to warn." Dunne v. Wal-Mart Stores, Inc.,
679 So.2d 1034, 1038 (La.App.1st Cir. 1996)(citing John Kennedy, A Primer
on the Louisiana Products Liability Act, 49 La.L.Rev. 565, 616 (1989)).(7)
The majority does not cite, and I have not found, any Louisiana case interpreting
the LPLA as requiring expert testimony or evidence of the frequency of
prior similar accidents as legal prerequisites to proof of a claim based
on failure to provide adequate warnings. Louisiana products liability jurisprudence
under the Civil Code contained no requirement of expert evidence in failure
to warn cases, and there is precedent that no such pre-condition to recovery
is implied by the LPLA.(8) See, e.g.,
v. Goodman Mfg. Corp., 687 So.2d 124, 128-29 (La.App. 5th
Cir. 1996); Dunne v. Wal-Mart Stores, Inc., 679 So.2d at 1038-39.
The majority's reliance upon Whitted v. General Motors Corp., 38
F.3d 1200 (7th Cir. 1995), is confused and misplaced. In that
case the Seventh Circuit based its decision on Indiana product liability
law . The Whitted court cited ALI Tentative Draft No. 1, §
2(c) only for the proposition that "[f]or one to be liable for a failure
to warn, the product in question must be unreasonably dangerous." Id.
Louisiana's general rule evidently is that
expert testimony is only required to establish the applicable standard
of care in negligence cases in which lay persons cannot find or infer negligence
by applying common sense. See, e.g., Greenhouse v. C.F.
Kenner Assoc. Ltd. Partnership, 723 So.2nd 1004, 1008 (La.App. 4th
Cir. 1998); cf. Pfiffner v. Correa, 643 So.2d 1228, 1234
(La. 1994) ("expert testimony is not always necessary in order for a plaintiff
to meet his burden of proof in establishing a medical malpractice claim.");
D & O Contractors, Inc. v. Terrebonne Parish Sch. Bd., 545 So.2d
588, 591 (La.App. 1st Cir. 1989)(same regarding proof of negligence of
architect); Watkins v. Sheppard, 278 So.2d 890, 892 (La.App. 1st
Cir. 1973) (same regarding proof of negligence in attorney malpractice
Evidence of prior similar accidents has not
been deemed a requisite to recovery under the LPLA for failure to warn
claims as evidenced by numerous cases in which plaintiffs recovered without
producing such evidence. See, e.g., Hooker v. Super Products
Corp., 1999 WL 459360 (La.App. 5th Cir.); Moore v. Safeway, Inc.,
700 So.2d 831, 848-52 (La.App. 1st Cir. 1996); Terrebonne, 687 So.2d
at 127-29; Dunne, 679 So.2d at 1038-39; Mayo v. Nissan Motor
Corp. In U.S.A., 639 So.2d 773, 784-85 (La.App. 3rd Cir. 1994); cf.
Delery v. Prudential Ins. Co. of Am., 643 So.2d 807, 814 (La.App.
4th Cir. 1994)(pre LPLA); Brantley v. General Motors Corp., 573
So.2d 1288, 1292 (La.App. 2nd Cir. 1991)(same); Beauhall v. Sears, Roebuck
& Co., 526 So.2d 479, 482-83 (1st Cir. 1988)(same).(10)
This is not to say that a plaintiff may not offer evidence of prior similar
accidents if it is available; rather, only that a plaintiff is not required
by substantive law to do so to establish a duty to warn.
III. The District Court's Decision Should
Be Affirmed As A Proper Application Of The Correct Legal Principles To
Findings Of Fact Fully Supported By The Evidence
District Judge Fallon decided this case correctly.
Krummel v. Bombardier Corporation, 1998 WL 433803 (E.D.La.). I append
his findings of facts and conclusions of law.
The essential facts are not in dispute. Mr.
Krummel's left leg was broken when his jet ski was struck on the starboard
by a large wake from a passing boat, causing it to list abruptly to the
port side. As required by the jet ski's design and instruction manual,
Mr. Krummel, seated in the operator's position, had inserted his legs and
feet (covered with rubber booties) into the port and starboard footwells,
each of which was five and one-half inches wide and 11 inches deep. When
the jetski reached the farthest point of its list to port, and either stopped
or began to right itself, the momentum of Mr. Krummel's body caused his
left foot and lower left leg to become lodged against the base and wall
of the footwell. His upper left leg, however, continued to bend with the
force of his body's momentum until the tibia and fibula of his left leg
were broken between eight and 11 inches above the bottom of his left foot.
Mr. Price, the manufacturer's safety consultant,
testified that he was involved in the safety design and testing of the
watercraft in question. He acknowledged that the manufacturer was aware
of and considered the risk of footwell entrapment in adopting the watercraft's
design, but he indicated that alternative designs that would have eliminated
or reduced that risk were rejected as being too costly or burdensome in
terms of product utility and creation of other more serious product risks.
The testimony of the plaintiff's and the defendant's medical experts and
the plaintiff's mechanical and biomechanical engineering expert corroborated
that there is a risk or a probability that a left human leg confined in
a space with the dimensions of the left footwell would be entrapped and
broken when a force is applied to the human's body from the right side
equal to the force of momentum produced by Mr. Krummel's body in the tilting
of the watercraft after it was struck by the three foot wake of the passing
Dr. Dean Jacobson, accepted by the district
court as an expert in biomechanical engineering, opined that due to the
momentum created by Mr. Krummel's falling sideways to his left off the
watercraft while his left foot was bottomed in the watercraft's left footwell,
fractures of the left tibia and fibula can reasonably be expected to occur
in a "bending" break at a force of less than 100 pounds depending upon
the exact position of the body.(11) Dr
Jacobson concluded: "[T]hese calculations show that because of the design
of the gunnel -- and I have to refer to the design because that's what
this was based upon -- when we look at the design of the gunnel and the
dimensions of the leg and the way in which a body can exit the watercraft
that we can achieve those forces given trapping in this particular gunnel,
in this situation that we have, we can achieve the forces necessary to
break the leg either in twisting or in bending."
The Krummels also produced expert testimony
from Dr. Joseph Rauchwerk, an orthopaedic surgeon. Dr. Rauchwerk testified
that Mr. Krummel suffered a fractured tibia and fibula that was fully consistent
with a three-point bending break caused by his foot being fixed in the
footwell (point one), while the leg was also fixed against the wall of
the watercraft at a height of 11 or 12 inches (point two), and the third
force was generated by his body falling out of the watercraft (point three).
Thus the majority's characterization of this
testimony as "regarding forces necessary for bone fractures, not the quantum
of risk inherent in the watercraft design" is erroneous. Only by mischaracterizing
this expert testimony can the majority assert that "[t]he court heard no
expert testimony regarding the risk the product created." Dr. Jacobson's
and Dr. Rauchwerk's expert testimony was certainly evidence of the likelihood
and seriousness of the risk of harm that occasioned the Krummels' injuries
-- a broken tibia and fibula sustained by Mr. Krummel as a result of the
dangers inherent in the watercraft's footwell design. Moreover, Dr. Peter
Fuller, Bombardier's own expert in anatomy and injury mechanisms concurred:
"it is my opinion that that's what we call a bending type fracture; in
other words, one part of the leg was held in and the other part was moved
relative to that, what we call a bending fracture." Dr. Fuller also testified
that it is possible, and in some situations even probable, that a bending
fracture of the tibia and fibula will occur as a result of wave action
causing an individual to go over the side of a watercraft while his leg
in confined in an area 11 inches deep and five and one-half inches wide.
Finally, Dr. Fuller's testimony supported the Krummels' failure to warn
claim because he repeatedly acknowledged that the footwell design would
cause a fracture like that suffered by Mr. Krummel under the circumstances
of the accident, but that lowering the height of the gunnel would not reduce
the likelihood of injury but would only change the location of the injury.
While this testimony supports the district court's rejection of the design
defect claim if found credible, it also supports the district court's conclusion
on the failure to warn claim since it points out the inherent danger of
design of the gunnel. "When an alternative design to avoid risks cannot
reasonably be implemented, adequate instructions and warnings will normally
be sufficient to render the product reasonably safe." Restatement Third,
Torts: Products Liability, § 2, comment l.
Ms. Lester testified that on two occasions
in 1996 and 1997 her leg had been injured when it had become temporarily
entrapped in the footwell of the same model watercraft as Mr. Krummel's.
It is undisputed that the manufacturer did not provide Mr. Krummel with
any warning as to the danger of leg injury or fracture caused by footwell
entrapment or any instructions as to the avoidance or escape from such
risks. The manufacturer's witnesses offered no explanation for its having
failed to do so, and Mr. Price acknowledged that even though entrapment
was a primary concern in the footwell design process, no tests were ever
conducted by Bombardier to ascertain the magnitude of the risk of foot
entrapment posed by the footwell design that was integrated into the product
and that caused the leg injury to Mr. Krummel. Moreover, both at trial
and on appeal Bombardier argues that, on the one hand, the footwell design
posed no significant risk of harm about which to warn, and on the other
hand, that no warning was required because the risk of foot entrapment
was open and obvious.
Judge Fallon found that entrapment caused
by the footwell was the sole and proximate cause of Mr. Krummel's injury,
and that Mr. Krummel's failure to avoid the mishap was not contributory
negligence, because he had not been forewarned of the risk or instructed
as to what defensive action could be taken to avoid injury. Nevertheless,
Judge Fallon rejected the plaintiffs' claim that the 11-inch footwells
rendered the product defective in design. Although the manufacturer admitted
that it foresaw the risk of entrapment and elected not to change the design
to eliminate it, the district judge concluded that the plaintiffs failed
to show that their alternative design involving lowered footwells would
not have introduced into the product other dangers of equal or greater
magnitude. However, Judge Fallon found that the height of the footwell
posed a definite risk that was both foreseeable and known to the manufacturer,
which rendered the watercraft defective due to the manufacturer's failure
to provide adequate instruction or warning regarding the dangers associated
with entrapment. In reaching these conclusions, Judge Fallon cited, quoted
and applied the Restatement (Third) of Products Liability § 2(c)(a
product "is defective because of inadequate instructions or warnings when
the foreseeable risks of harm posed by the product could have been reduced
or avoided by the provision of reasonable instruction or warnings . . .
and the omission of the instructions or warnings renders the product not
reasonably safe.") and the Louisiana Products Liability Act (LPLA), La.
R.S. § 9:2800.57A ("A product is unreasonably dangerous because an
adequate warning about the product has not been provided if, at the time
the product left its manufacturer's control, the product possessed a characteristic
that may cause damage and the manufacturer failed to use reasonable care
to provide an adequate warning of such characteristic and its dangers to
users and handlers of the product."). Applying these provisions, Judge
Fallon reasoned that (1) the known and foreseeable risk of entrapment and
gravity of potential harm was significant; (2) a warning attached to the
watercraft and/or contained in the promotional material, manual, or video,
would almost certainly have reached Mr. Krummel and reduced his chance
of injury; and, as a result, (3) the manufacturer's failure to use reasonable
care to provide an adequate warning regarding the footwells and the danger
of entrapment caused Mr. Krummel's injuries. Accordingly, Judge Fallon
concluded that the product was dangerous to an extent beyond that which
ordinary users like the Krummels would have or should have contemplated.
Thus, the majority erred not only in concluding
that expert testimony was required by the LPLA in this failure to warn
case, but also in concluding that the district court based liability solely
upon the fact of the injury and without sufficient evidence of a risk of
harm to find that Bombardier owed a duty of care to the Krummels to warn
against the risk of foot entrapment.
For the foregoing reasons, I respectfully
but emphatically dissent.
(Cite as: 1998 WL 433803 E.D.La.))
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
PATRICIA KRUMMEL, wife of/and * CIVIL ACTION
VERSUS * NO. 95-2737
BOMBARDIER CORPORATION, and * SECTION "L"
FINDINGS OF FACT AND CONCLUSIONS OF
I. PROCEDURAL HISTORY
On August 27, 1994, while operating his 1994
Sea-Doo Model GTX Bombardier personal watercraft vehicle ("watercraft"),
Robert Krummel fell from his watercraft, fracturing the tibia and fibula
of his lower left leg. Mr. Krummel and his wife, Patricia Krummel, brought
an admiralty and maritime claim under Rule 9(h) of the Federal Rules of
Civil Procedure, alleging that their damages were caused solely by the
unreasonably dangerous nature of the watercraft and by defendants' failure
to warn them of the dangers inherent in the normal use of the watercraft.
Defendants deny that their watercraft was in any way defective or that
its warnings were inadequate. Bombardier also asserts that any injury plaintiffs
suffered was caused by Mr. Krummels' own negligence and the negligent acts
of a third party. This cause came on for a non-jury trial on December 1,
1997 and concluded on December 3, 1997.
The Court has carefully considered the testimony
of all of the witnesses, the exhibits entered at trial, and the record.
Pursuant to Rule 52(a) of the Federal Rules of Civil Procedure, the Court
hereby enters the following findings of fact and conclusions of law. To
the extent that any findings of fact constitute conclusions of law, the
Court hereby adopts them as such, and to the extent that any conclusions
of law constitute findings of fact, the Court hereby adopts them as such.
II. FINDINGS OF FACT
Plaintiffs purchased a 1994 Bombardier Sea-Doo
GTX watercraft from Spotswood Honda in Mobile, Alabama in April 1994. They
subsequently purchased a second 1994 GTX watercraft from St. Tammany Marine
in Mandeville, Louisiana.
The 1994 GTX watercrafts plaintiffs purchased
were manufactured by defendant Bombardier, Inc. and distributed by defendant
Bombardier Corporation (hereinafter collectively referred to as "Bombardier").
The Bombardier 1994 GTX watercraft is approximately
119 inches in length, 46.9 inches in width, 37.4 inches in overall height,
and designed to carry one operator and two passengers.
The watercraft footwells, located on the port
and starboard sides of the 1994 GTX watercraft, are approximately 51/2
inches wide and 11 inches high at the area where an operator of the watercraft
places his or her feet. The footwells slope, so that the footwells are
not as high at the spot where a rear passenger places his or her feet.
The design characteristics of the footwell, including the height and width,
were clearly visible to Mr. Krummel. (Tr. at 114.)
(5) Bombardier's 1990 through 1995 GTS and
GTX watercrafts all have the same hull structure, including footwell design.
Prior to operating the watercraft, Mr. Krummel
read all of the instruction manuals and pamphlets provided to him by the
seller and viewed the video produced by Bombardier. (Tr. at 63-64.) None
of these materials warned him of the potential for his leg to become trapped
when the vehicle tipped or turned over. Portions of Bombardier's promotional
material touted "falling overboard" as "an expected part of the fun." (Pla.'s
Ex. 45, Sea-Doo brochure, "Everybody's Doin' It Safely," at 20).
On August 27, 1994, Mr. Krummel was operating
his watercraft on the Tchefuncte River, a navigable body of water located
in St. Tammany Parish, Louisiana. Riding with him was Ms. Krummel, seated
behind him, and their daughter, seated in front of him. Sea conditions
were calm; weather and visibility were good.
As Mr. Krummel headed in a northerly direction,
he stopped to allow his son, who was operating their other watercraft,
to catch up. The transmission was engaged, at an idle speed of approximately
three to five miles an hour. (Tr. at 53.) While waiting, a large wake caused
by a boat passing in a southerly direction struck the starboard side of
the watercraft, causing the Krummels to tip to the port side.
As he began to fall, Mr. Krummel intentionally
"buried" his left foot into the well, in an attempt to brace himself and
keep from falling off. (Tr. at 111.) Ms. Krummel, who had her arms wrapped
around her husband, pulled on him as she herself fell off.
As Mr. Krummel fell to his left, the watercraft
either began to right itself or simply failed to tip over completely to
the left. Mr. Krummel's left foot remained in the foot well. As his upper
leg and the remainder of his body continued to move to the left, the watercraft
did not and his tibia and fibula snapped. The break occurred at between
8 and 11 inches up the leg. (Tr. at 271.) Based on X-rays of Mr. Krummel's
foot, Dr. Joseph Rauchwerk(12) testified
that Mr. Krummel's foot was fixed at the base while the top of his leg
was fixed approximately 11 or 12 inches from the base. (Tr. at 273-74.)
As Mr. Krummel fell away from the boat, the bending increased until the
bone failed. (Tr. at 274.) Dr. Rauchwerk described the phenomena as "fixing
or trapping," and explained the torque and compressive forces at play.
(Tr. at 275.)
The Court heard testimony from Tayna Lester.
Ms. Lester testified that in 1997 she was riding as the middle of three
passengers of a 1994 GTX watercraft. (Tr. at 15.) The Court notes that
this is the same position on the same watercraft as Mr. Krummel occupied.
While traveling at approximately 25-30 mph, she fell off the watercraft.
She testified that "the side caused my foot to be locked in there and my
legs couldn't freely just fall off the bike." (Tr. at 16.) She sought and
obtained medical treatment for her swollen leg at the emergency room, where
she was diagnosed with a hematoma and dent to the outside of her shin.
(Tr. at 17.) After visually inspecting and then touching her leg, the Court
noted that the dent mid-calf on the outside of her left leg was obvious
to sight and feel. (Tr. at 18.)
In 1996, while riding as the rear passenger
of a watercraft traveling at approximately 15 mph, Ms. Lester also fell
off. The "same thing happened to my right leg," hitting her leg on the
side of the footwell. (Tr. at 21.) She suffered a dent to her leg, not
as severe, she opined, because the footwell is "not as high in the back
as it is in the middle" and because the boat was not traveling as fast.
(Tr. at 21.)
Under cross-examination, Ms. Lester admitted
that her feet in the 1997 incident were positioned "a bit" farther back
than Mr. Krummel's.(13) (Tr. at 21.) She
also asserted that she did not intentionally "bury" her foot into the footwell
to prevent her fall, but instead tried to throw herself off. However, despite
her efforts at free fall, she noted that "the side hits you each time."
(Tr. at 21.)
The Court finds Ms. Lester's version of the
accidents--that her leg became temporarily trapped in the footwell, causing
an injury to that portion of her leg that struck the top of the footwell--to
be credible. The Court also finds that the mechanics of her accidents,
especially the 1997 accident, was substantially similar to Mr. Krummel's.
The Court also heard testimony from Roger
Ellis regarding a leg injury he sustained on May 15, 1994 while operating
a 1994 GTX. The Court finds that the accident was relevant and admissible.
However, based on evidence that Ellis was "wake jumping" and the opinion
of defendant's expert Dr. Peter Fuller that the leg break was a compression
fracture and not caused by trapping, the Court questions the substantial
similarity of Mr. Ellis' accident and does not rely on this incident in
reaching its conclusions as to plaintiffs' claims.
The Court heard expert testimony from Dr.
Dean Jacobson on the topic of the forces required to cause bone fractures.
Dr. Jacobson testified as to the trapping nature of a footwell, illustrating
this with the use of a model, the dimensions of which approximated the
actual footwell. (Tr. at 231-32.) Dr. Jacobsen testified that if the height
of the footwell wall were reduced, "the rotation of the body can go further
and further until basically the body can be released without trapping between
the gunnel [footwell] wall and the bottom of the channel where the foot
could potentially wedge against the other side." (Tr. at 232.) In addition,
a lower footwell wall "allows for maneuverability in the knee," and "the
more flexibility you have in this direction, the less chance there is for
entrapment forces to occur at the bottom." (Tr. at 242.) The Court finds
Dr. Jacobsen's description and calculation of the various forces and conditions
at play and the dynamics of the trapping to be accurate and informative.
On the contrary, while the Court accepts the
testimony of defendant's expert witness, Dr. Peter Fuller, as to the cause
of Mr. Ellis' break, the Court does not find Dr. Fuller credible on the
key issue of whether a lower footwell height would lessen the chance of
entrapment. Dr. Fuller would not agree that lowering the footwell height
would decrease the likelihood of a fracture. Instead, he repeatedly insisted
that lowering the height would only "lower the position [on the leg] of
the fracture," and "not lower the likelihood" of a fracture occurring.
(Tr. at 376; see also Tr. at 380, 372, 353 (noting that "the height
of the gunnel [footwell] really has no bearing on the fracture other than
the position of the fracture.")) The Court finds Dr. Fuller's testimony
on this point to be contrary both to Dr. Jacobsen and to reason. Obviously,
as Dr. Fuller admitted, when no footwell is present, there is no chance
of a trapping fracture, but when the foot is in a confined area with an
11-inch high wall, trapping is possible. (Tr. at 371-72.) The evidence
shows that at some low footwell height, even if it be only an inch, the
leg would necessarily fall away from the footwell without getting trapped,
or would at least not suffer the forces necessary to break bone. At some
higher height, trapping is possible, as happened in this case. To say that
increasing the footwell height does not increase the chance of trapping
appears to the Court contrary to logic and to the evidence presented. (17)
The Court finds that the credible evidence
supports the conclusion that the height of the footwell was a factor in
the propensity for the watercraft to trap a leg.
Both the plaintiffs and the defendants called
Mr. David Price, Bombardier's company representative. Mr. Price's testimony
covered both product safety testing and handling complaints regarding Bombardier's
Bombardier introduced evidence that it sold
approximately 70,000 watercrafts with the identical hull design between
1990 and 1995, and that it did not receive a single complaint until after
Mr. Krummel's accident, and only two or three since. (Tr. at 327.)(20)
Price, however, admitted that there was no
uniform policy for the retention of documents regarding complaints. Rather,
record retention policies were "the responsibility of the director of the
particular department to define," there was no written policy. (Tr. at
158.) Price admitted that there might not be any documentation for complaints
that he felt were unfounded, and that he "wouldn't necessarily maintain
that particular document in the file." (Tr. at 160.) Price candidly admitted
that even were Mr. Krummel to call and report his accident today, Bombardier
"may or may not [document it]. It depends on the information provided to
me. And again, I may not put it down in writing." Price was also asked
whether any discoverable list of complaints existed. Price evaded the question,
and did not acknowledge, let alone produce, any such list. (Tr. at 341.)
The Court finds Price and Bombardier's record-keeping
policies to be insufficient, especially for an operation as large and as
established as Bombardier. Such inadequacies in the receipt and handling
of complaints casts serious doubts or Mr. Price's credibility when he proclaimed
that "until Mr. Krummel's case, I have never heard of an alleged leg entrapment
at all with any of the Bombardier products." (Tr. at 171.)
Mr. Price also testified as to the extensive
operational testing and evaluation by Bombardier, the most relevant part
of which concerned the dimensions of the footwells. Price specifically
stated that "whether or not there would be entrapment of the person's foot"
was a consideration. (Tr. at 173.) In fact, "[m]y first consideration,
of course, sitting on the product and utilizing the product, is entrapment."
(Tr. at 319.) However, entrapment was far from the only factor in selecting
the correct footwell dimensions. Price testified that footwell height and
width was a consideration in regard to many aspects of the watercraft,
including: ease of entry and exit; steering and turning ability; support
for the body; comfort; protection against impacts, especially from the
side; ability to reboard; bracing ability versus ease of reboarding; and
buoyancy, especially as the load increases. (Tr. at 173-74, 319-20.) B.
After his injury, Mr. Krummel had five operations
to his leg--the initial setting and rodding, a bone screw, repair of a
hernia of the tissue around the wound, removal of the rod, and a removal
of the sutures.
Mr. Krummel's treating physician, Dr. Mark
Hontas, appeared via deposition. Dr. Hontas performed much of the surgery
on Mr. Krummel's leg--putting in the rod, taking out the screw, and repairing
the herniation. He released Mr. Krummel to work in February of 1995, and
to work full duty in March of 1995. Mr. Krummel was "unusually" adamant
about having the rod removed and the herniation operated on, despite Dr.
Hontas' advice to the contrary. (Hontas Depo. at 22-24.) Dr. Hontas described
Mr. Krummel's obstinance in wanting things done in a certain way and his
excessive concern and fixation regarding his injury. (Hontas Depo. at 24-26.)
Dr. Hontas saw no connection between Mr. Krummel's injury and the pain
he reported in the bottom of his foot, and future nerve conduction studies
failed to explain the burning sensation or show any abnormalities. (Hontas
Depo. at 41-47.) He reiterated his feeling that Mr. Krummel can "be very
fixated on certain aspects of his injury, and sometimes these can become
magnified and blown up, even though in his mind that might be very real
to him." (Hontas Depo. at 48.)
Dr. Hontas testified that any restriction
he placed on Mr. Krummel's work would have been based on Mr. Krummel's
complaints of pain, and not on any of the tests Dr. Hontas conducted. (Hontas
Depo. at 49.) Dr. Hontas explained his puzzlement that Mr. Krummel felt
"a lot of pain in that area where he didn't show signs of a painful condition,
that is, no swelling, no redness, puffiness." (Hontas Depo. at 50.) With
all of the "objective tests" turning up negative, Dr. Hontas could only
state that if he "entertained" a diagnosis of reflex sympathetic dystrophy
("RSD"), he would have to restrict Mr. Krummel's work requirements. (Hontas
Depo. at 53). It would be "difficult" to restrict him from an "orthopedic
point of view," and any restriction would be necessary only if in "Mr.
Kummel's mind he actually feels that he has a problem down there in spite
of the fact that we're not finding anything." (Hontas Depo. at 53.)
When asked whether he could diagnose RSD,
Dr. Hontas candidly admitted "I'm not sure it [RSD] is going on" and that
he "would probably get another opinion." (Hontas Depo. at 54.) He affirmed
that the bones were at full strength, that Mr. Krummel had one hundred
percent range of motion, the same flexibility as in his uninjured leg,
and no orthopedic impairment. He noted that a complaint of pain so disproportionate
to the results of the diagnostic tests did not mean that Mr. Krummel was
"faking it" or that he did not "feel" pain. (Hontas Depo. at 64-65).
Dr. Hontas opined that it was more probable
than not that Mr. Krummel was "not at the end of the road" with respect
to his leg. (Hontas Depo. at 67.) Dr. Hontas stated that prolonged standing
and working would increase any inflammation, but that no "significant inflammation
was seen." (Hontas Depo. at 68.) He flatly denied that the thickening of
the bone could explain Mr. Krummel's problems.
Dr. Joseph Rauchwerk, Mr. Krummel's orthopaedic
surgeon, testified that Mr. Krummel had difficulty walking on his left
heel and had pain in this heel, but that he had a normal gait. (Tr. at
269.) Dr. Rauchwerk reported tenderness in the damaged area, but normal
sensory response. (Tr. at 270.) Dr. Rauchwerk noted a decreased range of
ankle motion, but fully healed fibula and tibia. (Tr. at 270-71.) He ruled
out nerve entrapment and joint damage. (Tr. at 270.)
Dr. Rauchwerk saw signs of RSD. (Tr. at 273.)
However, he saw no disability. (Tr. at 276.) Several common indicators
of this dystrophy, skin changes, bone demineralization, and sensory abnormalities
(except for the scar area itself) were absent. (Tr. at 277-8.) The RSD,
if any, was in its first stages. (Tr. at 281.)
Mr. Krummel was referred to Dr. Alan Parr,
who concluded, via deposition, that Mr. Krummel suffered from RSD, based
on hyperpathia, allodynia, bluish appearance in his middle toes, and burning
pain. (Parr Depo. at 7.) However, Dr. Parr did not continue to treat Mr.
Krummel, and he could only say that he "thought" it was RSD. (Parr Depo.
at 12.) Dr. Parr stated that he needed to do two more tests to "clinch"
that Mr. Krummel suffered from RSD. However, Mr. Krummel refused to follow
the treatment plan of Dr. Parr. Upon leaving Dr. Parr's office, "Mr. Krummel
crumbled his prescription and threw them down on the floor and said a gun
. . . is easier and left," at which point Dr. Parr felt compelled to call
9-1-1. (Parr Depo. at 21.) Mr. Krummel did not make another appointment.
(Parr Depo. at 23.)
Dr. Parr testified that RSD is easier to treat
in its acute phase than in its prolonged, chronic phase when it becomes
"imprinted in the spinal chord." (Parr Depo. at 28.) If someone seeks treatment
for RSD soon after an accident, "I should be able to treat them pretty
much readily, and I think that they would get better, as opposed to [Mr.
Krummel]." (Parr Depo. at 29.) As of the eve of trial, Dr. Parr could recommend
implanting a spinal cord stimulator or possibly a sypathectomy procedure,
either costing roughly $25,000.
Plaintiffs also introduced deposition testimony
from Dr. William Barfield. Dr. Barfield examined Mr. Krummel once, and
concluded that there was no nerve entrapment and that while there was evidence
of weakness, a slight atrophy of the muscles, and some sensory decrease,
the deep tendon reflexes were equal, motor tone and strength appeared to
be fairly good, and other parts of his neurological exam appeared within
the normal limits. (Barfield Depo. at 9-10.) The rest of the examination
"appeared to be fairly normal." (Barfield Depo. at 10.) He concluded that
Mr. Krummel suffered from "a pain syndrome resulting from traumatic and
surgical procedures," a "severe painful experience evolving from a medical
injury or condition," and moderate to severe pain "associated with disability
and requirement [sic] of medications or other modalities of treatment."
(Barfield Depo. at 10, 14-15.)
Defendant introduced the results of a nerve
conduction study showing normal nerve conduction for the left perineurial,
sensory, psurosensory, motor and posteria tibia motor nerves. (Tr. at 92.)
Mr. Krummel first sought psychiatric care
in 1992 from Dr. Joyce Siegrist, who treated him for depression. (Tr. at
88.) On cross-examination, Mr. Krummel admitted telling Dr. Siegrist that
he had been a nervous person all of his life, that he had great difficulty
sleeping for the three years prior, and that he had checked into the hospital
for an anxiety attack, thinking it was a heart attack. (Tr. at 87.)
Dr. Milton Harris testified that he began
treating Mr. Krummel for psychiatric problems, focussing on depression
and anxiety, beginning in 1992. (Tr. at 88.) Dr. Harris admitted that Mr.
Krummel had been diagnosed with a panic disorder prior to the 1994 accident.
(Tr. at 256-57.) Prior to 1994, Mr. Krummel had, in Dr. Harris' words,
achieved "remission" and was "doing pretty well." (Tr. at 253.) However,
Dr. Harris admitted on cross that Mr. Krummel was suffering from anxiety
at the time of his last pre-accident visit. (Tr. at 262.)
Dr. Harris reported that after the accident,
Mr. Krummel was depressed, irritable, and not sleeping well. (Tr. at 254.)
In addition, Mr. Krummel complained "that he was having a lot of pain."
(Tr. at 255.) Dr. Harris acknowledged that Mr. Krummel refused to take
his medication or otherwise follow Dr. Harris' instructions. (Tr. at 262.)
Dr. Harris eventually discharged Mr. Krummel for refusing to follow through
with his recommendations. Mr. Krummel chose not to see another psychologist.
(Tr. at 79.) In response to the Court's questioning, Dr. Harris stated
that had Mr. Krummel followed an aggressive treatment, at roughly $60 per
visit, once a month for a year, he would likely have received psychiatric
remission. (Tr. at 267.)
The parties stipulated that Mr. Krummel's
medical expenses to date were $28,029.
Mr. Krummel testified that he suffers from
constant and severe burning on the bottom of his foot. (Tr. at 76.) He
claims that standing exacerbates this, and that he often removes his sock
and shoe to cool the foot down. He cited a downturn in his marriage. He
admitted that he had rejected surgeries suggested by Dr. Parr and by Dr.
Rauchwerk. (Tr. at 89-90.)
Mr. Krummel is and was at the time of the
accident employed as a plumber by the St. Tammany Parish School Board.
It is uncontested that he missed nine months of work due to the surgical
procedures necessitated as a result of his fracture. He has been able to
maintain his work with St. Tammany since returning, his work evaluations
have remained the same, and he has received his annual percentage raises.
(Tr. at 77, 82.) He is drawing roughly the same salary from St. Tammany
now as he was before the accident--$22,000 at the time of the accident
versus $24,000 now. (Tr. at 72.)
Mr. Krummel also had a side plumbing business,
Technical Plumbing,(14) which he began
operating in the early 1980's. He testified that beginning in the late
1980's the "economy fell" and "everything shut down," causing his business
to suffer. (Tr. at 37-38.) In fact, Technical was forced into bankruptcy.
(Tr. at 73.) He asserted that by the time of the accident it was "starting
up again pretty good." (Tr. at 38.) After the accident he has done very
little private business, and did not re-start Technical Plumbing. He claims
that this decline in Technical Plumbing has cost him roughly $10,000 a
year. (Tr. at 85.) However, he admitted on cross that he could not name
any year in which he actually made anything approaching $10,000 from his
side business. (Tr. at 83-85.) In fact, plaintiff listed his gross income
from his outside plumbing at $1,741, according to his 1992 Schedule C 1040
Form. (Pla.'s Ex 33 or Def. Ex. N.)
(41) Mr. Krummel's claim for lost side business
goes further. He stated that prior to the accident he planned to restart
a successful business with several trucks and employees. He seeks lost
future wages from the business he hoped to have been running.
The Court also heard testimony from the other
plaintiff in this matter, Ms. Krummel. She stated that after the accident,
Mr. Krummel was "not the same person," that he was "always in pain," and
that he often became quiet and removed himself from her presence. (Tr.
at 197.) At one point he left her for four days, and only since the accident
had the possibility of divorce been raised.
III. CONCLUSIONS OF LAW
(1) The Court has jurisdiction over this admiralty
and maritime matter pursuant to Federal Rules of Civil Procedure 9(h).
Despite Bombardier's objections, the Court
finds that evidence of Ms. Lester's accident was both relevant and admissible.
The same watercraft models was involved in all three incidents, and the
facts surrounding Ms. Lester's entrapment, especially in 1996, was substantially
similar to Mr. Krummel's.
The Court finds that entrapment caused by
the high footwell was the sole and proximate cause of Mr. Krummel's injury.
Having received no instruction or warning to the contrary, the Court does
not believe that Mr. Krummel burying his leg into the footwell in an attempt
to brace himself and keep from falling off, (Tr. at 111), was contributorily
negligent. Given the information available to him and the lack of any warning
regarding entrapment or the desirability of falling away from the watercraft,
the Court finds that his reaction was instinctive and a reasonable one
for an individual unexpectedly thrown off balance and beginning to fall.
The Court does not find that the 11-inch footwells
rendered the product defective in design, as that term is defined in the
Restatement (Third) of Product Liability § 2 (1998). Section 2(b)
holds that a product is defective when, at the time of sale, "the foreseeable
risks of harm posed by the product could have been reduced or avoided by
the adoption of a reasonable alternative design by the seller . . . and
the omission of the alternative design renders the product not reasonably
safe." While defects in manufacturing impose strict liability, analyzing
defects in design, as with inadequate warnings, requires "some sort of
independent assessment of advantages and disadvantages," and the "rationale
for imposing strict liability . . . does not apply." Id. at cmt.
a. Instead, the Restatement "test is whether a reasonable alternative design
would, at a reasonable cost, have reduced the foreseeable risks of harm
posed by the product and, if so, whether the omission of the alternative
design . . . rendered the product not reasonably safe." Id. at cmt.
d. Certainly the possibility of entrapment was foreseeable. As noted above,
Price specifically stated that "whether or not there would be entrapment
of the person's foot" was a consideration. (Tr. at 173.) In fact, entrapment
was his "first consideration." (Tr. at 319.) However, entrapment was but
one of several safety considerations that Bombardier apparently weighed
in selecting the footwell dimensions. For some of these, such as steering
and turning ability, support for the body, and protection against impacts,
especially from the side, lowering the footwell heights could well have
had a negative impact. "It is not sufficient that the alternative design
[a lower footwell] would have reduced or prevented the harm suffered by
the plaintiff [entrapment] if it would also have introduced into the product
other dangers of equal or greater magnitude [side impacts and less support
and handling ability]." Id. at cmt. f. The Court is therefore unwilling
to find that lowering the footwell heights or broadening the widths would
have, on the whole, made for a safer ride or that failing to do so made
the watercraft defective in design.(15)
However, the Court does find that the height
of the footwell posed definite risks and rendered the watercraft defective
due to Bombardier's failure to provide adequate instruction or warning
regarding the dangers associated with entrapment. Restatement (Third) of
Products Liability § 2(c) states that a product "is defective because
of inadequate instructions or warnings when the foreseeable risks of harm
posed by the product could have been reduced or avoided by the provision
of reasonable instruction or warnings . . . and the omission of the instructions
or warnings renders the product not reasonably safe." Subsection (c) parallels
the reasonableness test of subsection (b). See id. at cmt. i.
While "the defectiveness concept is more difficult
to apply to the warnings context," the Court is guided by factors such
as the foreseeability and gravity of the risk, the likelihood that an intermediary
will convey the information to the user, and the feasibility and effectiveness
of a direct warning to the user. Id. at cmt. i. Here, as discussed
below, the risk of entrapment was foreseeable. The gravity of potential
harm was significant. A warning, affixed to the watercraft and/or contained
in the promotional material, manual, or video, would almost certainly have
reached Mr. Krummel, who testified that he had reviewed this material before
riding. (Tr. at 63-64.) Such a warning would have alerted him to the existence
of the risk, so that he could have, by appropriate conduct during his ride,
reduced his chance of injury, see Restatement § 2 at cmt. i,
by not burying his feet in the footwell when he tipped but instead allowing
himself to fall free of the watercraft. This burial of his feet and failure
to allow himself to fall free is indeed the very action that Bombardier
argues would have avoided the injury. If this is so obvious to an experienced
manufacturer, they should share this information with the user. Had Mr.
Krummel been informed of the potential for entrapment, he could have made
an informed decision whether or not to purchase or use the product.(16)
Indeed, Mr. Krummel testified that he would not have bought the watercraft
had he known about the risk or entrapment, (Tr. at 64), and he sold the
watercraft after his injury. Therefore, the Court finds that the watercraft
was defective because of inadequate warning and instruction.(17)
Bombardier argues that because the design
characteristics of the footwell were clearly visible to Mr. Krummel, (Tr.
at 114), the danger of entrapment and the risks associated with burying
a foot were clearly visible as well, obviating the necessity of a warning.
While a seller "is not subject to liability for failing to warn or instruct
regarding risks and risk avoidance measures that should be obvious to,
or generally know by, foreseeable product users," Restatement § 2
at cmt. j, such a situation is not presented by the present case. The Court
finds that the risks and risk avoidance measures were not apparent to an
The risk of such entrapment should, however,
have been reasonably foreseeable to Bombardier.(19)
As a manufacturer, Bombardier is "held to the standard of an expert in
regards to its own product." Perkins v. Emerson Elec. Co., 482 F.
Supp. 1347, 1357 (W.D. La. 1980); see also Pavlides v. Galveston Yacht
Basin, Inc., 727 F. 2d 330, 337 (5th Cir. 1984). In fact, Bombardier's
extensive testing specifically included looking at "whether or not there
would be entrapment of the person's foot." (Tr. at 173.) After thorough
design studies and testing, Bombardier may have reasonably concluded that
the increased steering and turning ability, body support, comfort, and
protection against impacts that counsel for higher footwells outweighed
the risks of having the high footwell. Nevertheless, Bombardier failed
to warn Mr. Krummel and other consumers about the reasonably foreseeable
risk of entrapment.
Consumer expectations can also play a role
in failure-to-warn cases. See Restatement § 2 at cmt. n. Although
usually discussed in defect in design cases, just as "consumer expectations
regarding the product, including expectations arising from product portrayal
and marketing" can play a role, though not a determinative one, in defect-in-design
cases, id. at cmts. f & g, the Court finds the concept instructive
in analyzing a failure-to-warn issue. While not relying on any heightened
expectation theory for its holding, the Court notes that Bombardier's promotional
material touted "falling overboard" as "an expected part of the fun." Pla.'s
Ex. 45, Sea-Doo brochure, "Everybody's Doin' It Safely," at 20. (10)
The Court does not find that the existence
or placement of the touring seat, nor the presence or absence of a proper
warning regarding the placement of this touring seat, to be a factor impacting
the above analysis.
The Court finds that plaintiff's psychological
problems for the most part preexisted his injury. In addition, by disobeying
his treating psychiatrist's recommendations to the point where Dr. Harris
felt it necessary to release him as a patient, Mr. Krummel failed to adequately
mitigate his damages. The Court's finding is strengthened by the fact that
while in the care of Dr. Siegrist, Mr. Krummel's use of Prozac, the very
drug he refused to take with Dr. Harris, reduced his anxiety level, improved
his temper, and lessened his irritability. (Notes of Dr. Siegrist, 6/18/92,
Def. Ex. V.) Mr. Krummel even admitted to her that he had improved since
going on Prozac (Notes of Dr. Siegrist, 10/5/92, Def. Ex. V.) While the
Court concludes that plaintiff was entitled to the treatment described
by Dr. Harris as necessary to achieve remission, one $60 per session visit
once a month for a year, or roughly $720 in medical bills, he is not entitled
to significantly more for future psychological treatment, as such costs
should reasonably have been avoided by following Dr. Harris' course of
treatment. Obviously, refusal to accept psychological or psychiatric care
can be part of a person's illness. Nevertheless, the evidence does not
support this pathology in this case.
Mr. Krummel's medical expenses at the time
of trial are not in dispute. The parties stipulated to $28,029.
As to Mr. Krummel's future medical bills,
the Court again finds that the evidence is inconclusive as to whether plaintiff
is or will suffer from RSD. There is more than adequate evidence that much
of Mr. Krummel's pain is in fact psychosomatic. In addition, Mr. Krummel's
behavior in choosing not to follow his doctors' prescribed courses of treatment
has significantly increased the chance of and exacerbated the extent of
any permanent physical pain or disability he may suffer. As his own Dr.
testified, if someone seeks treatment for RSD soon after an accident, "I
should be able to treat them pretty much readily, and I think that they
would get better, as opposed to [Mr. Krummel]." (Parr Depo. at 29.) Therefore,
the Court is not inclined to saddle defendants with future damages that
Mr. Krummel could have avoided by following proper courses of treatment.
The parties have stipulated that Mr. Krummel
missed nine months of work as a plumber with the St. Tammany Parish School
Board due to his accident and subsequent surgical procedures. Nine months
lost wages at an average salary of roughly $23,000 translates into a loss
of earnings of approximately $17,250 from the Board.
Mr. Krummel claims to have suffered lost income
and future lost earnings potential as a result of the down turn of his
private plumbing business. The Court finds that Mr. Krummel has only shown
an outside income of roughly $1,800 a year prior to the accident. Beyond
mere hope, Mr. Krummel offered no evidence to show that his outside income
would have substantially increased but for the accident. Therefore, the
Court finds that even if plaintiff has been and will be permanently unable
to return to outside plumbing, his losses only amount to $18,000 (of which
$7,150 represents past losses).(16)
The Court finds that Mr. Krummel has sustained
and will continue to sustained some physical as well as mental pain and
suffering. The evidence presented to the Court justifies an award of $150,000,
of which $90,000 is attributable to the time prior to the trial and $60,000
is allotted for the future.
The Court finds that Ms. Krummel's loss of
service and companionship, recoverable under La. R.S. art 2315 and Yamaha
Motor Corp. v. Calhoun, 516 U.S. 199 (1996) is $30,000.
This is an admiralty case tried without a
jury pursuant to the Court's admiralty jurisdiction invoked by Federal
Rules of Civil Procedure 9(h). Accordingly, an award of prejudgment interest
on past damages is proper, with the starting date and rate of such damages
left to the sound discretion of the Court. See Doucet v. Wheless Drilling
Co., 467 F.2d 336 (5th Cir. 1972); see Marathon Pipe v. M/V
SEA LEVEL II, 806 F.2d 585 (5th Cir. 1986). The Court finds that an
award of prejudgment interest from the date of judicial demand is appropriate
in this case at a rate of 5.67% on plaintiffs' past damages.
On the basis of the foregoing findings of
fact and conclusions of law, the Court finds that the plaintiffs, Robert
Krummel and Patricia Krummel, have sustained damages due to defendants'
failure to warn them about the risk of leg entrapment in their Sea-Doo
GTX watercraft. Accordingly, Robert Krummel is entitled to recover from
defendants Bombardier, Inc. and Bombardier Corporation the following damages:
$24,400.00 for past earnings lost; $10,850.00 for future earnings lost;
$28,749.00 for past medical expenses; $90,000.00 for past pain and suffering;
and $60,000.00 for future pain and suffering. Patricia Krummel is entitled
to $15,000.00 for past loss of service and companionship, and $15,000.00
for future loss of service and companionship.
Additionally, Robert Krummel is entitled to
prejudgment interest on the above past losses totaling $143,149.00 at the
rate of 5.67% per annum from the date of judicial demand until the judgment
is satisfied, and post judgment interest at the legal rate on the above
itemized future losses totaling $70,850.00 from the date of judgment until
satisfied. Patricia Krummel is entitled to prejudgment interest on the
above past losses totaling $15,000.00 at the rate of 5.67% per annum from
the date of judicial demand until the judgment is satisfied, and post judgment
interest at the legal rate on the above itemized future losses totaling
$15,000.00 from the date of judgment until satisfied.
This is the judgment of the Court.
1. 1Judge Dennis
dissents and reserves the right to file written reasons.
2. 2The Appellees
pled causes of action only under the Louisiana products Liability Act and
the Restatement (Third) of Products Liability.
3. 3We reiterate
that he could have removed his foot from the footwell. Although the district
court refers to foot entrapment, the record clearly shows that the injury
occurred because Krummel intentionally buried his foot in the well, and
not because his foot was entrapped.
4. 4 A plaintiff
may not need to detail and to quantify the risk and utility of a product
where the product or the design feature in question is "relatively uncomplicated
and "must be such that a layman could readily grasp them." Lavespere,
910 F.2d at 184. In this case, the district court heard testimony that
footwell height and width impacted many aspects of the watercraft, including
ease of entry and exit, steering, support for the body, comfort, and buoyancy.
This being so, a layperson obviously could not have grasped the adequacy
of the footwell design and the need, if any, for warnings.
5. 5 See
Frank L. Maraist and Thomas C. Galligan, Louisiana Tort Law §
15-11(a), at 386 (1996)(The "reasonable care" LPLA § 2800.57(A) requires
"may differ from ordinary negligence because knowledge of the risk, at
least for purposes of the prima facie case, may be presumed. Thus the duty
upon the manufacturer is akin to, but technically is not, negligence, given
the burdens of proof.")
6. 6Judge Hand
did not assign numbers to the variables or factors or attempt to apply
the formula mathematically. As he explained in
Conway v. O'Brien,
111 F.2d 611, 612 (2d Cir. 1940): "All these [factors] are practically
not susceptible of any quantitative estimate, and the second two [the gravity
of the injury if it happens and the interest which must be sacrificed to
avoid the risk] are generally not so even theoretically. For this reason
a solution always involves some preference, or choice between a incommensurables,
and it is consigned to a jury because their decision is thought most likely
to accord with commonly accepted standards, real or fancied."
7. 7The result
is the same under the Restatement. Sections 2(b) and 2(c) governing design
defect and failure to warn cases "rely on a reasonableness test traditionally
used in determining whether an actor has been negligent." Restatement Third,
Torts: Products Liability § 1, comment a (citing Restatement Second,
Torts §§ 291-293). In this negligence analysis, the defendant-manufacturer
is held to the expert standard of knowledge available to the relevant manufacturing
community when the product was manufactured. Id. Even though §
2(b) requires a plaintiff to prove that a reasonable alternative design
would have reduced the foreseeable risks of harm to recover for a design
defect, that subsection does not require the plaintiff to produce expert
testimony in cases in which the feasibility of a reasonable alternative
design is obvious and understandable to laypersons, because expert testimony
is unnecessary to support a finding that the product should have been designed
differently and more safely. Id. at § 2, comment f. Moreover,
in both design defect and warnings cases a seller bears responsibility
to perform reasonable testing prior to marketing a product and to discover
risks and risk-avoidance measures; thus, a seller is charged with knowledge
of what reasonable testing would reveal. Id. at comment m. If testing
is not undertaken or is inadequate and results in a defect that causes
harm, the seller is subject to liability for that harm. Id.
La.R.S. 9:2800.59(B)("a manufacturer of a product shall not be liable for
damage proximately caused by a characteristic of the product if the
manufacturer proves that, at the time the product left his control,
he did not know and, in light of then-existing reasonably available
scientific and technological knowledge, could not have known of
the characteristic that cause the damage or the danger of such characteristic")(emphasis
9. 9As a general
rule, expert testimony is not necessarily required in order to prevail
in a products liability action based on a manufacturer's failure to provide
adequate warnings. See,
e.g., Marchant v. Dayton Tire
& Rubber Co., 836 F.2d 695, 700-01 (1st Cir. 1988); Cocco v.
Deluxe Systems, Inc., 516 N.E.2d 1171, 1174 (Mass.App.Ct. 1987), review
denied, 519 N.E.2d 595 (Mass. 1988); Dion v. Graduate Hospital of
University of Pennsylvania, 520 A.2d 876, 881 (Pa.Super.Ct. 1987);
Macri v. Ames McDonough Co., 512 A.2d 548, 552 (N.J.Super.A.D. 1986);
Billiar v. Minnesota Mining & Mfg. Co., 623 F.2d 240, 247 (2nd
Cir. 1980); Young v. Elmira Transit Mix, Inc., 383 N.Y.S.2d 729,
731 (N.Y. App. Div. 1976);
Rainbow v. Albert Elia Bldg. Co., 373
N.Y.S.2d 928, 931 (N.Y. App. Div. 1975); Black v. Public Service Elec.
& Gas Co., 265 A.2nd 129, 136 (N.J. 1970); cf. Restatement
Third, Torts: Products Liability § 2(b), comment f (even though the
plaintiff in a design defect case must prove that a reasonable alternative
design would have reduced the foreseeable risk of harm, subsection (b)
does not require the plaintiff to produce expert testimony in every case).
10. 10The prevailing
view seems to be that evidence of other accidents or complaints may be
admissible but is not necessarily required in a warning case because this
is but one way by which a plaintiff may prove the knowledge or foreseeability
of danger necessary to establish a duty to warn and to challenge a manufacturer's
claim that it was unnecessary to inform its buyers of its product's hazards.
See Am. Law Prod. Liab. 3d § 34:17.
11. 11Dr. Jacobsen
testified wholly within his area of expertise as accepted by the trial
court. Because he was not accepted by the trial court as an expert in watercraft
design, he was not allowed to compare or contrast risk of harm from foot
entrapment arising from of alternative designs -- testimony that would
have been primarily relevant to the design defect claim that the district
court rejected. However, Dr. Jacobsen testified regarding the risks posed
by the footwell design that was adopted and integrated into the watercraft
and that caused Mr. Krummel's leg fractures.
12. 12Mr. Krummel's
13. 13On redirect
she described her foot positioning as "fairly close" to Mr. Krummel's.
(Tr. at 21.)
14. 14For which
Mr. Krummel was the sole employee. (Tr. at 70.)
the Court to apply the Louisiana Products Liability Act ("LPLA"), the watercraft
would not be unreasonably dangerous in design. La. R.S. 9:2800.56 admonishes
a court to find unreasonable danger in design only if the likelihood and
gravity of damage from the design at issue outweighed the burden and adverse
affect of adopting an alternative design capable of preventing the damage.
Given all of the safety considerations discussed above, it is far from
clear that lowering the footwell heights would have, on the whole, made
the watercraft safer or that failing to do so made the watercraft unreasonably
dangerous in design.
16. 16The Restatement
notes that "the duty to provide warnings for informed decision making have
arisen almost exclusively with regard to . . toxic agents and pharmaceutical
products." Id. Thus, the Court does not rely on this duty in reaching
under the LPLA the watercraft was unreasonably dangerous because of inadequate
warning regarding the dangers associated with entrapment. La. R.S. 9:2800.57.
Bombardier failed to use reasonable care to provide an adequate warning
regarding the footwells and the danger of entrapment. The product was dangerous
to an extent beyond that which an ordinary user like the Krummels would
have or should have contemplated.
reasonable minds may differ as to whether the risk was obvious or generally
known, the issue is to be decided by the trier of fact." Restatement §
2 at cmt. j.
argues that entrapment was not foreseeable, based at least in part on its
position that it has sold 70,000 crafts with the identical hull design
between 1990 and 1995, and yet did not receive a single complaint until
after Mr. Krummel's accident, and only two or three since. (Tr. at 327.)
First, the Court finds that the risk of entrapment was foreseeable. Second,
the Court finds that Bombardier's inadequate procedures for logging such
complaints makes its claim of having received no prior to Mr. Krummel's
accident highly suspect.