An Unreasonable Example of Reasonable Alternative Design? - Osorio v. One

Transcription

1 An Unreasonable Example of Reasonable Alternative Design? - Osorio v. One World Technologies, Inc. Is a manufacturer required to make the safest possible product, even at the expense of design and function? Can an inventor create a market for his product through expert testimony? A recent First Circuit opinion, Osorio v. One World Technologies Inc., may have answered both of these questions at a detriment to the manufacturer WL (1st Cir. October 5, 2011). Carlos Osorio worked as a hardwood floor installer in Medford, Massachusetts. Having never previously operated a table saw, Osorio was trained by his employer and coworkers in the use of the company s 10 Ryobi Model BTS 15 benchtop table saw (the BTS 15 ). In April of 2005, while cutting a piece of floorboard lengthwise to make it narrower ( ripping ), Osorio s left hand slipped into the saw s blade and caused him to sustain severe injuries. At the time of his injury, Osorio had removed two safety mechanisms from the saw, a blade guard to protect the operator s hands and a rip fence to assist in making a specific cut. Id. at *1. Osorio filed a diversity suit in the United States District Court for the District of Massachusetts against One World Technologies, Inc., Ryobi Technologies, Inc. (jointly referred to as Ryobi ) and Home Depot U.S.A., Inc. ( Home Depot ), alleging negligence and breach of the implied warranty of merchantability. In the complaint, Osorio alleged that the BTS 15 was defectively designed because it failed to incorporate flesh detection technology which would have minimized the severity of his injury. Id. An eight day jury trial began in February, See Osorio v. One World Technologies, Inc., 716 F. Supp. 2d 155 (D. Mass. 2010). Osorio s case largely rested on the testimony of Dr. Stephen Gass, the inventor of SawStop. Osorio, 2011 WL at *1. When incorporated {C } 1

2 into a table saw, SawStop sends a small electric signal through the spinning blade that prevents it from coming in contact with a human body. Because human bodies are efficient conductors of electricity, if a hand or other body part comes into contact with the blade, the signal is interrupted and a brake is instantaneously engaged. The brake itself is a block of aluminum attached to a heavy-duty spring. When the digital sensor is tripped, the spring is released and the aluminum brake is thrust into the underside of the spinning saw blade. The blade s own momentum causes it to retract into the cabinet and the saw shuts itself off. The whole process takes about 1/200 th of a second and the intent is that the operator will suffer nothing more than a nicked finger. However, the saw blade and the braking mechanism are both destroyed in the process and must be replaced for the table saw to be operational again. Dr. Gass himself is intimately familiar with the table saw industry. He has been unsuccessfully trying to sell SawStop technology to major power tool companies for the past ten years. [Plaintiff s counsel apparently tried to connect Ryobi with an alleged ten-year power tool manufacturer conspiracy to keep flesh-detection technology off the market. Id. at *7.] Thereafter, Dr. Gass created his own line of table saws, starting at $1,599, all of which incorporate SawStop. Dr. Gass markets his products primarily through trade shows and in a series of viral videos in which he uses hotdogs, simulating human fingers, to showcase his invention. In recent years, he has taken to using his own finger to demonstrate SawStop s effectiveness. Dr. Gass is also a patent attorney who has protected SawStop with over a dozen patents. The defense argued that SawStop failed to represent a feasible or reasonable alternative design. The BTS 15 was marketed as a lightweight, portable and inexpensive job-site table saw. The defense argued that SawStop technology, although mechanically impressive, would have drastically altered these characteristics. First, adding the SawStop components to the BTS 15 {C } 2

3 would significantly increase the unit s weight, thereby decreasing its portability. Second, SawStop technology is subject to nuisance trips in which the braking mechanism accidentally engages when cutting wet or pressure treated wood, which limits its use outdoors. Finally, and most important to the defense, adding the technology would nearly double the cost of the saw. The BTS 15 was priced at $179, making it one of the cheapest table saws on the market. Dr. Gass himself testified that incorporating SawStop into the BTS 15 would add an additional $150 to the cost of the saw. This includes the cost of the components and, according to reports, an eight percent licensing/royalty fee on the wholesale price of each saw. Further adding to the operating cost of the saw, each nuisance trip would require the saw owner to replace the SawStop braking mechanism and the saw blade at his own expense. Osorio, 716 F. Supp. 2d at At the close of evidence, the judge refused to find that SawStop technology was, as a matter of law, an unreasonable proposed alternative design and left the determination for the jury. A verdict was returned in favor of Osorio and against Ryobi on both courts, but Home Depot escaped any liability; the jury apparently accepted SawStop as a reasonable alternative design. Having originally sought $250,000 in damages, Carlos Osorio was awarded $1.5 million. Although he was found to be thirty-five percent at fault in the accident, Osorio s award was not reduced because Ryobi was held to liable for breach of the implied warranty of merchantability. Post-trial motions for a new trial and judgment as a matter of law by the defense were denied. Id at 156. Ryobi appealed the case to the First Circuit Court of Appeals arguing, inter alia, that Osorio failed to present sufficient evidence in support of the jury s verdict in his favor on design defect grounds and that the suit should have been barred as an attempt at categorical liability, i.e., {C } 3

4 that that addition of the SawStop technology would have resulted in a larger, heavier and more expensive saw, essentially changing the small, light, and inexpensive BTS 15 drastically. Osorio, 2011 WL at *1. The Court of Appeals agreed that the proposed alternative design would significantly increase the weight and cost of the BTS 15. Nonetheless, the Court went on to hold that, in the given situation, the reasonableness of the alternative design fell properly within the province of the jury because of the amount of evidence offered by each side at trial. Id. at *3-4. Under Massachusetts law, which is consistent with nearly all of the principles expressed in Section 402A of the Restatement (Second) of Torts, competing factors should be balanced when deciding reasonableness of design. Marchant v. Dayton Tire & Rubber Co., 836 F.2d 695, (1st. Cir. 1988). The factors relevant when assessing the suitableness of a product s design include: [1] the gravity of the danger posed by the challenged design, [2] the likelihood that such danger would occur, [3] the mechanical feasibility of a safer alternative design, [4] the financial cost of an improved design, and [5] the adverse consequences to the product and to the consumer that would result from an alternate design. Back v. Wickes Corp., 378 N.E.2d 964, 970 (1978) (quoting Barker v. Lull Eng g Co., 573 P.2d 433 (1978)). The opinion stated that not all of these factors must be met by the alternate design to establish the plaintiff s prima facie case. Osorio, 2011 WL at *3. Finally, the court noted that Massachusetts product liability law may tolerate a finding of design defect even in the absence of evidence supporting the existence of a feasible alternative design. See Smith v. Ariens Co., 377 N.E.2d 954, 957 (1978). The Court of Appeals then turned to the categorical liability argument. Categorical liability claims, in which plaintiffs have sought to hold manufacturers accountable for entire {C } 4

5 categories of product, have traditionally been rejected by the courts. Under this theory, manufacturers would be held liable for injuries caused by allegedly inherently dangerous products even when those products had no manufacturing defect, no failure to warn and no reasonable alternative design available to avoid the injuries. Thus, liability is based merely on the dangerous nature of the device. Ryobi argued that rather than presenting a feasible alternative design, Osorio s argument implicates the entire category of inexpensive and lightweight benchtop table saws as defective since not a single manufacturer had incorporated flesh detection technology into their designs. Id. at *5. Ryobi, citing Dreisonstok v. Volkswagenwerk, A.G., further stated that it had the right to give more weight to design than just the issue of safety. 489 F.2d 1066 (4 th Cir. 1974). In Dreisonstok, the district court found that the Volkswagen microbus was defective because it was not as crashworthy as a standard passenger car. The Fourth Circuit reversed, finding that the microbus s specific features, namely maneuverability, low cost and its ability to transport people or cargo, made it appealing to many consumers. Id. at The court explained that these features involved apparent safety tradeoffs to be made by consumers and thus it denied to impose any type of strait-jacket on design. Id. at Citing two other cases, Ryobi contended that affirming Osorio s suit required a fundamental disregard of the defining characteristics of the product at issue. Osorio, 2011 WL at *6. In Wasylow v. Glock, Inc., a district court found summary judgment in favor of the defendant, a famous handgun manufacturer, because a proposed alternative design, although feasible and safer, would alter the product s functional purpose. 975 F. Supp. 370, 379 (D. Mass. 1996). Further, in Linegar v. Armour of America, Inc., the Eighth Circuit rejected an alleged design defect in a bullet proof vest that offered less coverage than other models because {C } 5

6 its characteristics, mainly greater mobility and heat dissipation, would have been compromised. 909 F.2d 1150, (1990). The court stated in Linegar that manufacturer[s] [are] not obligated to market only one version of a product, that being the very safest design possible. If that were so, automobile manufacturers could not offer consumers sports cars, convertibles, jeeps, or compact cars. Id. at Ryobi lost again. The Court of Appeals, referencing the Restatement (Third) of Torts, closed the door on the categorical liability argument by declaring that the absence of an alternative design is a defining characteristic of categorical liability theory. The Court of Appeals didn t even speak to the reasonableness of the proposed alternative design, merely that one design, any design, was offered by the plaintiff. The district court s decision was affirmed in full. Osorio, 2011 WL at *7-9. Adding insult to injury, twelve days after the First Circuit affirmed Osorio, the U.S. Consumer Product Safety Commission issued an advance notice of proposed rulemaking ( ANPR ) aimed at improving the safety of table saws. In the end, Ryobi suffered a one-two punch; a $1.5 million verdict almost immediately followed by the announcement of additional government regulations for its industry. Home Depot, although cleared of all liability in Osorio, found itself on the losing end of a different jury verdict a few months later in Powell v. The Home Depot U.S.A., Inc. 715 F. Supp. 2d 1285 (S.D. Fla. 2010). In Powell, Home Depot was found to have stolen a device which inventor Michael Powell, a longtime Home Depot Independent Contractor, had tried to sell the company for $4 million dollars. On top of a $15 million jury verdict, U. S. District Court Judge Daniel Hurley ordered Home Depot to pay the inventor $3 million in punitive damages, $2.9 {C } 6

7 million in legal fees and $1 million a year in interest. The invention at issue? A safety device for power saws. {C } 7