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From Products Liability Law Daily, April 22, 2019

Tanning bed defect suit fails for lack of expert testimony

By Georgia D. Koutouzos, J.D.

Injured user’s own theories as to why the bed’s canopy had collapsed were not enough to rebut Kentucky’s no-defect presumption for older products.

A tanning salon customer who allegedly had injured his shoulder when the canopy lining of a tanning bed fell on him as he was using the bed failed to support a defective product claim against the equipment’s manufacturer, a Kentucky federal court determined. The customer failed to offer any expert testimony supporting the existence of a defect in the bed, the court found, granting summary judgment favoring the manufacturer because the customer’s own opinion as to the asserted defect was insufficient (Hill v. Express Tan, Inc., April 18, 2019, McKinley, J.).

While using a tanning bed in a tanning salon, a customer allegedly sustained injuries to his shoulder when the acrylic screen lining the canopy collapsed on top of him. Manufactured by J&K Products & Services, Inc., the at-issue tanning bed had been sold to a distributor that, in turn, sold it to Express Tan, Inc., the operator of the tanning salon where the injury allegedly occurred. Prior to the injury, the bed had been placed "out of service" by Express Tan employees due to complaints from customers that the canopy lining had fallen, but the staff had tightened the screw that attached the acrylic screen to the canopy and had placed it back into service.

As a result of his injury, the customer filed suit in Kentucky state court against J&K, the distributor, and Express Tan. Among the claims asserted in his action were defective design/manufacture against J&K as well as negligence and premises liability against Express Tan. Express Tan removed the lawsuit to federal court, after which J&K moved for summary judgment, maintaining that the tanning bed was presumptively non-defective under Kentucky law and that the bed had been altered and modified by Express Tan.

No-defect presumption. Under Kentucky’s products liability law, until rebutted by a preponderance of contrary evidence, it is presumed that the subject product is not defective if the injury, death, or property damage occurred either more than five years after the date of sale to the first consumer or more than eight years after the date of manufacture. In the case at bar, the alleged accident had taken place more than eight years after the tanning bed’s manufacture date and more than five years after its sale to Express Tan. Therefore, the presumption existed that the tanning bed had been manufactured or designed without any defects.

The injured customer attempted to rebut that presumption through his own deposition testimony, specifically stating that the tanning bed was defective because: (1) the owner’s manual of the tanning bed contained an erroneous instruction on how to latch the acrylic lid after changing the halogen accent bulbs; (2) to install the acrylic screen, the retention latch had to be turned counter clockwise, which was inconsistent with the "righty tighty, lefty loosy" mnemonic; and (3) tanning bed bulb screens do not collapse absent a defect. However, the record did not reflect that he had any expertise in tanning bed design/manufacturing or any other related scientific/technical field that would permit him to offer an opinion of whether the tanning bed had a defect that led to his claimed injuries.

Expert testimony. Expert witnesses generally are necessary in a Kentucky products liability case to prove the presence of a defect and, in the instant case, the customer failed to retain an expert to inspect the tanning bed or offer opinions on the tanning bed design or manufacture, sufficiency of instructions, causation, and foreseeability. Because an ordinary person is not familiar enough with the principles of tanning bed design or manufacturing to know if a defect exists in the tanning bed or the instructions, without expert testimony on any defect related to the tanning bed, the jury would be left to speculate as to whether the acrylic screen fell because of defective design or manufacturing.

Product defect. Further, contrary to the injured man’s argument, just because the accident had occurred did not automatically mean that the tanning bed was defective. He provided no evidence in the record to eliminate all other possible theories as to why the acrylic screen had fallen on him. In fact, he even acknowledged that he was not able to determine the exact cause of the failure because he had not been able to inspect the tanning bed immediately after his injury. Consequently, because the customer failed to provide sufficient evidence of the existence of a defect in the tanning bed, summary judgment favoring the manufacturer was warranted.

The case is No. 1:16CV-00175-JHM.

Attorneys: Gary S. Logsdon (Gary S. Logsdon & Associates, PSC) for Stuart Hill. Anthony M. Pernice (Reminger Co., LPA) for Express Tan, Inc. John G. McNeill (Landrum & Shouse, LLP) for J&K Products & Services, Inc.

Companies: Express Tan, Inc.; J&K Products & Services, Inc.

MainStory: TopStory DesignManufacturingNews IndustrialCommercialEquipNews MedicalDevicesNews ExpertEvidenceNews KentuckyNews

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