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From Products Liability Law Daily, September 11, 2014

New trial ordered for injured infant in suit against car seat manufacturer

By Kathleen Bianco, J.D.

The Tenth Circuit Court of Appeals reversed a directed verdict in favor of an infant car seat manufacturer on a failure-to-warn claim stemming from an infant’s severe head injuries following a car crash after determining that the child’s parents had presented sufficient probative evidence on the elements of the claim to warrant submission to a jury. Additionally, the court affirmed a lower court decision admitting the videotaped deposition of an expert witness, finding that the witness was “unavailable” to testify because he was more than 100 miles from the place of the trial (A.H. v. Evenflo Company, Inc., September 10, 2014, Phillips, G.).

Background. Tony Hadjih’s four-month old son, A.H., was severely injured and permanently disabled as a result of an automobile accident. A.H. was properly secured and restrained in an Evenflo Discovery Infant 316 car seat when the vehicle he was in was struck on the passenger side by a truck. The car seat consisted of two pieces, a snap-in carrier and a base. At the time of the accident, the two-piece configuration of the car seat was being used. Upon impact, the infant carrier separated from the base with the child strapped in, sending it airborne into the back of the vehicle. The child suffered a skull fracture and severe traumatic brain injury that left him permanently impaired.

On his own and A.H.’s behalf, Hadjih sued Evenflo Company, Inc., the manufacturer of the car seat, alleging defective design and failure to warn. Even though Hadjih presented evidence showing that Evenflo knew or should have known that the car seats were prone to detach from their base, a federal district court directed a verdict for the manufacturer on the failure-to-warn claim. After a nine-day trial, a jury rendered a verdict in favor of the manufacturer on the design defect claim. At the conclusion of the trial, Hadjih requested a new trial, claiming that the court erred in directing a verdict on the failure-to-warn claim and allowing for the use of a videotaped disposition. The court rejected the motion for a new trial and Hadjih appealed.

Failure-to-warn claim. Under Colorado law, to survive a motion for a directed verdict on a failure-to-warn claim, a plaintiff must present evidence of the existence of a duty on the part of the defendant to warn buyers of any dangers that were known or should have been known, a breach of that duty by the defendant, and injury to the plaintiff resulting from that breach. Upon review of the record, the appellate panel determined that the plaintiffs had presented sufficient evidence on each element to warrant submission of the claim to the jury. Accordingly, the directed verdict on the failure-to-warn claim was reversed and remanded for a new trial.

Unavailability of expert witness. The plaintiff alleged that the district court erred when it allowed the admission of an expert witness’s videotaped deposition. Deposition testimony is normally inadmissible hearsay; however an exception exists for an “unavailable” witness. Under the applicable standard, a witness is deemed to be unavailable if the witness is more than 100 miles from the place of trial or outside of the United States, unless the witness’s absence was procured by the party offering the deposition. Here, while both parties agree that the witness was more than 100 miles from the place of trial, the plaintiff argued that the manufacturer had procured the witness’s absence. The appellate panel rejected the plaintiff’s claim and agreed with the lower court, finding that the manufacturer had not procured the witness’s absence only that it had elected not to procure his attendance. Consequently, the admission of the videotaped deposition was affirmed.

The case number is 13-1403.

Attorneys: Evan Douthit (Douthit Frets Rouse Gentile & Rhodes) for A.H. Dan Ball (Bryan Cave), H. Christopher Bartolomucci (Bancroft PLLC), and Michiko A. Brown (Wheeler Trigg O'Donnell) for Evenflo Company, Inc.

Companies: Evenflo Company, Inc.

MainStory: TopStory WarningsNews ExpertEvidenceNews EvidentiaryNews ChildrensProductsNews MotorEquipmentNews ColoradoNews KansasNews NewMexicoNews OklahomaNews UtahNews WyomingNews

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